Plaintiff tried multiple ways to sue whitewater rafting company

Posted: June 24, 2013 | Author: Recreation Law | Filed under: Assumption of the Risk, Maryland, Whitewater Rafting | Tags: Boat, Common Carrier, Failure to Rescue, Federal Rule of Evidence, first aid, Laurel Highlands River Tours, MARYLAND, MD, Paddling, Raft, Raft guide, Recreation, Whitewater Rafting | Leave a comment

Plaintiff premises claims do not apply to a whitewater rafting company.

Sanders v. Laurel Highlands River Tours, Incorporated, 1992 U.S. App. LEXIS 15094 (4^th Cir 1992)

Plaintiff: James A. Sanders

Defendant: Laurel Highlands River Tours, Incorporated; Laurel Highlands River Tours of Maryland, Incorporated

Plaintiff Claims: (1) he properly presented a “failure to warn claim”; (2) Laurel was strictly liable as a common carrier; (3) the district court abused its discretion in refusing to permit him to supplement the medical expert’s affidavit; (4) the district court erred in finding that the original affidavits were insufficient; and (5) the district court erred in finding that he failed to offer proof from which a reasonable jury could find Laurel negligent in failing to rescue him sooner

Defendant Defenses: no duty to warn Sanders of the dangers of the white-water rafting trip; that he failed to produce evidence that Laurel breached a duty to rescue him at the earliest opportunity; and that he failed to establish causation as to his claim that Laurel failed to adequately treat his injury

Holding: for the defendant

The plaintiff in this case went whitewater rafting previously with the defendant. During his second trip, he fell out of the raft injuring his knee. He later developed a staph infection from the injury. Cases where the plaintiff argues the first aid care was improper or negligent are extremely rare. However, the court rules on a technicality that throws out the plaintiff’s first aid claim and does not provide us with any direction in this area of the law.

During the trip, the plaintiff fell out of the raft and swam about 100 yards until he was rescued. During the swim, he was injured when he struck his knee on something. An employee of the defendant applied an ice bag and an elastic bandage on the trip. The Plaintiff eventually went to a hospital where he was diagnosed with a laceration and a fractured knee cap. The plaintiff later had surgery but developed a staph infection.

The plaintiff asserted the raft guide had the opportunity to rescue him but “the raft guide instructed his companions not to attempt to retrieve him until they got to calmer water.”

The plaintiff filed suit claiming, “that Laurel breached a duty to warn him of the dangers of rafting and that Laurel failed to rescue him at the earliest opportunity. His main claim, as the district court perceived it, was that Laurel failed to render proper first aid, and this was the cause of his subsequent infection.”

Summary of the case

The Plaintiff was a citizen of Alabama. The defendant raft company was located in Pennsylvania. The river where the accident occurred is the upper Youghiogheny in Maryland. The plaintiff sued the defendant in Federal District Court. The parties agreed that a Maryland court, the state where the accident occurred was the proper site for the venue of the case.

This section of the Youghiogheny was described by the court as “most difficult of all categories of river runs.” The court made that determination by using a book that describes the rivers and ratings in the east. The court is silent on how this book was accepted by the court and introduced into evidence.

Most books like this are brought into the evidentiary change through the Federal Rule of Evidence (F.R.E.) 803(18) Learned Treatises. The rules of evidence control what evidence is introduced at trial both as documents or things and what witnesses may say. F.R.E. 803(18) states:

(18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

Normally, the rules of evidence require a person to prove the document or book as what the evidence is, and that it is real. If you were trying to introduce the raft company brochure as a piece of evidence, you would have to have the owner or a corporate officer of the company on the stand and testify that the brochure was the brochure.

A Learned Treatise is different in two ways. The first is you do not need the author or the publisher to admit the treatise, the book into evidence. If the treatise is relied upon by an expert witness, testified as a reliable authority in the field or recognized as the authority by the court or the general public, the information in the treatise is accepted in the case. The second issue is everything in the treatise is accepted without additional testimony. Normally, it might take two or three experts to examine a river section and applying the American Whitewater Associations rating system determine the river rating. However, a book that is generally accepted in the whitewater community or by a recognized expert in the field is accepted by the court as a learned treatise under F.R.E. 803(18). Once the book is admitted, every page and statement in the book is admitted.

An important point in most recreational cases is what information the plaintiff had to assist him in his decision to engage in the sport. If the information is lacking the plaintiff introduces the evidence to prove the defendant was hiding things or did not give proper notice of the release or the dangers. If the brochure does a good job of pointing out the risks and the requirements, the defense introduces the brochure into trial. In this case, the plaintiff was mailed a brochure by the defendant. The brochure was reviewed by the court, and the Court pointed out three points in the brochure.

1) Although we spare no effort to assure you a safe trip, it must be understood that whitewater rafting does include some danger. We can assume no responsibility for personal safety . . . . We will ask that you sign a liability form.

2. Experience is a must everyone in your group should have rafted the Cheat [a river classified as lower in difficulty than the upper Youghiogheny] several times at various water levels.

3. Upper Youghiogheny – advanced to expert level. The upper Youghiogheny . . . is the ultimate challenge in white-water rafting.

The defendant also gave the trip participants a safety talk, oral warnings as the court described them at the meeting point and at the river put in. The plaintiff denies hearing the warnings. However, the court referenced the warnings in the opinion giving credibility to them. Finally, the plaintiff signed a release for this trip; the second release signed by the defendant, which the court quoted from:

As a condition of acceptance, I certify that I am an able swimmer, in good health, and understand the sport of white-water rafting. I further understand the potential hazards of the sport of white-water touring and realize that I could fall out of the raft or even capsize in a raft in rough water (rapids). I realize this could possibly result in serious injury. I relieve and save harmless Laurel Highland River Tours, Inc., their Directors, Officers, Stockholders, Employees and Helpers, of any responsibility for all claims of any nature whatsoever . . . .

Failure to Rescue

The Appellate court adopted the District Court’s analysis and finding regarding the claim that the defendant was not rescued quickly. Because the only testimony about whether the rescue was quick enough was the plaintiff’s there was no proof to validate the claim. The court stated an expert witnesses needed to testify that the plaintiff should have been rescued sooner. The plaintiff’s statements were insufficient under Maryland law to prove a claim of negligence.

This claim and the court’s review did not investigate the issue of keeping the majority safe at the expense of one. In a raft and in some cases on a mountain, the guide must evaluate the risk of the rescue to the entire boat, not to the swimming customer. If rescuing the one customer in the river will put the entire boat at risk, the customer will swim a while longer. This point must be made and explained to your guests both in writing and in any safety talk. It is important for the customer in the water to know that their rescue is up to them. It is important for the people in the boat to understand they have to get the boat to a safe area and then rescue so they do not risk themselves needlessly or just quit paddling believing they should grab the swimmer.

Negligent in failing to render first aid.

The claim of negligently failing to properly render first aid is an extremely rare claim. The court again looked at the evidence presented and ruled the evidence was insufficient to meet a claim of negligence; “that the medical evidence failed to show that the infection was caused by improper first aid.” By this court the court stated, there was nothing but the plaintiff’s allegations about how he was injured. Courts want expert testimony from people in the field to rule on scientific, technical or areas of information outside of the general knowledge of the public.

Failure to Warn

The plaintiff argued that the defendant failed to “warn Sanders [the plaintiff] of the extreme danger of the particular section of river they would be traversing.”

The court first examined whether there was a general duty to warn in a non-landowner liability case. The court found that a general duty to warn exists in numerous situations. The court used the example that a stable had a duty to warn a rider of a horse with dangerous propensities.

To establish a duty to warn, the court must look at the following factors: “foreseeability and certainty of harm; policy of preventing harm; closeness of connection between conduct and harm; moral blame; burden on defendant; and insurability.” Looking at the factors the court determined that “A white-water outfitter who arranges and guides customers on rafting trips owes a general duty of care to its customers. The general duty may require, in some circumstances, that Laurel provide a warning to its patrons.”

The warnings that the defendant gave the plaintiff were adequate as a matter of law according to the court. Warnings only need to be reasonable, not the best warnings possible. The court also found the plaintiff had notice of the risks because he had taken a prior whitewater rafting trip and because the risks of whitewater rafting are obvious: “…the general danger of white-water rafting is a risk apparent to anyone about to embark on such a trip.”

Finally, the court determined that the plaintiff’s claim that whitewater rafting was a common carrier, and thus due to a higher standard of care was without merit. By this the court meant, there was no legal or factual basis to discuss the issue.

So Now What?

There is no real information you can take from this case that we have not previously discussed. However, it does show how far some plaintiffs will go to get around and sue for an injury. The defendant had done a good job of putting out to the public information on the risks of the activity which allowed the court to make the decisions to deny the plaintiff’s claims.

Other Common Carrier Cases

WA Zip line lawsuit dismissed because the plaintiff admitted he should have understood the risk http://rec-law.us/L3IfG1

Electronic release upheld in Florida federal court for surfing on a cruise ship http://rec-law.us/LPSLWS

New Hampshire season pass release protects ski area from claim for injury due to snowmobile accident http://rec-law.us/XaQSpf

What do you think? Leave a comment.

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

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

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

<rel=”author” link=” https://plus.google.com/u/0/b/112453188060350225356/” />

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Whitewater Rafting, Maryland, MD, First Aid, Common Carrier, Laurel Highlands River Tours, Failure to Rescue,

WordPress Tags: Plaintiff,whitewater,premises,Sanders,Laurel,Highlands,River,Tours,LEXIS,James,Defendant,Maryland,Claims,failure,carrier,district,discretion,affidavit,affidavits,jury,Defenses,dangers,causation,injury,knee,infection,Cases,direction,area,yards,employee,hospital,laceration,surgery,companions,Summary,citizen,Alabama,Pennsylvania,accident,Youghiogheny,Federal,Court,venue,categories,determination,rivers,ratings,Most,Rule,Evidence,Treatises,extent,attention,examination,statements,periodicals,pamphlets,history,medicine,science,testimony,admission,person,brochure,owner,officer,Treatise,author,publisher,information,experts,American,Associations,system,Once,statement,decision,requirements,Although,effort,danger,Experience,Cheat,Upper,participants,warnings,opinion,acceptance,swimmer,health,rapids,Highland,Directors,Officers,Stockholders,Employees,Helpers,Rescue,Appellate,analysis,negligence,expense,mountain,boat,customer,guests,Negligent,allegations,Courts,areas,knowledge,Warn,landowner,situations,example,rider,horse,propensities,factors,policy,connection,customers,patrons,basis,plaintiffs,decisions,Common,lawsuit,Electronic,Florida,LPSLWS,Hampshire,XaQSpf,Leave,FaceBook,Twitter,LinkedIn,Recreation,Edit,Email,Google,RecreationLaw,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,Moss,Authorrank,Outside,Attorney,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,staph,upon,three,whether

Sanders v. Laurel Highlands River Tours, Incorporated, 1992 U.S. App. LEXIS 15094 (4th Cir 1992)

Posted: June 24, 2013 | Author: Recreation Law | Filed under: Assumption of the Risk, Legal Case, Maryland, Whitewater Rafting | Tags: Common Carrier, Failure to Rescue, first aid, Laurel, Laurel Highland, Laurel Highlands River Tours, MARYLAND, MD, Raft, United States Court of Appeals, Whitewater Rafting, Youghiogheny River | Leave a comment

Sanders v. Laurel Highlands River Tours, Incorporated, 1992 U.S. App. LEXIS 15094 (4^th Cir 1992)

James A. Sanders, Plaintiff-Appellant, v. Laurel Highlands River Tours, Incorporated; Laurel Highlands River Tours of Maryland, Incorporated, Defendants-Appellees.

No. 92-1060

United States Court of Appeals for the Fourth Circuit

1992 U.S. App. LEXIS 15094

May 5, 1992, Argued

June 29, 1992, Decided

Notice: Rules of the Fourth Circuit Court of Appeals may limit citation to unpublished opinions. Please refer to the rules of the United States Court of Appeals for this circuit.

Subsequent History: Reported as Table case at 1992 U.S. App. LEXIS 22122

Prior History: Appeal from the United States District Court for the District of Maryland, at Baltimore. Frederic N. Smalkin, District Judge. (CA-91-1507-S)

Disposition: Affirmed

Counsel: Argued: Richard Evan Jordan, Washington, D.C., for Appellant.

Howard J. Schulman, Baltimore, Maryland, for Appellee.

Judges: Before Ervin, Chief Judge, Hamilton, Circuit Judge, and Howard, United States District Judge for the Eastern District of North Carolina, sitting by designation.

Opinion by: Per Curiam

Opinion

Per Curiam:

James A. Sanders appeals the order of the district court granting summary judgment in favor of Laurel Highlands River Tours, Inc. (Laurel) on his claims arising from injuries he received while on a white-water rafting trip. Sanders also appeals the district court’s denial of his motion for reconsideration of the judgment. The district court granted summary judgment on the grounds that Laurel had no duty to warn Sanders of the dangers of the white-water rafting trip; that he failed to produce evidence that Laurel breached a duty to rescue him at the earliest opportunity; and that he failed to establish causation as to his claim that Laurel failed to adequately treat his injury.

Although the district court erred in ruling that the theory of failure to warn, other than as applied to landowners, does not arise outside of the product liability context, we affirm its decision on the grounds that, as a matter of law, the warnings given to Sanders were adequate and he assumed the risk of undertaking the white-water rafting trip.

Laurel is a corporation engaged in the business of outfitting and guiding customers who wish to raft down rivers and their rapids in the Pennsylvania area. One of the guided white-water tours is on the upper portion of the Youghiogheny River in Western Maryland. This portion of the Youghiogheny is classified, according to an industry guide, as within the most difficult of all categories of river runs, suitable for experts. Armstead, Whitewater Rafting in Eastern North America, (2d ed. 1989).

Sanders contracted with Laurel for himself and three of his friends. This trip was not the first Sanders took. On October 24, 1987, Sanders went on a rafting trip with Laurel on the lower Youghiogheny, a run classified as lower in difficulty than the upper Youghiogheny. Prior to the lower Youghiogheny trip, Sanders signed a release of liability which stated in part that he “realized I could fall out of the raft or even capsize in rough water (rapids). I realize this could result in serious injury.” (Exhibit, Joint Appendix (J.A.) 34). On July 20, 1988, Sanders made the reservation for the upper Youghiogheny trip. Sanders concedes that he received, prior to this trip, a brochure that stated, in relevant part:

1)Although we spare no effort to assure you a safe trip, it must be understood that whitewater rafting does include some danger. We can assume no responsibility for personal safety . . . . We will ask that you sign a liability form. (J.A. 44).

2.Experience is a must everyone in your group should have rafted the Cheat [a river classified as lower in difficulty than the upper Youghiogheny] several times at various water levels. (J.A. 40).

3.Upper Youghiogheny – advanced to expert level. The upper Youghiogheny . . . is the ultimate challenge in white-water rafting.

Sanders denies, and we accept for purposes of reviewing this summary judgment, that he heard the oral warnings that Laurel submits it gave about the dangers of white-water rafting in general and the upper Youghiogheny in particular. Laurel asserts that it gave such warnings at the meeting point for participants and the embarkation point at the river. There is no question, however, that Sanders signed a waiver and release card, before both the first trip and the ill-fated one. The card stated, directly above his signature and directly below information he filled out:

Laurel transported the customers to the drop-off point. At the drop-off point, the customers were given further instructions and outfitted with helmets and life preservers.

Early in the trip, Sanders fell out of the raft and claims he was forced to traverse approximately 100 yards of the rapids bodily. He asserts that, prior to his injury, there was an opportunity for him to be safely retrieved, but that the raft guide instructed his companions not to attempt to retrieve him until they got to calmer water. Sanders injured his knee at some point when he struck a rock and claims that he also suffered an open wound on the knee at that time. A Laurel employee rendered first aid which consisted of applying an ice cap and an elastic bandage to the injured area.

The next morning, Sanders went to an emergency room where he was treated and told to seek further care closer to home. The emergency room records indicate that he had an abrasion and a fractured knee cap. He later had surgery performed on his knee to repair the fracture. Four days later, Sanders developed a staph infection in the upper thigh.

Sanders does not claim that Laurel owed him a duty to prevent him from falling out of the raft. He does assert that Laurel breached a duty to warn him of the dangers of rafting and that Laurel failed to rescue him at the earliest opportunity. His main claim, as the district court perceived it, was that Laurel failed to render proper first aid and this was the cause of his subsequent infection.

The parties focused much of their pre-trial efforts on the purported release which Sanders signed prior to the trip. The district court, however, found it unnecessary to consider this issue.

First, the district court found that the only basis for the claim that he should have been rescued sooner was Sanders’ opinion. The district court ruled that such an opinion concerning when it was safe to get Sanders back into the raft probably required the testimony of an expert, but even if it did not, Sanders’ statements were mere “adjectival descriptions” which, under Maryland law, would be insufficient to prove negligence. (Order, J.A. 254). Sanders’ second claim for relief was that Laurel’s employee was negligent in failing to properly render first aid to him because his wound was not properly cleaned. Here the district court focused on the medical evidence concerning causation, finding that the medical evidence failed to show that the infection was caused by improper first aid.

Sanders filed a motion for reconsideration and attached a supplemental affidavit from one of his medical experts in which the expert specifically opined that the lack of first aid was the cause of the subsequent staph infection. Sanders also claimed that the district court failed to consider his “failure to warn claim.” This failure to warn claim was based on Laurel’s supposed duty to warn Sanders of the extreme danger of the particular section of river they would be traversing.

The district court in its order on reconsideration noted that a “failure to warn” theory of recovery, outside of the landowner liability context, was limited in application to product liability cases. In addition, the district court refused to give Sanders a”second bite at the apple” by supplementing the medical expert’s affidavit. To do so, the court felt, would substantially diminish the purpose and utility of summary judgment.

Sanders appeals on the grounds that: (1) he properly presented a “failure to warn claim”; (2) Laurel was strictly liable as a common carrier; (3) the district court abused its discretion in refusing to permit him to supplement the medical expert’s affidavit; (4) the district court erred in finding that the original affidavits were insufficient; and (5) the district court erred in finding that he failed to offer proof from which a reasonable jury could find Laurel negligent in failing to rescue him sooner.

Laurel argues on appeal against these assertions. It also contends that it was not liable as a matter of law because Sanders knew of the danger and voluntarily assumed the risk, because Sanders agreed, before his injury, to unconditionally release Laurel from any liability, and because Laurel adequately warned Sanders of the dangers involved.

Sanders, a citizen of Alabama, brought this suit in federal court against Laurel, a corporate citizen of Pennsylvania, on the basis of diversity. The parties agreed that the law of the locus, Maryland, applied to the action.

[HN1] Appellate review of the granting of a party’s motion for summary judgment is de novo, and the court of appeals uses the same standard as the district court. Charbonnages de France v. Smith, 597 F.2d 406 (4th Cir. 1979).

Initially, it must be noted that the district court erred in holding that a defendant can have no duty to warn outside of landowner and product liability law. See, e.g., Eisel v. Bd. of Educ. of Montgomery Co., 597 A.2d 447 (Md. 1991) (holding that the failure of a school counselor to inform parents of a student’s suicide ideation was grounds for liability of the school); B.N v. K.K., 538 A.2d 1175 (Md. 1988) (holding that the failure of a person to warn his sexual partner that he had genital herpes was grounds for liability for transmission of the disease). [HN2] A duty to warn does extend beyond product liability or landowner liability cases if a warning is called for as a result of one party’s general duty to another.

For example, the owner of a horse with a known dangerous propensity must warn a rider of that danger since that is the appropriate way for him to respond to his duty to his customer. See, e.g., Bass v. Quinn Robins Co., 216 P.2d 944 (Idaho 1950). An airline has a duty to warn a passenger of turbulence it knows is likely to occur. Brittain v. Piedmont Aviation, Inc., 120 S.E.2d 72 (N.C. 1961). An airline may have a duty to warn of conditions of flight if it knows they may affect a passenger with a particular sensitivity to those conditions. Paolone v. American Airlines, Inc., 706 F. Supp. 11 (S.D. N.Y. 1989).

In Eisel, the court discussed [HN3] the factors under which a tort duty arises; these factors are: foreseeability and certainty of harm; policy of preventing harm; closeness of connection between conduct and harm; moral blame; burden on defendant; and insurability. 597 A.2d at 452-55. A white-water outfitter who arranges and guides customers on rafting trips owes a general duty of care to its customers. The general duty may require, in some circumstances, that Laurel provide a warning to its patrons. We decline to hold, as the district court effectively does, that Laurel has no duty to warn of the danger of the rafting trip it sells to its customers.

In this case, however, the error proved harmless because the warnings given, as a matter of law, were adequate. ^* The district court based its opinion on the proposition that there was no duty to warn. Because the record is clear and the facts apparent, however, we need not remand for consideration. Cf. Federal Deposit Insur. Corp. v. Jones, 846 F.2d 221 (4th Cir. 1988).* The district court correctly noted that the warnings Laurel gave were adequate as a matter of law and that the general dangers of white-water rafting are apparent. However, it assumed for purposes of summary judgment that this was not the case and based its holding on other grounds.

There can be no real dispute that Laurel gave Sanders adequate warnings of the hazards of white-water rafting in general and the enhanced hazards of rafting the upper Youghiogheny in particular. Warnings need only be reasonable, they need not be the best possible warnings in the circumstances. Nolan v. Dillon, 276 A.2d 36 (Md. 1971). In this case, Laurel provided several warnings of the general risks and at least one specific warning that Sanders could fall out and be injured. A more specific or adequate warning could not be required.

Furthermore, it is uncontestable that Sanders had previously been on a white-water rafting experience and had twice signed release cards that specifically warned of the dangers of falling out, capsizing and injury. Even if Sanders neither heard nor read the many warnings given him, the general danger of white-water rafting is a risk apparent to anyone about to embark on such a trip. See Saenz v. Whitewater Voyages, Inc., 226 Cal. 3d 768, 276 Cal. Rptr. 672 (1st Dist. 1990).

Given the obviousness of the general risks involved, the warnings given of the specific risk from which Sanders was injured, and his previous rafting experience, Sanders assumed the risk of his injury. [HN4] Under Maryland law, participants assume the obvious and apparent risks of engaging in such sports. Nesbitt v. Bethesda Country Club, 314 A.2d 738 (Md. App. 1974). Clearly under Maryland law, if a plaintiff, as here, voluntarily exposes himself to a known danger of which he was warned or otherwise knows of, he has assumed the risk that danger poses. Gibson v. Beaver, 226 A.2d 273 (Md. 1967).

III

With regard to the claims that Laurel failed to rescue Sanders at the earliest opportunity and that it failed to render proper first aid, we have considered the briefs and the arguments of the parties and affirm on the reasoning of the district court. Sanders v. Laurel Highlands River Tours, Inc., No. CA-91-1507-S (D. Md. Nov. 15, 1991). We further find the claim that Laurel was strictly liable as a common carrier to be without merit. Accordingly, the decision of the district court is affirmed.

AFFIRMED

WordPress Tags: Sanders,Laurel,Highlands,River,Tours,LEXIS,James,Plaintiff,Appellant,Maryland,Defendants,Appellees,States,Court,Appeals,Fourth,Circuit,June,Notice,Rules,citation,opinions,Subsequent,History,Table,Prior,Appeal,District,Frederic,Smalkin,Judge,Disposition,Counsel,Richard,Evan,Jordan,Washington,Howard,Schulman,Appellee,Judges,Ervin,Chief,Hamilton,Eastern,North,Carolina,designation,Opinion,Curiam,judgment,injuries,denial,reconsideration,dangers,causation,injury,Although,theory,failure,landowners,product,context,decision,warnings,corporation,customers,rivers,rapids,Pennsylvania,area,Youghiogheny,Western,industry,categories,experts,Armstead,Whitewater,America,October,Exhibit,Joint,Appendix,brochure,effort,danger,Experience,Cheat,Upper,purposes,participants,waiver,card,signature,information,acceptance,swimmer,health,Highland,Directors,Officers,Stockholders,Employees,Helpers,instructions,helmets,life,preservers,yards,companions,knee,employee,room,abrasion,surgery,Four,infection,efforts,basis,testimony,statements,descriptions,negligence,Order,relief,Here,affidavit,recovery,landowner,addition,purpose,carrier,discretion,affidavits,jury,assertions,citizen,Alabama,action,Appellate,Charbonnages,France,Smith,defendant,Eisel,Educ,Montgomery,counselor,parents,student,suicide,person,transmission,disease,example,owner,horse,rider,customer,Quinn,Robins,Idaho,airline,turbulence,Brittain,Piedmont,Aviation,American,Airlines,Supp,factors,tort,policy,connection,patrons,error,proposition,Federal,Deposit,Insur,Corp,Jones,Nolan,Dillon,cards,Saenz,Voyages,Rptr,Dist,Given,Under,Nesbitt,Bethesda,Country,Club,Gibson,Beaver,arguments,himself,staph

Strava wins lawsuit claim it was responsible for cyclist death

Posted: June 11, 2013 | Author: Recreation Law | Filed under: Assumption of the Risk, California, Cycling | Tags: assumption of the risk, Berkeley California, Cycling, Flint, King of the Mountain, Law, Lawsuit, Litigation, Plaintiff, Strava, Summary judgment | Leave a comment

Hopefully, Strava can receive sanctions for defending against this stupid suit.

Background:

Strava is an online website where cyclists and/or runners can post their ride/run information, track changes, share their ride/run information and on certain sections of the country be rated as the “king” of the section. The plaintiff was king of the mountain which is the shortest amount of time to climb and descend.

The plaintiff lost his ranking as king of a mountain. He was attempting to regain this title when he was struck and killed by a car.

His family filed suit claim that Strava was liable.

Stupid right!

Strava filed a motion for summary judgment, which was granted by the court. Simply, the deceased assumed the risk of his injuries, or in this case, the plaintiff assumed the risk of his death. “Plaintiff’s claim is precluded as a matter of law because Mr. Flint impliedly assumed the risks of bicycling…” and “that the defendant (Strava) has shown that bicycling is an inherent risky activity.”

As part of its defense, Strava countersued the plaintiffs. I was never able to find a specific statement as to the claims of the countersuit. The status of those claims is unknown. However, I hope they are still alive and Strava can recover its costs and attorney’s fees for defending this action.

This from a guy who hates lawsuits, but once in a while, for both sides, it should be done.

See Strava wins dismissal of civil suit over Berkeley deathor One-year-old lawsuit against Strava dismissed

What do you think? Leave a comment.

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

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:www.recreation-law.com

Mobile Site: http://m.recreation-law.com

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

<rel=”author” link=” https://plus.google.com/u/0/b/112453188060350225356/” />

WordPress Tags: Strava,lawsuit,death,Background,runners,information,plaintiff,mountain,Stupid,judgment,injuries,Flint,defendant,plaintiffs,statement,status,attorney,action,lawsuits,dismissal,Berkeley,Leave,Twitter,LinkedIn,Recreation,Edit,Email,Google,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,James,Moss,Authorrank,author,Outside,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,Negligence,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,Litigation

RELEASE (Waiver) CHECKLIST

Posted: May 1, 2013 | Author: Recreation Law | Filed under: Assumption of the Risk, Release (pre-injury contract not to sue) | Tags: Assumption of risk, Checklist, Contract, Covenant not to sue, Document Management, Exculpatory Agreement, Exculpatory clause, Insurance, Law, Practice Management, Products, Release, Waiver | Leave a comment

What do I look for when evaluating releases or writing one?

If you are getting ready for your summer recreation business it is always a good idea to make sure your paperwork is up to date and ready to go. This is a checklist to help you check your release and make sure your release is doing more than wasting paper.

Not all of these clauses mentioned in the checklist may be needed. However, some of them are critical and they may all be modified based on your activity, program, employees, and ability to undertake the risks.

I’ve divided this checklist into three major parts:

· Required for your Release to be Valid: What is absolutely required

· Needed: What you should have for your release to be valid in most states

· What Your Release Cannot Have: What you should never have in your document

There are some subsections also that are fairly self-explanatory. This will probably not be in all releases, but may be required in your release based on what you are trying to accomplish or what you are doing.

Required for your Release to be Valid

Contract: The legal requirements for a contract are met if the release is signed

Updated Recently: Has your release been reviewed by an attorney in the past year or do you work with an attorney that updates you on changes you need to make to your release?

Notice of Legal Document: Does your release someplace on its face, give notice to the person signing it that they are signing a release or a legal document?

Parties: You have to identify who is to be protected by the release and who the release applies too.

Assumption of Risk Language: Does your release contain language that explains the risk of the activities the release is designed to protect litigation against.

Agreement to Assume Risks: Do your release have language that states the signor agrees to assume the risk

Magic Word: Negligence: Does your release have the signor give up their right to sue for negligence?

Plain Language: Is the release written so that it can be understood? Is it written in plain English?

Venue: Does your release have a Venue Clause?

Jurisdiction: Does your release have a Jurisdiction Clause?

Signatures: Does your release have a place for the signor to date and sign the release

Nothing in your marketing program invalidates your release.

Information to complete the continuing duty to inform

Items that may be Needed Dependent upon the Purpose of the Release

Parental Release

Product Liability Language

Release of Confidential Medical Information

Signor has viewed the Website

Signor has viewed the Videos

Signor has read the information

Signor has conveyed the necessary information to minor child

Reference to required Statute

Demo Language

Needed

Notice of Legal Document:

Notice of Legal Consequence: Does your release state there may be legal consequences to the signor upon signing?

Opening/Introduction: Does your release have an opening or introduction explaining its purpose

Assumption of Risk Language

Minor Injuries Noticed

Major Injuries Noticed

Death

Mental Trauma

Risks Not Associated with Activity

Required Statutory Notice

List Not Exclusive/ Exhaustive

Agreement to Assume Risks

Capable of Assuming Risks

Lost Personal Property

Drug & Alcohol Statement

Company Right to Eject/Refuse

Good Physical Condition

Able to Undertake

Good Mental Condition

Magic Word: Negligence

All Magic Words

Protects Against

Lost Money

Lost Time

Loss of Life

Medical Bills

Injuries

Indemnification Clause

Parent/Child

Spouse/Spouse

SAR

Medical Evacuation

Parties

Legal Entity

Employees

Officers/Directors

Agents

Volunteers

Other Participants

Other Parties

Participant Parties

Participant

Participant Spouse

Participant Children

Participant Heirs

Plain Language

Alternative Resolution

Arbitration

Mediation

Venue

In the US

Out of the US

Jurisdiction

Indemnification

Third party costs

First party costs

Severance Clause

How Release is to be interpreted

Liquidated Damages

Breach of Covenant of Good Faith

Misc. Clauses

Severance Clause

Enforceability post Trip

Copy as good as original

Photo Release

Adequate Insurance

Medical Release

Medical Transportation

Permission to release medical information

Waiver of medical confidentiality

Waiver of HIV status

Statement as to Insurance

Incidental issues covered

Previous Experience

Medical Condition

Read and Understood

Signatures

Participant Signature

Both Parent Signatures

Child Signature

Medical Insurance information

Overall Review

Plain Language: Readability Level ________

Adequate Typeface: Typeface Size _________

Readable

Release language in Plain English

Agreement that the document has been read

Agreement that the signor agrees to the terms

What Your Release Cannot Have

Places to Initial

Small Print

No heading or indication of the legal nature

No indication or notice of the rights the signor is giving up

Release Hidden within another document

Important sections with no heading or not bolded

Multiple pages that are not associated with each other

Miscellaneous Clauses your Release may Need

Electronic Signature Clause

Rental Agreement Clause

Alternative Resolution

Arbitration

Mediation

Demo Language

Understand use of Equipment

Accept Equipment As Is

Agree to ask questions about Equipment

Understand Demo Equipment has more Risk

Rental Language

More articles about releases.

Release/Waivers: The basics, the very basics! http://rec-law.us/AaqwqH

Releases 101 http://rec-law.us/xGL0I3

States that allow a parent to sign away a minor’s right to sue http://rec-law.us/z5kFan

States that do not Support the Use of a Release http://rec-law.us/zHGQsZ

What is a Release? http://rec-law.us/xMECTc

I found a release on the internet. It will work right! http://rec-law.us/14w6qeh

If you are interested in a Professional Review of your Release please let me know.

What do you think? Leave a comment.

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

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:www.recreation-law.com

Mobile Site: http://m.recreation-law.com

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

<rel=”author” link=” https://plus.google.com/u/0/b/112453188060350225356/” />

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Release, Waiver, Covenant not to sue, Exculpatory clause, Exculpatory Agreement, Contract,

WordPress Tags: RELEASE,Waiver,CHECKLIST,recreation,paperwork,paper,clauses,employees,Valid,subsections,self,Contract,requirements,attorney,Notice,Legal,Document,Does,person,Parties,Assumption,Risk,Language,litigation,Agreement,Assume,Risks,Magic,Word,Negligence,Plain,English,Venue,Clause,Jurisdiction,Signatures,Information,Items,Dependent,Purpose,Parental,Product,Confidential,Medical,Signor,Website,Videos,Reference,Statute,Demo,Consequence,consequences,Introduction,Minor,Injuries,Major,Death,Mental,Trauma,Statutory,List,Exclusive,Exhaustive,Capable,Lost,Personal,Drug,Alcohol,Statement,Company,Eject,Refuse,Physical,Condition,Able,Undertake,Words,Protects,Against,Money,Time,Loss,Life,Bills,Indemnification,Parent,Child,Spouse,Evacuation,Officers,Directors,Agents,Volunteers,Participants,Participant,Children,Heirs,Alternative,Resolution,Arbitration,Mediation,Third,Severance,Damages,Breach,Covenant,Faith,Misc,Trip,Copy,Photo,Adequate,Insurance,Transportation,Permission,status,Incidental,Previous,Experience,Read,Understood,Signature,Both,Overall,Review,Level,________,Typeface,Size,_________,Readable,Places,Initial,Small,Print,indication,Hidden,Important,Multiple,Miscellaneous,Electronic,Rental,Understand,Equipment,Accept,Agree,Waivers,basics,AaqwqH,Releases,States,Support,Professional,Leave,Twitter,LinkedIn,Edit,Email,Google,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,James,Moss,Authorrank,author,Outside,Tourism,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,Exculpatory,upon

Palmer v. Lakeside Wellness Center, 281 Neb. 780; 798 N.W.2d 845; 2011 Neb. LEXIS 62

Posted: April 8, 2013 | Author: Recreation Law | Filed under: Assumption of the Risk, Health Club, Legal Case, Nebraska, Release (pre-injury contract not to sue) | Tags: Alegent Health, Appeal, Appellant, Fitness Center, Gross negligence, Health club, Inc., Lakeside Wellness Center, Negligence, Precor, Release, Summary judgment, Treadmill, Waiver | Leave a comment

Palmer v. Lakeside Wellness Center, 281 Neb. 780; 798 N.W.2d 845; 2011 Neb. LEXIS 62

April Palmer, Appellant, v. Lakeside Wellness Center, Doing Business as Alegent Health, and Precor, Inc., Appellees.

No. S-10-974.

SUPREME COURT OF NEBRASKA

281 Neb. 780; 798 N.W.2d 845; 2011 Neb. LEXIS 62

June 24, 2011, Filed

PRIOR HISTORY: [***1]

Appeal from the District Court for Douglas County: JOSEPH S. TROIA, Judge.

DISPOSITION: AFFIRMED.

HEADNOTES

1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower court’s granting of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, the court views the evidence in the light most favorable to the party against whom the judgment was granted, and gives that party the benefit of all reasonable inferences deducible from the evidence.

3. Contracts: Parties: Intent. In order for those not named as parties to recover under a contract as third-party beneficiaries, it must appear by express stipulation or by reasonable intendment that the rights and interest of such unnamed parties were contemplated and that provision was being made for them.

4. Contracts: Parties. The right of a third party benefited by a contract to sue must affirmatively appear from the language of the instrument when properly inter preted or construed.

5. Negligence: Words and Phrases. Gross negligence is great or excessive negligence, which indicates the absence of even slight care in the performance of a duty.

6. Negligence. Whether gross negligence exists must be ascertained from the facts and circumstances of each particular case and not from any fixed definition or rule.

7. Negligence: Summary Judgment. The issue of gross negligence is susceptible to resolution in a motion for summary judgment.

COUNSEL: Heather Voegele-Andersen and Brenda K. George, of Koley Jessen, P.C., L.L.O., for appellant.

David L. Welch and Ashley E. Dieckman, of Pansing, Hogan, Ernst & Bachman, L.L.P., for appellee Lakeside Wellness Center.

Albert M. Engles and Cory J. Kerger, of Engles, Ketcham, Olson & Keith, P.C., for appellee Precor, Inc.

JUDGES: HEAVICAN, C.J., CONNOLLY, GERRARD, STEPHAN, and MCCORMACK, JJ. WRIGHT and MILLER-LERMAN, JJ., not participating.

OPINION BY: HEAVICAN

OPINION

[**847] [*781] Heavican, C.J.

INTRODUCTION

The appellant, April Palmer, was injured while on a treadmill at Lakeside Wellness Center (Lakeside). The district court granted summary judgment in favor of Lakeside, doing business as Alegent Health, and Precor, Inc. Palmer appeals. We affirm.

FACTUAL BACKGROUND

Palmer’s Accident.

Palmer and her husband joined Lakeside in November 2006. The accident occurred several months later, on March 7, 2007. On that date, Palmer approached the treadmill in question to begin her workout. Unaware that the treadmill belt was running, Palmer stepped onto the treadmill from the back and was thrown off the belt and into an elliptical training [**848] machine located behind [***2] her. During her deposition, Palmer stated that she looked at the treadmill’s control panel before getting on, but did not look at the belt of the treadmill. Palmer indicated that had she looked at the belt, she probably would have been able to see that it was operating, but that since she assumed the treadmill was off, she did not look further. According to Palmer, she thought the area was poorly lit, though she had never complained about it to any Lakeside staff members. And Palmer indicated that the facility was loud and that she was unable to hear whether the machine was operating.

This treadmill was located in a row of treadmills, and the treadmills to the right and left of the machine in question were [*782] being used at the time of the accident. In Palmer’s husband’s deposition, he testified that the woman on a neighboring treadmill told him she had been on that treadmill briefly before switching to the neighboring machine and had mistakenly thought she had turned it off.

Palmer’s Familiarity With Treadmills.

During her deposition, Palmer was asked about her exercise history and her familiarity with treadmills. Palmer testified that she and her husband had been members of other gyms prior [***3] to joining Lakeside. Palmer testified that she received instruction from a trainer after joining Lakeside, though she stated that she did not need specific instruction on how to operate a treadmill. According to Palmer’s testimony, she had been using treadmills for approximately 21 years. At the time of the accident, Palmer had been using the Lakeside facility at least 5 times a week and had used that actual treadmill 10 to 15 times total prior to the accident. Palmer also testified that she had a treadmill in her home.

Palmer’s Membership Agreement and Health History Questionnaire.

At the time Palmer and her husband became members at Lakeside, Palmer filled out and signed a membership agreement and a health history questionnaire. The membership agreement provided:

WAIVER AND RELEASE–You acknowledge that your attendance or use of [Lakeside] including without limitation to your participation in any of [Lakeside’s] programs or activities and your use of [Lakeside’s] equipment and facilities, and transportation provided by [Lakeside] could cause injury to you. In consideration of your membership in [Lakeside], you hereby assume all risks of injury which may result from or arise out of your [***4] attendance at or use of [Lakeside] or its equipment, activities, facilities, or transportation; and you agree, on behalf of yourself and your heirs, executors, administrators, and assigns to fully and forever release and discharge [Lakeside] and affiliates and their respective officers, directors, employees, agents, [*783] successors and assigns, and each of them (collectively the “Releasees”) from any and all claims, damages, rights of action or causes of action, present or future, known or unknown, anticipated or unanticipated, resulting from or arising out of your attendance at or use of [Lakeside] or its equipment, activities, facilities or transportation, including without limitation any claims, damages, demands, rights of action or causes of action resulting from or arising out of the negligence of the Releasees. Further, you hereby agree to waive any and all such claims, damages, demands, rights of action or causes of action. Further you hereby agree to release and discharge the Releasees from any and all liability for any loss or theft of, or damage to, personal property. You acknowledge that you have [**849] carefully read this waiver and release and fully understand that it is a waiver [***5] and release of liability.

The health history questionnaire signed by Palmer stated in relevant part as follows:

1. In consideration of being allowed to participate in the activities and programs of [Lakeside] and to use its facilities, equipment and machinery in addition to the payment of any fee or charge, I do hereby waive, release and forever discharge [Lakeside] and its directors, officers, agents, employees, representatives, successors and assigns, administrators, executors and all other [sic] from any and all responsibilities or liability from injuries or damages resulting from my participation in any activities or my use of equipment or machinery in the above mentioned activities. I do also hereby release all of those mentioned and any others acting upon their behalf from any responsibility or liability for any injury or damage to myself, including those caused by the negligent act or omission of any way arising out of or connected with my participation in any activities of [Lakeside] or the use of any equipment at [Lakeside]. . . .

2. I understand and am aware that strength, flexibility and aerobic exercise, including the use of equipment are a potentially hazardous activity. [***6] I also understand that fitness activities involve the risk of injury and even death, [*784] and that I am voluntarily participating in these activities and using equipment and machinery with knowledge of the dangers involved. I hereby agree to expressly assume and accept any and all risks of injury or death. . . .

Palmer sued Lakeside and Precor for her injuries, which generally consisted of an injured hand and chest. Both Lakeside and Precor filed motions for summary judgment, which were granted. Palmer appeals.

ASSIGNMENTS OF ERROR

Palmer assigns that the district court erred in (1) granting summary judgment in favor of Lakeside and Precor; (2) holding that the waiver and release contained in the membership agreement and health history questionnaire signed by Palmer were clear, understandable, and unambiguous; and (3) holding that Palmer assumed the risk of using the treadmill.

STANDARD OF REVIEW

[1] [HN1] An appellate court will affirm a lower court’s granting of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as [***7] a matter of law. ¹

1 Wilson v. Fieldgrove, 280 Neb. 548, 787 N.W.2d 707 (2010).

[2] [HN2] In reviewing a summary judgment, the court views the evidence in the light most favorable to the party against whom the judgment was granted, and gives that party the benefit of all reasonable inferences deducible from the evidence. ²

2 Id.

ANALYSIS

Waiver and Release.

Palmer first argues that the district court erred in finding that the waiver and release contained in the membership agreement and health history questionnaire she completed and signed when joining Lakeside were clear, understandable, and unambiguous. We read Palmer’s argument as contending that the waivers, [**850] while perhaps applicable to instances of ordinary negligence, [*785] could not operate to relieve Lakeside or Precor from gross negligence or willful and wanton misconduct. We further understand Palmer to argue that both Lakeside and Precor committed gross negligence or willful and wanton misconduct–Precor by delivering a treadmill without proper safety features, and Lakeside by not providing adequate space or lighting around the treadmill and by modifying the treadmill’s belt such that the treadmill became unsafe.

[3,4] Before reaching the merits [***8] of Palmer’s argument, we note that contrary to Precor’s argument, Precor is not protected from liability as a result of the waivers signed by Palmer. Precor contends in its brief that it is a third-party beneficiary of these waivers. This court recently addressed a similar issue in Podraza v. New Century Physicians of Neb. ³ In Podraza, we noted that we have traditionally strictly construed who has the right to enforce a contract as a third-party beneficiary.

[HN3] In order for those not named as parties to recover under a contract as third-party beneficiaries, it must appear by express stipulation or by reasonable intendment that the rights and interest of such unnamed parties were contemplated and that provision was being made for them. The right of a third party benefited by a contract to sue thereon must affirmatively appear from the language of the instrument when properly interpreted or construed.

Authorities are in accord that one suing as a third-party beneficiary has the burden of showing that the provision was for his or her direct benefit. Unless one can sustain this burden, a purported third-party beneficiary will be deemed merely incidentally benefited and will not be permitted [***9] to recover on or enforce the agreement. ⁴

3 Podraza v. New Century Physicians of Neb., 280 Neb. 678, 789 N.W.2d 260 (2010).

4 Id. at 686, 789 N.W.2d at 267.

A review of the record shows that Precor was not explicitly mentioned in the language of the waiver. Nor is there any other evidence that Precor was an intended third-party beneficiary. Precor has the burden to show its status as a third-party beneficiary, and it has failed to meet that burden. As such, Precor [*786] is not shielded from liability as a result of the waivers signed by Palmer.

Lakeside’s Gross Negligence or Willful and Wanton Conduct.

At oral argument, Palmer conceded that by virtue of these waivers, Lakeside was not liable to Palmer for damages caused by ordinary negligence. But, as noted above, Palmer contends that Lakeside is nevertheless liable, because its actions were grossly negligent or were willful and wanton.

Having examined the record in this case, we find that as a matter of law, Palmer’s allegations against Lakeside do not rise to the level of gross negligence. Palmer alleges that the Lakeside facility had inadequate lighting and inadequate spacing between equipment and that Lakeside’s employees modified the treadmill [***10] in question by installing a treadmill belt that did not contain markings.

[5-7] [HN4] Gross negligence is great or excessive negligence, which indicates the absence of even slight care in the performance of a duty. ⁵ Whether gross negligence exists must be ascertained from the facts and circumstances of each particular case and not from any fixed definition or rule. ⁶ [**851] The issue of gross negligence is susceptible to resolution in a motion for summary judgment. ⁷ We simply cannot conclude that the allegations against Lakeside–inadequate lighting and spacing and the installation of a new treadmill belt–rise to such a level. We therefore conclude that as a matter of law, any negligence by Lakeside was not gross negligence or willful or wanton conduct. As such, the district court did not err in granting Lakeside’s motion for summary judgment.

5 Bennett v. Labenz, 265 Neb. 750, 659 N.W.2d 339 (2003).

6 Id.

7 Id.

Precor’s Negligence.

We next turn to the question of whether the district court erred in granting summary judgment in favor of Precor. Because we concluded above that the waiver signed by Palmer did not [*787] act to relieve Precor from liability, we address whether there was a genuine issue of material [***11] fact on the issue of whether Precor breached any duty it had to Palmer.

In arguing that Precor was liable, Palmer alleges that Precor breached its duty by not equipping the treadmill with (1) a safety feature that would prevent the treadmill from operating when no one was on it and (2) handrails extending down the sides toward the back of the treadmill. Palmer originally argued that Precor was also liable because the belt on its treadmill failed to contain adequate markings, but it is this court’s understanding that Palmer no longer makes such allegations with regard to Precor because the belt on the treadmill at the time of the incident was not original to the treadmill and had been installed by Lakeside.

In response to Palmer’s allegations, Precor introduced evidence in the form of an affidavit from its director of product development, Greg May. May averred that at the time of manufacture and delivery, the treadmill met or exceeded the voluntary guidelines set by the American Society for Testing and Materials in that group’s international standard specifications for motorized treadmills in all ways, including handrails. Though there was no specific feature on this treadmill designed [***12] to stop the treadmill from running when no one was operating it, the machine was manufactured with a clip to be attached to the user’s clothing. The manual for this treadmill noted that “by taking this precaution, a tug on the safety switch cord trips the safety switch and slows the running speed to a safe stop.” May also averred that the treadmill in question left Precor’s control on July 29, 1999, or over 7 years prior to the date of the incident.

In addition to May’s affidavit, Precor also introduced photographs of the treadmill at issue, which photographs showed that the treadmill did have front handrails, though not side handrails.

In an attempt to rebut May’s affidavit and show a genuine issue of material fact, Palmer introduced the affidavit of a fitness consultant. That affidavit noted in part that

based on [the consultant’s] experience, in order for treadmills to meet appropriate safety standards from the late [*788] 1990s forward, treadmills should contain adequate safety features, emergency/safety stop mechanisms, warning labels, and markings on a treadmill belt. A treadmill should contain a safety stop mechanism such that the treadmill will turn off if no one is currently on the [***13] treadmill, adequate handrails extending towards the back of the treadmill and warning labels at the rear of the treadmill.

Even after drawing all reasonable inferences in favor of Palmer, we conclude that there is no genuine issue of material fact as to Precor’s alleged breach of duty. While the fitness consultant’s affidavit indicates that treadmills “should” contain [**852] various safety features, he does not speak in absolutes and does not refer specifically to this treadmill. On the other hand, May’s affidavit references the treadmill at issue in this case and details the safety features this treadmill possessed, as well as Precor’s compliance with all applicable, though voluntary, safety standards when manufacturing the treadmill. Because the record affirmatively shows that Precor did not breach any duty it owed to Palmer, we conclude that the district court did not err in granting Precor’s motion for summary judgment.

Assumption of Risk.

Palmer also argues that the district court erred in finding that she assumed the risk of injury when she used the treadmill. Because we conclude that the district court did not err in granting Lakeside’s and Precor’s motions for summary judgment for the [***14] foregoing reasons, we need not address Palmer’s assignment of error regarding the assumption of the risk.

CONCLUSION

The district court’s order granting summary judgment in favor of Lakeside and Precor is affirmed.

AFFIRMED.

Wright and Miller-Lerman, JJ., not participating.

WordPress Tags: Palmer,Lakeside,Center,LEXIS,April,Appellant,Alegent,Health,Precor,Appellees,SUPREME,COURT,NEBRASKA,June,PRIOR,HISTORY,Appeal,District,Douglas,JOSEPH,TROIA,Judge,DISPOSITION,HEADNOTES,Summary,Judgment,Error,inferences,Contracts,Parties,Intent,beneficiaries,stipulation,provision,instrument,Negligence,Words,Phrases,Gross,absence,performance,Whether,definition,COUNSEL,Heather,Voegele,Andersen,Brenda,George,Koley,Jessen,David,Welch,Ashley,Dieckman,Hogan,Ernst,Bachman,Albert,Engles,Cory,Kerger,Ketcham,Olson,Keith,JUDGES,HEAVICAN,GERRARD,STEPHAN,MCCORMACK,MILLER,LERMAN,OPINION,INTRODUCTION,treadmill,FACTUAL,BACKGROUND,Accident,husband,November,March,workout,Unaware,machine,panel,area,treadmills,woman,gyms,instruction,trainer,testimony,Membership,Agreement,Questionnaire,WAIVER,RELEASE,attendance,limitation,participation,equipment,facilities,transportation,injury,heirs,executors,administrators,officers,directors,employees,agents,successors,Releasees,action,Further,theft,machinery,addition,payment,injuries,omission,strength,death,knowledge,dangers,chest,Both,ASSIGNMENTS,STANDARD,REVIEW,Wilson,Fieldgrove,ANALYSIS,argument,waivers,instances,misconduct,beneficiary,Podraza,Century,Physicians,Authorities,status,Willful,Wanton,Conduct,virtue,allegations,markings,installation,Bennett,Labenz,fact,handrails,incident,response,affidavit,director,product,development,Greg,guidelines,American,Materials,specifications,Though,user,precaution,cord,consultant,mechanisms,mechanism,absolutes,references,compliance,Assumption,Risk,assignment,CONCLUSION,appellate,pleadings,whom,deducible,third,appellee,hereby,behalf

Hawaii’s deceptive trade practices act sends this case and release back to the trial court

Posted: April 1, 2013 | Author: Recreation Law | Filed under: Assumption of the Risk, Equine Activities (Horses, Donkeys, Mules) & Animals, Hawaii, Release (pre-injury contract not to sue) | Tags: Contract, Dahana Ranch, Deceptive Trade Practices, Defendant, equestrian, HI, Horse, horseback riding, Inc., Law, Plaintiff, stable, Summary judgment, Trial court, Waiver | Leave a comment

Courbat v. Dahana Ranch, Inc., 111 Haw. 254; 141 P.3d 427; 2006 Haw. LEXIS 386

The court agrees that the issue of not finding out that you had to sign a waiver until the time of the activity might be a deceptive practice.

This is a very interesting case. A couple booked several activities through a third-party booking agency. The activity in question was a horseback ride. The plaintiffs had booked the ride several months in advance of the ride and upon showing up, were handed a release.

Upon arriving at the defendant, the plaintiff read the waiver signed it, and passed it on to her husband. The husband signed it, testifying in his deposition that he relied on his wife to read such documents.

The record demonstrates that the Courbats were given adequate time and opportunity to fully review the waiver presented to them before they signed it and that both knew that by signing it; they were waiving legal rights in return for being allowed to participate in the ride.

Of note was a statement made by the court that no guest of the defendant had ever refused to sign the waiver.

During the ride, one horse kicked the plaintiff in the shin causing her an injury. She and her husband sued for negligence, gross negligence, and for unfair and deceptive practices.

The defendant responded that the plaintiff assumed the risk, the release barred the plaintiff’s claims and the ranch had done nothing to bring it into the purview of the Hawaiian Deceptive Trade Practices Act. (HRS §§ 480-2 and 480-13)

The trial court granted the defendant’s motion for summary judgment, and the decision was appealed.

Summary of the case

The court spent the most time on the issue that booking a ride several months in advance and not finding out that a waiver had to be signed on arrival was a deceptive practice.

…they assert that the Ranch’s practice of booking ride reservations through an activity company, receiving payment prior to the arrival of the guest, and then, upon the guest’s arrival at the Ranch, requiring the guest to sign a liability waiver as a precondition to horseback riding is an unfair and deceptive business practice to which the remedies of HRS ch. 480 apply.

The plaintiffs did not argue that the waiver was deceptive, only the fact that they were not informed that a waiver had to be signed. If the practice was found to be deceptive, then the waiver would be void.

The Courbats do not allege that the waiver itself is deceptive; rather, they urge that the deceptive practice at issue was the booking agent’s failure to inform them of the waiver requirement during the negotiation and execution of the underlying contract. Nevertheless, if any deceptive omission occurred with respect to the negotiation and execution of the original contract, the operation of HRS § 480-12, see supra note 1, would render both the original contract and the waiver, signed afterward, void.

After analyzing the fact the court found that there was an issue: “…whether a waiver requirement would be materially important in booking a horseback tour remains one for the trier of fact.”

However, if the trier of fact (jury) finds that a failure to warn the plaintiff was not deceptive, then the waiver would be valid.

The court then looked at the waiver to determine if met Hawaiian law. The court found that if the plaintiff signed the wavier, then the plaintiff was bound by its terms. Waivers, exculpatory contracts, are valid if they are “knowingly and willingly made and free from fraud.”

Waivers can be voided for three reasons in Hawaii.

“‘exculpatory clauses will be held void if the agreement is

(1) violative of a statute,

(2) contrary to a substantial public interest, or

(3) gained through inequality of bargaining power.'”

The court then looked at what was a public interest and found a public interest had the following characteristics:

[1] It concerns a business of a type generally thought suitable for public regulation.

[2] The party seeking exculpation is engaged in performing a service of great importance to the public, which is often [***30] a matter of practical necessity for some members of the public.

[3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards.

[4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.

[5] In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence.

[6] Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller of the service, subject to the risk of carelessness by the seller or his agents.

Recreational activities are unsuitable for public regulation; therefore, they do not violate the Hawaiian public interest definition that would void a release.

…while such waivers may be contracts of adhesion, in that they are presented on a “take-it-or-leave-it” basis, they are not unconscionable, but “are of a sort commonly used in recreational settings” and “are generally held to be valid.

Contracts of adhesion are ‘unenforceable if two conditions are present: (1) the contract is the result of coercive bargaining between parties of unequal bargaining strength; and (2) the contract unfairly limits the obligations and liabilities of, or otherwise unfairly advantages, the stronger party.

Because the plaintiffs had time to read and review the waiver, there was no coercion.

The court reviewed one final issue, waivers under Hawaiian law, like most other states do not stop claims for gross negligence or willful misconduct.

Consequently, the case was sent back for a jury to determine if the acts of the defendant, by and through its booking agency, acted deceptively or if the acts of the defendant were grossly negligent. If so the plaintiff would win the suit. If the acts of the defendant were not deceptive or the defendant was not grossly negligent the defendant would win at trial.

There was a dissent which found that the acts were not deceptive by law.

So Now What?

It is so easy to avoid most of the issues that were part of this appeal. Once some signs up for a trip or activity, whether through you or a third party, they must be informed that they are going to sign a release.

It is that easy. Put it on the receipt, put it on the website, put it on the paperwork, in the brochure; put it everywhere. If you are in a state where the release is valid you will not go through the time, cost, and expense of this type of litigation.

Every state has a deceptive trade practice statute. The statutes are enacted to protect consumers from dishonest businesses. The court did not examine the facts in light of an intentional act; just the practice alone was deceptive.

Don’t learn the act, just inform your guests.

Plaintiff: Lisa Courbat and Steven Courbat

Defendant: Dahana Ranch, Inc.

Plaintiff Claims: negligence, gross negligence, violation of the Hawaiian Deceptive Trade Practices statute.

Defendant Defenses: assumption of the risk, release, did not violate the deceptive practices act

Holding: reversed and sent back for trial

What do you think? Leave a comment.

James H. “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 eight books about legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management,

Outdoor Recreation Insurance, Risk Management, and Law

and Law. To Purchase Go Here:

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.

If you are interested in having me write your release, download the form and return it to me.

Connect

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

Facebook Page: Outdoor Recreation & Adventure Travel Law

LinkedIn https://www.linkedin.com/in/recreationlaw/

Threads https://www.threads.net/@recreation_law

X https://twitter.com/RecreationLaw

Email: Jim@Rec-Law.US

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

@2013-2023 Summit Magic Publishing, LLC

G-YQ06K3L262

<rel=”author” link=” https://plus.google.com/u/0/b/112453188060350225356/” />

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Lisa Courbat, Steven Courbat, Dahana Ranch, Inc., Hawaii, Deceptive Trade Practices, HI, stable, horseback riding, horse, stable, equestrian.

WordPress Tags: Hawaii,Courbat,Dahana,Ranch,LEXIS,Court,waiver,agency,plaintiffs,Upon,defendants,plaintiff,husband,wife,Courbats,statement,guest,defendant,horse,injury,negligence,Hawaiian,Deceptive,Trade,Practices,judgment,decision,Summary,arrival,payment,precondition,fact,agent,failure,requirement,negotiation,execution,omission,trier,jury,Waivers,fraud,clauses,agreement,statute,characteristics,regulation,exculpation,importance,member,transaction,strength,adhesion,provision,purchaser,protection,person,seller,agents,Recreational,definition,basis,settings,Contracts,obligations,liabilities,advantages,coercion,misconduct,receipt,paperwork,brochure,cost,expense,litigation,statutes,consumers,guests,Lisa,Steven,Claims,violation,Defenses,assumption,Leave,FaceBook,Twitter,LinkedIn,Recreation,Edit,Email,Google,RecreationLaw,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,James,Moss,Authorrank,author,Outside,Attorney,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,Lawyer,Paddlesports,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,third,horseback,months,whether,exculpatory

Courbat v. Dahana Ranch, Inc., 111 Haw. 254; 141 P.3d 427; 2006 Haw. LEXIS 386

Posted: April 1, 2013 | Author: Recreation Law | Filed under: Assumption of the Risk, Equine Activities (Horses, Donkeys, Mules) & Animals, Hawaii, Legal Case, Release (pre-injury contract not to sue) | Tags: Deceptive Trade Practices, equestrian, Equine, Hawaii, HI, Horse, horseback riding, Release, Releases / Waivers, stable, Waiver | Leave a comment

To Read an Analysis of this decision see

Hawaii Supreme Court agrees that finding out a release is required to be signed upon arrival at the activity and after the activity has been paid for may be a deceptive trade practice.

Hawaii’s deceptive trade practices act sends this case and release back to the trial court

Courbat v. Dahana Ranch, Inc., 111 Haw. 254; 141 P.3d 427; 2006 Haw. LEXIS 386

Lisa Courbat and Steven Courbat, Plaintiffs-Appellants, vs. Dahana Ranch, Inc., Defendant-Appellee, and John Does 1-10, Jane Does 1-10, Doe Associations 1-10, Doe Partnerships 1-10, Doe Corporations 1-10, Doe Entities 1-10, and Doe Governmental Units 1-5, Defendants.

NO. 25151

SUPREME COURT OF HAWAI’I

111 Haw. 254; 141 P.3d 427; 2006 Haw. LEXIS 386

July 10, 2006, Decided

SUBSEQUENT HISTORY: Amended by, Reconsideration granted by, in part, Reconsideration denied by, in part Courbat v. Dahana Ranch, 2006 Haw. LEXIS 417 (Haw., Aug. 3, 2006)

PRIOR HISTORY: [***1] APPEAL FROM THE THIRD CIRCUIT COURT. CIV. NO. 01-1-0049.

COUNSEL: On the briefs:

Andrew S. Iwashita, for the plaintiffs-appellants Lisa Courbat and Steven Courbat.

Zale T. Okazaki, of Ayabe, Chong, Nishimoto, Sia and Nakamura, for the defendant-appellee Dahana Ranch, Inc.

JUDGES: MOON, C.J., LEVINSON AND NAKAYAMA, JJ., AND DUFFY, J., DISSENTING, WITH WHOM ACOBA, J. JOINS.

OPINION BY: LEVINSON

OPINION

[**429] [*256] OPINION OF THE COURT BY LEVINSON, J.

The plaintiffs-appellants Lisa Courbat and Steven Courbat [hereinafter, collectively, “the Courbats”] appeal from the May 13, 2002 judgment of the circuit court of the third circuit, the Honorable Riki May Amano presiding, entered pursuant to the circuit [*257] [**430] court’s April 26, 2002 grant of summary judgment in favor of the defendant-appellee Dahana Ranch, Inc. (the Ranch).

On appeal, the Courbats contend that the circuit court erred: (1) in concluding that Hawai’i Revised Statutes (HRS) § 480-2 et seq. (Supp. 1998) ¹ do not apply to the Ranch’s business practices of booking prepaid tours and subsequently requiring liability waivers upon check-in; (2) by applying the rebuttable presumption set forth in HRS § 663B-2(a) [***2] (Supp. 1994) ² in finding that [*258] [**431] Lisa’s injuries were not due to the negligence of the tour operator; (3) in finding that the Courbats sufficiently read over the waiver before signing it; and (4) in concluding that the waiver was valid as to their negligence claims.

1 HRS ch. 480 provided in relevant part:

§ 480-2 . . . . (a) [HN1] Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are unlawful.

(b) In construing this section, the courts and the office of consumer protection shall give due consideration to the rules, regulations, and decisions of the Federal Trade Commission and the federal courts interpreting section 5(a)(1) of the Federal Trade Commission Act (15 U.S.C. 45(a)(1)), as from time to time amended.

. . . .

§ 480-3 . . . . [HN2] This chapter shall be construed in accordance with judicial interpretations of similar federal antitrust statutes . . . .

. . . .

§ 480-12 . . . . [HN3] Any contract or agreement in violation of this chapter is void and is not enforceable at law or in equity.

§ 480-13 . . . . (b) [HN4] Any consumer who is injured by any unfair or deceptive act or practice forbidden or declared unlawful by section 480-2:

(1) May sue for damages sustained by the consumer, and, if the judgment is for the plaintiff, the plaintiff shall be awarded a sum not less than $ 1,000 or threefold damages by the plaintiff sustained, whichever sum is the greater, and reasonable attorneys’ fees together with the costs of suit; . . . and

(2) May bring proceedings to enjoin the unlawful practices, and if the decree is for the plaintiff, the plaintiff shall be awarded reasonable attorneys’ fees together with the cost of suit.

Effective June 28, 2002, HRS § 480-2 was amended in respects immaterial to the present matter. See 2002 Haw. Sess. L. Act 229, §§ 2 and 6 at 916-18. Effective May 2, 2001, June 28, 2002, and June 7, 2005, HRS § 480-13 was amended in respects immaterial to the present matter. See 2005 Haw. Sess. L. Act 108, §§ 3 and 5 at 265-66, 267; 2002 Haw. Sess. L. Act 229, §§ 3 and 6 at 917-18; 2001 Haw. Sess. L. Act 79, §§ 1 and 5 at 127-28.

[***3]

2 HRS ch. 663B, entitled “Equine activities” and enacted in 1994, see 1994 Haw. Sess. L. Act 229, §§ 1 and 2 at 591-92, provides in relevant part:

§ 663B-1 . . . . [HN5] As used in this [chapter], unless the context otherwise requires:

“Engages in an equine activity” means riding . . . or being a passenger upon an equine . . . .

. . . .

“Equine activity” means:

. . . .

(5) Rides, trips, hunts, or other equine activities of any type however informal or impromptu that are sponsored by an equine activity sponsor; and

. . . .

“Equine activity sponsor” means an individual, group, club, partnership, or corporation . . . which sponsors, organizes, or provides the facilities for, an equine activity. . . .

“Equine professional” means a person engaged for compensation in instructing a participant or renting to a participant an equine for the purpose of riding, driving, or being a passenger upon the equine, or in renting equipment or tack to a participant.

“Inherent risks of equine activities” means those dangers or conditions which are an integral part of equine activities, including, but not limited to:

(1) The propensity of an equine to behave in ways that may result in injury, harm, or death to persons on or around them;

(2) The unpredictability of an equine’s reaction to such things as sounds, sudden movement, and unfamiliar objects, persons, or other animals;

(3) Certain hazards such as surface and subsurface conditions;

(4) Collisions with other equines or objects; and

(5) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the animal or not acting within the participant’s ability.

“Participant” means any person, whether amateur or professional, who engages in an equine activity, whether or not a fee is paid to participate in the equine activity.

§ 663B-2 . . . . (a) [HN6] In any civil action for injury, loss, damage, or death of a participant, there shall be a presumption that the injury, loss, damage, or death was not caused by the negligence of an equine activity sponsor, equine professional, or their employees or agents, if the injury, loss, damage, or death was caused solely by the inherent risk and unpredictable nature of the equine. An injured person or their legal representative may rebut the presumption of no negligence by a preponderance of the evidence.

(b) Nothing in this section shall prevent or limit the liability of an equine activity sponsor, an equine professional, or their employees or agents if the equine activity sponsor, equine professional, or person:

. . . .

(2) Provided the equine and . . . failed to reasonably supervise the equine activities and such failure is a proximate cause of the injury

. . . . (Some brackets in original and some omitted.)

[***4] For the reasons discussed infra in section III.A, we vacate the circuit court’s May 13, 2002 judgment and remand for further proceedings consistent with this opinion.

I. BACKGROUND

The present matter arises out of personal injuries sustained by Lisa on February 1, 1999, while she and Steven were on a horseback riding tour on the Dahana Ranch on the Big Island of Hawai’i. The Courbats had booked the tour and prepaid the fee several months earlier through Island Incentives, Inc., an internet-based tour organizer. When they checked in at the Ranch, the Courbats were presented with a document to review and to sign which laid out the rules for the horseback tour and included a waiver “releas[ing] and hold[ing] harmless . . . [the] Ranch . . . from . . . injury to myself . . . resulting from my . . . being a spectator or participant or while engaged in any such activity in the event[-]related facilities” and stating that the undersigned “acknowledge[s] that there are significant elements of risk in any adventure, sport, or activity associated with horses.” ³ According to admissions by the Courbats in subsequent depositions, Lisa read over the waiver and, having [***5] no questions regarding the rules and regulations it contained, signed it before passing it to her husband to sign. Steven evidently did not read it, but recognized that it was “some kind of release of some sort” and signed it. In fact, no guest of the Ranch had ever refused to sign a waiver. Steven was familiar with the concept of such waivers, having participated with his wife in a snorkeling activity earlier during the vacation, at which time they both signed similar forms.

3 The rules and waiver stated in pertinent part:

In order for us to keep our ride from being a “Nose To Tail Trail Ride[,”] there are certain rules which must be followed for your safety and the horses’ mental well being. FAILURE TO FOLLOW THESE RULES WILL RESULT IN FORFEITURE OF YOUR RIDE WITH NO REFUND.

RULES AND REGULATIONS

FOLLOW RIDING INSTRUCTIONS & DIRECTIONS THROUGHOUT THE RIDE

. . . .

. PLEASE DO NOT RIDE AHEAD OF YOUR GUIDE UNLESS TOLD TO DO SO

. . . .

. DO NOT FOLLOW ONE ANOTHER

. . . .

WAIVER

I/We, the undersigned, hereby release and hold harmless the land owners, managers, operators (William P. Kalawaianui, Daniel H. Nakoa, Dahana Ranch and Nakoa Ranch), [t]he State of Hawai[]i and the Department of Hawaiian Home Lands and all other persons directly related to those listed above for the event listed herein[,] their successors, assigns and affiliates from loss or damage to property or injury to myself or any person . . . resulting from my . . . being a spectator or participant or while engaged in any such activity in the event[-] related facilities. I/We acknowledge that there are significant elements of risk in any adventure, sport or activity associated with horses.

I/WE HAVE READ AND UNDERSTOOD THE FOREGOING RULES, REGULATIONS AND WAIVER.

(Emphasis in original.)

[***6] The Ranch’s guide, Daniel Nakoa, briefed the Courbats on how to handle a horse and general rules of the trail, including the importance of not riding single-file or allowing the horses to bunch up end to end. Out on the ride, Lisa was injured when she rode up behind Nakoa’s horse while Nakoa was speaking with another guest who had approached Nakoa with a question. According to later statements by both Nakoa and Lisa, Lisa approached Nakoa’s horse from the rear while the three horses were in motion, and, when her horse neared Nakoa’s horse, Nakoa’s horse struck out at her horse, hitting Lisa in the left shin. Lisa described the incident in a deposition taken on November 3, 2001:

Q: At what point did you believe that you needed to pull the reins back as you were approaching the guide . . . ? . . .

[*259] [**432] [Lisa]: When I felt that the horse[] was getting too close to the horses above me.

Q: So it appeared to you that the nose end of the horse was getting too close to the butt end of the horse in front?

[Lisa]: To the horse in general. We were coming in. I was just trying to keep a certain space between myself and the horse.

Q: [T]hose two horses, the guide’s [***7] horse and the guest’s horse, they were to the left of your horse, is that correct, to the front left of you?

[Lisa]: Yes.

Q: You recall which hind leg of the horse kicked you? Was it the right or the left?

[Lisa]: It would be the right one.

Q: And that was a horse which was ridden by the guide or the guest?

[Lisa]: The guide.

Q: Just before the horse in front of you kicked you, were all of the horses still in motion? When I say “all the horses,” yours, the guide’s, and the guest that was riding parallel to the guide?

[Lisa]: Just before?

Q: Yes.

[Lisa]: Yes.

Q: Was there any conversation between you and the guide or the guest just before this kicking incident occurred?

[Lisa]: No.

Q: At the time this kicking incident occurred, w[ere] the guide and the guest still talking to each other?

[Lisa]: Yes.

Nakoa described the same incident in a January 9, 2002 deposition:

[Nakoa]: . . . Everybody was facing the gate, the second gate. . . . And I was in the back. And because I lots of times don’t want to be a part of the ride, I started riding to the right. And then a man came to talk to me and [***8] ask me about the horse.

. . . .

Q: On which side of your horse was he at the time?

[Nakoa]: He was on the left side of me.

Q: And were you still moving or were you stopped?

[Nakoa]: We were walking.

. . . .

Q: . . .[H]ad you passed Lisa along the way? . . . .

[Nakoa]: Because of the angle, she was off to my left.

Q: Still in front of you?

[Nakoa]: No. About the same.

. . . .

Q: And when is the next time you notice[] Lisa’s horse before the injury takes place?

. . . .

[Nakoa]: She was still on the left side of me.

Q: . . . [A]bout how far away do you estimate she was from your horse?

[Nakoa]: You know, 30 feet maybe. . . .

Q: And from that point on, . . . were you able to continually observe Lisa riding her horse until the time the injury occurred?

[Nakoa]: Yes. The man was on my left and I was talking to him.

. . . .

Q: . . . [W]hile [the guest is] asking you this question and you can see [Lisa], what is her horse doing as it’s approaching your horse?

[Nakoa]: No, I didn’t see her approaching my horse. That’s what I’m trying to tell you. She was on the [***9] left side of this man and me and we’re all going in that direction (indicating). She was trotting, and I was walking with this man. And I saw her. And then this man asked me something. And the next thing I knew, she was right in back of my horse telling me that my horse kicked her.

Nakoa later acknowledged in the deposition that, if he or his horse had been aware that Lisa’s horse was approaching from behind, his horse would not have been surprised and would not have struck out at her horse. As a result of the impact, Lisa suffered severe pain and swelling, but no broken bones, and [*260] [**433] since the incident has complained of ongoing pain and injury to her leg.

The Courbats filed suit on January 31, 2001, asserting claims of negligence and gross negligence that resulted in physical injury to Lisa and loss of consortium injuries to Steven. On November 21, 2001, they filed a first amended complaint, adding a claim of unfair and deceptive trade practices regarding the waiver they had signed the day of the ride.

On January 16, 2002, the Ranch filed a motion for summary judgment on the grounds: (1) that the Courbats had assumed the risk of the activity; (2) that the Courbats [***10] had waived their rights to sue the Ranch for negligence; and (3) that the Ranch had not committed any acts that brought it under the purview of HRS §§ 480-2 and 480-13, see supra note 1.

The Courbats filed a memorandum in opposition to the Ranch’s motion and a motion for partial summary judgment, urging the circuit court to rule, inter alia: (1) that the Ranch owed Lisa a duty to protect her from injury by Nakoa’s horse; and (2) that the rebuttable presumption of no negligence on a defendant’s part set forth in HRS § 663B-2, see supra note 2, was inapplicable.

The circuit court conducted a hearing on both motions on February 13, 2002 and, on April 26, 2002, entered an order granting the Ranch’s motion and denying the Courbats’ motion. On May 13, 2002, the circuit court entered a final judgment in favor of the Ranch and against the Courbats. On August 8, 2002, the Courbats filed a timely notice of appeal. ⁴

4 On May 10, 2002, the Ranch filed a notice of taxation of costs which, pursuant to Hawai’i Rules of Appellate Procedure (HRAP) Rule 4(a)(3), tolled the time for filing an appeal. An order as to taxation of costs was never entered, and so, pursuant to HRAP Rule 4(a)(3), the request was deemed denied 90 days later, on August 8, 2002. The Courbats’ appeal, filed prematurely on June 7, 2002, was therefore timely filed as of August 8, 2002, pursuant to HRAP Rule 4(a)(2) and (3).

[***11] II. STANDARDS OF REVIEW

A. Summary Judgment

We [HN7] review the circuit court’s grant or denial of summary judgment de novo . . . .

[S]ummary judgment is appropriate 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 judgment as a matter of law. A fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties. The evidence must be viewed in the light most favorable to the non-moving party. In other words, we must view all of the evidence and the inferences drawn therefrom in the light most favorable to the party opposing the motion.

[Hawai’i Cmty. Fed. Credit Union v. Keka, 94 Hawai’i 213, 221, 11 P.3d 1, 9 (2000)] (citations and internal quotation marks omitted).

Querubin v. Thronas, 107 Hawai’i 48, 56, 109 P.3d 689, 697 (2005) (quoting Durette v. Aloha Plastic Recycling, Inc., 105 Hawai’i 490, 501, 100 P.3d 60, 71 (2004)) [***12] (internal citation omitted) (some brackets in original).

B. Interpretation Of Statutes

[HN8] The interpretation of a statute is a question of law reviewable de novo. State v. Arceo, 84 Hawai’i 1, 10, 928 P.2d 843, 852 (1996).

Furthermore, our statutory construction is guided by established rules:

[HN9] When construing a statute, our foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. And we must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose.

When there is doubt, doubleness of meaning, or indistinctiveness or uncertainty [*261] [**434] of an expression used in a statute, an ambiguity exists. . . .

In construing an ambiguous statute, “[t]he meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning.” HRS § 1-15(1) [(1993)]. Moreover, the courts may resort to extrinsic aids in determining legislative intent. [***13] One avenue is the use of legislative history as an interpretive tool.

Gray [v. Admin. Dir. of the Court], 84 Hawai’i [138,] 148, 931 P.2d [580,] 590 [(1997)] (footnote omitted).

State v. Koch, 107 Hawai’i 215, 220, 112 P.3d 69, 74 (2005) (quoting State v. Kaua, 102 Hawai’i 1, 7-8, 72 P.3d 473, 479-480 (2003)). [HN10] Absent an absurd or unjust result, see State v. Haugen, 104 Hawai’i 71, 77, 85 P.3d 178, 184 (2004), this court is bound to give effect to the plain meaning of unambiguous statutory language; we may only resort to the use of legislative history when interpreting an ambiguous statute. State v. Valdivia, 95 Hawai’i 465, 472, 24 P.3d 661, 668 (2001).

III. DISCUSSION

A. Inasmuch As The Presence Or Absence Of An Unfair Or Deceptive Trade Practice Is For The Trier Of Fact To Determine, The Circuit Court Erroneously Granted Summary Judgment In Favor Of The Ranch And Against The Courbats.

The Courbats do not dispute that they both signed the Ranch’s waiver form, see supra note 3, prior to their ride. Nor do they dispute that waivers are an accepted [***14] method by which businesses may limit their liability. Rather, they assert that the Ranch’s practice of booking ride reservations through an activity company, receiving payment prior to the arrival of the guest, and then, upon the guest’s arrival at the Ranch, requiring the guest to sign a liability waiver as a precondition to horseback riding is an unfair and deceptive business practice to which the remedies of HRS ch. 480 apply. The Courbats maintain that the practice of withholding the waiver had “the capacity or tendency to mislead” customers, thereby satisfying this court’s test for a deceptive trade practice as articulated in State ex rel. Bronster v. United States Steel Corp., 82 Hawai’i 32, 50, 919 P.2d 294, 312 (1996).

The Intermediate Court of Appeals held in Beerman v. Toro, 1 Haw. App. 111, 118, 615 P.2d 749, 754-55 (1980), that [HN11] the remedies afforded by HRS ch. 480 are not available for personal injury claims. See also Blowers v. Eli Lilly & Co., 100 F. Supp. 2d 1265, 1269-70 (D. Haw. 2000). The Courbats, however, assert that they are not invoking HRS ch. 480 for the purpose of establishing personal injury damages, [***15] but rather because the lack of notice as to the waiver requirement injured them economically, by way of the $ 116 cost of the tour, giving rise to a valid claim under HRS § 480-13, see supra note 1. As a deceptive trade practice, the Courbats maintain, the waiver is void under HRS § 480-12, see supra note 1.

1. The elements of a deceptive trade practice claim for recision of a contract

[HN12] To render the waiver void, the Courbats must establish that it is an unseverable part of a “contract or agreement in violation of [HRS ch. 480].” See HRS § 480-12, supra note 1. Furthermore, any “unfair or deceptive act[] or practice[] in the conduct of any trade or commerce” violates HRS § 480-2.

[HN13] “Deceptive” acts or practices violate HRS § 480-2, but HRS ch. 480 contains no statutory definition of “deceptive.” This court has described a deceptive practice as having “the capacity or tendency to mislead or deceive,” United States Steel Corp., 82 Hawaii at 50, 919 P.2d at 312, 313, but, beyond noting that federal [***16] cases have also defined deception “as an act causing, as a natural and probable result, a person to do that which he [or she] would not do otherwise,” Keka, 94 Hawai’i at 228, 11 P.3d at 16 (brackets in original) (quoting United States Steel Corp., 82 Hawaii at 51, 919 P.2d at 313 (citing Bockenstette v. Federal Trade Comm’n, 134 F.2d 369, 36 F.T.C. 1106 (10th Cir. 1943))), we have not articulated a more refined test.

[HN14] HRS § 480-3, see supra note 1, provides that HRS ch. 480 “shall be construed in accordance with judicial interpretations of similar federal antitrust statutes,” [*262] [**435] and HRS § 480-2(b) provides that “[i]n construing this section, the courts . . . shall give due consideration to the . . . decisions of . . . the federal courts interpreting . . . 15 U.S.C. [§ ] 45(a)(1)[(2000)],” ⁵ in recognition of the fact that HRS § 480-2 is “a virtual counterpart.” ⁶ Keka, 94 Hawai’i at 228, 11 P.3d at 16. The Federal Trade Commission (FTC), in In re Cliffdale Assocs., Inc., 103 F.T.C. 110, Trade Cas. (CCH) P22137 (1984), developed [***17] a three-part analytical test for “deception,” ⁷ which the federal courts have thereafter extensively adopted, see FTC v. Verity Int’l, Ltd., 443 F.3d 48, 63 (2d. Cir. 2006); FTC v. Tashman, 318 F.3d 1273, 1277 (11th Cir. 2003); FTC v. Pantron I Corp., 33 F.3d 1088, 1095 (9th Cir. 1994); FTC v. World Travel Vacation Brokers, Inc., 861 F.2d 1020, 1029 (7th Cir. 1988). Under the Cliffdale Assocs. test, a deceptive act or practice is “(1) a representation, omission, or practice[] that (2) is likely to mislead consumers acting reasonably under the circumstances [where] (3)[] the representation, omission, or practice is material.” Verity Int’l, 443 F.3d at 63. A representation, omission, or practice is considered “material” if it involves “‘information that is important to consumers and, hence, likely to affect their choice of, or conduct regarding, a product.'” Novartis Corp. v. FTC, 343 U.S. App. D.C. 111, 223 F.3d 783, 786 (D.C. Cir. 2000) (quoting Cliffdale Assocs., 103 F.T.C. at 165); see also Kraft, Inc. v. FTC, 970 F.2d 311, 322 (7th Cir. 1992); [***18] FTC v. Crescent Publ’g Group, Inc., 129 F. Supp. 2d 311, 321 (S.D.N.Y. 2001); FTC v. Five-Star Auto Club, Inc., 97 F. Supp. 2d 502, 529 (S.D.N.Y. 2000); FTC v. Sabal, 32 F. Supp. 2d 1004, 1007 (N.D. Ill. 1998). Moreover, the Cliffdale Assocs. test is an objective one, turning on whether the act or omission “is likely to mislead consumers,” Verity Int’l, 443 F.3d at 63, as to information “important to consumers,” Novartis Corp., 223 F.3d at 786, in making a decision regarding the product or service. ⁸

5 15 U.S.C. § 45(a)(1) provides that ” [HN15] [u]nfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful.”

6 Hawai’i courts have long recognized, therefore, that federal interpretations of 15 U.S.C. § 45(a)(1) guide us in construing HRS § 480-2 “in light of conditions in Hawai’i.” Ai v. Frank Huff Agency, 61 Haw. 607, 613 n.11, 607 P.2d 1304, 1309 n.11 (1980); see also Island Tobacco Co. v. R.J. Reynolds Tobacco Co., 63 Haw. 289, 299, 627 P.2d 260, 268 (1981) overruled on other grounds by Robert’s Hawaii School Bus, Inc. v. Laupahoehoe Transp. Co., Inc., 91 Hawai’i 224, 982 P.2d 853 (1999); Rosa v. Johnston, 3 Haw. App. 420, 426, 651 P.2d 1228, 1233-34 (1982).

[***19]

7 See Cliffdale Assocs., 103 F.T.C. at 164-65 (characterizing the new standard as a refinement of the “tendency or capacity to deceive” test used by the FTC to that point and pronouncing the old test “circular and therefore inadequate to provide guidance”).

8 [HN16] While federal courts have not expressly categorized the test as objective, the FTC, in Cliffdale Assocs., commented that “[t]he requirement that an act or practice be considered from the perspective of a consumer acting reasonably in the circumstances is not new. . . . [The FTC] has long recognized that the law should not be applied in such a way as to find that honest representations are deceptive simply because they are misunderstood by a few. . . . [A]n advertisement would not be considered deceptive merely because it could be unreasonably misunderstood by an insignificant and unrepresentative segment of the class of persons [to] whom the representation is addressed.” 103 F.T.C. at 165 (footnotes and internal quotation signals omitted).

[HN17] Given our obligation under HRS §§ 480-3 [***20] and 480-2(b) to apply federal authority as a guide in interpreting HRS ch. 480, we hereby adopt the three-prong Cliffdale Assocs. test in determining when a trade practice is deceptive. ⁹

9 Other states have already adopted the Cliffdale Assocs. test. See, e.g., Luskin’s, Inc. v. Consumer Prot. Div., 353 Md. 335, 726 A.2d 702, 713 (Md. 1999); Carter v. Gugliuzzi, 168 Vt. 48, 716 A.2d 17, 23 (Vt. 1998). Our adoption of the Cliffdale Assocs. test does not change the existing rule that, in order to establish a violation of HRS § 480-2, the plaintiff need not establish an intent to deceive on the part of the defendant, World Travel Vacation Brokers, 861 F.2d at 1029; Five-Star Auto Club, 97 F. Supp. at 526, nor any actual deceit, United States Steel Corp., 82 Hawai’i at 51, 919 P.2d at 313.

2. Under The Cliffdale Assocs. Objective Consumer Test, The Determination [***21] Of A Deceptive Omission Is One For The Trier Of Fact, Thereby Rendering Summary Judgment Inappropriate.

The Courbats do not allege that the waiver itself is deceptive; rather, they urge [*263] [**436] that the deceptive practice at issue was the booking agent’s failure to inform them of the waiver requirement during the negotiation and execution of the underlying contract. ¹⁰ Nevertheless, if any deceptive omission occurred with respect to the negotiation and execution of the original contract, the operation of HRS § 480-12, see supra note 1, would render both the original contract and the waiver, signed afterward, void. ¹¹ Thus, the waiver’s survival depends on the trier of fact’s determination as to whether the omission of the waiver requirement during Island Incentives, Inc.’s booking process was deceptive and therefore in violation of HRS § 480-2.

10 It is undisputed that Island Incentives, Inc. was acting as the Ranch’s agent in this matter, and “we note that [HN18] an owner is responsible for the representations of his agent made within the scope of his agent’s selling authority.” Au v. Au, 63 Haw. 210, 215, 626 P.2d 173, 178 (1981) (citing Negyessy v. Strong, 136 Vt. 193, 388 A.2d 383, 385 (Vt. 1978)).

[***22]

11 If the waiver were severable from the underlying contract, it could survive despite a determination that the original contract was void. See Ai v. Frank Huff Agency, 61 Haw. 607, 619, 607 P.2d 1304, 1312 (1980) [HN19] (“The wording on HRS § 480-12 might . . . appear to suggest that any contract containing an illegal provision . . . should be held unenforceable in its entirety. . . . [U]nder ordinary contract law, however, . . . a partially legal contract may be upheld if the illegal portion is severable from the part which is legal.”). However, “the general rule is that severance of an illegal provision is warranted and the lawful portion . . . enforceable when the illegal provision is not central to the parties’ agreement.” Beneficial Hawaii, Inc. v. Kida, 96 Hawai’i 289, 311, 30 P.3d 895, 917 (2001). The underlying contract at issue is the sum of the parties’ agreement; the waiver would be considered an addendum to it. Therefore, the waiver is not severable and must stand or fall with the underlying contract.

[HN20] The application [***23] of an objective “reasonable person” standard, of which the Cliffdale Assocs. test is an example, is ordinarily for the trier of fact, rendering summary judgment “often inappropriate.” Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 107, 839 P.2d 10, 24 (1992), cited in Casumpang v. ILWU Local 142, 108 Hawai’i 411, 425, 121 P.3d 391, 405 (2005); Arquero v. Hilton Hawaiian Village LLC, 104 Hawai’i 423, 433, 91 P.3d 505, 515 (2004). “Inasmuch as the term ‘reasonableness’ is subject to differing interpretations . . ., it is inherently ambiguous. Where ambiguity exists, summary judgment is usually inappropriate because ‘the determination of someone’s state of mind usually entails the drawing of factual inferences as to which reasonable [minds] might differ.'” Amfac, Inc., 74 Haw. at 107, 839 P.2d at 24 (quoting Bishop Trust Co. v. Cent. Union Church, 3 Haw. App. 624, 628-29, 656 P.2d 1353, 1356 (1983)). Reasonableness can only constitute a question of law suitable for summary judgment “‘when the facts are undisputed and not fairly susceptible of divergent inferences’ because ‘[w]here, upon [***24] all the evidence, but one inference may reasonably be drawn, there is no issue for the jury.'” Id. at 108, 839 P.2d at 24 (quoting Broad & Branford Place Corp. v. J.J. Hockenjos Co., 132 N.J.L. 229, 39 A.2d 80, 82 (N.J. 1944) (brackets in original)). “‘[A] question of interpretation is not left to the trier of fact where evidence is so clear that no reasonable person would determine the issue in any way but one.'” Id. (quoting Restatement (Second) of Contracts § 212 cmt. e (1981) (brackets in original)). See also Restatement (Second) of Contracts § 212(2) (1981 and Supp. 2005) (“A question of interpretation of an integrated agreement is to be determined by the trier of fact if it depends on the credibility of extrinsic evidence or on a choice among reasonable inferences to be drawn from extrinsic evidence .”) (Emphasis added). There is no genuine issue of material fact regarding the failure to disclose the waiver requirement during negotiation of the original tour contract, but we cannot say that, applying the Cliffdale Assocs. test, reasonable minds could draw [***25] only one inference as to the materiality of that omission to reasonable consumers contemplating the transaction. Therefore, the question whether a waiver requirement would be materially important in booking a horseback tour remains one for the trier of fact.

Because a genuine issue of material fact, resolvable only by the trier of fact, remains in dispute, the grant of summary judgment on the HRS ch. 480 claim was erroneous. We therefore vacate the circuit court’s May [*264] [**437] 13, 2002 judgment and remand for further proceedings consistent with this opinion.

B. The Consequences, On Remand, Of The Determination By The Trier Of Fact As To Whether Nondisclosure Of The Waiver Requirement Was A Deceptive Trade Practice

If, on remand, the trier of fact determines that the nondisclosure of the waiver was a deceptive trade practice, rendering the waiver void, then the Courbats’ negligence claims proceed free of the waiver defense. Nevertheless, for the reasons set forth below and for purposes of any subsequent trial on the Courbats’ negligence claims, we hold that HRS ch. 663B, entitled “Equine activities,” see supra note 2, setting forth a rebuttable presumption of non-negligence [***26] on the part of the tour operator, does not apply to the present matter.

Conversely, if, on remand, the trier of fact determines that the nondisclosure of the waiver was not deceptive, then the Courbats validly waived their negligence claims.

1. The Statutory Presumption Of Non-Negligence For Equine-Related Injuries Set Forth In HRS Ch. 663B Does Not Apply To The Courbats’ Claims.

If the trier of fact determines that the failure to inform the Courbats of the waiver requirement was a deceptive trade practice, then the negligence waiver, along with the underlying contract, will be rendered void, and the Courbats’ negligence claims will be revived. In order to provide guidance on remand, therefore, we hold that it was error for the circuit court in the present matter to apply HRS § 663B-2(a), see supra note 2, which establishes a rebuttable presumption in favor of horseback tour operators that any injury “caused solely by the inherent risk and unpredictable nature of the equine” is not due to the negligence of the tour operator.

HRS § 663B-2(b) provides in relevant part that “[n]othing in [***27] this section shall prevent or limit the liability of an equine activity sponsor . . . if the equine activity sponsor, equine professional, or person: . . . (2) [p]rovided the equine and . . . failed to reasonably supervise the equine activities and such failure is a proximate cause of the injury.” The substance of Lisa’s claim revolves around her assertion that Nakoa failed to monitor her approach toward his horse while he was engaged in conversation with another guest; in other words, Lisa claims that Nakoa “failed to reasonably supervise the equine activities” that were the “proximate cause of [her] injury.” Therefore, we hold that, if Lisa is correct, the presumption of non-negligence set forth in HRS § 663B-2(a) would not apply to the Courbats’ claims.

2. If The Trier Of Fact Determines That The Nondisclosure Of The Waiver Was Not A Deceptive Trade Practice, Then The Courbats Validly Waived Their Negligence Claims.

a. The waiver was validly executed.

Citing Krohnert v. Yacht Sys. of Hawai’i, 4 Haw. App. 190, 201, 664 P.2d 738, 745 (1983), the Courbats assert that, because they manifested no clear [***28] and unequivocal acceptance of the terms of the waiver, the waiver cannot be enforced against them. However, pursuant to the following analysis, we hold that, if the trier of fact finds that the failure to inform the Courbats of the waiver requirement was not a deceptive trade practice, then the waiver, in all other respects, was valid.

[HN21] “The general rule of contract law is that one who assents to a contract is bound by it and cannot complain that he has not read it or did not know what it contained.” Leong v. Kaiser Found. Hosp., 71 Haw. 240, 245, 788 P.2d 164, 168 (1990); see also Joaquin v. Joaquin, 5 Haw. App. 435, 443, 698 P.2d 298, 304 (1985); In re Chung, 43 B.R. 368, 369 (Bankr. D. Haw. 1984); In re Kealoha, 2 B.R. 201, 209 (Bankr. D. Haw. 1980). Furthermore, “‘[p]arties are permitted to make exculpatory contracts so long as they are knowingly and willingly made and free from fraud. No public policy exists to prevent such contracts.'” Fujimoto v. Au, 95 Hawai’i 116, 156, 19 P.3d 699, 739 (2001) (some brackets omitted) (quoting Gen. Bargain Ctr. v. Am. Alarm Co., Inc., 430 N.E.2d 407, 411-12 [*265] [**438] (Ind. Ct. App. 1982)). [***29] “[S]uch bargains are not favored, however, and, if possible, bargains are construed not to confer this immunity.” Fujimoto, 95 Hawai’i at 155, 19 P.3d at 738. Therefore, as a general rule, “‘[e]xculpatory clauses will be held void if the agreement is (1) violative of a statute, (2) contrary to a substantial public interest, or (3) gained through inequality of bargaining power.'” 95 Hawaii at 156, 19 P.3d at 739 (quoting Andrews v. Fitzgerald, 823 F. Supp. 356, 378 (M.D.N.C. 1993)).

The Courbats have not alleged that any of the terms of the waiver, or the use of a waiver by the Ranch, violates a statute; on the contrary, the Courbats concede that waivers are an acceptable method by which tour operators may seek to limit their liability in response to rising insurance and litigation costs.

In Krohnert, the ICA defined the public interest

as involving some or all of the following characteristics:

[1] It concerns a business of a type generally thought suitable for public regulation.

[2] The party seeking exculpation is engaged in performing a service of great importance to the public, which is often [***30] a matter of practical necessity for some members of the public.

[3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards.

4 Haw. App at 199, 664 P.2d at 744 (finding under this test that the exculpatory clause contained in a contract for marine surveying was permissible) (brackets omitted) (quoting Lynch v. Santa Fe Nat’l Bank, 97 N.M. 554, 627 P.2d 1247, 1251-52 (N.M. Ct. App. 1981) [***31] (holding that services of escrow agents in New Mexico were not in the nature of a public service so as to render an exculpatory clause unenforceable) (quoting Tunkl v. Regents of Univ. of Cal., 60 Cal. 2d 92, 383 P.2d 441, 445-46, 32 Cal. Rptr. 33 (Cal. Ct. App. 1963) (declaring invalid as against the public interest an exculpatory clause for future negligence required for admission to a public research hospital))); see also 15 Corbin on Contracts § 85.18 (2003 & Supp. 2005) (summarizing a similar test commonly used by courts and noting that courts tend to enforce exculpatory clauses for recreational activities under the test). ¹² Entities that have been found to fall under the public interest doctrine, rendering exculpatory clauses void, include common carriers, see Adams Express Co. v. Croninger, 226 U.S. 491, 509, 33 S. Ct. 148, 57 L. Ed. 314 (1913); Shippers Nat’l Freight Claim Council, Inc. v. Interstate Commerce Comm’n, 712 F.2d 740, 746 (2d Cir. 1983); Clairol, Inc. v. Moore-McCormack Lines, Inc., 79 A.D.2d 297, 309-10, 436 N.Y.S.2d 279 (N.Y. App. Div. 1981), and hospitals, see Tunkl, 383 P.2d at 447; Smith v. Hosp. Auth. of Walker, Dade & Catoosa Counties, 160 Ga. App. 387, 287 S.E.2d 99, [*266] [**439] 101 (Ga. Ct. App. 1981); [***32] Belshaw v. Feinstein, 258 Cal. App. 2d 711, 65 Cal. Rptr. 788, 798 (Cal. Ct. App. 1968).

12 Courts have upheld exculpatory clauses relating to car racing, see Cadek v. Great Lakes Dragaway, Inc., 843 F. Supp. 420 (N.D. Ill. 1994); Barbazza v. Int’l Motor Sports Ass’n, 245 Ga. App. 790, 538 S.E.2d 859 (Ga. Ct. App. 2000), snow skiing, see Chauvlier v. Booth Creek Ski Holdings, Inc., 109 Wn. App. 334, 35 P.3d 383 (Wash. Ct. App. 2001), skydiving, see Scrivener v. Sky’s The Limit, Inc., 68 F. Supp. 2d 277 (S.D.N.Y. 1999), and horseback riding, see Street v. Darwin Ranch, Inc., 75 F. Supp. 2d 1296, 1299 (D. Wyo. 1999) (finding that “recreational trail rides are neither of great importance to the public, nor a practical necessity to any member of the public”).

Applying these factors to the present matter, we determine that the public interest here is not at stake: recreational activity tours are not generally [***33] suitable to public regulation, in the manner of common carriers, nor of great importance to the public, nor of an essential nature, in the manner of medical care, such that the provider’s bargaining power is greatly enhanced over any member of the public seeking their services.

Finally, as the United States District Court for the District of Hawai’i noted, in considering negligence waivers in the context of recreational activity, while such waivers may be contracts of adhesion, in that they are presented on a “take-it-or-leave-it” basis, they are not unconscionable, but “are of a sort commonly used in recreational settings” and “are generally held to be valid.” Wheelock v. Sport Kites, Inc., 839 F. Supp. 730, 736 (D. Haw. 1993). [HN22] “[C]ontracts [of adhesion] are ‘unenforceable if two conditions are present: (1) the contract is the result of coercive bargaining between parties of unequal bargaining strength; and (2) the contract unfairly limits the obligations and liabilities of, or otherwise unfairly advantages, the stronger party.'” Fujimoto, 95 Hawai’i at 156, 19 P.3d at 739 (quoting Brown v. KFC Nat’l Mgmt. Co., 82 Hawai’i 226, 247, 921 P.2d 146, 167 (1996)); [***34] see also Wheelock, 839 F. Supp. at 735 (“[A]dhesion contracts are fully enforceable provided that they are not unconscionable and do not fall outside the reasonable expectations of the weaker or adhering party.”). Unequal bargaining strength “involves the absence of alternatives; specifically whether the plaintiffs were ‘free to use or not to use’ [the] defendant’s . . . services.” Krohnert, 4 Haw. App at 199, 664 P.2d at 744 (quoting Lynch, 627 P.2d at 1250). These conditions are generally not germane in the recreational waiver context. In the context of a recreational sport or adventure activity, freely undertaken for pleasure, “coercive bargaining” and “an absence of alternatives” are terms that hold little meaning.

In the present matter, Lisa read through and responded to queries contained in the waiver form and had no further questions or concerns regarding the contents before she signed it. Steven conceded that he routinely relied on his wife to review documents before signing them and that he knew he was waiving rights when he signed the form. The record demonstrates that the Courbats were given adequate time and opportunity [***35] to fully review the waiver presented to them before they signed it and that both knew that by signing it they were waiving legal rights in return for being allowed to participate in the ride. In short, there is no evidence of coercion. By signing the waiver form, they demonstrated that they agreed to its terms, and by reading it, or, in Steven’s case, in relying on the advice of his wife, demonstrated knowledge of its contents. Moreover, they had signed similar waivers that week for another activity and were familiar with what they represented. Accordingly, we hold that, if the trier of fact determines that the nondisclosure of the waiver was not a deceptive trade practice, the Courbats’ waiver was valid.

b. The scope of the Courbats’ waiver does not extend beyond negligence claims.

The language of the waiver, see supra note 3, releases the Ranch and its agents and holds it harmless “from loss or damage to property or injury to [the undersigned] . . . resulting from [the undersigned] . . . being a spectator or participant or while engaged in any such activity in the event[-]related facilities.” However, because [HN23] “‘[e]xculpatory provisions are not [***36] favored by the law and are strictly construed against parties relying on them,'” the effect of the broad exculpatory language contained in the Ranch’s waiver should be construed to limit the waiver’s scope to simple negligence claims; it does not protect the Ranch against its own gross negligence or willful misconduct. Fujimoto, 95 Hawai’i at 156, 19 P.3d at 739 (quoting Andrews, 823 F. Supp. at 378); see also Wheelock, 839 F. Supp. at 736 (interpreting the reasoning in Krohnert to conclude that to allow an exculpatory clause to extend to gross negligence would violate [*267] [**440] the public interest, rendering the clause void).

IV. CONCLUSION

In light of the foregoing analysis, we vacate the circuit court’s May 13, 2002 judgment in favor of the Ranch and against the Courbats and remand for further proceedings consistent with this opinion.

DISSENT BY: DUFFY

DISSENT

DISSENTING OPINION BY DUFFY, J., IN WHICH ACOBA, J., JOINS

I respectfully dissent. In my view, no reasonable person would find that the recreational tour operator’s failure to disclose the waiver requirement of Dahana Ranch, Inc. during negotiation of the horseback riding [***37] activity was a deceptive trade practice under HRS § 480-2. The Courbats concede that waivers are an acceptable method by which recreational tour operators and sponsors may seek to limit their liability in response to rising insurance and litigation costs, and admit that they were required to sign such a waiver before participating in a snorkeling activity earlier during the same Hawai’i vacation. Applying the Cliffdale Assoc. test to the undisputed facts in this case involving the inherently dangerous activity of horseback riding, I respectfully submit that the tour operator’s failure to disclose the waiver requirement of Dahana Ranch, Inc. during negotiation of the horseback riding activity with the Courbats was not a material omission implicating a deceptive trade practice under HRS § 480-2. I would thus affirm the circuit court’s grant of summary judgment in favor of Dahana Ranch, Inc.

G-YQ06K3L262

http://www.recreation-law.com

Missouri decision about ski rental form and a release that does not conform to MO law spell a mess for the ski resort

Posted: March 4, 2013 | Author: Recreation Law | Filed under: Assumption of the Risk, Missouri, Ski Area, Skiing / Snow Boarding | Tags: assumption of the risk, Business Invitee, Carrie Lewis, Failure to Warn, Inc., Invitee, Landowner, Law, Lesa Moffatt, Missouri, Resort, Ski, ski area, Ski Resort, skiing, Snow Creek | Leave a comment

Lewis v. Snow Creek, Inc., 6 S.W.3d 388; 1999 Mo. App. LEXIS 421

A judge that works hard to find problems does not help.

This case is an appeal of two separate ski area injuries that were combined on appeal. The facts in each case, as set forth by the appellate court are identical. The plaintiffs were both represented by the same attorney.

The plaintiffs went to Snow Creek to ski. They rented ski equipment at Snow Creek. While standing in line to get their ski equipment, they were handed the rental form which contained release language.

Both women claimed they felt pressure to move along and did not have enough time to read and “fully comprehend” the rental form. Both went skiing at the resort and fell on ice suffering injuries and sued the ski area. The claims were:

I. Defendant owed a duty to plaintiff as a business invitee, and breached that duty by failure to warn of the icy condition where the fall occurred;

II. Defendant negligently adjusted and maintained the bindings on Plaintiff’s skis because they failed to release when the plaintiffs fell, injuring the plaintiff’s leg;

III. Defendant created a dangerous condition by making artificial snow; and

IV. IV. Defendant was grossly negligent in failing to warn plaintiff of the dangerous condition on its premises.

The defense used assumption of the risk as its defense. It could not use release, because it has failed to plead release as an affirmative defense. An affirmative defense is one of two dozen or so releases that must be pled, or they are waived. Here the defense firm forgot or did not know to plead the affirmative defense of release, thus it could not be used to stop the lawsuit.

Summary of the court’s analysis

The court first looked at the legal issues of a land owner. In most states, a ski area statute, takes the land owner duties off the table. Missouri had no skier statute so that a land owner, ski area, owes someone on its land a duty based on how the person on the land is defined. Missouri like most states defines people on land of another as:

· Trespasser

· Invitee

· Business Invitee

Here, the injured skiers were either “invitees” or “business invitees.”

An invitee “is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.” As business invitees, the Appellants were entitled to reasonable and ordinary care by Respondent to make its premises safe. A possessor of land is liable to an invitee only if the possessor:

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger.

The issue then becomes whether the ice on the ski area was open and obvious. The plaintiff claimed the ice was covered by a layer of snow. The defendant argued that the plaintiffs had skied the run several times in the past and therefore, had to have known about the ice. Because there was a difference in the facts, the judge could not make the decision for the ski area and had to send the case back to the trial court for trial.

The next legal issue was whether the plaintiffs assumed the risk. The court defined the four types of assumption of the risk a plaintiff can encounter under Missouri’s law.

· Express

· Implied

· Primary

· Implied Secondary

Express assumption of risk occurs when the plaintiff expressly agrees in advance that the defendant owes him no duty. Recovery is completely barred since there is no duty in the first place.

The release identified the risk as snow. Because the plaintiffs claimed they fell on ice, the release did not bar the claim because the plaintiff did not assume the risk of ice.

Then the judge went out to argue that the release was ineffective anyway, even though later in the opinion the judge in one paragraph denies the defense of release.

Under Missouri’s law a release must be written with “clear, unambiguous, unmistakable, and conspicuous language…”

The language of the exculpatory clause must effectively notify a party that he or she is releasing the other party from claims arising from the other party’s own negligence. General language will not suffice. “The words ‘negligence’ or ‘fault’ or their equivalents must be used conspicuously so that a clear and unmistakable waiver and shifting of risk occurs.” Whether a contract is ambiguous is a question of law to be decided by the court. “An ambiguity arises when there is duplicity, indistinctness, or uncertainty in the meaning of the words used in the contract.

The court found, even though the release used the term negligence, it was not enough.

In 49 other states 99.999% of the time, use of the word negligence would have been satisfactory!

In this case, the court found the term negligence to be too broad and to include intentional torts and gross negligence. Both types of claims are barred under Missouri’s law. “[T]here is no question that one may never exonerate oneself from future liability for intentional torts or for gross negligence, or for activities involving the public interest.”

The court held the word negligence in this release was too broad and covered claims that could not be released.

The exculpatory clause uses general language, to wit, “any claim based on . . . other legal theory.” This language includes intentional torts, gross negligence or any other cause of action not expressly listed. “A contract that purports to relieve a party from any and all claims but does not actually do so is duplicitous, indistinct and uncertain.”

The court also found the form was not effective as a release because the heading was Snow Creek Ski Area Rental Form. That did not notify the signers of the form that they were signing a release. The title was in large type and could not be construed to be a document attempting to relieve the ski area of liability.

The release clause language was in 5 point type at the bottom of the form. The court found “A provision that would exempt its drafter from any liability occasioned by his fault should not compel resort to a magnifying glass and lexicon.” “The language and format of the exculpatory clause leaves doubt that a reasonable person agreeing to the clause actually would understand what future claims he or she is waiving.”

The court then went back to the assumption of the risk discussion.

Implied assumption of risk includes two sub-categories, implied primary and implied secondary. Implied primary assumption of risk involves the question of whether the defendant had a duty to protect the plaintiff from the risk of harm. It applies where the parties have voluntarily entered a relationship in which the plaintiff assumes well-known incidental risks.

Implied primary assumption of the risk is a complete bar to recovery under Missouri’s law.

…implied secondary assumption of the risk occurs when the defendant owes a duty of care to the plaintiff but the plaintiff knowingly proceeds to encounter a known risk imposed by the defendant’s breach of duty. In implied secondary assumption of the risk cases, the question is whether the plaintiff’s action is reasonable or unreasonable. If the plaintiff’s action is reasonable, he is not barred from recovery. If the plaintiff’s conduct in encountering a known risk is unreasonable, it is to be considered by the jury as one element of fault. This case involves implied primary assumption of the risk.

The discussion came down to whether or not falling on ice while skiing was an inherent risk of skiing. With no statute for guidance, the court could not answer the question and sent this issue back to the lower court for a jury to decide. “…there is a genuine dispute regarding whether encountering the ice in this case is an inherent risk of skiing.”

The third claim was the release. As stated above, because the release was not pled as an affirmative defense, the court with one paragraph eliminated the defense.

The fourth claim was that artificial snow created a dangerous condition. A land owner does not have to protect invitees against conditions that are open and obvious. Artificial snow is obvious.

So Now What?

The appellate court in this case worked hard to justify throwing the win in the lower court out. It worked so hard it was somewhat scary, but educational on Missouri’s law.

1. Give your guests the opportunity to read and review your release. Post the release on line so they can review it when they are checking out your business or site. Give it to them on a clip board, first page up, so they can read it. Let them know they have all the time in the world to read it and ask questions.

2. Releases must list the risks of the activity. The perfect example of that is this case. If the release fails for any reason, then the release can be used to prove the guest assumption of the risk. Here the release language was so limited that the document could not be used to assume the risk of the accident.

3. No release should have any type on it of less than 10 points or the smallest type allowed by the court in pleadings. PERIOD! That means 5, 6 or 8 point type is too small and can’t be used in a release.

4. If you have a release, make sure you hand it to your insurance company and your attorney. When you send notice of your claim to your insurance company send copies of all important documents, including a copy of the release. Hand an identical packet to the adjuster if one is assigned to the case. Get one to your attorney and make sure they understand what it says. (Crazy I know but do it.)

5. If you do not have a statute that defines the risks of your activity, you cannot use a release written by someone for a state that does. You must list the risks of your activity, sport or program. You must list the major risks and the minor ones. You must list the risks that you encounter all the time and those you rarely encounter.

And even when you are prepared you can have a judge, who does not understand the sport and does not want you to win.

Plaintiff: Lesa Moffatt and Carrie Lewis

Defendant: Snow Creek, Inc.

Plaintiff Claims: Landowner duty, failure to warn, negligent adjustment of ski bindings, gross negligence

Defendant Defenses: Assumption of the Risk

Holding: for the plaintiff, sent back for trial on 3 of the 4 arguments.

What do you think? Leave a comment.

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

Email: blog@rec-law.us

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

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

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Lesa Moffatt, Carrie Lewis, Snow Creek, Inc., Skiing, Ski Area, Assumption of the Risk, Landowner, Failure to Warn, Invitee, Business Invitee,

WordPress Tags: Missouri,decision,rental,resort,Lewis,Creek,LEXIS,area,injuries,plaintiffs,attorney,equipment,Both,women,Defendant,plaintiff,failure,bindings,premises,assumption,Here,lawsuit,Summary,analysis,owner,statute,duties,person,Trespasser,Invitee,purpose,dealings,possessor,Appellants,Respondent,danger,layer,difference,Primary,Secondary,Recovery,opinion,paragraph,Under,clause,negligence,General,equivalents,waiver,Whether,torts,theory,action,Form,provision,lexicon,discussion,categories,relationship,jury,guidance,fourth,Artificial,Give,guests,Post,Releases,example,guest,accident,PERIOD,insurance,Hand,packet,Crazy,Lesa,Moffatt,Carrie,Claims,Landowner,adjustment,Defenses,Risk,arguments,Leave,FaceBook,Twitter,LinkedIn,Recreation,Edit,Email,RecreationLaw,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,Outside,Moss,James,Tourism,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,Warn,appellate,skiers,invitees,exculpatory

Lewis v. Snow Creek, Inc., 6 S.W.3d 388; 1999 Mo. App. LEXIS 421

Posted: March 4, 2013 | Author: Recreation Law | Filed under: Assumption of the Risk, Legal Case, Missouri, Ski Area, Skiing / Snow Boarding | Tags: Appeal, Appellant, assumption of the risk, Business Invitee, Carrie Lewis, Failure to Warn, Inc., Invitee, Landowner, Lesa Moffatt, Plaintiff, ski area, skiing, Snow Creek, St. Louis Missouri, Summary judgment, Supreme Court | Leave a comment

Lewis v. Snow Creek, Inc., 6 S.W.3d 388; 1999 Mo. App. LEXIS 421

Carrie Lewis, Lesa Moffatt, Appellants, v. Snow Creek, Inc., Respondent.

WD 55070

COURT OF APPEALS OF MISSOURI, WESTERN DISTRICT

6 S.W.3d 388; 1999 Mo. App. LEXIS 421

March 31, 1999, Opinion Filed

SUBSEQUENT HISTORY: [**1] Respondent’s Motion for Rehearing and/or Transfer to Supreme Court Passed June 1, 1999. Respondent’s Motion for Rehearing and/or Transfer to the Supreme Court Denied July 27, 1999. Opinion Readopted and Mandate Issued January 6, 2000, Reported at: 2000 Mo. App LEXIS 7.

PRIOR HISTORY: Appeal from the Circuit Court of Platte County, Missouri. The Honorable Ward B. Stuckey, Judge.

DISPOSITION: Affirmed in part and reversed in part.

COUNSEL: Fritz Edmunds, Jr., Overland Park, KS, for Appellants.

Thomas Magee, St. Louis, MO, for Respondent.

JUDGES: Albert A. Riederer Judge. Lowenstein and Stith, JJ., concur.

OPINION BY: ALBERT A. RIEDERER

OPINION

[*391] This is an appeal from summary judgments granted in each of two separate suits filed by two different plaintiffs making identical claims against Respondent. Pursuant to a motion filed by Appellants and Respondent, the cases have been consolidated on appeal. Because we find that there is disputed evidence regarding both Respondent’s liability as a possessor of land and Appellant’s implied assumption of the risk, and because we find that express assumption of the risk did not apply under the facts in this record, we reverse on those issues. However, because there is no disputed evidence regarding count III of the petitions, and because Respondent is entitled to judgment as a matter of law on that count, we affirm as to that count.

Factual and Procedural Background

On January 8, 1995, Appellant Lesa Moffatt rented skis at Snow [**2] Creek Ski Area and signed a “Snow Creek Ski Area Rental Form.” On January 21, 1995, Appellant Carrie Lewis rented skis at Snow Creek Ski Area and signed a “Snow Creek Ski Area Rental Form.” The form states in pertinent part:

10. I hereby release from any legal liability the ski area and its owners, agents and employees, as well as the manufacturers and distributors of this equipment from any and all liability for damage and injury or death to myself or to any person or property resulting from the selection, installation, maintenance, adjustment or use of this equipment and for any claim based upon negligence, breach of warranty, contract or other legal theory, accepting myself the full responsibility for any and all such damage, injury or death which may result.

This document was signed by both Lewis and Moffatt during the process of renting equipment. Lewis and Moffatt both stood in line with people in front of and behind them when they received this form. The form had to be completed before obtaining skis and equipment. Both Lewis and Moffatt claim that they felt pressured to move along and did not have an adequate opportunity to read and fully comprehend the rental form.

Lewis [**3] and Moffatt both fell on ice at Snow Creek and were injured. Lewis and Moffatt each filed a separate petition against Respondent which included the same four counts: I. Defendant owed a duty to plaintiff as a business invitee, and breached that duty by failure to warn of the icy condition where the fall occurred; II. Defendant negligently adjusted and maintained the bindings on Plaintiff’s skis because they failed to properly release when plaintiff fell, injuring plaintiff’s leg; III. Defendant created a dangerous condition by making artificial snow; and IV. Defendant was grossly negligent in failing to warn plaintiff of the dangerous condition on its premises. Respondent generally [*392] denied Appellant’s claims in its answer and asserted affirmative defenses of comparative fault and assumption of the risk.

Respondent filed a motion for summary judgment in each case. Respondent submitted as evidence the “Snow Creek Ski Area Rental Form” and the deposition of the plaintiff in each case. In response to Respondent’s motions for summary judgment, each Appellant submitted additional evidence in the form of her own affidavit. Both motions for summary judgment were granted. Lewis’ and Moffatt’s [**4] claims are identical, and they have been consolidated on appeal.

Standard of Review

[HN1] Our standard of review of a summary judgment is essentially de novo. Lawrence v. Bainbridge Apartments, 957 S.W.2d 400, 403 (Mo. App. 1997) (citing, ITT Commercial Finance Corp., v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993)). We review the record in the light most favorable to the party against whom judgment was entered and grant the non-moving party the benefit of all reasonable inferences from the record. Id. [HN2] To be entitled to summary judgment a movant must demonstrate that there is no genuine dispute of material fact and that he or she is entitled to judgment as a matter of law. Id.

In accordance with the law, we analyze whether summary judgment is appropriate on the record developed by the parties and presented to this court. The Respondent advances several arguments why summary judgment is appropriate. First, it claims as a possessor of land, it has no duty to warn a business invitee of dangers which are open and obvious as a matter of law and that the ice alleged to have caused the fall and injury was [**5] open and obvious as a matter of law. Second, it claims Appellants expressly assumed the risk of this injury by signing the Rental Form. Third, it claims Appellants impliedly assumed the risk of this injury by engaging in the sport of skiing. Fourth, it claims the Rental Form operates as a release.

I. Duty of the Possessor of Land

Respondent claims that the presence of ice on a ski slope should be determined to be an open and obvious danger as a matter of law.

A. Duty Owed To A Business Invitee

” [HN3] The standard of care owed by a possessor of land is dependent upon the status of the injured party.” Peterson v. Summit Fitness, Inc., 920 S.W.2d 928, 932 (Mo. App. 1996). An invitee “is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.” Harris v. Niehaus, 857 S.W.2d 222, 225 (Mo. banc 1993) (quoting, Restatement (Second) of Torts, § 332 (1965). As [HN4] business invitees, the Appellants were entitled to reasonable and ordinary care by Respondent to make its premises safe. Peterson, 920 S.W.2d at 932. A possessor of land is [**6] liable to an invitee only if the possessor:

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger or will fail to protect themselves against it, and

Id. Generally, [HN5] a possessor of land does not have a duty to protect invitees against conditions that are open and obvious as a matter of law. Id. at 933. “The exception to this rule is where ‘the possessor should anticipate the harm despite such knowledge or obviousness.'” Id. A condition is open and obvious if invitees should reasonably be expected to discover it. Id.

Given the preceding principles, the pivotal question is whether the ice was an open and obvious condition on the land [*393] as a matter of law. If we determine the ice was an open and obvious condition on the land as a matter of law, Respondent as possessor has no liability – unless he should anticipate the harm despite such knowledge or obviousness. Id. [**7] Thus, the next question would be whether Respondent could reasonably rely on its invitees – skiers – to protect themselves from the danger of ice or whether Respondent should have expected that skiers would not appreciate the danger thus posed. Harris, 857 S.W.2d at 226. We need not reach the second question because this court is unwilling, under the facts as developed in this case, to declare that the conditions on Respondent’s property, which allegedly caused the fall, were open and obvious as a matter of law. To the contrary, we find there is a genuine dispute regarding a material fact: the nature and character of the ice alleged to have caused the fall. “For purposes of Rule 74.04, [HN6] a ‘genuine issue’ exists where the record contains competent materials that evidence two plausible, but contradictory, accounts of the essential facts.” ITT, 854 S.W.2d at 382. “A ‘genuine issue’ is a dispute that is real, not merely argumentative, imaginary or frivolous.” Id. In this case, Appellants characterized the ice as large areas of thick impenetrable ice hidden under a dusting of snow. The evidence is that the Appellants fell on ice which they did not see because [**8] of the snow. Respondent maintained that both Appellants encountered ice on trails that the Appellants had been down several times before they fell. This is not sufficient evidence for this court to find that the ice Appellants encountered was an open and obvious danger as a matter of law. It is not clear that the Appellants should have reasonably been expected to have discovered the icy condition. Peterson, 920 S.W.2d at 933. ” [HN7] When there is disputed evidence – as in this case – on whether the landowner had reason to expect this type of accident . . ., the case properly belongs to the jury.” Harris, 857 S.W.2d at 229. Therefore, we find that Respondent was not entitled to summary judgment because there is a genuine issue regarding the ice, and the ice in question was not an open and obvious danger as a matter of law.

II. Assumption of Risk

Appellants claim that the trial court erred in granting summary judgment because the defense of assumption of the risk requires a jury determination as to disputed material facts. Specifically, Appellants claim that a jury should decide whether they knew of the ice and whether they understood and appreciated the [**9] danger posed by the ice. Respondent claims that the Appellants’ injuries were the result of a risk inherent in the sport of skiing, and therefore, the Appellants assumed the risk, or in the alternative, that Appellants expressly assumed the risk by signing the rental form. [HN8] Assumption of risk is generally categorized as express, implied primary, and implied secondary (reasonable and unreasonable). Sheppard v. Midway R-1 School District, 904 S.W.2d 257, 261-62 (Mo. App. 1995).

A. Express Assumption of Risk

[HN9] Express assumption of risk occurs when the plaintiff expressly agrees in advance that the defendant owes him no duty. Id. Recovery is completely barred since there is no duty in the first place. Id. Respondent argues that the Rental Form, signed by both Appellants, specifically mentioned the snow. Respondent correctly argues that the Rental Form relieves it of liability for injury due to snow. The evidence is that the Appellants knew about the snow and voluntarily assumed that risk. However, we cannot agree that the Rental Form relieves Respondent from injury liability due to ice. First, the Rental Form did not mention injury due to ice. [**10] In addition, the Rental Form could only relieve Respondent of such liability if the general reference to “negligence” is sufficient to do so. The clause of the Rental Form reads as follows:

[*394] 10. I hereby release from any legal liability the ski area and its owners, agents and employees, as well as the manufacturers and distributors of this equipment from any and all liability for damage and injury or death to myself or to any person or property resulting from the selection, installation, maintenance, adjustment or use of this equipment and for any claim based upon negligence, breach of warranty, contract or other legal theory, accepting myself the full responsibility for any and all such damage, injury or death which may result.

” [HN10] Although exculpatory clauses in contracts releasing an individual from his or her own future negligence are disfavored, they are not prohibited as against public policy.” Alack v. Vic Tanny International of Missouri, Inc., 923 S.W.2d 330, 334 (Mo. 1996). “However, contracts exonerating a party from acts of future negligence are to be ‘strictly construed against the party claiming the benefit of the contract, and clear and explicit language [**11] in the contract is required to absolve a person from such liability.'” Id. (quoting, Hornbeck v. All American Indoor Sports, Inc., 898 S.W.2d 717, 721 (Mo. App. 1995)).

“Historically, [HN11] Missouri appellate courts have required that a release from one’s own future negligence be explicitly stated.” 923 S.W.2d at 336 (emphasis in original). The Court in Alack determined that the best approach was to follow precedent and decisions from our state as well as others and to require [HN12] clear, unambiguous, unmistakable, and conspicuous language in order to release a party from his or her own future negligence. 923 S.W.2d at 337. The language of the exculpatory clause must effectively notify a party that he or she is releasing the other party from claims arising from the other party’s own negligence. Id. General language will not suffice. Id. “The words ‘negligence’ or ‘fault’ or their equivalents must be used conspicuously so that a clear and unmistakable waiver and shifting of risk occurs.” Id. [HN13] Whether a contract is ambiguous is a question of law to be decided by the court. Id. “An ambiguity arises when there is [**12] duplicity, indistinctness, or uncertainty in the meaning of the words used in the contract.” Id.

Respondent’s exculpatory clause uses the term “negligence.” However, that does not end our inquiry. We must determine whether the exculpatory clause uses “clear, unmistakable, unambiguous and conspicuous language.” Id. The exculpatory clause purports to shield Respondent from “any claim based on negligence and . . . any claim based upon . . . other legal theory. . . .” Alack teaches us that “there is no question that one may never exonerate oneself from future liability for intentional torts or for gross negligence, or for activities involving the public interest.” Id. Respondent argues that the language from paragraph 8 of the rental form “does not purport to release defendant from liability for intentional torts, gross negligence, or activities involving the public interest ” and that use of the word “negligence” results in a clear understanding of the acts for which liability is released. We disagree. The exculpatory clause uses general language, to wit, “any claim based on . . . other legal theory.” This language includes intentional torts, [**13] gross negligence or any other cause of action not expressly listed. ” [HN14] A contract that purports to relieve a party from any and all claims but does not actually do so is duplicitous, indistinct and uncertain.” Id. Here, the Rental Form purports to relieve Respondent of all liability but does not do so. Thus, it is duplicitous, indistinct and uncertain, Id., and thence arises an ambiguity. Rodriguez v. General Accident, 808 S.W.2d 379, 382 (Mo. banc 1991).

In addition, the exculpatory language and its format did not effectively notify the Appellants that they were releasing Respondent from claims arising from its negligence. The form the Appellants signed was entitled “Snow Creek Ski Area Rental Form.” It did not indicate it [*395] was a release. This title was in large type and could not be reasonably construed to include release of liability. By contrast, the exculpatory clause is in approximately 5 point type at the bottom of the form. “[ [HN15] A] provision that would exempt its drafter from any liability occasioned by his fault should not compel resort to a magnifying glass and lexicon.” Alack, 923 S.W.2d at 335. The Appellants had to sign [**14] the Rental Form to receive ski equipment and had to do so while in a line. The language and format of the exculpatory clause leaves doubt that a reasonable person agreeing to the clause actually would understand what future claims he or she is waiving. Id. at 337-38. The language drafted by Respondent is not “unambiguous” or “conspicuous,” and thus does not meet the standard of Alack. Id.

Thus, Respondent cannot rely on that language to claim the Appellants expressly assumed the risk of the injury complained of in the petition.

B. Implied Assumption of Risk

[HN16] Implied assumption of risk includes two sub-categories, implied primary and implied secondary. Implied primary assumption of risk involves the question of whether the defendant had a duty to protect the plaintiff from the risk of harm. Sheppard, 904 S.W.2d at 261. It applies where the parties have voluntarily entered a relationship in which the plaintiff assumes well-known incidental risks. Id. The plaintiff’s consent is implied from the act of electing to participate in the activity. Id. Implied primary assumption of the risk is also a complete bar [**15] to recovery. Id. at 262. On the other hand, [HN17] implied secondary assumption of the risk occurs when the defendant owes a duty of care to the plaintiff but the plaintiff knowingly proceeds to encounter a known risk imposed by the defendant’s breach of duty. Id. In implied secondary assumption of the risk cases, the question is whether the plaintiff’s action is reasonable or unreasonable. Id. If the plaintiff’s action is reasonable, he is not barred from recovery. Id. If the plaintiff’s conduct in encountering a known risk is unreasonable, it is to be considered by the jury as one element of fault. Id. This case involves implied primary assumption of the risk.

Appellants claim the trial court erred when it ruled, “the court finds that the Plaintiff assumed the risk of injury by skiing on the Defendant’s ski slope and that Plaintiff’s injuries were of a type inherent to the sport of skiing and that this incident involves dangers so obvious that the Defendant does not owe a duty to the Plaintiff and therefore is not required to warn the Plaintiff of such danger.” Respondent argues that the Appellants are barred by [**16] implied primary assumption of risk because by engaging in the sport of skiing, they impliedly assumed the risk of falling on the ice.

“Generally, [HN18] assumption of risk in the sports context involves primary assumption of risk because the plaintiff has assumed certain risks inherent in the sport or activity.” Id.

[HN19] Under comparative fault, if the plaintiff’s injury is the result of a risk inherent in the sport in which he was participating, the defendant is relieved from liability on the grounds that by participating in the sport, the plaintiff assumed the risk and the defendant never owed the plaintiff a duty to protect him from that risk. If, on the other hand, the plaintiff’s injury is the result of negligence on the part of the defendant, the issue regarding the plaintiff’s assumption of that risk and whether it was a reasonable assumption of risk, is an element of fault to be compared to the defendant’s negligence by the jury.

Id. at 263-64. [HN20] The basis of implied primary assumption of risk is the plaintiff’s consent to accept the risk. Id. “If the risks of the activity are perfectly obvious or fully comprehended, plaintiff has consented to [**17] them and defendant has performed [*396] his or her duty.” Martin v. Buzan, 857 S.W.2d 366, 369 (Mo. App. 1993).

[HN21] As a “defending party,” Respondent may establish a right to summary judgment by showing that there is no genuine dispute as to the existence of each of the facts necessary to support its properly pleaded affirmative defense and that those factors show Respondent is entitled to judgment as a matter of law. ITT, 854 S.W.2d at 381. In order for Respondent to have established its right to summary judgment based upon implied primary assumption of the risk, Respondent had to show that there was no genuine dispute that the Appellants’ injuries were the result of falling on ice, and that ice was a risk inherent in the sport of skiing. While there is no question that the Appellants’ injuries were a result of falling on ice, there is a genuine dispute regarding whether encountering the ice in this case is an inherent risk of skiing. Respondent notes that many states including Colorado, Idaho, Maine, Michigan, Montana, New Hampshire, New Jersey, New Mexico, Ohio, and West Virginia have all enacted statutes which codify assumption of the risk as is pertains to the sport [**18] of snow skiing. However, there is no such statute in Missouri, and this court is not willing to say, as a blanket rule, that all ice encountered on Respondent’s property is an inherent risk in the sport of snow skiing. There is a genuine dispute as to the nature of the ice. Was it “large areas of thick impenetrable ice hidden under a dusting of snow on the ski slopes,” as the Appellants claim, or was it ice on the slopes that the Appellants had been over several times prior to falling. These are questions which must be answered by a fact-finder. [HN22] While the basis of implied primary assumption of the risk is the plaintiff’s consent to accept the risk, the plaintiff must be aware of the facts that create the danger and they must appreciate the danger itself. Shepard, 904 S.W.2d at 264. Thus, the standard is a subjective one: “what the particular plaintiff in fact sees, knows, understands and appreciates.” Id. Here, the record does not include evidence that the Appellants were aware of the facts that created the danger or that they appreciated the danger itself. In fact, there was only evidence to the contrary, that the Appellants did not know, understand or appreciate [**19] the ice because it was under snow.

Therefore, we find that summary judgment cannot, on this record, be based upon express or implied primary assumption of the risk.

III. Release

Respondent argues on appeal that the “Rental Form” operated as a release. Respondent did not plead release as an affirmative defense in its answer. [HN23] Release is an affirmative defense that must be pleaded in an answer. Rule 55.08. Failure to plead an affirmative defense constitutes a waiver of the defense. Leo’s Enterprises, Inc. v. Hollrah, 805 S.W.2d 739, 740 (Mo. App. 1991). Since Respondent did not plead the affirmative defense of release, summary judgment would not be proper based upon the theory of release.

Artificial Snow

We affirm the trial court’s grant of summary judgment on Count III of the Appellants’ petitions. The Appellants state in Count III of their petitions that Respondent created a dangerous condition by making artificial snow and dispersing it on the ski slope and that Respondent owed a duty to them as business invitees not to create dangerous conditions on the premises. The trial court was correct in granting Respondent’s summary judgment [**20] on Count III, because [HN24] a possessor of land does not have a duty to protect invitees against conditions that are open and obvious as a matter of law. Peterson, 920 S.W.2d at 933. A condition is open and obvious if invitees should reasonably be expected to discover it. Id. Respondent could be liable only if it was not reasonable [*397] for it to expect the Appellants to see and appreciate the risk and to take reasonable precautions. Harris, 857 S.W.2d at 226. Artificial snow at Snow Creek is an open and obvious condition, and it is reasonable for Respondent to expect the Appellants to see and appreciate the risk of artificial snow and to take appropriate precautions.

Conclusion

The judgment of the trial court is affirmed as to Count III of each of the petitions. It is reversed and remanded for further proceedings on counts I, II, & IV.

Albert A. Riederer, Judge

Lowenstein and Stith, JJ., concur.

WordPress Tags:

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

Lewis,Creek,LEXIS,Carrie,Lesa,Moffatt,Appellants,Respondent,COURT,APPEALS,MISSOURI,WESTERN,DISTRICT,March,Opinion,SUBSEQUENT,HISTORY,Motion,Transfer,Supreme,June,Mandate,January,PRIOR,Appeal,Circuit,Platte,Honorable,Ward,Stuckey,Judge,DISPOSITION,COUNSEL,Fritz,Edmunds,Overland,Park,Thomas,Magee,Louis,JUDGES,Albert,Riederer,Lowenstein,Stith,judgments,plaintiffs,Pursuant,possessor,Appellant,assumption,judgment,Factual,Procedural,Background,Area,Rental,Form,owners,agents,employees,manufacturers,distributors,equipment,injury,death,person,selection,installation,maintenance,adjustment,negligence,theory,Both,Defendant,plaintiff,failure,bindings,premises,response,affidavit,Standard,Review,Lawrence,Bainbridge,Apartments,Commercial,Finance,Corp,America,Marine,inferences,fact,accordance,arguments,dangers,Second,Third,Fourth,Land,presence,danger,Invitee,status,Peterson,Summit,purpose,dealings,Harris,Niehaus,Restatement,Torts,exception,knowledge,Given,Thus,purposes,Rule,areas,landowner,accident,jury,Risk,determination,injuries,Sheppard,Midway,School,Recovery,addition,reference,clause,Although,clauses,policy,Alack,Tanny,International,Hornbeck,American,Indoor,Sports,emphasis,precedent,decisions,General,equivalents,waiver,Whether,paragraph,action,Here,Rodriguez,provision,resort,lexicon,categories,relationship,incident,context,Under,basis,Martin,Buzan,existence,factors,Colorado,Idaho,Maine,Michigan,Montana,Hampshire,Jersey,Mexico,Ohio,West,Virginia,statutes,statute,finder,Shepard,Release,Enterprises,Hollrah,Artificial,Count,precautions,Conclusion,proceedings,skis,hereby,upon,banc,invitees,skiers,exculpatory

Good record keeping proves defendant ski area did not operate lift improperly

Posted: February 18, 2013 | Author: Recreation Law | Filed under: Assumption of the Risk, New York, Ski Area, Skiing / Snow Boarding | Tags: American National Standards Institute, lift, lift attendant, New York, Peter Harris, Ski, Ski Resort, skiing, Song Mountain Ski Center, South Slope Development Corp. | Leave a comment

Tone v. Song Mountain Ski Center, et al., 37 Misc. 3d 1217A; 2012 N.Y. Misc. LEXIS 5136; 2012 NY Slip Op 52069U

Plaintiff’s case is hard to prove when two other people exit the lift properly from the same chair.

Plaintiff was riding a triple lift at the defendant’s ski area with her nine-year-old son and her ex-husband. She became entangled with her son’s skis and remained on the lift after her son, and ex-husband exited the lift. She then exited the lift before the lift hit the safety gate, falling and injuring herself.

A safety gate is a trip mechanism which stops the lift because a rider still on the lift trips it. It is designed to stop the lift if someone fails to exit the lift.

The plaintiff was an experienced intermediate skier. She owned her own skis, and boots had skied more than fifty times and had ridden the lift twice the day she was injured.

After the accident, the plaintiff completed and signed an “incident report form.” The form indicated she had stayed on the lift to allow her son to get off the lift. When she jumped she jumped 6 feet and landed on her left hip.

Prior to the accident, the lift was inspected by the New York Department of Labor and found to be in good condition. The lift met all standards as developed by ANSI (American National Standards Institute). The standards say a triple (obviously fixed grip) chair lift can travel a maximum of five hundred feet per minute (5 miles per hour). This lift was traveling between 400 and 500 feet per minute at the time.

The lift attendant’s daily log was up to date and indicated that everything was operating correctly on the lift. The lift

…fully checked on that date to ensure that all systems were working properly. The stops switches and safety gate were working, the ramps were snow covered and at a proper grade, the phones were working properly and the counter weight on the lift was clear and within normal limits.

One key point the court pointed out was simple. The plaintiff’s husband and son exited the lift with no problems. If the lift was not operating correctly they should have had problems getting off the lift also.

Summary of the case

The court reviewed the defenses and found that nothing was wrong with the lift. The plaintiff did not have an expert witness or any witness who could testify that the lift failed to operate properly. The court quickly dismissed the plaintiff’s claims that the lift failed to operate properly, and the ski area failed to operate the lift properly.

The claims were not supported by the plaintiff with any evidence.

The court looked at the New York statutes concerning skiing GOL §18-102 and GOL §18-104. The NY statute GOL §18-102 covers the duties of passengers who requires a passenger to familiarize themselves with the safe use of any lift prior to using it. GOL §18-104 states

A ski area operator is relieved from liability for risks inherent in the sport of downhill skiing, including the risks associated with the use of a chair lift when the participant is aware of, appreciates and voluntarily assumes the risk.

The court found that the plaintiff failed to comply with the requirements of the skiing code by disembarking at the appropriate location and therefore, assumed the risk of her accident.

The plaintiff’s final argument was a prior case that had been sent back to the trial court because the lift attendant had failed to stop the lift when a mother and son’s ski equipment became entangled. In that case, the court found the son had been yelling and was excited. The plaintiff’s expert witness testified that there was time for the lift attendant to see the child in distress and stop the lift.

Here the court found that no one had indicated to the lift attendant that there were in distress so therefore the lift attendant had no obligation to stop the lift.

So Now What?

The ski area followed all standards and kept great records concerning the lift. The records proved that nothing was wrong with the lift at the time of the accident.

The ski area could prove, through records that it exceeded the requirements or standards for training lift attendants.

Finally, the plaintiff simply failed to present any evidence that the defendant had breached any duty to it.

Simply put, if you have a requirement to keep records, you better do an excellent job of keeping records. The resort’s records were up to date and covered every claim the plaintiff argued.

Plaintiff: Christina J. Tone and Steven Tone

Defendant: Song Mountain Ski Center and South Slope Development Corp. and their Agents, Servants and Employees, and Peter Harris, Individually and d/b/a Song Mountain Ski Center, and Individually as a member, officer, share-holder and director of South Slope Development Corp. and Song Mountain Ski Center

Plaintiff Claims: defendant failed to operate the lift correctly and the lift did not operate correctly and the lift attendants were not properly trained.

Defendant Defenses: Lift operated and was designed correctly and plaintiff assumed the risk.

Holding: Summary judgment granted for the defendant.

What do you think? Leave a comment.

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

Email: blog@rec-law.us

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Song Mountain Ski Center, South Slope Development Corp., Peter Harris, Song Mountain Ski Center, South Slope Development Corp., Song Mountain Ski Center, skiing, lift, lift attendant,

WordPress Tags: defendant,area,Song,Mountain,Center,Misc,LEXIS,Slip,Plaintiff,husband,gate,mechanism,rider,accident,incident,feet,Prior,York,Department,Labor,ANSI,American,National,Standards,Institute,hour,systems,ramps,Summary,statutes,statute,duties,passengers,operator,participant,requirements,location,argument,equipment,Here,obligation,attendants,requirement,resort,Christina,Steven,South,Slope,Development,Corp,Agents,Servants,Employees,Peter,Harris,member,officer,holder,director,Claims,Defenses,Lift,judgment,Leave,FaceBook,Twitter,LinkedIn,Recreation,Edit,Email,RecreationLaw,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,Outside,Moss,James,Attorney,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,Negligence,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,skis

Tone v. Song Mountain Ski Center, et al., 37 Misc. 3d 1217A; 2012 N.Y. Misc. LEXIS 5136; 2012 NY Slip Op 52069U

Posted: February 18, 2013 | Author: Recreation Law | Filed under: Assumption of the Risk, Legal Case, New York, Skiing / Snow Boarding | Tags: American National Standards Institute, Chairlift, lift, lift attendant, Peter Harris, Ski, Ski lift, skiing, Song Mountain Ski Center, South Slope Development Corp. | Leave a comment

Tone v. Song Mountain Ski Center, et al., 37 Misc. 3d 1217A; 2012 N.Y. Misc. LEXIS 5136; 2012 NY Slip Op 52069U

Christina J. Tone and Steven Tone, Plaintiffs, against Song Mountain Ski Center and South Slope Development Corp. and their Agents, Servants and Employees, and Peter Harris, Individually and d/b/a Song Mountain Ski Center, and Individually as a member, officer, shareholder and director of South Slope Development Corp. and Song Mountain Ski Center, Defendants.

2009-7913

SUPREME COURT OF NEW YORK, ONONDAGA COUNTY

37 Misc. 3d 1217A; 2012 N.Y. Misc. LEXIS 5136; 2012 NY Slip Op 52069U

November 2, 2012, Decided

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

CORE TERMS: lift, chair lift, attendant, skis, skier, mountain, chairlift, skiing, triple, gate, inspection, ski lift, ski area, training, riding, slowed, feet, ramp, snow, speed, deposition testimony, issue of fact, deposition, ex-husband, passenger, downhill, tramway, sport, safe, top

HEADNOTES

[*1217A] Negligence–Assumption of Risk–Skier Injured on Chair Lift.

COUNSEL: [**1] For Plaintiffs: MICHELLE RUDDEROW, ESQ., OF WILLIAMS & RUDDEROW, PLLC.

For Defendants: MATTHEW J. KELLY, ESQ., OF ROEMER, WALLENS, GOLD & MINEAUX, LLP.

JUDGES: Donald A. Greenwood, Supreme Court Justice.

OPINION BY: Donald A. Greenwood

OPINION

The defendants have moved for summary judgment dismissal of the complaint against them, which alleges that the plaintiff suffered a fractured hip at Song Mountain on February 25, 2007 while attempting to exit a chair lift. The defendants move for dismissal on the grounds that all of the evidence shows that the ski lift was properly designed and operated and that the plaintiff assumed the risk of her injury.

As the proponent of the motion, the defendants are required to establish their entitlement to dismissal as a matter of law through the tender of admissible evidence. See, Hunt v. Kostarellis, 27 AD3d 1178, 810 N.Y.S.2d 765 (4th Dept. 2006). The defendants have done so here through their [***2] reliance, inter alia, on the plaintiff’s deposition testimony. The plaintiff testified that she was skiing with her nine year old son at the time and that she was an intermediate level skier with approximately fifteen years of experience. She owned her own skis and boots and had skied more than fifty times. [**2] On the date of the accident, she took two runs down the mountain and on both occasions rode the triple chair lift without incident. On her third occasion up the mountain she again rode the triple chair lift. Her son was with her, as was her ex-husband. Plaintiff testified that she sat on the right side of the chair, her son sat in the middle and the ex-husband sat on the left side. According to plaintiff, while riding up the chair lift she noticed that her skis were crossed with her son’s skis, so she let her son get off the chair lift first. Her ex-husband also got off the chair lift, but plaintiff waited. During her deposition, the plaintiff was shown the “Incident Report Form” completed at the time, which she signed. The form indicates that plaintiff said that she let her son get off first because their skis were crossed and that “I waited too late, and when I jumped approximately 6 feet, landed on my left hip.” When asked at her deposition what she did after her son got off, she responded that she did not remember, that she did not recall trying to get off, but that it happened so quickly that when the chairlift made its turn she “just flew off.”

The defendants also rely upon an [**3] inspection report completed by the Department of Labor on December 12, 2006, two months before the accident. An inspection of the chairlift was conducted by the Industry Inspection Bureau. Two violations unrelated to the design of the lift or exit ramp were found at that time and two unrelated violations were subsequently determined. Defendants note, however, that no deficiencies were found with respect to the design of the lift or exit ramp, the speed of the lift, or the location of the safety gate on the lift.

In addition, the defendants rely upon New York State regulations referenced in the Department of Labor inspections and standards promulgated by the American National Standards Institute which address industry wide safety standards for a variety of products and industries. Those regulations provide that the maximum relative carrier speed in feet per minute for chair lifts states that a triple chairlift carrying skiers may travel at a maximum speed of five hundred feet per minute. Defendants also provide an affidavit of Peter Harris, the President of South Slope Development Corporation, the operator of Song Mountain. Harris indicates that the chairlift traveled at a maximum speed [**4] of four hundred to five hundred feet per minute, which is equal to less than five miles per hour. He also claims that plaintiff failed to depart from the chairlift at the appropriate time, despite being warned by the unload signs. In addition, he indicates that the lift has certain safety mechanisms and if the plaintiff was to stay on the lift as it turned around the bull wheel heading downhill, her skis would hit the safety gate, which would stop the lift and allow for a safe evacuation of the lift. Plaintiff instead jumped from the lift before the safety gate, resulting in her being injured. He notes that the design of the lift specifically would have prevented the injury if she had remained on it, and the fact that the lift operated property is demonstrated by the fact that of the three people on the lift, two of them exited the lift in accordance with proper procedure and were not injured.

Defendants have also established in the first instance that any argument that the lift attendants were not properly trained is without merit, since Harris testified at his deposition that Song Mountain uses an industry standard lift operating training program designed by the National Ski Areas [**5] Association and that the program includes an in depth training DVD, training [***3] manuals and tests. The defendants also rely upon the deposition testimony of Carl Blaney, a long time attendant, who testified that the lift attendants took annual quizzes prior to the start of the season in order to demonstrate that they understood their duties in operating the lifts. It is also argued that plaintiff’s contention that the lift should have been slowed because plaintiff’s nine year old son was riding is incorrect. Blaney testified that the lift would not have been slowed for that reason, nor is there any evidence that simply because a child is riding the lift that it should be slowed. Defendants also point to the lift attendant’s daily log for the date of the accident, which demonstrates that the triple chair lift was fully checked on that date to ensure that all systems were working properly. The stops switches and safety gate were working, the ramps were snow covered and at a proper grade, the phones were working properly and the counter weight on the lift was clear and within normal limits. It is argued that since all of the evidence demonstrates that the lift was operating properly, the [**6] cause of the accident was solely plaintiff’s failure to disembark at the appropriate location, followed by her failure to remain seated once she missed the off load ramp. The defendants have met their burden in establishing that since there is no evidence that they improperly maintained the ski lift or that it was negligently designed, plaintiff cannot make a showing that the risks to her were increased or hidden. See, Sontag v. Holiday Valley, Inc., 38 AD3d 1350, 832 N.Y.S.2d 705 (4th Dept. 2007); see also, Painter v. Peek’n Peak Recreation, Inc., 2 AD3d 1289, 769 N.Y.S.2d 678 (4th Dept. 2003).

The defendants have also met their burden in the first instance of establishing that the plaintiff assumed the risk of her injury. Defendants point to the General Obligations Law, which addresses safety in skiing. The triple chair lift is identified as a “passenger tramway”, a mechanical device intended to transport skiers for the purpose of providing access to ski slopes and trails as defined by the Commissioner of Labor… See, GOL §18-102. Under “duties of passengers” the following are listed: to familiarize themselves with the safe use of any tramway prior to its use and…to board or disembark from passenger tramways only at [**7] points or areas designated by the ski area operator. See, GOL §18-104; see also, 12 NYCRR 54.4(a). A ski area operator is relieved from liability for risks inherent in the sport of downhill skiing, including the risks associated with the use of a chair lift when the participant is aware of, appreciates and voluntarily assumes the risk. See, DeLacy v. Catamount Development Corp., 302 AD2d 735, 755 N.Y.S.2d 484 (3rd Dept. 2003). In assessing whether one injured in the course of participating in a sporting or recreational event has assumed the risk posed by an assuredly dangerous condition, the critical inquiry is whether that condition is unique, constituting a hazard over and above the usual dangers that are inherent in the sport. See, Simoneau v. State of New York, 248 AD2d 865, 669 N.Y.S.2d 972 (3rd Dept. 1998), citing, Morgan v. State of New York, 90 NY2d 471, 685 N.E.2d 202, 662 N.Y.S.2d 421 (1997). Defendants have established that plaintiff was an experienced skier and had skied extensively at Song Mountain. It is further argued that the plaintiff assumed the risk of her injury by failing to comply with the requirements of the safety and skiing code by disembarking at the appropriate location. Plaintiff testified that she failed to get off the lift [**8] at the dismount area and had she stayed on she would have tripped the safety gate, which would have stopped the lift automatically. Inasmuch as the defendants have met their burden in the first instance, the burden shifts to the plaintiff to raise an [***4] issue of fact. See, Hunt, supra.

The plaintiff points to a recent Fourth Department case where the plaintiff skier was riding a chair lift with her son, a snow boarder. Plaintiff’s skis became entangled with the snow board and her son panicked and began yelling that he could not untangle the skis, despite frantic attempts. See, Miller v. Holiday Valley, Inc., 85 AD3d 1706, 925 N.Y.S.2d 785 (4th Dept. 2011). Plaintiff’s son exited the lift, but he pulled the plaintiff out of the lift chair in the process and she was injured. See, id. Plaintiff alleged that the top lift attendant should have slowed or stopped the lift because she and her son reached the unloading area. See, id. The court found that a question of fact existed as to whether the alleged failure to operate the ski lift in a safe manner was a proximate cause of the accident. See, id. In so finding, the court noted plaintiff’s deposition testimony that her son was yelling and making frantic attempts [**9] to untangle the skis and snow board and that plaintiff’s expert relied on that testimony in concluding that “the top lift attendant had sufficient time to observe plaintiff’s distress and to engage in what defendant’s night lift operation supervisor characterized as the exercise of judgment to slow or stop the lift.” Id. Defendants correctly argue that there is no evidence in the present case that plaintiff and her son caused any type of commotion prior to reaching the unloading area or tried to alert the attendant in any way for the top lift attendant to have noticed they were having any difficulty. The plaintiff has failed to come forward with proof in admissible form as in Miller, supra. that either the ski lift operator saw or should have seen that the plaintiff was in distress. Nor does plaintiff provide an expert opinion that based upon the facts here, the operator had time to take an action that would have prevented plaintiff’s fall. Plaintiff has likewise failed to raise an issue of fact as to whether she assumed the risk of her injury. Plaintiff does not dispute her experience as a skier or that she was familiar with the subject lift, as required by law. See, GOL §18-104; see [**10] also, 12 NYCRR §54.4. Nor has she submitted evidence to raise an issue of fact as to whether the defendants “created a dangerous condition over and above the usual dangers inherent in the sport of [downhill skiing]” Bennett v. Kissing Bridge Corporation, 17 AD3d 990, 794 N.Y.S.2d 538 (4th Dept. 2005), quoting, Owen v. RJS Safety Equip., 79 NY2d 967, 591 N.E.2d 1184, 582 N.Y.S.2d 998 (1992); see also, Miller, supra, quoting, Sontag, supra.

The plaintiff has also failed in her burden with respect to whether the lift attendants were properly trained, and in fact points to the National Ski Area’s Association Training completed by defendant’s employees. Nor has the plaintiff raised an issue as to whether the lift was properly operating on the day of the accident. Plaintiff has not disputed the inspection reports or the defendants’ compliance with the requisite regulations.

NOW, therefore, for the foregoing reasons, it is

ORDERED, that the defendant’s motion for summary judgment dismissal is granted.

ENTER

Dated: November 2, 2012

Syracuse, New York

DONALD A. GREENWOOD

Supreme Court Justice [***5]

WordPress Tags: Song,Mountain,Center,Misc,LEXIS,Slip,Christina,Steven,Plaintiffs,South,Slope,Development,Corp,Agents,Servants,Employees,Peter,Harris,member,officer,shareholder,director,Defendants,SUPREME,COURT,YORK,ONONDAGA,November,NOTICE,OPINION,OFFICIAL,REPORTS,TERMS,gate,inspection,area,feet,ramp,testimony,fact,husband,HEADNOTES,Negligence,Assumption,Risk,Skier,Chair,Lift,COUNSEL,MICHELLE,WILLIAMS,PLLC,MATTHEW,ROEMER,WALLENS,GOLD,MINEAUX,JUDGES,Donald,Greenwood,Justice,judgment,dismissal,complaint,plaintiff,February,injury,proponent,entitlement,Hunt,Kostarellis,Dept,reliance,accident,incident,Report,Form,Department,Labor,December,Industry,Bureau,violations,deficiencies,location,addition,State,inspections,American,National,Standards,Institute,products,industries,carrier,affidavit,President,Corporation,operator,hour,mechanisms,bull,evacuation,accordance,procedure,instance,argument,attendants,Areas,Association,depth,manuals,Carl,Blaney,duties,contention,systems,ramps,failure,Sontag,Valley,Painter,Peek,Peak,Recreation,General,Obligations,device,purpose,Commissioner,Under,passengers,NYCRR,participant,DeLacy,Catamount,event,dangers,Simoneau,Morgan,requirements,Fourth,boarder,Miller,manner,defendant,supervisor,commotion,action,Bennett,Bridge,Owen,Equip,compliance,ENTER,Syracuse,skis,chairlift,tramway,nine,upon,skiers,five,whether,supra

Bad release and prepped plaintiff defeat motion for summary judgment filed by ski area

Posted: February 11, 2013 | Author: Recreation Law | Filed under: Assumption of the Risk, New York, Release (pre-injury contract not to sue), Ski Area, Snow Tubing | Tags: assumption of the risk, Express Assumption of the Risk, fling, Negligence, Release, Rocking Horse Ranch Corp, ski area, Tee Bar Corp., Tubing, tubing hill | Leave a comment

Rich et. al., vs. Tee Bar Corp. et. al., 2013 U.S. Dist. LEXIS 10682

Plaintiff argued she was “flung” with all employees and to the court, even though she had no proof except her own testimony.

Plaintiff, her husband and two children went to the defendant resort in New York. At the resort, she skied and tubed. During tubing, she was riding with her daughter in a double tube for several runs. She later switched to a single tube.

After riding to the top on the tube she claims she heard the lift attendants at the top talking about trying to get tubers to hit the back of the run out. She then claimed the lift attendant grabbed the rope attached to her tube, ran her back to the back of the top of the landing and ran forward flinging her down the hill. The plaintiff’s tube went through the deceleration area and struck the backstop at the back of the deceleration area causing her injury.

Plaintiff claims that, without warning, Frisher took the rope attached to her tube, ran her back towards the woods, then turned and ran her to the top of the hill and “flung” her down the hill. McDermott does not remember the incident at all and denies ever seeing a coworker “fling” a tuber down the hill. Frisher does not remember the incident and denies ever seeing anyone “fling” a tuber down the hill. Plaintiff struck the barrier at the top of the deceleration ramp.

After her injury, the plaintiff walked with a resort employee to the ski shop. She sat there for 10 minutes and refused additional medical care. She then went to her room. A resort employee and a nurse went to her room and suggested the plaintiff go to a hospital, but she declined. The next day she skied with her family and stayed at the resort until her reservation ended.

While she was at the resort, after her injury, the plaintiff allegedly told three resort managers about the incident, and that she had been flung down the tubing hill. Some of the resort managers remember talking to her, but most do not remember her stating that she was flung down the hill.

The court went through the work done by the resort to slow down tubers in the deceleration area. The resort uses rubber mats and straw to slow down tubers. The runs are checked by resort employees before they are opened to the public and are monitored during the runs. If guests are going too far through the tubing deceleration area, additional measures are taken to slow tubers down.

The plaintiff filed this complaint in federal district court in New York. The court stated the complaint was based on diversity jurisdiction meaning the plaintiff was not a resident of New York; however, that information is not stated in the opinion.

The defendant filed a motion for summary judgment and a motion to restrict medical testimony. The court ruled there was sufficient testimony to send to a jury, and the motion for summary judgment was denied.

Summary of the case

The court first looked at the defense of assumption of the risk. Under New York law, a person engaging in a sport assumes the inherent risk of the activity that flow from participation. A participant does not assume the risk that are not inherent or a risk increased by the defendant.

However, a participant does not assume risks that are the result of reckless or intentional conduct, risks “concealed or unreasonably increased” or risks that result in a “dangerous condition over and above the usual dangers inherent in the activity.”

In New York, whether the plaintiff assumes the risk is a question for the jury.

Generally, whether the plaintiff assumed a risk by participating in a sport is a question for the jury; dismissal of the complaint is appropriate only when the proof before the court reveals no triable issue of fact.

Here the plaintiff was able to create a triable issue of fact that the resort had increased her risk by flinging her down the slope. A triable issue of fact is one that there are issues or different versions of the facts from the plaintiff and defendant. The court cannot, is not allowed to decide, which one is correct so the issue must go to trial. Creating a triable issue of fact is the easiest way to defeat a motion for summary judgment. Because the facts are at issue, it does not matter what law is applied so the motion cannot be granted.

It may seem odd that a judge may eventually make the decision which he or she could not make earlier. At trial, each side is on equal footing and all the rules of trial are at play. Prior to that point in time, the footing may not be equal. As such for one party to win prior to trial, there must be nothing the other side can show that would change the decision. A triable issue of fact is one where one side is able to show there is an issue, and it must go to a full blow hearing of a trial and be reviewed by the trier of fact. The trier of fact in most cases is a jury, but if not jury, then the judge.

One interesting argument on the assumption of risk issue was the warning signs at the tubing hill. The plaintiff claims she never saw any warning signs. She also said she never saw the Willy Bags, padding at the tubing hill also.

The next argument was the plaintiff signed a release. The court quickly dismissed this argument because the release was poorly written. Under New York law, a release “must be plain and precise that the limitation of liability extends to negligence or the fault of the party attempting to shed its ordinary responsibility.” The court found the opposite in this case.

The next argument is rare to find in cases. The defendant argued that the injuries of the plaintiff were not proximately caused by the negligence of the defendant. Remember negligence has four requirements to be proved.

· A Duty

· Breach of the Duty

· Injury proximately caused by the breach of duty

· Damages

For the plaintiff to recover the injury she received must have been due to the breach of duty. In this case, her injuries had to have been caused because the defendant’s employee “flung” her down the hill. That means there must be a connection between her injury and what the defendant did.

The basis of the defense was the resort had tried to recreate the incident which caused the plaintiff’s injuries and could not. The plaintiff rebutted this argument with an expert witness who argued based on the facts as stated by the plaintiff; she could have slid to the back wall of the deceleration area. The court sort of looked at the test done by the resort as lame.

The argument made by the defendant was not supported by the defendant in its motion.

The court also looked at the defendant’s arguments that certain medical information should be precluded from the trial; however, that will not be covered here.

So Now What?

Warning Signs: Put into your release that the plaintiff agrees to read and understand all warning signs. Signs must also be placed in a position you cannot help but see them. Signs should be along the path from where you sign in and pay to the lift or from where you pick up your tube to the lift. Places where you cannot argue, you did not see the signs.

You also need to prove the signs were there. Just like the log books of lift attendants, have the tubing lift attendants check for and log that all the signs were up and readable before the hill was open.

Although the facts helped argue assumption of the risk, the plaintiff had equal arguments that the risk was changed or increased by the defendant. As I have stated in the past, the best way to prove assumption of the risk is to have it in writing or video and prove the writing with a signature. Here the release was specifically cited by the court as not having any assumption of risk language in it.

The release was just plain bad.

If you want to recreate the events giving rise to a lawsuit, you cannot do it yourself. You must hire competent outside experts to do it. Here the court looked at the test by hardly even commented on it meaning it had no validity.

The major issue is to spot a lawsuit coming at you. Here the plaintiff, although not suffering any major injuries, went out of her way to talk to all the managers she could find. Although her claims and allegations may seem to be preposterous, she repeatedly made them to anyone and everyone she could. That is a warning sign, you have an upset guest.

No matter how wild the allegations, the other warning signs mean you need to take the complaint as valid and deal with it. More importantly, deal with the complaining guests. Although her allegations are beyond belief and would not be done by your staff, you have a guest who is obviously willing to do anything to get something out of you.

Finally, you must caution your staff about making any statement that could be interpreted by a guest as a risk, threat, or an attempt to create injuries. Although probably, if at all plausible, a joke, it was interpreted or could be interpreted by the plaintiff as the reason for her injuries.

Plaintiff: Donna Rich and Mark Rich

Defendant: Tee Bar Corp. and Rocking Horse Ranch Corp

Plaintiff Claims: Negligence

Defendant Defenses: Assumption of the Risk, Release,

Holding: Defendants Summary Judgment motion denied and sent for trial.

What do you think? Leave a comment.

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

Email: blog@rec-law.us

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Tee Bar Corp., Rocking Horse Ranch Corp, ski area, tubing hill, tubing, negligence, fling, Release, Assumption of the Risk, Express Assumption of the Risk,

WordPress Tags: plaintiff,judgment,area,Rich,Corp,Dist,LEXIS,employees,testimony,husband,defendant,resort,York,daughter,tube,attendants,tubers,hill,deceleration,injury,Frisher,woods,McDermott,incident,coworker,tuber,barrier,ramp,employee,room,hospital,managers,Some,rubber,straw,guests,complaint,district,jurisdiction,information,opinion,jury,Summary,assumption,Under,person,participation,participant,dangers,dismissal,fact,Here,versions,decision,Prior,trier,argument,Bags,limitation,negligence,waiver,reference,Thus,defendants,occurrence,Moreover,claimant,injuries,Remember,requirements,Breach,Damages,connection,basis,arguments,Signs,path,Places,Just,Although,signature,events,lawsuit,experts,allegations,guest,belief,statement,threat,Donna,Mark,Horse,Ranch,Claims,Defenses,Risk,Release,Leave,FaceBook,Twitter,LinkedIn,Recreation,Edit,Email,RecreationLaw,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,Outside,Moss,James,Attorney,Tourism,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,whether,triable

Rich et. al., vs. Tee Bar Corp. et. al., 2013 U.S. Dist. LEXIS 10682

Posted: February 11, 2013 | Author: Recreation Law | Filed under: Assumption of the Risk, Legal Case, New York, Release (pre-injury contract not to sue), Ski Area, Snow Tubing | Tags: assumption of the risk, Express Assumption of the Risk, fling, Negligence, Release, Rocking Horse Ranch, Rocking Horse Ranch Corp, ski area, Ski Resort, Tee Bar Corp., Tubing, tubing hill | Leave a comment

Rich et. al., vs. Tee Bar Corp. et. al., 2013 U.S. Dist. LEXIS 10682

Donna Rich and Mark Rich, Individually and as Husband and Wife, Plaintiffs, vs. Tee Bar Corp. and Rocking Horse Ranch Corp., Defendants.

1:10-CV-1371 (MAD/CFH)

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

2013 U.S. Dist. LEXIS 10682

January 28, 2013, Decided

January 28, 2013, Filed

CORE TERMS: tube, snow, summary judgment, guest, flung, attendant, top, evening, tuber, tubing, rope, pushed, deceleration, temperature, daughter, ski, issue of material fact, citation omitted, introducing, deposition, genuine, sport, conversation, double, ramp, tow, ran, credibility, causally, test runs

COUNSEL: [*1] For Plaintiffs: John W. Liguori, Esq., OF COUNSEL, Rehfuss, Liguori & Associates, P.C., Latham, NY.

For Defendants: Matthew J. Kelly, Esq., OF COUNSEL, Roemer Wallens Gold & Mineaux LLP, Albany, NY.

JUDGES: Mae A. D’Agostino, U.S. District Judge.

OPINION BY: Mae A. D’Agostino

OPINION

Mae A. D’Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

INTRODUCTION

Plaintiffs commenced the within action against Tee Bar Corp. and Rocking Horse Ranch Corp. (“defendants” or “Ranch”) seeking monetary damages for pain and suffering and loss of consortium as a result of an accident that occurred on February 6, 2009. Plaintiffs allege that defendants’ negligence resulted in injury to plaintiff, Donna Rich. Presently before the Court is defendants’ motion summary judgment and dismissal of plaintiffs’ complaint pursuant to Fed. R. Civ. P. 56. In the alternative, defendants seek an order precluding plaintiffs from presenting medical evidence at trial with respect to certain injuries that defendants claim were not causally related to the accident. (Dkt. No. 28). Plaintiffs opposed the motion and cross-moved for an order pursuant to Fed. R. Evid. 403 precluding certain evidence offered by defendants on the motion. (Dkt. No. 31). [*2] This court has jurisdiction pursuant to 28 U.S.C. § 1332.

FACTS¹

1 Defendants filed a Statement of Material Facts and plaintiffs properly responded. Plaintiffs also set forth additional facts. Defendants have not responded to these additional assertions in the reply submission. To the extent that the “facts” asserted by plaintiffs in the Statement of Material Facts are supported by the record, the Court will consider them in the context of the within motion. The background set forth in this section is taken from: (1) defendants’ Statements of Material Facts and plaintiff’s responses therein; (2) the exhibits and evidence submitted by defendants in support of the motion for summary judgment; and (3) the exhibits and evidence submitted by plaintiffs in opposition to the motion for summary judgment. The facts recited are for the relevant time period as referenced in the complaint.

The facts in this case, unless otherwise noted, are undisputed. Rocking Horse Ranch is a family-owned resort in Highland, New York that provides a variety of activities for guests including horseback riding, water activities, entertainment, skiing and snow tubing. Plaintiff, Donna Rich (“plaintiff” or “D. Rich”), [*3] went to the Rocking Horse Ranch with her husband, Mark Rich (“plaintiff” or “M. Rich”) and their two children. Plaintiffs checked in on February 6, 2010 and stayed until Sunday, February 8, 2010.

The ski area and tube run at the Ranch are inspected by the New York State Department of Labor. The Ranch receives a permit from the State to operate the lift at the snow tube hill. The snow tube hill has been in continuous operation at the Ranch since 1994 or 1995. On a given day, approximately 1000 tubes will go down the snow tube hill. The snow tubing hill at the Ranch consists of a single tow rope and either one or two lanes for snow tubers. Guests hook their tubes to the tow rope and ride up the hill. Guests then ride their tubes to the bottom. Ranch employees assist with each step, including giving a “gentle” nudge in order to get the guests started down the hill. Guests may ride in single tubes alone or in double tubes with another person. The snow tube hill ends in a flat area covered with hay and then continues into a deceleration ramp – an uphill section designed to further slow riders. “Willy bags” and hay bales are set up to “create a horseshoe for protection” around the deceleration [*4] ramp.²

2 The parties disagree on whether Willy bags were in place on the evening of plaintiff’s accident.

Generally, because the speed of the tubes is affected by changeable conditions, the snow tube run is tested by the employees before it opens. If tubers are traveling too far up the deceleration ramp, staff members will add additional deceleration mats – rubber mats used to slow the riders – and they will add additional hay at the base of the deceleration ramp, stretching it out so that tubers hit the hay sooner and slow down. Ranch employees test both the single and double tubes before opening the snow tube hill to guests.³ Typically, the double tubes will go farther than the single tubes. Generally, because the conditions are changeable, Ranch employees constantly monitor the distance guests are traveling, and they make adjustments to the hay and mats as needed, even after the hill has opened to guests.⁴

3 The parties dispute whether these procedures were in place on the evening of plaintiff’s accident.

4 The parties dispute whether these procedures were in place on the evening of plaintiff’s accident.

On the evening of February 6, 2010, plaintiff and her family went snow tubing at the [*5] Ranch. The highest temperature was 26 degrees Fahrenheit with a low temperature of zero degrees Fahrenheit.⁵ Plaintiff knew that snow-tubing involved risks and that there were no brakes on the tube and that she was unable to steer the tube. Plaintiff took approximately three or four trips down the hill with her daughter on a double tube. Each time they would ride to the top of the hill using the tow rope. An attendant at the top of the tow rope would unhook their tube after they climbed off of it, and they would wait in line for their turn to go down the hill. Each time plaintiff rode down the hill with her daughter, she came to a complete stop on the hay at the bottom of the hill. After taking three or four trips down the hill with her daughter, plaintiff switched to a single tube. Plaintiff rode to the top of the hill in her single tube and found the same two attendants working at the top of the hill. Plaintiff believed the attendants’ names were “Tim” and “Sal”.⁶ Plaintiff claims that the two attendants were talking to each other about trying to get tubers to strike the back of the wall at the end of the tube run. Plaintiff claims that McDermott pushed a girl in a tube, and she [*6] went down the hill “at a good pace” and then stopped on the hay.

5 See Affidavit of Paul F. Cooney, annexed to defendants’ motion for summary judgment as Exhibit P. The affidavit contains certified meteorological records from the National Climatic Data Center. The parties do not object to the authenticity of those records. The records will be considered by the Court on the within motion.

6 The record indicates that the names were Tim McDermott (“McDermott”) and Sal Frisher (“Frisher”).

McDermott helped plaintiff’s daughter into a tube and pushed her down the hill. Plaintiff then got into her tube. Plaintiff claims that, without warning, Frisher took the rope attached to her tube, ran her back towards the woods, then turned and ran her to the top of the hill and “flung” her down the hill. McDermott does not remember the incident at all and denies ever seeing a coworker “fling” a tuber down the hill. Frisher does not remember the incident and denies ever seeing anyone “fling” a tuber down the hill. Plaintiff struck the barrier at the top of the deceleration ramp. Amanda Odendahl (“Odendahl”), a Ranch employee, was working at the snow tube hill on the evening of plaintiff’s accident and testified [*7] that she, “remember[ed] a woman coming down and hitting the back of the wall, rolling out of her tube”. At the time of plaintiff’s accident, the temperature was between 15 and 20 degrees Fahrenheit.

Ranch employees assisted plaintiff from the hill. Jack Barnello (“Barnello”), a first aid provider and the manager on duty, examined plaintiff. Barnello walked plaintiff to the ski shop area so that she could sit down. They stayed in the ski shop area for approximately ten minutes, but plaintiff wanted to go back to her room to lie down. Plaintiff returned to her room and Barnello brought another employee, a nurse, to check on plaintiff in her room. Plaintiff complained of a headache. Barnello and the nurse suggested that plaintiff get checked at the hospital, but plaintiff refused to go. Barnello completed an accident report regarding the incident.⁷ Plaintiff claims that she told Barnello that she was “flung” down the hill. Barnello denies the conversation. The accident report indicates that the accident occurred at 8:00 p.m. at the “bottom of tube run”. In the section of the report entitled “Description of Incident, Statements, Witness(es), Address of Witness(es), Barnello wrote:

Guest [*8] struck her head (left side) on the back wall of the tube run. She was in a single tube, she was thrown into the back wall when tube hit the back wall.

7 The report is annexed to defendants’ motion as Exhibit “R”. Barnello identified the report during his deposition and plaintiffs do not object to the admissibility of the report. Accordingly, the Court will consider the report in the context of the within motion.

Plaintiff did not receive any medical treatment that evening. The next day, plaintiff skied for an hour or two with her family. While at the ski hill, plaintiff spoke with Anthony Riggio (“Riggio), the head of grounds at the Ranch, and claims that she told Riggio about the accident. Riggio denied that plaintiff told him that she had been “flung” down the hill. In the days after the accident, plaintiff claims that she spoke with Stanley Ackerman, the Ranch’s general manager. However, the parties do not agree on the substance of that conversation. M. Rich testified that plaintiff told him that she was “flung” [*9] down the hill. M. Rich did not see the accident occur and did not discuss the accident with any Ranch employees. Plaintiff took Advil and remained at the Ranch for the weekend.

DISCUSSION

I. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

A. Standard on Summary Judgment

Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56 ( c ). Substantive law determines which facts are material; that is, which facts might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 258, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A party moving for summary judgment bears the initial burden of demonstrating that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; see Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). If the Court, viewing the evidence in the light most favorable to the nonmovant, determines that the movant has satisfied this burden, the burden then shifts to the nonmovant to adduce evidence establishing the existence of a disputed issue of material fact requiring a trial. See id. If the nonmovant fails to [*10] carry this burden, summary judgment is appropriate. See id. “A fact is material if it might affect the outcome of the suit under the governing law, and an issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Niagara Mohawk Power Corp. v. Hudson River–Black River Regulating Dist., 673 F.3d 84, 94 (2d Cir. 2012).

Summary judgment pursuant to Federal Rule of Civil Procedure 56 is only appropriate where admissible evidence in the form of affidavits, deposition transcripts, or other documentation demonstrates the absence of a genuine issue of material fact, and one party’s entitlement to judgment as a matter of law. See Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir.1994). No genuinely triable factual issue exists when the moving party demonstrates, on the basis of the pleadings and submitted evidence, and after drawing all inferences and resolving all ambiguities in favor of the non-movant, that no rational jury could find in the non-movant’s favor. Chertkova v. Conn. Gen’l Life Ins. Co., 92 F .3d 81, 86 (2d Cir.1996) (citing Fed.R.Civ.P. 56 ( c ).

In applying this standard, the court should not weigh evidence [*11] or assess the credibility of witnesses. Hayes v. New York City Dep’t of Corr., 84 F.3d 614, 619 (2d Cir. 1996) (citation omitted). Credibility determinations and choices between conflicting versions of the events are generally matters for a jury and not for the court on summary judgment. Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996) (citing inter alia Anderson, 477 U.S. at 255). While not argued by defendants, there is a very narrow exception to the rule as stated by the Second Circuit in Jeffreys v. City of New York, 426 F.3d 549, 553-55 (2d Cir. 2005). In Jeffreys, the Second Circuit held that summary judgment may be awarded in the rare circumstance where there is nothing in the record to support plaintiff’s allegations, other than his own contradictory and incomplete testimony, and even after drawing all inferences in the light most favorable to the plaintiff, the court determines that “no reasonable person” could believe the plaintiff’s testimony. Id. at 554-55. In order for the Jeffreys exception to apply: (1) the plaintiff must rely “almost exclusively on her own testimony”; (2) the plaintiff’s testimony must be contradictory or incomplete; and (3) the plaintiff’s version [*12] of events must be contradicted by defense testimony. Jeffreys, 426 F.3d at 554.

B. Assumption of the Risk

Where jurisdiction is based upon diversity, the court must apply the substantive law of the forum state. Travelers Ins. Co. v. 633 Third Assocs., 14 F.3d 114, 119 (2d Cir. 1994); see also Ascher, 522 F. Supp. 2d at 452 (E.D.N.Y. 2007) (citations omitted). 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”. Morgan v. State of New York, 90 N.Y.2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421 (1997). A participant “may be held to have consented to those injury-causing events which are known, apparent and reasonably foreseeable”. Youmans v. Maple Ski Ridge, Inc., 53 A.D.3d 957, 958, 862 N.Y.S.2d 626 (3d Dep’t 2008) (citations omitted). However, a participant does not assume risks that are the result of reckless or intentional conduct, risks “concealed or unreasonably increased” or risks that result in a “dangerous condition over and above the usual dangers inherent in the activity.” Morgan, 90 N.Y.2d at 485; Huneau v. Maple Ski Ridge, Inc., 17 A.D.3d 848, 849, 794 N.Y.S.2d 460 (3d Dep’t 2005) (citations [*13] omitted). “Generally, whether the plaintiff assumed a risk by participating in a sport is a question for the jury; dismissal of the complaint is appropriate only when the proof before the court reveals no triable issue of fact.” Samuels v. High Braes Refuge, Inc., 8 A.D.3d 1110, 1111, 778 N.Y.S.2d 640 (4th Dep’t 2004) (citations omitted).

Here, defendants claim that they satisfied their duty to make conditions safe. Specifically, defendants assert that plaintiff was aware of the risks associated with snow tubing and that she rode down the hill three or four times before her accident occurred. Defendants also allege that summary judgment is warranted because there is no evidence corroborating plaintiff’s version of how the incident occurred. Plaintiffs claim that defendants’ employees engaged in reckless conduct.

Plaintiff testified that she rode down the hill three or four times on a double tube with her daughter. However, her accident occurred during her first run down in a single tube. Plaintiff testified that as she waited in line, “I heard one of the boys joking with the other about having people – – trying to get people to hit the wall”. (D. Rich EBT at p. 88-89). Plaintiff explained that the “boys” [*14] were the two attendants at the top of the hill and believed their names were “Tim” and “Sal”. When plaintiff was ready to move down the hill, she claims that Sal:

. . . took my rope, and he ran me back to the wooded line. And then he turned, and ran me to the tope of the hill and kind of flung my tube down.

Id. at 94.

Plaintiff testified that Sal ran backwards, “more than five feet”. Id. at 96. Plaintiff never saw Sal do this at any other time during the evening. Plaintiff also testified that the day after the incident, she told Jack Barnello, Anthony Riggio and Stanley Ackerman exactly how the accident occurred. Id. at 103-106. Plaintiff claims that Barnello told her that, “he knew something wasn’t right because of the groups behavior after the tube”. Id. at 112. Plaintiff also claims that Barnello told her that he, “addressed the boys, and that they had admitted to fooling around”. Id. at 114. Plaintiff cannot identify any witnesses to her accident. Id. at 115.

The defense witnesses provide different accounts of the events that transpired during the weekend. In some instances, the testimony of the defense witnesses contradict each other. Frisher was deposed and testified that he never [*15] saw plaintiff prior to the date of his deposition and that he had no recollection of working on Friday, February 6, 2009. In fact, Mr. Frisher testified that “I’m usually off on a Friday and Saturday”. In support of the within motion, McDermott provided an affidavit and states, “I do not have any specific memory of this incident”. Riggio testified that “Sal and Tim were mentioned to me as the attendants at the time” but admitted that he knew that from reviewing plaintiff’s deposition testimony. Moreover, Riggio, Ackerman and Barnello did not speak with Frisher or McDermott about the incident. Riggio stated he eventually spoke with Frisher but only after the lawsuit was commenced.

Riggio admitted that he had a brief conversation with plaintiffs in the presence of Stan Ackerman. However, Ackerman testified that he did not recall seeing plaintiff while she was at the facility. (Ackerman EBT at p. 13). According to Riggio, plaintiff never described how the accident occurred and the conversation involved how she was feeling and getting her daughter help on the rope tow. (Riggio EBT at p. 26). Riggio, Barnello and Ackerman testified that none of the Ranch employees were disciplined as a result [*16] of the incident. Ackerman stated that he did not recall telling plaintiff, in any subsequent telephone conversations, that the attendants on the snow tubing hill had been disciplined. (Ackerman EBT at p.34). Barnello testified that he completed an accident report but did not recall plaintiff ever telling him that she was “forcibly launched” down the hill. (Barnello EBT at p. 24).

Defendants also contend that plaintiffs did not read warning signs at the facility. However, plaintiff testified that she had no recollection of any kind of signs that were present at the facility. See D. Rich EBT at p. 72. During plaintiff’s deposition, she was shown photographs of signs and asked if she recalled seeing the signs at the Ranch. Plaintiff testified, “No”. The photographs are not part of the record herein.⁸ Moreover, there is no evidence with respect to what was posted on the signs, where the signs were located and whether the signs were present at the Ranch on the day of plaintiff’s accident.

8 The Court notes that there are photographs of signs annexed to Jim Engel’s, plaintiffs’ expert, affidavit. Mr. Engel reviewed the signs but does not state whether the signs were present on the day of plaintiff’s [*17] accident or where they were located at the Ranch. Therefore, the photographs are not in competent, admissible evidence and will not be considered by this Court on the within motion.

Based upon the record, the parties and witnesses present varying accounts of the accident and thus, genuine issues of fact exist requiring a trial in this matter. The Court finds that this case does not fall within the narrow Jeffreys exception. Plaintiff’s testimony is not contrary or incomplete. Moreover, plaintiff’s testimony is not contradicted by reliable defense witnesses. Viewing the evidence in a light most favorable to plaintiffs, there are clear factual issues to be resolved by the jury including whether the attendants at the top of the hill unreasonably increased the risk of injury to plaintiff. See Huneau, 17 A.D.3d at 849.

The Court has reviewed the cases cited by defendants in support of the within motion and finds them factually distinguishable from the matter herein. In those cases, the plaintiffs described accidents with “foreseeable consequences” of snow tubing and did not prove that the defendants unreasonably enhanced the dangers. See Youmans, 53 A.D.3d at 959; Berdecia v. County of Orange, 15 Misc.3d 1102[A], 836 N.Y.S.2d 496, 2006 NY Slip Op 52582[U] [N.Y. Sup. 2006] [*18] (the plaintiff was “pushed” successfully on each of her three prior runs and voluntarily presented for a fourth run); Tremblay v. W. Experience, 296 A.D.2d 780, 745 N.Y.S.2d 311 (3d Dep’t 2002) (the risk of impacting the snow barrier was reasonably foreseeable).

C. Waiver

Defendants argue that summary judgment is appropriate because plaintiff signed an assumption of risk notification warning her of the risk of physical injury when using defendants’ facility. Plaintiff admits that she executed the waiver but contends that the waiver simply warned of weather-related conditions and changes in terrain and as such, plaintiff could not have assumed the risk of being launched down the run.⁹

9 The form is attached to defendants’ motion as Exhibit “S”. The document is not in competent, admissible form. However, plaintiffs do not dispute the authenticity of the document and thus, it will be considered by the Court on the motion.

An exculpatory agreement will be enforced when the language expresses in unequivocal terms the intention of the parties to relieve a defendant of liability for the defendant’s negligence. Walker v. Young Life Saranac Vill., 2012 U.S. Dist. LEXIS 166057, 2012 WL 5880682, at *6 (N.D.N.Y. 2012) (citations omitted). “[T]he [*19] law frowns upon contracts intended to exculpate a party from the consequences of its own negligence”. Id. (citing Gross v. Sweet, 49 N.Y.2d 102, 106, 400 N.E.2d 306, 424 N.Y.S.2d 365 (1979)). “It must be plain and precise that the limitation of liability extends to negligence or the fault of the party attempting to shed its ordinary responsibility.” 2012 U.S. Dist. LEXIS 166057, [WL] at *8. Further, an agreement that attempts to exempt a party from grossly negligent acts is wholly void. Gross, 49 N.Y.2d at 106.

On February 6, 2009, plaintiff executed a form entitled “Participants Responsibilities of Activities and Assumptions of Risk”. The form provides, inter alia:

Guest acknowledges that participation in riding, water skiing and other sports and activities listed but not limited to those in brochure, and/or available at Rocking Horse Ranch Resort are used at participants own risk and guest is of legal age and will advise others in his/her parties in inherent risks in partaking of such activities.

* * *

3. I acknowledge that ski area and riding trail conditions vary constantly because of weather and natural causes. I also understand that ice, variations in terrain, moguls, rocks, forest growth, debris and other obstacles and hazards, including other [*20] participants exist throughout the property. Therefore I acknowledge that participation in any sport or activity can be a hazardous activity and that I could suffer personal injury as a participant.

I hereby expressly acknowledge my understanding and acceptance of the foregoing and agree to assume the risk of any personal injuries which I may incur during my use of the Rocking Horse Facilities.

The waiver makes no reference to “negligence” and does not mention the specific risks inherent in snow tubing. Thus, the waiver is insufficient to protect defendants from liability for the subject occurrence. Moreover, having never been made aware of the risks involved in the activity, claimant cannot be considered to have assumed them. Long v. State, 158 A.D.2d 778, 780-781, 551 N.Y.S.2d 369 (3d Dep’t 1990). Thus, summary judgment based upon the waiver of liability is not appropriate.

D. Proximate Cause

Defendants also argues, in the alternative, that even assuming there is an issue of fact with respect to the assumption of the risk doctrine, defendants have demonstrated that being “flung” down the hill, in the manner plaintiff described, was not the proximate cause of the accident.

On February 11, 2012, at approximately [*21] 5:30 p.m., defendants conducted an experiment to determine the effects of being pushed and “flung” on the distance traveled at the snow tube hill. The highest temperature was 39 degrees Fahrenheit with a low temperature of 25 degrees Fahrenheit. At the time of the test runs, the temperature was approximately 28 degrees Fahrenheit. A Ranch employee who matched plaintiff’s physical characteristics, weighing approximately 200 pounds and standing approximately 5 feet 2 inches tall, took nine runs down the snow tube hill. On the first three runs, the employee was not pushed at all. On the next three runs, the employee was given a hard push on his back. On the final three runs, the employee was pulled backwards by the strap and then “flung” down the hill. In support of the motion, defendants offer the affidavit of Paul Engel, the owner of Sunburst Ski Area. Engel avers that he has engaged in “extensive analysis of the factors that affect speed and distance of snow-tubers”. However, Engel does not assert, nor is there any evidence, that he was present during the experiments that were conducted in February 2012. Rather, he states that he reviewed the video footage taken that evening and that [*22] he “reached several conclusions based on that footage and the associated case information”.

Plaintiffs’ expert, Paul F. Cooney, performed a series of calculations that allegedly led to the conclusion that being pushed or flung would cause a snow tuber to travel farther down the hill. According to plaintiffs’ expert’s calculations, it was possible for a snow tuber to hit the wall if he or she was flung down the hill.

The Court is wary of awarding summary judgment where there are conflicting expert reports. In re Omnicom Group, Inc. Sec. Litig., 597 F.3d 501, 512 (2d Cir. 2010); Rand v. Volvo Fin. N. Am., 2007 U.S. Dist. LEXIS 33674, 2007 WL 1351751, at *3 (E.D.N.Y. 2007) (“[i]t is not for the court to decide which expert opinion is more persuasive.”). “The conflicting opinions and statements of both parties’ experts on material factual issues . . . can only be determined by a trial on the merits”. Regent Ins. Co. v. Storm King Contracting, Inc., 2008 U.S. Dist. LEXIS 16513, 2008 WL 563465, at *10 (S.D.N.Y. 2008). It would be improper for the Court to engage in an evaluation of Engel’s and Cooney’s opinions. The jury must make a determination regarding the credibility of all expert witnesses. See Scanner Techs. Corp. v. Icos Vision Sys. Corp., 253 F.Supp.2d 624, 634 (S.D.N.Y. 2003) [*23] (“The credibility of competing expert witnesses is a matter for the jury, and not a matter to be decided on summary judgment.”).

II. DEFENDANTS’ MOTION TO PRECLUDE

In the alternative, defendants argue that plaintiffs should be precluded from introducing evidence that plaintiff’s herniations and surgeries were causally related to the accident at defendants’ facility.¹⁰ Defendants rely upon the lack of contemporaneous treatment records and the opinions of John T. Rigney, M.D., a radiologist retained by defendants to review plaintiff’s MRI films. Plaintiffs’ claim that the reports completed by plaintiff’s treating providers and surgeon indicate that her injuries are related to the accident.

10 On the motion, the parties present various “facts” with respect to plaintiff’s medical treatment. The Court will not recite these facts as they are irrelevant for the purposes of this motion.

As discussed in Part II, conflicting expert opinions preclude summary judgment. Moreover, evaluations of doctor’s testimony should be addressed by the factfinder. Augustine v. Hee, 161 F. App’x 77, 79 (2d Cir. 2005). The conflict in the medical opinions of the parties’ experts, is sufficient to raise an issue of [*24] material fact as to whether plaintiffs’s herniations and surgeries were causally related to the accident; thus, the claims may not be dismissed on summary judgment. See Shamanskaya v. Ma, 2009 U.S. Dist. LEXIS 63814, 2009 WL 2230709, at *7 (E.D.N.Y. 2009). Defendants’ motion to preclude plaintiffs from introducing evidence related to this issue at trial is denied.

III. PLAINTIFFS’ CROSS MOTION

Plaintiffs cross move for an order precluding plaintiff from introducing the video of test runs from February 2011 on this motion. Based upon this Court’s decision above, plaintiffs’ cross-motion is denied as moot. Plaintiffs’ motion specifically seeks to preclude this evidence from consideration on this motion. The parties are advised that the Court takes no position on the admissibility of defendants’ video of test runs at trial.

CONCLUSION

It is hereby

ORDERED, that defendants motion for summary judgment and dismissal of plaintiffs’ complaint in its entirety (Dkt. No. 28) is DENIED; it is further

ORDERED that defendants motion to preclude plaintiff from introducing evidence at trial that plaintiff’s injuries were causally related to the accident (Dkt. No. 28) is DENIED; it is further

ORDERED, that plaintiffs’ motion to preclude [*25] defendants from introducing the video of the February 2011 test runs as evidence in support of defendants’ summary judgment motion (Dkt. No. 31) is DENIED as moot.

ORDERED that a Settlement Conference is scheduled in this matter for April 2, 2013 at 10:30 a.m. in Albany. The parties are directed to appear at that time and make submissions in advance of the conference as directed in this Court’s Order Setting Settlement Conference which will be forthcoming.

IT IS SO ORDERED.

Dated: January 28, 2013

Albany, New York

/s/ Mae A. D’Agostino

Mae A. D’Agostino

U.S. District Judge

WordPress Tags: Rich,Corp,Dist,LEXIS,Donna,Mark,Husband,Wife,Plaintiffs,Horse,Ranch,Defendants,STATES,DISTRICT,COURT,NORTHERN,YORK,January,TERMS,tube,judgment,guest,tuber,deceleration,temperature,daughter,fact,citation,conversation,ramp,COUNSEL,John,Liguori,Rehfuss,Associates,Latham,Matthew,Roemer,Wallens,Gold,Mineaux,Albany,JUDGES,Agostino,Judge,OPINION,MEMORANDUM,DECISION,ORDER,INTRODUCTION,action,consortium,accident,February,negligence,injury,plaintiff,dismissal,complaint,injuries,Evid,jurisdiction,FACTS,Statement,Material,assertions,submission,extent,context,Statements,responses,opposition,resort,Highland,guests,area,State,Department,Labor,hill,tubes,lanes,tubers,employees,person,riders,bales,horseshoe,protection,rubber,adjustments,procedures,degrees,Fahrenheit,zero,attendants,McDermott,girl,Affidavit,Paul,Cooney,Exhibit,National,Climatic,Data,Center,Frisher,woods,incident,coworker,barrier,Amanda,Odendahl,employee,woman,Jack,Barnello,provider,manager,room,headache,hospital,Description,treatment,hour,Anthony,Riggio,Stanley,Ackerman,substance,Advil,DISCUSSION,MOTION,SUMMARY,Standard,Substantive,outcome,Anderson,Lobby,Celotex,Catrett,existence,jury,verdict,Niagara,Mohawk,Power,Hudson,River,Black,Federal,Rule,Civil,Procedure,affidavits,transcripts,documentation,absence,entitlement,Viola,Philips,basis,inferences,ambiguities,Chertkova,Conn,Life,Hayes,Corr,determinations,versions,events,Brine,exception,Second,Circuit,Jeffreys,circumstance,allegations,testimony,version,Assumption,Risk,Where,forum,Travelers,Third,Assocs,Ascher,Supp,citations,participation,Morgan,participant,Youmans,Maple,Ridge,dangers,Huneau,Samuels,High,Braes,Refuge,Here,boys,feet,behavior,instances,recollection,memory,Moreover,lawsuit,presence,Stan,conversations,Engel,accidents,consequences,Berdecia,Orange,Misc,Slip,fourth,Tremblay,Experience,Waiver,notification,terrain,agreement,intention,defendant,Walker,Young,Saranac,Vill,Gross,Sweet,limitation,Further,Participants,Responsibilities,Activities,Assumptions,brochure,variations,moguls,growth,debris,obstacles,acceptance,Facilities,reference,Thus,occurrence,claimant,Long,Proximate,Cause,doctrine,manner,characteristics,owner,Sunburst,analysis,factors,Rather,footage,conclusions,information,series,calculations,conclusion,Omnicom,Group,Litig,Rand,Volvo,opinions,experts,Regent,Storm,evaluation,determination,Scanner,Techs,Icos,Vision,PRECLUDE,surgeries,Rigney,providers,surgeon,purposes,Part,evaluations,Augustine,Shamanskaya,CROSS,Settlement,Conference,April,submissions,pursuant,whether,three,four,nonmovant,movant,triable,alia,upon,hereby,herniations

Ski Binding Failure to Release under Indiana Law

Posted: January 28, 2013 | Author: Recreation Law | Filed under: Assumption of the Risk, Indiana, Release (pre-injury contract not to sue), Skiing / Snow Boarding | Tags: Indiana, Plaintiff, Product liability, Salomon North America, Sitzmark Corporation, Ski, Ski binding, Summary judgment | Leave a comment

Moore v. Sitzmark Corporation and Salomon North America, Inc., 555 N.E.2d 1305; 1990 Ind. App. LEXIS 769; CCH Prod. Liab. Rep. P12,523

Indiana, like most states’, product liability law is controlled by statute which severely limits the defenses available to a defendant. Here the retailer and manufacture were sued for injuries when a ski binding failed to release, both being in the chain of the sale of the product. The plaintiff had signed a “sales slip” which contained release language when she picked up the skis; however the sales slip (release) was only effective against one of the three claims of the plaintiff.

The defendants had filed a motion for summary judgment at the trial court which was granted on all counts. The plaintiff appealed and the appellate court reversed on two of the three product liability claims.

The plaintiff had purchased new skis and bindings from the retailer Sitzmark Corporation which included bindings manufactured by Salomon North America. On the plaintiff’s third run while skiing and her first fall on her new equipment she fell suffering a compound fracture.

The plaintiff sued claiming negligence and strict liability. The negligence claim included two sub-claims negligent design of the bindings and negligent adjustment of the bindings by the retailer. The defenses were “incurred risk” and the release contained in the sales slip. Indiana uses the term incurred risk instead of the term assumption of the risk.

Summary of the case

The language in the sales slip that constituted the release language, excerpted below, did not contain the magic word release. It only talked about assumption of the risk issues. The plaintiff did acknowledge understanding the language.

I have been instructed in the use of my equipment, I have read the manufacturer’s instruction pamphlet (new bindings only), I have made no misrepresentation in regard to my height, weight, age, or skiing ability . . . . I understand that there are inherent and other risks involved in the sport for which this equipment is to be used, snow skiing, that injuries are a common and ordinary occurrence of the sport and I freely assume those risks. I understand that the ski boot binding system will not release at all times or under all circumstances, nor is it possible to predict every situation in which it will release and is therefore no guarantee for my safety. I therefore release the ski shop and its owners, agents and employees from any and all liability for damage and from the selection, adjustment and use of this equipment, accepting myself the full responsibility for any and all such damage or injury which may result.

The court reversed the lower court and reinstated the plaintiff’s strict liability claim. Strict liability is set out by statute in Indiana, Ind. Code 33-1-1.5-1 et seq. The court stated the statute had a three part test for the manufacture and retailer to use as a defense in a strict liability claim.

First, a plaintiff’s knowledge of the defect.

Second, a plaintiff’s unreasonable use of the product despite knowledge of the defect.

Third, a plaintiff’s injuries caused by the product.

The court analyzed the arguments and decided that neither defendant could prove that the plaintiff new of any defect in the binding. This was different from the argument they could prove, through the release language that “Moore knew her bindings would not release under all circumstances.” Because neither defendant could win on step one the case was sent back.

The first negligence claim was a common law negligence claim. Common law meaning the law that evolved over time (and not based on statute), usually from the law carried over from Great Britain. The common law was developed in England during the 1500’s from the King’s decrees and the church’s equity decisions. As time progressed these laws became more streamline and eventually codified, or written down. The common law still exists in all states and is the basis for the law in every state (Louisiana being the sole exception). Only when a statute has been created will a section of the common law for that state disappear or cease to exist. Ninety-nine percent of all negligence claims are common law. A state may have a void in its common law, an area that has never been decided in the state before, however this is getting rare now days.

A common law product liability action in Indiana can be defeated by the defense of incurred or assumption of the risk. However assumption of the risk as a defense had been merged into comparative negligence in Indiana at this time.

The defendants argued that by signing the sales slip the plaintiff assumed the risk of the defect in the product. The court however found the sales slip was proof of assumption of the risk, but not of assumption of negligence the difference is the greater requirement of knowledge required by the statute. Because the first time she fell was also the time she was injured the plaintiff had no direct knowledge of the defect of the product. In this case defect would mean failure of the binding to release. As such, the defense failed because there was no proof of assumption of the risk of negligence. Because the binding has not failed to release prior to the injury, the plaintiff had no knowledge of the binding failing to release that she could assume. This claim was also sent back to the lower court.

The third and final claim was based on negligently “setting, adjusting or checking the bindings.” Here the sales slip with its release language was effective. The court stated “These alleged acts of negligence are exactly those for which Moore granted Sitzmark a release of liability when she read and signed the sales slip.” This final claim was dismissed by the appellate court.

This case is a little confusing because of two issues. Indiana law on product liability is different from many states and the release language in the sales slip was very poorly written. There is not much that can be done about Indiana’s product liability law and the limitation on the defenses available manufacture’s and retailers. However a well written release might have prevented one of the product liability claims.

So Now What?

The release is not clearly identified, other than in a sales slip in this opinion. However during this period, these releases were fairly uniform and used by shops across the US. These preprinted forms are written in a way as to not cause a problem with any state laws rather than to effectively stop a claim.

Having a release in this case that specifically used the word the negligence and identified the defendants as the shop, by name and all manufactures would be the first start. The court spent a lot of space finding a way to bring the manufacture into the defense provided by the release language when the language did not specifically mention the manufacture. The language of the release should incorporate the necessary defenses of the Indiana Strict Liability Act so that the defense in the act is available. The negligence claims should be identified both for negligent acts, negligent mounting and setting and negligent in the design, manufacture or construction of the product. The language should also include more specific assumption of the risk language so the purchaser or customer who is having repairs done understands the risks are not that the binding may not work, but that the risk is the binding will not work and that the user should ski knowing that and in a safe way.

A well written release, based on Indiana law may be difficult to do. However, a well written release will still be better than the one at issue here. Each claim that survives the motions and appeal increases the cost of litigating and the cost of a possible settlement. If the release had eliminated one more of the claims a lower settlement would be easier to achieve, maybe even a complete win at trial.

Plaintiff: Eldonna Moore

Defendant: Sitzmark Corporation and Salomon North America, Inc.,

Plaintiff Claims: negligence (product liability) and strict liability

Defendant Defenses: Assumption of the Risk (Incurred Risk) and Release

Holding: One claim dismissed based on the release and the two remaining claims sent back to the trial court.

What do you think? Leave a comment.

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

Email: blog@rec-law.us

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

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

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Sitzmark Corporation, Salomon North America, Inc., Product Liability, Ski, Ski Binding,

WordPress Tags: Failure,Release,Indiana,Sitzmark,Corporation,Salomon,North,America,LEXIS,Prod,Liab,product,statute,defendant,Here,retailer,injuries,sale,plaintiff,sales,defendants,judgment,bindings,equipment,negligence,adjustment,assumption,Summary,manufacturer,instruction,pamphlet,misrepresentation,occurrence,system,situation,owners,agents,employees,selection,injury,Strict,Code,knowledge,Second,Third,arguments,argument,Common,Great,Britain,England,decisions,laws,basis,Louisiana,exception,area,action,difference,requirement,limitation,retailers,opinion,construction,purchaser,customer,user,cost,settlement,Eldonna,Claims,Defenses,Risk,Leave,FaceBook,Twitter,LinkedIn,Recreation,Edit,Email,RecreationLaw,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,Outside,Moss,James,Attorney,Tourism,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,skis,three,appellate,neither

Moore v. Sitzmark Corporation and Salomon North America, Inc., 555 N.E.2d 1305; 1990 Ind. App. LEXIS 769; CCH Prod. Liab. Rep. P12,523

Posted: January 27, 2013 | Author: Recreation Law | Filed under: Assumption of the Risk, Indiana, Legal Case, Release (pre-injury contract not to sue), Skiing / Snow Boarding | Leave a comment

Moore v. Sitzmark Corporation and Salomon North America, Inc., 555 N.E.2d 1305; 1990 Ind. App. LEXIS 769; CCH Prod. Liab. Rep. P12,523

Eldonna Moore, Plaintiff-Appellant, v. Sitzmark Corporation and Salomon North America, Inc., Defendants-Appellees

No. 73A01-8908-CV-332

Court of Appeals of Indiana, First District

555 N.E.2d 1305; 1990 Ind. App. LEXIS 769; CCH Prod. Liab. Rep. P12,523

June 27, 1990, Filed

PRIOR HISTORY: [**1] Appeal from the Shelby Superior Court No. 1; The Honorable Jonathan E. Palmer, Judge; Cause No. 20C01-8806-CP-095.

COUNSEL: Attorneys for Appellant: C. Warren Holland, Michael W. Holland, William J. Rumely, Holland & Holland, Indianapolis, Indiana.

Attorneys for Appellees: C. Wendell Martin, Amy L. Rankin, Martin, Wade, Hartley & Hollingsworth, Indianapolis, Indiana.

JUDGES: Baker, J. Ratliff, C.J., and Hoffman, P.J., concur.

OPINION BY: BAKER

OPINION

[*1306] Plaintiff-appellant Eldonna Moore (Moore) broke her leg in a snow skiing accident. She subsequently brought this suit against defendant-appellees Salomon North America, Inc. (Salomon) and Sitzmark Corporation (Sitzmark), the manufacturer and seller, respectively, of the ski bindings she was using when she broke her leg The trial court granted summary judgment to Salomon and Sitzmark, and Moore now appeals. We affirm in part and reverse in part.

On February 18, 1986, Moore, an experienced skier, purchased a pair of new downhill skis and new bindings from Sitzmark. Sitzmark installed the bindings, known as Salomon 747 bindings, on the skis, and adjusted them to release based on Moore’s weight. At the time of purchase, Moore signed a sales slip which contained the following [**2] language.

Moore admits to having read and understood the sales slip.

On March 1, 1986, Moore went to Sugarloaf Mountain in Michigan and used her new skis and bindings for the first time. She made two uneventful “runs” down the most difficult slope. On her third trip [**3] down the slope, however, she took a severe fall, during which the binding on her right ski did not release. As a result of the fall, she suffered a compound fracture of her right femur.

Moore brought suit against Salomon and Sitzmark, alleging theories of negligence and strict liability. The negligence claim against Salomon was premised on negligent design, and the negligence claim against Sitzmark was premised on negligent adjustment of the bindings. In their motions for summary judgment, Salomon and Sitzmark argued that Moore had incurred the risk, and the trial court granted the motions on that basis. On appeal, Moore raises two restated issues for our review. First, whether the trial court erred in finding she had incurred the risk. Second, whether the release of liability Moore signed was effective.

[HN1] When reviewing a grant of summary judgment, we apply the same standards as the trial court, and examine the pleadings, depositions, answers to interrogatories, [*1307] admissions, and affidavits filed with the court in the light most favorable to the party opposing summary judgment. Hatton v. Fraternal Order of Eagles (1990), Ind. App., 551 N.E.2d 479. Summary judgment is appropriate [**4] only when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Id. When a defendant is the moving party, it is entitled to judgment as a matter of law when it demonstrates one of two things. First, that the undisputed material facts negate at least one element of the plaintiff’s claim. Second, the defendant may raise an affirmative defense which bars the plaintiff’s claim. 3 W. HARVEY, INDIANA PRACTICE § 56.9 at 629 (1988). If a defendant cannot make one of these showings, summary judgment is improper.

I. INCURRED RISK

A. Strict Liability

Moore argues she incurred only the ordinary risk of falling while skiing. Based on the language in the sales slip’s release of liability, Salomon and Sitzmark argue Moore incurred the risk that her bindings could fail to release and that she might suffer harm as a result. Salomon and Sitzmark are correct, but that is not dispositive of the case.

Moore’s strict liability theory, based on her allegation that the bindings were defective, is a statutory cause of action controlled by the Indiana Product Liability Act, IND. CODE 33-1-1.5-1 et seq. [HN2] The Act has preempted the Indiana common [**5] law of strict liability and “governs all actions in which the theory of liability is strict liability in tort.” IND. CODE 33-1-1.5-1. See Koske v. Townsend Engineering Co. (1990), Ind., 551 N.E.2d 437. Under the Act,

(a) One who sells, leases, or otherwise puts into the stream of commerce any product in a defective condition unreasonably dangerous to any user or consumer or to his property is subject to liability for physical harm caused by that product to the user or consumer or his property if that user or consumer is in the class of persons that the seller should reasonably foresee as being subject to the harm caused by the defective condition, and if:

(1) the seller is engaged in the business of selling such a product; and

(2) the product is expected to and does reach the user or consumer without substantial alteration in the condition in which it is sold by the person sought to be held liable under this chapter.

IND. CODE 33-1-1.5-3(a). IND. CODE 33-1-1.5-2 defines a seller as “a person engaged in business as a manufacturer, a wholesaler, a retailer, a lessor, or a distributor.” Accordingly, if Moore can prove the bindings were in a defective condition unreasonably dangerous, [**6] Salomon as manufacturer, and Sitzmark as retail seller, will be subject to liability under the Act.

The Act provides that defendants may raise the affirmative defense of incurred risk, as Salomon and Sitzmark did here. [HN3] “It is a defense that the user or consumer bringing the action knew of the defect and was aware of the danger and nevertheless proceeded unreasonably to make use of the product and was injured by it.” IND. CODE 33-1-1.5-4(b)(1) (emphasis added). The party asserting incurred risk bears the burden of proving the defense by a preponderance of the evidence, Get-N-Go, Inc. v. Markins (1989), Ind., 544 N.E.2d 484, reh’g granted on other grounds, 550 N.E.2d 748, and this requires three showings under IND. CODE 33-1-1.5-4(b)(1). First, a plaintiff’s knowledge of the defect. See, e.g., Corbin v. Coleco Industries, Inc. (7th Cir. 1984) 748 F.2d 411. Second, a plaintiff’s unreasonable use of the product despite knowledge of the defect. Third, a plaintiff’s injuries caused by the product. ¹

1 In reality, of course, the third element will generally be shown by the plaintiff, requiring the party raising incurred risk to prove only the first two elements.

[**7] This is where Salomon and Sitzmark fail. Neither of them asserts that Moore knew of any defect in the bindings, they merely argue Moore knew her bindings would not release under all circumstances. [*1308] Absent the threshold showing that Moore knew of a defect in the bindings, neither Salomon nor Sitzmark is entitled to summary judgment on the grounds of incurred risk. The trial court’s grant of summary judgment on Moore’s strict liability theory was improper. ²

2 If, upon remand, Salomon and Sitzmark are able to prove Moore incurred the risk of a defect in the bindings, this will act as a complete bar to Moore’s strict liability claim. [HN4] The Comparative Fault Act, IND. CODE 34-4-33-1 et seq., does not include strict liability theory actions, but only those actions based on fault. See IND. CODE 34-4-33-1.

B. Negligence

A similar analysis applies to Moore’s negligent design theory against Salomon. [HN5] A plaintiff may, of course, bring a negligence action against the manufacturer of a product. See, e.g., Jarrell [**8] v. Monsanto Co. (1988), Ind. App., 528 N.E.2d 1158; Pfisterer v. Grisham (1965), 137 Ind. App. 565, 210 N.E.2d 75; MacPherson v. Buick Motor Co. (1916), 217 N.Y. 382, 111 N.E. 1050. Such an action is not subject to the terms of the Indiana Product Liability Act; rather, it is a common law action. Koske, supra, 551 N.E.2d at 443. In turn, the manufacturer may raise the defense of incurred risk. See Pfisterer, supra. In a negligence action, the defense of incurred risk is specifically subject to the terms of the Comparative Fault Act. See IND. CODE 34-4-33-2(a).

As all the parties to this dispute correctly point out, incurred risk involves a mental state of venturousness on the part of the actor against whom it is asserted, and requires a subjective analysis of the actor’s actual knowledge and voluntary acceptance of the risk. Get-N-Go, supra; Power v. Brodie (1984), Ind. App., 460 N.E.2d 1241; Kroger Co. v. Haun (1978), 177 Ind. App. 403, 379 N.E.2d 1004. As with the parties’ dispute over incurred risk in the context of a strict liability theory, the question here revolves around the proper definition of the risk that may or may not have been incurred.

[**9] As we have already discussed, by signing the release in the sales slip, Moore incurred the risk that her bindings would not release under all circumstances and that she might suffer injuries in the event of a failure to release. This was merely an acknowledgement of the laws of physics, however. There is no evidence Moore knew of any alleged negligent design of the bindings. Salomon argues vigorously that Indiana case law defines the risk as solely the risk of injury, not the risk of negligence. ³ Salomon is mistaken.

3 Salomon and Sitzmark make much of the voluntariness of Moore’s actions (i.e., purchasing the bindings, signing the release, and skiing for pleasure) in incurring the risk of her bindings failing to release. It is hornbook law that [HN6] actions which are not truly voluntary do not amount to an incurrence of risk. See, e.g., Get-N-Go, supra; Richarson v. Marrell’s (1989), Ind. App., 539 N.E.2d 485, trans. denied; St. Mary’s Byzantine Church v. Mantich (1987), Ind. App., 505 N.E.2d 811, trans. denied. Moore’s actions were indeed voluntary, but this is immaterial; the proper definition of the risk is the dispositive issue in this case.

[**10] In Pfisterer, supra, the plaintiff lost part of her finger while using a slide at the defendants’ resort park. The plaintiff had used slides before, but had never used the slide which injured her prior to the time of injury. In discussing the defense of incurred or assumed risk, the court held the plaintiff “assumed or incurred the risks inherent and incident to the use of this slide, but she did not assume or incur the risk that the slide might be defectively constructed. [She] could not assume or incur the risk of a latent defect of which she had neither notice nor knowledge, either express or implied.” ⁴ Pfisterer, supra, 137 Ind. App. at 572, 210 N.E.2d at 78-79.

4 The plaintiff was 13 years old at the time of the accident. The court, however, did not in any way rely on the plaintiff’s youth as a basis for its decision.

In a similar case, the Missouri Court of Appeals held a high school pole vaulter assumed the inherent risks of pole vaulting, but not the risks of the manufacturer’s negligence. McCormick v. Lowe & Campbell Athletic Goods Co. (1940), 235 Mo. App. 612, 144 S.W.2d 866.

[**11] Similarly, the evidence most favorable to Moore reveals she had no knowledge [*1309] of any negligent design flaws in the bindings. Moreover, she had not fallen while using the new bindings prior to the fall which injured her. Even if she had, assuming any defect was latent, she could not incur the risk of the defect without notice of the defect. ⁵ Moore did not incur the risk of negligent design by Salomon. The trial court’s grant of summary judgment to Salomon on Moore’s negligence theory was improper.

5 [HN7] If any defect was open and obvious under the rule enunciated in Bemis Co. v. Rubush (1981), Ind., 427 N.E.2d 1058, 1061, cert. denied (1982), 459 U.S. 825, 103 S. Ct. 57, 74 L. Ed. 2d 61, Moore may not recover on her negligence theory. Koske, supra, did not abrogate the open and obvious rule, but rather held it inapplicable to actions under the Indiana Product Liability Act. The rule is still applicable in product negligence liability cases. Koske, supra, 551 N.E.2d at 443. See Also Bridgewater v. Economy Eng’g Co. (1985), Ind., 486 N.E.2d 484, modified on other grounds in Get-N-Go, Inc. v. Markins (1990), 550 N.E.2d 748.

[**12] II. EFFECT OF RELEASE

Moore’s negligence complaint against Sitzmark alleged Sitzmark had been negligent in setting, adjusting, or checking the bindings. These alleged acts of negligence are exactly those for which Moore granted Sitzmark a release of liability when she read and signed the sales slip. This release was valid under Indiana law, LaFrenz v. Lake Cty. Fair Bd. (1977), 172 Ind. App. 389, 360 N.E.2d 605, and the trial court properly granted summary judgment to Sitzmark on Moore’s negligence theory.

The trial court’s summary judgment in favor of Sitzmark on Moore’s negligence theory is affirmed. The trial court’s summary judgment in favor of Sitzmark on Moore’s strict liability theory, and in favor of Salomon on both Moore’s strict liability and negligence theories is reversed. The cause is remanded to the trial court for further proceedings consistent with this opinion.

Ratliff, C.J., and Hoffman, P.J., concur.

WordPress Tags: Sitzmark,Corporation,Salomon,North,America,LEXIS,Prod,Liab,Eldonna,Plaintiff,Appellant,Defendants,Appellees,Court,Appeals,Indiana,District,June,PRIOR,HISTORY,Appeal,Shelby,Superior,Honorable,Jonathan,Palmer,Judge,Cause,CASE,SUMMARY,PROCEDURAL,POSTURE,decision,judgment,manufacturer,seller,product,negligence,action,OVERVIEW,bindings,Code,knowledge,OUTCOME,proceedings,TERMS,theory,consumer,user,LexisNexis,Headnotes,Civil,Procedure,Appellate,Review,General,Opposition,Standards,admissions,affidavits,fact,defendant,Second,showings,Contracts,Types,Lease,Agreements,Torts,Premises,Lessees,Lessors,Liabilities,Preemption,tort,Under,commerce,alteration,person,chapter,wholesaler,retailer,distributor,Defenses,Assumption,Risk,Products,Conduct,Strict,danger,preponderance,Third,injuries,Comparative,Intentional,Fault,actor,analysis,acceptance,Actions,COUNSEL,Attorneys,Warren,Holland,Michael,William,Indianapolis,Wendell,Martin,Rankin,Wade,Hartley,Hollingsworth,JUDGES,Baker,Ratliff,Hoffman,OPINION,accident,February,sales,equipment,instruction,pamphlet,misrepresentation,occurrence,system,situation,owners,agents,employees,selection,adjustment,injury,March,Sugarloaf,Mountain,Michigan,theories,basis,Hatton,Fraternal,Order,Eagles,HARVEY,PRACTICE,allegation,Koske,Townsend,emphasis,Markins,Corbin,Coleco,Industries,Neither,Absent,threshold,Jarrell,Monsanto,Pfisterer,Grisham,MacPherson,Buick,Motor,Power,Brodie,Kroger,Haun,context,definition,event,failure,laws,physics,Richarson,Marrell,Mary,Byzantine,Church,Mantich,resort,park,incident,youth,Missouri,McCormick,Lowe,Campbell,Athletic,Goods,flaws,Moreover,Bemis,Rubush,cert,Also,Bridgewater,Economy,EFFECT,RELEASE,complaint,LaFrenz,Lake,Fair,skis,dispositive,pleadings,interrogatories,lessor,three,whom,incurrence,whether,supra,trans

Issue of whether avalanches are an inherent risk of skiing in Colorado headed for appeal.

Posted: January 16, 2013 | Author: Recreation Law | Filed under: Assumption of the Risk, Avalanche, Colorado, Ski Area | Tags: avalanche, Colorado, Lawsuit, Outdoor recreation, Vail, Vail Resort, Winter Park | Leave a comment

Court in Vail case holds they are not, and court in Winter Park case holds they are an inherent risk.

A classic issue is going to be working itself up the appeal ladder in Colorado. In the two lawsuits over deaths in

English: A person cutting a sample from a snow pit in order to evaluate the risk of avalanches (Photo credit: Wikipedia)

avalanches, one court has ruled that avalanches are an inherent risk of skiing and therefore under the Co Skier Safety Act you cannot sue. The other court has ruled that avalanches are not covered under the act, and the lawsuit can continue.

The court in Winter Park held that avalanches are an inherent risk. The case against Vail ruled that avalanches are not an inherent risk.

The Vail case is about a 13-year-old boy who was killed in an Avalanche in January of 2012. See Judge: Vail Resorts can be sued for avalanche death. The Intrawest/Winter Park lawsuit is over a death of a man last year also. See Family of avalanche victim sues Winter Park

Probably, because of the different ruling, if the parties do not settle the suit, the Winter Park lawsuit will appeal the case which will affect the Vail litigation eventually.

One effect of the suit is Winter Park changed its release for season passes this year to include a risk that the release covers, and the signor assumes.

Attached is the order in the Winter Park case from the trial court.

ORDER GRANTING THE DEFENDANTS MOTION FOR DETERMINATION OF LAW AND FOR JUDGMENT ON THE PLEADINGS12.26.12.pdf

What do you think? Leave a comment.

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

blog@rec-law.us

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:www.recreation-law.com

Mobile Site: http://m.recreation-law.com

WordPress Tags: Issue,avalanches,Colorado,Court,Vail,Winter,Park,lawsuits,deaths,Skier,lawsuit,Avalanche,January,Judge,Resorts,death,Intrawest,victim,litigation,Leave,Twitter,LinkedIn,Recreation,Edit,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,Outside,Moss,James,Attorney,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,Negligence,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer

Pennsylvania case reviews the requirements for a valid release in ski accident claim.

Posted: January 14, 2013 | Author: Recreation Law | Filed under: Assumption of the Risk, Pennsylvania, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: Assumption of risk, assumption of the risk, Inc., Liberty Mountain Resort, Pennsylvania, Pennsylvania Supreme Court, Release, Season Pass, Ski, Ski Liberty, Ski Liberty Operating Corp, Snow Time | Leave a comment

Cahill v. Ski Liberty Operating Corp., 2006 Pa. Dist. & Cnty. Dec. LEXIS 444; 81 Pa. D. & C.4th 344

Release barred claims for injuries from falling on icy slopes

The plaintiff was a season pass holder at the defendant’s resort and an expert skier. While skiing one day he fell on an icy spot created when a snowmaking hydrant malfunctioned and spread water around the area which froze.

Ski Liberty requires season pass holders to sign a release. To get a season pass, skiers first sign up on-line. The online sign up required the plaintiff to click through an acknowledgement of the terms of the season pass which included the release.

A skier then had to sign a written release at the time the season pass was picked up or at the resort. The court specifically set forth the following issues it found important in determining the validity of the release. The release stated the parties intended to be legally bound. That information was conspicuous location above the signature line.

The plaintiff sued because “Ski Liberty was negligent for failing to maintain the ski slopes in a safe manner and/or failing to adequately warn concerning the icy area.” The plaintiff’s injuries were to his face, back, ribs and left hand. The plaintiff’s wife sued for loss of consortium.

What I found interesting was the plaintiff claimed that he did not know there was ice on the slope. I’ve skied through the east and a lot in Pennsylvania. The slopes are all ice, finding snow is the rare occasion.

Summary of the case

The decision starts with the court quoting the Pennsylvania Supreme Court requirements for a valid release.

The contract must not contravene any policy of the law. It must be a contract between individuals relating to their private affairs. Each party must be a free bargaining agent, not simply one drawn into an adhesion contract, with no recourse but to reject the entire transaction…[T]o be enforceable, several additional standards must be met. First, we must construe the agreement strictly and against the party asserting it. Finally, the agreement must spell out the intent of the parties with the utmost particularity.

The court then found the requirements were met by the release at issue. The plaintiff was not forced to enter the contract but did so voluntarily. There was no evidence of coercion or inducement. The activity, skiing, is recreational and not essential to the plaintiff’s personal or economic well-being. The release does not contravene public policy because the issues were private in nature and did not affect the rights of the public.

The court then reviewed the Pennsylvania ski statute and found the statute pointed out that skiing had risks. The court also found the statute suggested it was the policy of the state of Pennsylvania to enforce the doctrine of assumption of risk who engages in skiing.

The language of the release spelled out with particularity the intent of the parties. The captions clearly advise the signor of the content and purpose of the release and worked as a notice of the risk as well as a release of liability. The release then in bold letters released the defendant of any liability.

The application of the releases to use of Ski Liberty facilities is not only spelled out specifically in the document but is reinforced by other references to the releases throughout the body of the document.

The court then looked at the plaintiff’s argument that a hazardous condition created by the defendant and known by the defendant is not an inherent risk to the sport of skiing. If the risk was not inherent, then the plaintiff argued the release was void and assumption of risk did not apply.

The court did not agree and dismissed the plaintiff’s argument with a great statement.

His [plaintiff’s] experience undoubtedly has taught him that the sport of skiing is not conducted in the pristine and controlled atmosphere of a laboratory but rather occurs in the often hostile and fickle atmosphere of a south central Pennsylvania winter. Those familiar with skiing, such as Cahill, are aware that nature’s snow is regularly supplemented with a man-made variety utilizing water and a complex system of sprayers, hydrants, and pipes. Human experience also teaches us that water equipment frequently leaves puddles which, in freezing temperatures, will rapidly turn to ice. The risks caused by this variety of ever-changing factors are not only inherent in downhill skiing but, perhaps, are the very nature of the sport.

So Now What?

The decision outlines quite plainly. What is needed to write a release in Pennsylvania. More importantly it points out several points that courts look for to determine if the defendant as acting in a way as to not hide the release and to make sure the defendant truly understood what they were signing.

Those items include:

· Conspicuous notice of the legal purpose of the document

· Plenty of time to review the release before signing

· Captions that point out the legal ramifications rather than hiding them

· Important language in the release in bold print

· A release written in plain English that is understandable by the signor

· A section that explains the possible risks of the activity

· References in the document to outside sources to assist the signor in understanding the document

Courts hate to uphold releases where there is nothing but the pure letter of the contract to rely upon. If the release clearly informed the signor of the risks and the signor had to have known they were signing a release, then the court can easily decide for the defendant.

Plaintiffs: Timothy Joseph Cahill and Anne Leslie Cahill

Defendants: Ski Liberty Operating Corp. t/d/b/a Ski Liberty and t/d/b/a Liberty Mountain Resort and Snow Time, Inc.,

Plaintiff Claims: Ski Liberty was negligent for failing to properly maintain the ski slopes in a safe manner and/or failing to adequately warn concerning the icy area.

Defendant Defenses: Release and Assumption of the Risk

Holding: Release was valid and barred the claims of the plaintiffs

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.

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.

G-YQ06K3L262

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

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

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

@2023 Summit Magic Publishing, LLC

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Ski Liberty, Liberty Mountain Resort, Snow Time, Inc., Release, Assumption of the Risk,

WordPress Tags: Pennsylvania,requirements,Cahill,Corp,Dist,LEXIS,Release,injuries,plaintiff,holder,defendant,resort,area,holders,information,location,signature,manner,wife,consortium,Summary,decision,Supreme,Court,policy,individuals,affairs,agent,adhesion,recourse,transaction,agreement,coercion,inducement,statute,doctrine,assumption,captions,purpose,facilities,references,argument,statement,atmosphere,laboratory,winter,system,sprayers,Human,equipment,temperatures,factors,items,Conspicuous,ramifications,Important,English,Courts,letter,Plaintiffs,Timothy,Joseph,Anne,Leslie,Defendants,Mountain,Time,Claims,Defenses,Risk,Leave,FaceBook,Twitter,LinkedIn,Recreation,Edit,Email,RecreationLaw,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,Outside,Moss,James,Attorney,Tourism,Management,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,Negligence,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,skier,skiers,signor

Ohio adopts the requirement that a skier assumes the risk of a collision with another skier.

Posted: January 7, 2013 | Author: Recreation Law | Filed under: Assumption of the Risk, Ohio, Skier v. Skier | Tags: Ohio, Ohio Supreme Court, Risk, Ski, Ski Resort, Sports, Supreme Court, Winter sport | Leave a comment

Horvath Et Al., v. Ish Et Al., 2012 Ohio 5333; 2012 Ohio LEXIS 2872

In order to recover in a collision on the ski slope the plaintiff must prove the defendant’s actions were reckless or intentional.

This case is between an injured adult and a young snowboarder. The snowboarder and his friends were on the same slope as the adult and his friends. The snowboarders went through the terrain park and upon exiting collided with the plaintiff.

The plaintiff sued for his injuries. The trial court dismissed the complaint based on the assumption of the risk. The plaintiff appealed, and the appellate court reversed the trial court agreeing with the plaintiffs that the Ohio statute created liability on the part of skiers and boarders for any collision.

The Ohio Supreme Court also sent the case back to the trial court but only to determine if the actions of the defendant snowboarder were reckless or intentional. The Supreme Court found that the statute in question, Ohio R.C. 4169.08 or 4169.09 only applied to the ski areas and did not apply to skiers and boarders.

So?

Once the Supreme court held that the statute did not apply, the legal issue was easily decided. The statute in question stated that skiing was a hazardous sport regardless of the safety measures that could be taken.

Under Ohio’s law on sports had held that:

[w]here individuals engage in recreational or sports activities, they assume the ordinary risks of the activity and cannot recover for any injury unless it can be shown that the other participant’s actions were either reckless or intentional

In Ohio, primary assumption of the risk means that a “defendant owes no duty whatsoever to the plaintiff.” The assumption is limited to those risks directly associated with the activity. “To be covered under the [primary-assumption-of-the-risk] doctrine, the risk must be one that is so inherent to the sport or activity that it cannot be eliminated.”

The court then held:

Accordingly, we hold that skiers assume the ordinary risks of skiing, which include collisions with other skiers, and cannot recover for an injury unless it can be shown that the other skier’s actions were reckless or intentional.

So Now What?

Ohio joins most other states with ski areas that require more than simple negligence on the part of the defendant for the plaintiff to recover for a collision on the slopes.

Without this standard of care, the risk of the sport would be totally removed, and skiers and boarders would enter a turnstile before they could enter the slope.

All sports have risk and if you are not willing to accept the risk of the sport then you should search for a sport that has risks that are what you can deal with. Checkers or chess are what I would suggest, although you could be hit by an angry knight if your opponent loses their temper.

Ski Area: Boston Mills Ski Area

Plaintiffs: Angel Horvath and Eugene Horvath

Defendants: David Ish, Tyler Ish and their cousins

Plaintiff Claims: Plaintiff had acted negligently, carelessly, recklessly, willfully, and wantonly in causing the collision with Defendant

Defendant Defenses: Assumption of the Risk

Holding: Reversed and sent back to determine if the defendant acted intentionally or recklessly when he collided with the plaintiff.

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 manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us

Outdoor Recreation Insurance, Risk Management, and Law

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.

G-YQ06K3L262

What do you think? Leave a comment.

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

Blue Sky

Threads

Facebook

Stimulus

X (formerly known as Twitter) logo

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

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

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

@2024 Summit Magic Publishing, LLC

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer,

Horvath Et Al., v. Ish Et Al., 2012 Ohio 5333; 2012 Ohio LEXIS 2872

Posted: January 7, 2013 | Author: Recreation Law | Filed under: Assumption of the Risk, Legal Case, Ohio, Skier v. Skier | Tags: David, Horvaths, Ohio, Ohio Supreme Court, Ski, Ski Resort, Summary judgment | Leave a comment

To Read an Analysis of this decision see: Ohio adopts the requirement that a skier assumes the risk of a collision with another skier.

Horvath Et Al., v. Ish Et Al., 2012 Ohio 5333; 2012 Ohio LEXIS 2872

Horvath Et Al., Appellees, v. Ish Et Al., Appellants.

No. 2011-1089

Supreme Court of Ohio

2012 Ohio 5333; 2012 Ohio LEXIS 2872

April 25, 2012, Submitted

November 20, 2012, Decided

NOTICE:

THIS SLIP OPINION IS SUBJECT TO FORMAL REVISION BEFORE IT IS PUBLISHED IN AN ADVANCE SHEET OF THE OHIO OFFICIAL REPORTS.

PRIOR HISTORY: [**1]

APPEAL from the Court of Appeals for Summit County, No. 25442, 194 Ohio App. 3d 8, 2011 Ohio 2239, 954 N.E.2d 196.

Horvath v. Ish, 194 Ohio App. 3d 8, 2011 Ohio 2239, 954 N.E.2d 196, 2011 Ohio App. LEXIS 1907 (Ohio Ct. App., Summit County, 2011)

DISPOSITION: Judgment affirmed.

CORE TERMS: skier, skiing, sport, ski-area, collision, ski, inherent risks, tramway, negligence per se, slope, ski area, passenger, reckless, standard of care, statutory duties, statutory schemes, owe, common law, summary judgment, owed, duty of care, personal injury, refrain, trail, ordinary care, general assembly, reasonable care, recreational, enumerated, sentence

HEADNOTES

Torts–Sport or recreational activity–Skiers assume the ordinary risks of skiing, which include collisions with other skiers, and cannot recover for an injury unless it can be shown that the other skier’s actions were reckless or intentional.

SYLLABUS

OF THE COURT

Skiers assume the ordinary risks of skiing, which include collisions with other skiers and cannot recover for an injury unless it can be shown that the other skier’s actions were reckless or intentional.

COUNSEL: Paul W. Flowers Co. and Paul W. Flowers; and Sennett Fischer, L.L.C., and James A. Sennett, for appellees.

Gallagher Sharp, Timothy J. Fitzgerald, and Jeremy V. Farrell, for appellants.

JUDGES: LUNDBERG STRATTON, J. O’CONNOR, C.J., and O’DONNELL, LANZINGER, CUPP, and MCGEE BROWN, JJ., concur. PFEIFER, J., concurs in part and dissents in part.

OPINION BY: LUNDBERG STRATTON

OPINION

Lundberg Stratton, J.

I. Introduction

[*P1] The issue before the court is what duty or standard of care is owed by one skier to another for purposes of determining tort liability. We hold that skiers assume the ordinary risks of skiing, which include collisions with other skiers, and cannot recover for an injury unless it can be shown that the other skier’s actions were reckless or intentional.

[*P2] The court of appeals reversed the trial court’s grant of summary judgment in favor of Ish and remanded the case to the trial court [**2] to determine whether Ish had violated any duties under R.C. 4169.08 or 4169.09 and if he did, whether negligence per se applied. The court of appeals also held that a genuine issue of material fact existed whether Ish was reckless. Horvath v. Ish, 194 Ohio App.3d 8, 2011 Ohio 2239, 954 N.E.2d 196, ¶ 18 (9th Dist). We agree that there is a genuine issue of material fact, but only whether Ish’s actions were more than negligent, that is, whether his actions were reckless or intentional under the common law. Therefore, we affirm the judgment of the court of appeals, albeit on somewhat different grounds, and remand the case to the trial court for proceedings consistent with our opinion.

II. Facts and Procedural History

[*P3] On March 6, 2007, Angel Horvath and Eugene Horvath (the couple were married after the accident but before the complaint was filed) were skiing at Boston Mills ski resort. David Ish was snowboarding at Boston Mills on that same date, with his brother, Tyler, and their cousins. In the early evening, Angel and Eugene were skiing down Buttermilk Hill. David, Tyler, and their cousins were snowboarding on the same hill. David and his relatives proceeded through a terrain park ¹ [**3] and then reentered Buttermilk Hill, where David and Angel collided. Angel was injured in the accident.

1 A terrain park is an area where snowboarders and skiers can do tricks or stunts using various features including jumps, rails, and half-pipes. See R.C. 4169.01(I).

[*P4] The Horvaths filed a complaint against David Ish and his parents, alleging that David had acted negligently, carelessly, recklessly, willfully, and wantonly in causing the collision with Angel.

[*P5] The Ishes filed a motion for summary judgment, arguing that skiers are subject to primary assumption of the risk, which means that a defendant owes no duty of ordinary care to plaintiff. Thus, the Ishes argued that in order to recover, the Horvaths were required to prove that David had acted recklessly or intentionally in causing the collision. The Ishes further asserted that there was no evidence that David’s actions were reckless or intentional.

[*P6] In opposing the Ishes’ motion for summary judgment, the Horvaths argued that R.C. 4169.08(C) imposes specific duties on skiers and that breaching those duties is negligence per se. The trial court granted the Ishes’ motion for summary judgment.

[*P7] In a two-to-one decision, the court of appeals [**4] reversed the judgment of the trial court, stating that “[b]y reading R.C. 4169.08(C) in context with 4169.09, we find that it is evident that the legislature intended that skiers would be liable for injuries caused to others while skiing.” Horvath, 194 Ohio App.3d 8, 2011 Ohio 2239, 954 N.E.2d 196, ¶ 13. The court of appeals remanded the cause to the trial court to determine whether David Ish’s actions violated any of the responsibilities described in R.C. 4169.08(C) and, if so, whether any such violation invoked the doctrine of negligence per se. Id. at ¶ 14.

[*P8] This case is before this court pursuant to the acceptance of the Ishes’ discretionary appeal. 129 Ohio St. 3d 1503, 2011 Ohio 5358, 955 N.E.2d 386.

III. Analysis

R.C. Chapter 4169

[*P9] We begin our analysis by determining whether R.C. 4169.08 and 4169.09 apply to personal-injury litigation between skiers.

[*P10] When interpreting a statute, a court’s paramount concern is legislative intent. State ex rel. United States Steel Corp. v. Zaleski, 98 Ohio St.3d 395, 2003 Ohio 1630, 786 N.E.2d 39, ¶ 12. “[T]he intent of the law-makers is to be sought first of all in the language employed, and if the words be free from ambiguity and doubt, and express [**5] plainly, clearly and distinctly, the sense of the law-making body, there is no occasion to resort to other means of interpretation ” Slingluff v. Weaver, 66 Ohio St. 621, 64 N.E. 574 (1902), paragraph two of the syllabus. However, “[i]n reviewing a statute, a court cannot pick out one sentence and disassociate it from the context, but must look to the four corners of the enactment to determine the intent of the enacting body.” State v. Wilson, 77 Ohio St.3d 334, 336, 1997 Ohio 35, 673 N.E.2d 1347 (1997). “A court must examine a statute in its entirety rather than focus on an isolated phrase to determine legislative intent.” Massillon City School Dist. Bd. of Edn. v. Massillon, 104 Ohio St.3d 518, 2004 Ohio 6775, 820 N.E.2d 874, ¶ 37.

[*P11] See also R.C. 1.42. With this guidance in mind, we examine R.C. Chapter 4169 in its entirety to determine whether R.C. 4169.08 and 4169.09 apply to personal-injury litigation between skiers.

[*P12] R.C. 4169.02 established a ski-tramway board that is authorized to create rules under R.C. Chapter 119 relating to “public safety in the construction, maintenance, mechanical operation, and inspection of passenger tramways.” ² R.C. 4169.03 requires that a tramway must be registered [**6] with the board before it can be operated. R.C. 4169.04 provides that tramways must be inspected. R.C. 4169.05 authorizes the board to hear complaints that the construction, maintenance, or mechanical operation of a tramway endangers public safety. R.C. 4169.06 permits a board member to suspend the operation of a tramway if the board determines that an “immediate danger exists.” R.C. 4169.07 provides that ski-area operators are responsible for any tramway they construct and for the maintenance and operation of a passenger tramway in the operator’s ski area. R.C. 4169.07 also states that passengers have certain enumerated responsibilities regarding their use of tramways. R.C. 4169.99 provides that ski-area operators are subject to a monetary fine if they fail to register their tramway with the board, fail to comply with an order from the board, or fail to comply with a rule issued by the board.

2 A “passenger tramway” is “a device used to transport passengers uphill, whether on skis or other devices or without skis or other devices, or in cars on tracks or suspended in the air, by the use of steel cables, chains, or belts or by ropes, and that is usually supported by trestles or towers [**7] with one or two spans.” R.C. 4169.01(F). Chair lifts, rope tows, and conveyors are passenger tramways. R.C. 4169.01(F)(3), (5), and (7).

[*P13] R.C. 4169.08 insulates ski-area operators from liability for injuries that arise from the inherent risks of skiing and otherwise defines certain responsibilities applicable to ski-area operators and ski-area visitors. R.C. 4169.09 addresses the liability of ski-area operators and ski-area visitors for failing to comply with the responsibilities enumerated in R.C. 4169.08(C).

[*P14] And, finally, R.C. 4169.10 immunizes ski-area operators for damages suffered by a person who was committing a theft at the time the person suffered the loss.

[*P15] It is evident that R.C. Chapter 4169, when viewed in its entirety, addresses certain obligations and limitations on liability pertaining to ski-area operators, as well as the relationship between ski-area operators and ski-area visitors. Consequently, neither R.C. 4169.08 nor 4169.09 apply to personal-injury litigation between skiers.

[*P16] Our conclusion is confirmed when we examine R.C. 4169.08 and 4169.09 in greater detail. R.C. 4169.08(A)(1) provides that “the general assembly recognizes that skiing as a recreational sport [**8] is hazardous to skiers regardless of all feasible safety measures that can be taken. It further recognizes that a skier expressly assumes the risk of and legal responsibility for injury, death, or loss to person or property that results from the inherent risks of skiing.” R.C. 4169.08(A)(1) then provides a nonexhaustive list of conditions (e.g., slush) or objects (e.g., out-of-bounds barriers) that are inherent risks of skiing. R.C. 4169.08(A)(2) and (3) provide that ski-area operators are not liable for the death of or injury to ski-area visitors that occur in a freestyle terrain or tubing park, subject to certain qualifications. Thus, R.C. 4169.08(A) effectively insulates ski-area operators from personal-injury lawsuits that arise from the inherent risks of skiing. See Stone v. Alpine Valley Ski Area, 135 Ohio App.3d 540, 545, 734 N.E.2d 888 (11th Dist.1999); Otterbacher v. Brandywine Ski Ctr., Inc., 9th Dist. No. 14269, 1990 Ohio App. LEXIS 4582, 1990 WL 72327, *4 (May 23, 1990).

[*P17] R.C. 4169.08(B) and (C) also state that ski-area operators and skiers have certain enumerated responsibilities. For example, ski-area operators must mark certain snowmaking equipment, and skiers must ski within the limits of their [**9] ability. R.C. 4169.08(B)(1) and (C)(1). And R.C. 4169.09 states that a “ski area operator * * * or skier is liable for injury, death, or loss to person or property * * * caused by the operator’s * * * or skier’s failure to fulfill any of the responsibilities required by this chapter.” Therefore, reading R.C. 4169.08(B) and (C) in context with R.C. Chapter 4169, we find that the responsibilities of ski-area operators and ski-area visitors are reciprocal. In other words, the General Assembly intended that ski-area operators owe skiers certain enumerated responsibilities, and in return skiers owe ski-area operators certain enumerated responsibilities. Thus, we hold that R.C. 4169.08(C) does not create a duty of care that applies between skiers.

[*P18] Accordingly, we hold that R.C. Chapter 4169, and in particular, R.C. 4169.08 and 4169.09, do not apply to personal-injury litigation between skiers.

Common Law

[*P19] Having determined that R.C. Chapter 4169 does not apply to personal-injury litigation between skiers, we turn to the common law to determine the proper standard of care applicable between skiers. This court has held that “[w]here individuals engage in recreational or sports activities, they [**10] assume the ordinary risks of the activity and cannot recover for any injury unless it can be shown that the other participant’s actions were either reckless or intentional as defined in [2 Restatement of the Law 2d, Torts, Section 500, and 1 Restatement of the Law 2d, Torts, Section 8A (1965)].” Marchetti v. Kalish, 53 Ohio St.3d 95, 559 N.E.2d 699, syllabus; see also Thompson v. McNeill 53 Ohio St.3d 102, 559 N.E.2d 705. “Obviously, without our stating so, in Marchetti and Thompson we applied ‘primary’ assumption-of-risk principles in limiting the defendant’s liability.” Gentry v. Craycraft, 101 Ohio St.3d 141, 2004 Ohio 379, 802 N.E.2d 1116, ¶ 11. Primary assumption of the risk means that a defendant owes no duty whatsoever to the plaintiff. Gallagher v. Cleveland Browns Football Co., 74 Ohio St.3d 427, 431-432, 1996 Ohio 320, 659 N.E.2d 1232 (1996).

[*P20] Clearly, skiing is a sport or recreational activity. However, “only those risks directly associated with the activity in question are within the scope of primary assumption of risk.” Id. at 432, citing Cincinnati Baseball Club Co. v. Eno, 112 Ohio St. 175, 3 Ohio Law Abs. 164, 147 N.E. 86 (1925). “To be covered under the [primary-assumption-of-the-risk] doctrine, the risk [**11] must be one that is so inherent to the sport or activity that it cannot be eliminated.” Konesky v. Wood Cty. Agricultural Soc., 164 Ohio App.3d 839, 2005 Ohio 7009, 844 N.E.2d 408, ¶ 19 (6th Dist), citing Westray v. Imperial Pools & Supplies, Inc., 133 Ohio App. 3d 426, 432, 728 N.E.2d 431 (6th Dist.1999). Where the risk at issue is not inherent, then a negligence standard applies. See Gallagher at 432; see also Pope v. Willey, 12th Dist. No. CA2004-10-077, 2005 Ohio 4744, 2005 WL 2179317 (colliding with a truck on a road is not an inherent risk of riding an all-terrain vehicle); Goffe v. Mowell, 2d Dist. No. 98-CA-49, 1999 Ohio App. LEXIS 308, 1999 WL 55693 (Feb. 5, 1999) (faulty racetrack design is not an inherent risk of go-cart racing).

[*P21] The Supreme Court of Pennsylvania has recognized that “other skiers are as much a part of the risk in downhill skiing, if not more so, than the snow and ice, elevation, contour, speed and weather conditions. As anyone who has ever undertaken the sport of skiing is painfully aware, it is a sport in which it is common for the participants to lose control.” Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 511, 762 A.2d 339 (2000). Other courts have also recognized that collisions [**12] between skiers are an inherent risk in the sport of skiing. See Peterson ex rel. Peterson v. Donahue, 733 N.W.2d 790, 793 (Minn.App.2007); Cheong v. Antablin, 16 Cal.4th 1063, 1069, 68 Cal. Rptr. 2d 859, 946 P.2d 817 (1997); Gern v. Basta, 809 N.Y.S.2d 724, 725, 26 A.D.3d 807 (2006). We agree that collisions between skiers are an inherent risk of skiing.

[*P22] Accordingly, we hold that skiers assume the ordinary risks of skiing, which include collisions with other skiers, and cannot recover for an injury unless it can be shown that the other skier’s actions were reckless or intentional.

IV. Conclusion

[*P23] The judgment of the court of appeals is affirmed, albeit on somewhat different grounds. We agree that there is a genuine issue of material fact to be considered, but only with regard to whether Ish’s actions were more than negligent, that is, whether he acted recklessly or intentionally. Because a genuine issue of fact remains, the court of appeals was correct in holding that the trial court erred in granting summary judgment. Therefore, we affirm the appellate court’s judgment, and we remand this cause to the trial court for further proceedings in accordance with this opinion.

Judgment affirmed.

O’Connor, C.J., and [**13] O’Donnell, Lanzinger, Cupp, and McGee Brown, JJ., concur.

Pfeifer, J., concurs in part and dissents in part.

CONCUR BY: PFEIFER (In Part)

DISSENT BY: PFEIFER (In Part)

DISSENT

Pfeifer, J., concurring in part and dissenting in part.

[*P24] I concur in the majority’s judgment affirming the appellate court’s decision to reverse the trial court’s granting of summary judgment. However, I do not agree with the majority’s baffling interpretation of R.C. 4169.08 and 4169.09. I also do not agree that there is no common-law duty of care between skiers. If legal issues were ski slopes, the one raised in this case would be a bunny hill. Somehow, the majority has careened down the hill and wound up smashed through the wall of the lodge.

A Skier’s Statutory Duties

[*P25] The fact that R.C. Chapter 4169 tends to limit the liability of ski-area operators from liability for injuries suffered by skiers does not mean that it leaves skiers without protection from other skiers. It makes perfect sense that a piece of legislation that shields ski-area operators from liability would also set forth a duty of care between skiers that would leave skiers, not ski facilities, liable for injuries they cause other skiers. Other states-Colorado (Colo.Rev.Stat.Ann. 33-44-109), [**14] Idaho (Idaho Code 6-1106), Maine (32 Maine Rev.Stat.Ann. 15217), Michigan (Mich.Comp.Laws Ann. 408.344), New Mexico (N.M.Stat.Ann. 24-15-10), and West Virginia (W.Va. Code Ann. 20-3A-8), for instance, manage to achieve that balance in their ski-safety statutory schemes. That balance is part of the prevailing view in states with ski statutes:

In a skier collision case, the laws differ from state to state on the duty of care one skier owes to another. The jurisdictions can be divided into two classifications. The prevailing view holds skiers to a standard of reasonable care to avoid injury to another skier. The standard of care is usually founded on a statutory principle obliging a skier to exercise reasonable care and to yield the right of way to the skier below. One skier does not assume the risk of another’s negligence; a skier collision is not a risk “inherent” in the sport as skiing is not a contact sport.

46 American Jurisprudence Proof of Facts 3d 1, Liability of Skier for Collision with Another Skier, Section 2 (1998).

[*P26] The duties between skiers, understood since Norwegians first strapped planks to their feet 4,500 years ago–ski under control and do not run into another skier, among [**15] others–are now part of Ohio statutory law. Those duties are set forth in R.C. 4169.08:

(1) To know the range of the skier’s ability to negotiate any slope or trail or to use any passenger tramway that is associated with a slope or trail, to ski within the limits of the skier’s ability, to ski only on designated slopes and trails, to maintain control of speed and course at all times while skiing, to heed all posted warnings, and to not cross the track of a passenger tramway except at a designated area;

(2) To refrain from acting in a manner that may cause or contribute to the injury of another person, to refrain from causing collision with any person or object while skiing, and to not place any object in a ski area that may cause another skier or a passenger to fall.

[*P27] Contrary to the majority’s assertion, it is possible for the General Assembly in one statutory chapter to protect ski-area operators from liability while at the same time providing some protection for skiers. R.C. 4169.08(C)(2) specifically states that skiers have responsibilities to avoid causing injuries to or colliding with another person, but the majority states that [**16] those responsibilities are owed to ski-area operators, not other persons. R.C. 4169.08(C)(3) requires a person who is involved in a ski accident that injures another to identify himself before leaving the scene, presumably so that the person causing the collision can live up to his responsibilities.

[*P28] But it is R.C. 4169.09 that makes it crystal clear that a skier is liable for injuries he causes to other skiers by failing to meet the duties set forth in R.C. 4169.08(C): “A * * * skier is liable for injury, death, or loss to person or property caused by the * * * skier’s failure to fulfill any of the responsibilities required by this chapter.” How can the majority ignore this simple statutory statement? How can this mean anything other than that a skier is liable for injuries suffered by another person as a result of the skier’s failure to meet his statutory responsibilities? Why does this sentence appear in the statute if it does not establish responsibilities between skiers?

[*P29] If R.C. 4169.08 sets forth only duties between skiers and ski-area operators, the second sentence in R.C. 4169.09 would be sufficient to shield the ski area from liability. The second sentence of R.C. 4169.09 makes [**17] it clear that the ski-area operator is not liable for a skier’s injuries caused by another skier: “A ski area operator * * * is not liable for injury * * * caused by another’s failure to fulfill any of the responsibilities required of another by this chapter.” In blunt terms, an injured person’s only recourse is against the person who caused the injury.

[*P30] Finally, R.C. 4169.09 states that “[a] * * * skier is not entitled to recover for injury * * * caused by the * * * skier’s failure to fulfill any of the responsibilities required by this chapter.” That is, if a skier’s injuries are caused by his own failure to meet his statutory responsibilities, he has recourse against no one.

[*P31] Read as a whole, R.C. 4169.09 states that if a skier violates his responsibilities, he is liable for injuries caused to another, that the ski-area operator is not liable for those injuries, and that a skier who causes his own injuries is not entitled to recover from another, including a ski-area operator, for his injuries. The statute provides protection from liability for ski-area operators from something they cannot control–the behavior of individual skiers–while at the same time making skiers responsible for [**18] injuries they cause for failing to abide by the basic rules of skiing. Only this interpretation provides meaning to all three of the sentences that make up R.C. 4169.09.

Liability for Breach of Skier’s Statutory Duty in Michigan

[*P32] In Rusnak v. Walker, 273 Mich.App. 299, 729 N.W.2d 542 (2006), the court–a special panel called pursuant to Michigan law to resolve an appellate conflict–addressed whether a skier could sue another skier pursuant to Michigan’s Ski Area Safety Act (“SASA”). The statutory scheme in Michigan is substantially similar to Ohio’s. The Michigan law places duties on skiers to ski safely and not injure other skiers, Mich.Comp.Laws Ann. 408.341 and 408.342, and assigns liability for injuries caused by skiers who violate those duties. (“A skier * * * who violates this act * * * shall be liable for that portion of the loss or damage resulting from that violation”). Mich.Comp.Laws Ann. 408.344.

[*P33] But Michigan’s statutory scheme contains an important provision missing from Ohio’s: it lists “collisions * * * with other skiers” as one of the inherent risks of skiing. Mich.Comp.Laws Ann. 408.342. Such a provision is absent from Ohio’s statutory declaration of the inherent risks [**19] of skiing. R.C. 4169.08(A).

[*P34] Even so, the Michigan court held that despite a statutory recognition that colliding with other skiers is an inherent danger of skiing, a skier could recover for injuries caused by another skier’s failure to live up to the responsibilities set forth in the SASA:

As we have already noted, we hold that the SASA assumption-of-risk provision contains clear and unambiguous language, providing in no uncertain terms that a collision between skiers is an obvious and necessary danger that inheres in the sport of skiing. However, in those cases in which a plaintiff can establish that a defendant violated one of the specific duties imposed by the SASA, the plaintiff can still recover damages to the extent that the defendant’s violations caused the plaintiffs injuries. To state it differently, it is possible, and therefore skiers assume the risk, that a collision can occur between skiers when neither skier is violating his or her duties under the SASA. That is, it is an obvious and necessary danger of skiing that sometimes accidents simply happen. But, again, if it can be shown that the collision resulted from a violation of the act, then the violator is to be held liable [**20] for the damage caused, as provided under [Mich.Comp.Laws Ann.] 408.344.

Rusnak, 273 Mich.App. at 305, 729 N.W.2d 542.

[*P35] The court noted in Rusnak that if it were to hold that there is no liability for injuries to a skier caused by another skier’s failure to meet his or her statutory duties, “the duties and liabilities placed on individual skiers would have no meaning.” Id. at 309. But the majority does in this case what Rusnak warns against, finding that the statutory provision–“A * * * skier is liable for injury, death, or loss to person or property caused by the * * * skier’s failure to fulfill any of the responsibilities required by this chapter”–is meaningless.

Ordinary Care

[*P36] In its remand to the trial court, the court of appeals suggested that the trial court should consider whether David Ish violated any of the duties outlined in R.C. 4169.08(C) and, if so, whether the violation would constitute negligence per se. Horvath v. Ish, 194 Ohio App.3d 8, 2011 Ohio 2239, 954 N.E.2d 196, ¶ 14. Violation of a statutory duty is not necessarily negligence per se, and it is not in this case.

[*P37] To successfully prosecute a claim for negligence, a plaintiff must prove that the defendant owed the plaintiff [**21] a duty, that the defendant breached that duty, and that the breach of the duty proximately caused the plaintiffs injury. Wellman v. E. Ohio Gas Co., 160 Ohio St. 103, 108-109, 113 N.E.2d 629 (1953). “[A] duty may be established by common law, legislative enactment, or by the particular facts and circumstances of the case.” Chambers v. St. Mary’s School, 82 Ohio St.3d 563, 565, 1998 Ohio 184, 697 N.E.2d 198 (1998). In certain instances, the failure to perform a statutory duty is negligence per se, meaning that “the plaintiff has conclusively established that the defendant breached the duty that he or she owed to the plaintiff.” Id.

[*P38] But negligence per se does not follow from every violation of a statutory duty; violation of a statute may simply constitute evidence of negligence. “[T]he distinction between the two depends upon the degree of specificity with which the particular duty is stated in the statute.” Sikora v. Wenzel, 88 Ohio St.3d 493, 496, 2000 Ohio 406, 727 N.E.2d 1277 (2000). As this court put it in Swoboda v. Brown, 129 Ohio St. 512, 196 N.E. 274 (1935), paragraph four of the syllabus:

The distinction between negligence and “negligence per se” is the means and method of ascertainment. The former must [**22] be found by the jury from the facts, the conditions, and circumstances disclosed by the evidence; the latter is a violation of a specific requirement of law or ordinance, the only fact for determination by the jury being the commission or omission of the specific act inhibited or required.

That is, when a statute requires performance of specific acts, a jury need only determine whether the specific acts were performed, and if it determines that they were not performed, the defendant is negligent per se; but when the statute instead sets forth general rules of conduct that must be followed, a jury must use its judgment in evaluating the circumstances to determine whether the defendant was negligent. In the latter instance, the typical duty of care for negligence applies:

Where there exists a legislative enactment commanding or prohibiting for the safety of others the doing of a specific act and there is a violation of such enactment solely by one whose duty it is to obey it, such violation constitutes negligence per se; but where there exists a legislative enactment expressing for the safety of others, in general or abstract terms, a rule of conduct, negligence per se has no application [**23] and liability must be determined by the application of the test of due care as exercised by a reasonably prudent person under the circumstances of the case.

Eisenhuth v. Moneyhon, 161 Ohio St. 367, 119 N.E.2d 440 (1954), paragraph one of the syllabus.

[*P39] In this case, the defendant may have violated several of the responsibilities of R.C. 4169.08(C)(1) and (2): failing to ski “within the limits of [his] ability,” failing to “maintain control of [his] speed and course,” failing to “refrain from acting in a manner that may cause or contribute to the injury of another person,” and failing “to refrain from causing collision with any person or object while skiing.” None of the defendant’s violations could be established from the determination of one fact by a trier of fact; the trier of fact would need to consider “the facts, the conditions, and circumstances disclosed by the evidence.” Swoboda at paragraph four of the syllabus. The responsibilities set forth in R.C. 4169.08(C)(1) and (2) are akin to the “rule of conduct” discussed in Eisenhuth; in those instances, negligence per se does not apply, and liability is “determined by the application of the test of due care as exercised by a reasonably [**24] prudent person under the circumstances of the case.” Eisenhuth at paragraph three of the syllabus.

[*P40] Thus, the General Assembly has set forth a statutory duty of ordinary care for skiers. Ingrained in that ordinary-care standard is the recognition that skiers are on skis, are on a slippery surface, and are engaged in a somewhat dangerous activity. R.C. 4169.08(C)(1) and (2) do not require expert ability by all skiers; they require common sense and an appreciation of very basic safety rules of skiing. When a skier fails to use ordinary care to meet the responsibilities set forth in R.C. 4169.08(C), he is liable for any injuries caused by his failure to live up to those rules of conduct, pursuant to R.C. 4169.09.

Common Law

[*P41] As stated above, I dissent from the majority’s holding that R.C. 4169.09 does not recognize a cause of action between skiers. I also dissent from the majority’s holding that a skier must prove that another skier was reckless to successfully assert a common-law claim against another skier. The crux of the majority’s holding regarding the common law is that skiers owe no duty to each other because collisions between skiers are one of the inherent risks of skiing. I disagree [**25] and instead would follow the reasoned approach adopted by the Supreme Court of Connecticut in Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 849 A.2d 813 (2004), in which the court held that “the standard of care implicated in the context of the sport of skiing is that of a duty to refrain from unreasonable conduct and that liability may attach for negligent behavior.” Id. at 698.

[*P42] Like many other states, Connecticut has a ski-safety statutory scheme; such statutory schemes are like snowflakes-no two are exactly alike. See, e.g., Frakt & Rankin, Surveying the Slippery Slope: The Questionable Value of Legislation to Limit Ski Area Liability, 28 Idaho L.Rev. 227, 230 (1992), fn.12. The Connecticut statute at issue in Jagger did not contain the declaration found in the Ohio and Michigan statutes that a skier is liable to another skier for injuries caused by the skier’s failure to meet his or her statutory responsibilities. The Connecticut statute did state that collisions with other skiers are an inherent risk of skiing, Conn.Gen.Stat. 29-212; the court in Jagger found that that provision did not apply to lawsuits between skiers. Jagger, 269 Conn. at 697, 849 A.2d 813, fn. 21.

[*P43] [**26] In Jagger, the court applied a four-part test “to evaluate the various policy considerations relevant to the determination of the extent of the defendant’s duty.” Id. at 700. The court had developed the test in Jaworski v. Kiernan, 241 Conn. 399, 696 A.2d 332 (1997), to determine the standard of care applicable to participants in a soccer game. The elements of the test include

“(1) the normal expectations of participants in the sport in which the plaintiff and the defendant were engaged; (2) the public policy of encouraging continued vigorous participation in recreational sporting activities while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions.”

Jagger at 700, quoting Jaworski at 407.

[*P44] As for the first factor, the normal expectations of the participants in the sport, I agree with the Jagger court that although ski collisions can be frequent, skiers expect their fellow skiers to abide by the commonly accepted, fundamental rules of skiing:

While collisions with other skiers are fairly common, frequency of occurrence is not the ultimate touchstone in evaluating the expectations of participants in the sport. [**27] Rather, we perceive the expectations of skiers to be that fellow participants in the sport will conduct themselves in a manner befitting the dangerous potentialities attendant with the sport. Thus, skiers will expect that other skiers will follow the rules and generally accepted practices of the sport of skiing. Indeed, our statutory scheme regarding ski liability confirms that skiers should possess such expectations as they take part in the sport. * * * The normal expectations of skiers will be that fellow skiers will ski in a reasonable and appropriate manner.

Id. at 701-702.

[*P45] Like Connecticut’s, our state’s statutory scheme sets forth responsibilities for skiers that should create in the minds of other skiers the expectation that collisions are not an acceptable part of the sport.

[*P46] Further, skiers are reminded by signs throughout ski areas of appropriate behavior. The Skier’s Responsibility Code, promulgated by the National Ski Areas Association, reminds skiers of common safety rules:

Always stay in control, and be able to stop or avoid other people or objects.

People ahead of you have the right of way. It is your responsibility to avoid them.

You must not stop where you obstruct a trail [**28] or are not visible from above.

Whenever starting downhill or merging into a trail, look uphill and yield to others.

Always use devices to help prevent runaway equipment.

Observe all posted signs and warnings. Keep off closed trails and out of closed areas.

Prior to using any lift, you must have the knowledge and ability to load, ride and unload safely.

http://www.nsaa.org/nsaa/safety/responsibilitycode (accessed Nov. 1, 2012)

[*P47] Unlike in sports like football, basketball, or soccer, in which contact with other participants is part of the very nature of the sport, contact with another individual in skiing is outside the nature of the sport; any contact at all between skiers transforms skiing into an unacceptably dangerous proposition. The expectation among skiers is that their fellow skiers appreciate that safety is essential for everyone’s enjoyment of the sport.

[*P48] As for the second factor-balancing the encouragement of participation in the sport against concern for the safety of participants-I agree with the court in Jagger that encouraging responsible behavior by skiers tends to encourage participation:

As for the second Jaworski factor, we conclude that the balancing of the public policy of [**29] the encouragement of vigorous participation in the sport of skiing and the protection of the safety of its participants weighs in favor of a negligence standard. We believe that requiring skiers to participate in the reasonable manner prescribed by the rules of the sport actually will promote participation in the sport of skiing. Should the threshold for liability be placed at a level that only reckless or intentional misconduct can serve as grounds for liability, many of the potential harms caused by coparticipants in the sport will go unremedied and, therefore, dissuade potential participants from taking part in the sport. Additionally, a standard of reasonableness also operates to protect the safety of participants in the sport of skiing.

Jagger, 269 Conn. at 702-703, 849 A.2d 813.

[*P49] I agree that there is a minimal price to pay, if any, for increased safety on ski slopes. That skiers could feel safer when skiing would tend to inure to the benefit of participation rates. Colorado, whose economy is much more dependent on skiing than Ohio’s, statutorily recognizes the right of skiers to recover damages from other skiers who cause injuries. Colo.Rev.Stat.Ann. 33-44-109 (“a skier is not [**30] precluded under this article from suing another skier for any injury to person or property resulting from such other skier’s acts or omissions. Notwithstanding any provision of law or statute to the contrary, the risk of a skier/skier collision is neither an inherent risk nor a risk assumed by a skier in an action by one skier against another”).

[*P50] The third factor, the potential increase in litigation, is a minimal factor in the analysis. Contact with other skiers is not a regular part of skiing; collisions are rare enough that our courts would not be clogged by claims. As the court recognized in Jagger, this situation might be different in other sports:

For instance, in Jaworski we recognized quite correctly that the imposition of a negligence standard in contact sports would result undesirably in the potentiality of a civil action arising out of any foul, any hit batsman, or any clipping penalty. The same potential for undesirable numbers of civil actions is not present in the context of skiing. As discussed previously, abiding by the rules of the sport of skiing will eliminate the overwhelming majority of contact between skiers.

Id. at 703.

[*P51] The fourth element of the Jaworski test is [**31] a consideration of the law in other jurisdictions. We have the benefit of relying on the court’s well-reasoned decision in Jagger. Jagger relied on Novak v. Virene, 224 Ill.App.3d 317, 321, 586 N.E.2d 578, 166 Ill. Dec. 620 (1991), in which the court stated:

As in the individual sports of running and bicycling, there is the possibility of collisions in downhill skiing. But by one’s participation in the sport, one does not voluntarily submit to bodily contact with other skiers, and such contact is not inevitable. Therefore, the concern that the possibility of a negligence lawsuit would damper vigorous participation is inapplicable to downhill skiing. There is no reason to expand the limited contact sports exception to exempt downhill skiers from negligence liability if they negligently collide with other skiers. Many activities in life are fraught with danger, and absent a specific assumption of risk, one may obtain damages when injured by another’s negligence. Defendant’s conduct should be governed by ordinary negligence standards.

Id. at 321.

[*P52] In a Utah case, Ricci v. Schoultz, 963 P.2d 784, 786 (Utah App.1998), the court held that “a skier does have a duty to other skiers to ski reasonably and within [**32] control. However, an inadvertent fall on a ski slope, alone, does not constitute a breach of this duty.” Even though there was no negligence in the Ricci case, the case did hold that negligence was the proper legal standard to apply.

[*P53] Interpreting Vermont law in Dillworth v. Gambardella, 970 F.2d 1113, 1123 (2d Cir.1992), the court held that a skier can be liable to another skier for injuries caused by the skier’s negligence, but made clear that not every collision is caused by negligence:

The law is clear. “[T]he standard of conduct needed to discharge a duty of care in any given situation [is] measured in terms of the avoidance of reasonably foreseeable risks to the person to whom such duty is owed.” Green v. Sherburne Corp., 137 Vt. 310, 403 A.2d 278, 280 (1979). Like all others, skiers owe that degree of care an ordinary prudent person would exercise under like or similar circumstances. See La Faso v. La Faso, 126 Vt. 90, 223 A.2d 814, 817-18 (1966). One skier is not the insurer of another skier’s safety nor, absent negligence, is one skier liable to another for inadvertent or accidental contact. See, e.g., LaVine v. Clear Creek Skiing Corp., 557 F.2d 730, 734-35 (10th Cir.1977).

Thus, [**33] a jury might conclude that skiers who lose control even while exercising due care-that is, have breached no duty owed to other skiers-may pose a danger which is inherent, obvious and necessary to participants in the sport of skiing. * * * “If the fall is due to no breach of duty on the part of the defendant, its risk is assumed in the primary sense, and there can be no recovery.” Sunday [v. Stratton Corp], [136 Vt. 293, 302], 390 A.2d 398 [(1978)]. Where the facts on assumption and breach of duty are in dispute and more than one reasonable inference may be drawn from them, the question of negligence is for the jury. See La Faso, 223 A.2d at 819.

Id. at 1122. Although a skier does assume some risks of skiing, as for the behavior of other skiers, “the only risks [a] plaintiff * * * could be said to have assumed are those which defendant in the exercise of reasonable care under the circumstances could have avoided.” Id. at 1123.

[*P54] Further, in Peterson v. Chichester, 157 Vt. 548, 600 A.2d 1326 (1991), the Vermont Supreme Court upheld a jury verdict in a collision-between-skiers case in which the negligence of the defendant and comparative negligence of the plaintiff were at issue. Similarly, [**34] in Stewart v. Rice, 120 Idaho 504, 817 P.2d 170 (1991), the Supreme Court of Idaho decided a case involving the negligence of a skier in a collision between skiers.

[*P55] Applying the four Jaworski factors to the sport of skiing leads to the conclusion reached by the court in Jagger: “the proper standard of care owed by coparticipants in the sport of skiing is that of reasonable care.” Jagger, 269 Conn. at 704, 849 A.2d 813. Even assuming that the majority correctly found that no statutory duty exists between skiers in Ohio, it should have found a common-law duty of reasonable care between skiers, as courts in Connecticut, Illinois, Utah, Vermont, and Idaho have done.

Recklessness

[*P56] I dissent from the majority’s holdings that neither Ohio’s ski statutes nor the common law creates a duty between skiers. An accident like the one in this case is not one that a person would assume would take place when undertaking the pleasant family activity of skiing. Children, seniors, beginners, and handicapped people use ski slopes; to require, as the majority does, no greater standard of care than to refrain from recklessness will make Ohio’s ski areas more dangerous for everyone. “[Contact between skiers [**35] is neither a part of the sport that skiers agree to confront by their participation, nor is it an inevitable byproduct of the sport of skiing.” Jagger at 704.

[*P57] However, the majority admits that the defendant is liable for the plaintiffs injuries if he was acting recklessly on the slopes on the day in question. I agree that if recklessness is the standard of care in this case that there is a genuine issue of fact for a trier of fact to determine. There is testimony establishing that the defendant was uphill of Angel Horvath and merging onto the slope in question, looking backward, and making a sudden change of course when he struck her. Evidence supports the plaintiffs’ contention that the defendant violated numerous statutory responsibilities contained in R.C. 4169.08(C), a statute that sets forth fundamental safety rules for skiers. Those rules are basic and essential for skier safety. The flouting of those rules should be considered by a trier of fact in determining recklessness.

Conclusion

[*P58] The trial judge erred by granting summary judgment in a case that presents factual issues for trial. The case has now snowballed into a case that eviscerates a statutory scheme that has well served [**36] the sport and industry of skiing for a long time. The General Assembly ensured that we owe a greater duty, a duty of ordinary care, to each other. The majority has removed that duty and today has made skiing in Ohio appreciably more dangerous. I trust that Ohio’s skiers will not look to this court, but instead to their common sense, their peers, and information provided by ski areas to determine what is acceptable behavior on Ohio’s ski slopes.

G-YQ06K3L262

In this cycle race case, the release was void by state law, but could still be used to prove assumption of the risk.

Posted: September 17, 2012 | Author: Recreation Law | Filed under: Assumption of the Risk, Cycling, Montana, Release (pre-injury contract not to sue) | Tags: Adventure travel, Attorney at law, Montana, Motion in Limine, USA Cycling | Leave a comment

Ganz vs. United States Cycling Federation, 1994 Mont. Dist. LEXIS 756

At trial it is too late to find out that the release you had everyone sign has no value.

This is a motion hearing in Federal District Court for the great Western Stage Race held in Missoula. Montana by statute does not allow the use of a release. See States that do not Support the Use of a Release. The plaintiff was attempting to have two issues precluded from the trail:

· The fact the defendant was a non-profit.

· The fact the plaintiff signed a release which is void under Montana’s law.

To do that, you file a motion in limine. A motion in limine argues before the judge that because of a statute or the laws of evidence something the other side is going to try to say or introduce as evidence should be excluded. See Why accident reports can come back to haunt you for more on motions in limine.

The facts that gave rise to the case are the plaintiff was a competitor in the bicycle race. During the race, a pedestrian darted out in front of him and caused him to crash. He was claiming, “alleges negligence on the part of the Defendants for failure to create, establish, follow, and/or enforce appropriate safety standards on the race course.”

The first issue, the non-profit status of the defendant was quickly granted. Because most states have statutes, which state a non-profit is the same as a for-profit corporation, the issue of the defendant being a non-profit would only prejudice the jury.

The second issue, the release is of more interest. Pursuant to Montana’s law, a release is void and against public policy.

M.C.A. § 28-2-702 Contracts that violate policy of law — exemption from responsibility.

All contracts that have for their object, directly or indirectly, to exempt anyone from responsibility for the person’s own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent, are against the policy of the law.

So the release signed by the plaintiff in this case could not be used as a release. The plaintiff’s motion in limine was to exclude the release for any purpose; the jury would never know a release was signed.

So?

The court held the release could be used but only to the extent to show the portion of the release which showed that he was aware of the risks of the race.

The mention of the release form for the purpose of proving that no liability exists is prohibited. However, the Defendants should be allowed to show that Mr. Ganz [the plaintiff] signed that portion of the release which shows that he was aware of the dangers on the race course, without actually showing the release in its entirety to the jury.

Dependent upon how the release was written and the statement of the risks in the release, this could be a powerful document showing the plaintiff knew of and assumed the risks.

So Now What?

Make sure your release is written to include the risks of the activity or program. There are several reasons for doing this.

· Guests who have no clue will have a better time if they understand the risks.

· Guests who read about the risks have a better understanding of the risks and decided if this is the type of opportunity they want to take.

· If your release is thrown out, you can still use the release as proof the plaintiff assumed the risk.

You can’t write all the risks into a release. However, you can write in the following:

1. Those injuries that are common to the activity or program.

2. Those injuries that can cause permanent injury or death.

3. Those risks which are different in your activity from the normal or competitive activities.

The second group is easy to identify. If it is rock climbing, it is falling or having something fall on you resulting in permanent injury or death. In paddlesports it is drowning, hypothermia, or a “near-drowning” resulting in brain injury.

The first is also easy. Look at every injury you have ever seen in your activity. Injuries from falling on the hike to the base of the climb or falling down carrying a boat to the river. After lunch on the river, people sit on a hot raft getting a burn or rope burn while belaying. Those injuries that are not life threatening but occur regularly and deplete your stock of band aids.

The third category is a little harder. How is your program or activity different from the rest of the people in your industry. If the majority of climbing walls have padding on the floor, and yours does not you should identify this as a risk. In cycling, you need to identify if you have a closed course, a race course without cars on it is critical for participants to know.

As always, you have to have your release created by someone who understands your risks, your sport your activity and knows how to write a release.

What do you think? Leave a comment.

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

blog@rec-law.us

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:www.recreation-law.com

Mobile Site: http://m.recreation-law.com

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer,

New York Decision explains the doctrine of Primary Assumption of the Risk for cycling.

Posted: July 23, 2012 | Author: Recreation Law | Filed under: Assumption of the Risk, Cycling, New York | Tags: Bike Club, Cycling, Cycling Club, Mountain biking, New York, Organizations, Pace Line, Paceline, Sport, United States | 2 Comments

Cotty v Town of Southampton, et al., 2009 NY Slip Op 4020; 64 A.D.3d 251; 880 N.Y.S.2d 656; 2009 N.Y. App. Div. LEXIS 3919

Basically, in New York, for injuries from the path or roadway, you assume the risk of mountain biking, and you probably did not assume the risk of road biking.

The plaintiff was a member of a bicycle club and was on a club ride. The ride was a 72-mile ride, and she was part of the pace line. A pace line is a group of cyclists riding single file. When the lead cyclist starts to tire or slow that cyclist pulls out of the line and drifts to the rear, and the 2^nd cyclist takes over the front spot. A pace line allows the cyclists to go faster easily because each is taking a turn at the front doing 100% of the work, and the cyclists in the back are conserving energy.

The cyclist in front of the plaintiff went down in a construction area when he was unable to negotiate the lip between paving areas. The plaintiff tried to avoid the downed cyclists sliding into the roadway into a car.

The defendants were the construction company working on the road, the city that owned the road, other government entities, and the cyclists who went down in front of the plaintiff.

The city defendant filed this motion for summary judgment arguing the plaintiff could not sue because of the doctrine of primary assumption of the risk. In New York, Primary Assumption of the Risk prevents suits in sporting or athletic events from “conduct or conditions that are inherent in the sport or activity.”

The trial court denied the motion, and this appeal followed. The appellate court looked at the issue as to whether the plaintiff was engaging in an activity that subjected her to the doctrine. That is, was the plaintiff when riding a bike in this manner engaging in a sporting event or athletic activity.

Appellate Court Analysis

The court did a thorough review of the issues in this case as they applied to the doctrine of primary assumption of the risk. The court defined the doctrine as:

English: An animation of a group of cyclists riding in a chain gang or pace line. (Photo credit: Wikipedia)

…a person who voluntarily participates in a sporting activity generally consents, by his or her participation, to those injury-causing events, conditions, and risks which are inherent in the activity…. Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation.

The effect of a plaintiff consenting to the risk (even if the plaintiff is not voluntarily or knowingly consenting) is to relieve the defendant of the duty of care that would otherwise exist in the sport or activity.

Accordingly, when a plaintiff assumes the risk of participating in a sporting event, “the defendant is relieved of legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence

The reason for the doctrine is to create free and vigorous participation in athletic activities. If the doctrine did not exist with regard to sporting events, players would not fully participate, not play hard for fear of legal liability for doing so. However, the doctrine does not apply to conduct on the part of a defendant who increases the risk of harm to the plaintiff.

The doctrine not only applies to the other players in the sport or activity; it has been applied to the playing surface, the field. “If the playing surface is as safe as it appears to be, and the condition in question is not concealed such that it unreasonably increases risk assumed by the players, the doctrine applies.”

The court then looked at the facts of the case to see if the plaintiff fell into the purview of the doctrine of assumption of the risk. The court first looked at what the doctrine did not apply to with regard to municipalities.

The doctrine is not designed to relieve a municipality of its duty to maintain its roadways in a safe condition [“the doctrine of assumption of risk does not exculpate a landowner from liability for ordinary negligence in maintaining a premises”]), and such a result does not become justifiable merely because the roadway in question happens to be in use by a person operating a bicycle, as opposed to some other means of transportation….

The court reviewed mountain biking cases first and found in three situations that other courts had applied the doctrine to issues with the trail. Mountain bikers striking an exposed tree root, riding into holes in the trail, or hitting potholes or ruts in the path were all found to be subject to the doctrine and barred suit by the plaintiff.

The court looked at road biking on streets and found the courts had held in those situations that the doctrine did not apply.

…plaintiffs, who were injured while riding their bicycles on paved pathways in public parks, “cannot be said as a matter of law to have assumed risk of being injured as a result of a defective condition on a paved pathway merely because [they] participated in the activity of bicycling

Consequently, this court could not say that the plaintiff’s activities at the time of her injuries were such that the doctrine of assumption of the risk would bar her suit.

…primary assumption of risk did not apply to a plaintiff who was injured when his bicycle struck a raised concrete mound on a public roadway, even though the plaintiff, like the plaintiff in the instant case, was “an avid bicyclist” and was participating in “a noncompetitive, recreational bicycle ride with about eight or nine other riders

…riding a bicycle on a paved public roadway normally does not constitute a sporting activity for purposes of applying the primary assumption of risk doctrine. By contrast, mountain biking, and other forms of off-road bicycle riding, can more readily be classified as sporting activity. Indeed, the irregular surface of an unimproved dirt bike path is “presumably the very challenge that attracts dirt bike riders as opposed to riding on a paved surface

One interesting point the court made was differentiating between the doctrine of primary assumption of the risk and comparative negligence which had incorporated a simple assumption of the risk into it. The defendant had argued that the plaintiff assumed the risk of riding too closely behind the defendant who fell in front of her. The court held that was a comparative negligence issue for the jury, not an example of a primary assumption of the risk.

Primary assumption of the risk is the play of the game, the sport, or the surface. If the plaintiff’s injuries arise from how the plaintiff played the game then that is an issue of contributory negligence.

So Now What?

English: Tour de Romandie 2009 – 3rd stage – team time trial Français : Tour de Romandie 2009 – 3e étape – contre-la-montre par équipes (Photo credit: Wikipedia)

Whether or not a government entity would be liable for an injury on the roadway is going to be specific by state. New York has a reputation of allowing suits

against municipalities for such things. As such most other states probably would not. However, that requires a state-by-state review which you should have conducted if needed in your state.

What comes from this lawsuit that you can do if you operate a cycling club or run a ride (such as a retailer) is to have all riders sign a release that protects the club and other riders. The defendant in this case who fell in front of the plaintiff was sued for falling down on a bicycle. That seems absurd to me.

If you run a club, event, or ride, make sure that an injured party cannot come back and sue you or other riders for something that is a part of cycling. If you do not believe that cyclists fall, watch the first 10 days of the 2012 Tour de France!

What do you think? Leave a comment.

James H. “Jim” Moss

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

Outdoor Recreation Insurance, Risk Management, and Law

and Law. To Purchase Go Here:

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.

If you are interested in having me write your release, download the form and return it to me.

Connect

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

Facebook Page: Outdoor Recreation & Adventure Travel Law

LinkedIn https://www.linkedin.com/in/recreationlaw/

Threads https://www.threads.net/@recreation_law

X https://twitter.com/RecreationLaw

Email: Jim@Rec-Law.US

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

@2012-2023 Summit Magic Publishing, LLC

G-YQ06K3L262

WordPress Tags: York,Decision,doctrine,Primary,Assumption,Risk,Town,Southampton,Slip,LEXIS,injuries,path,roadway,mountain,road,plaintiff,member,bicycle,energy,construction,area,areas,defendants,government,entities,defendant,judgment,events,bike,manner,event,Appellate,Court,Analysis,person,participation,injury,Risks,consequences,negligence,players,municipalities,roadways,landowner,premises,transportation,situations,bikers,tree,potholes,ruts,streets,plaintiffs,bicycles,pathways,parks,pathway,mound,riders,purposes,dirt,jury,example,Whether,reputation,lawsuit,retailer,Tour,France,Leave,Twitter,LinkedIn,Recreation,Edit,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,Outside,Moss,James,Attorney,Tourism,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,cyclists

Cotty v Town of Southampton, et al., 2009 NY Slip Op 4020; 64 A.D.3d 251; 880 N.Y.S.2d 656; 2009 N.Y. App. Div. LEXIS 3919

Posted: July 23, 2012 | Author: Recreation Law | Filed under: Assumption of the Risk, Cycling, Legal Case, New York | Tags: Bike Club, Cycling, Cycling Club, New York, New York Supreme Court, New York Supreme Court Appellate Division, Pace Line, Summary judgment, Supreme Court | Leave a comment

To Read an Analysis of this decision see

New York Decision explains the doctrine of Primary Assumption of the Risk for cycling.

Cotty v Town of Southampton, et al., 2009 NY Slip Op 4020; 64 A.D.3d 251; 880 N.Y.S.2d 656; 2009 N.Y. App. Div. LEXIS 3919

[*1] Karen Cotty, plaintiff-respondent, v Town of Southampton, et al., defendants-appellants-respondents, Suffolk County Water Authority, defendant-appellant- respondent/fourth-party plaintiff-respondent, Elmore Associates Construction Corp., defendant third-party plaintiff, et al., defendant; Peter Deutch, third-party defendant/fourth-party defendant-appellant, et al., fourth-party defendant. (Index No. 20312/03)

2007-08536

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT

2009 NY Slip Op 4020; 64 A.D.3d 251; 880 N.Y.S.2d 656; 2009 N.Y. App. Div. LEXIS 3919

May 19, 2009, Decided

NOTICE:

THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION. THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.

COUNSEL: Thomas C. Sledjeski, PLLC (Anita Nissan Yehuda, P.C., Roslyn Heights, N.Y., of counsel), for defendant-appellant-respondent Town of Southampton.

Shayne, Dachs, Corker, Sauer & Dachs, LLP, Mineola, N.Y. (Norman H. Dachs and Jonathan A. Dachs of counsel), for defendant-appellant-respondent/fourth-party plaintiff-respondent Suffolk County Water Authority and defendant-appellant-respondent CAC Contracting Corp (one brief filed).

Loccisano & Larkin, Hauppauge, N.Y. (Robert X. Larkin of counsel), for third-party [*2] defendant/fourth-party defendant-appellant Peter Deutch.

Rosenberg & Gluck, LLP, Holtsville, N.Y. (Andrew Bokar of counsel), for plaintiff-respondent.

JUDGES: PETER B. SKELOS, J.P., MARK C. DILLON, FRED T. SANTUCCI, RUTH C. BALKIN, JJ. DILLON, SANTUCCI and BALKIN, JJ., concur.

OPINION BY: SKELOS

OPINION

[**252] [***658] APPEAL by the defendant Town of Southampton, in an action to recover damages for personal injuries, as limited by its brief, from so much of an order of the Supreme Court (Robert W. Doyle, J.), dated August 6, 2007, and entered in Suffolk County, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it; SEPARATE APPEAL by the defendants Suffolk County Water Authority and CAC Contracting Corp., as limited by their brief, from so much of the same order as denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them; and SEPARATE APPEAL by the fourth-party defendant Peter Deutch, as limited by his brief, from so much of the same order as denied that branch of his separate cross motion which was for summary judgment dismissing the fourth-party complaint and all related cross claims insofar as asserted against him. Justice Dillon has been substituted for former Justice Lifson (see 22 NYCRR 670.1[c]).

OPINION & ORDER

SKELOS, J.P. [HN1] When a person voluntarily participates in certain sporting events or athletic activities, an action to recover damages for injuries resulting from conduct or conditions that are inherent in the sport or activity is barred by the doctrine of primary assumption of risk. In this case, where the plaintiff was injured while riding a bicycle on a paved public roadway, we confront the threshold question of whether the plaintiff was engaged in an activity that subjected her to the doctrine of primary assumption of risk.

Beginning on July 24, 2002, pursuant to a contract with the defendant Suffolk County Water Authority (hereinafter SCWA), the defendant CAC Contracting Corp. replaced the asphalt in a trench that had been dug along the edge of Deerfield Road in Southampton for the purpose of installing a conduit for a water [**253] main. Two layers of asphalt were to be laid to fill the trench and bring it level with the preexisting roadway, but at the time of the subject accident, only one layer of asphalt had been laid, leaving a “lip” approximately one inch deep, parallel to the length of the road, where the preexisting roadway and the newly paved section met. At the site of the accident, the lip was not marked by any barricades or traffic cones.

On July 27, 2002, the plaintiff, a member of a bicycle club which engaged in long-distance rides, was the last bicyclist in one of several groups of eight riders cycling on Deerfield Road during a 72-mile ride. The plaintiff testified at a deposition that the road “was not perfectly smooth,” and contained potholes. She had previously ridden on the subject road approximately 20 to 30 times, as recently as two to four weeks before the accident, and was aware of construction activity on various portions of the road. The road had no shoulder, and the plaintiff was riding approximately one to two feet from the edge of the road, and approximately 1 to 11/2 wheel lengths behind the fourth-party defendant, Peter Deutch, at a maximum speed of 17 to 18 miles per hour. The bicyclists in the front of the line began a “hopping” maneuver with their bicycles to avoid the “lip” in the road. Deutch unsuccessfully attempted the hopping maneuver, and fell in the plaintiff’s path. Seeking to avoid Deutch, the plaintiff swerved and slid into the road where she collided with an oncoming car, sustaining injuries.

The plaintiff commenced this personal injury action against, among others, the Town of Southampton, the SCWA, and CAC Contracting Corp. (hereinafter collectively the defendants), and the SCWA impleaded Deutch. The defendants moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against each of them, and Deutch cross-moved for summary judgment dismissing the fourth-party complaint and all related cross claims insofar as asserted against him. The defendants and Deutch (hereinafter collectively the appellants) contended, inter alia, that the plaintiff had assumed the risks commonly associated [***659] with bicycle riding. The Supreme Court denied the appellants’ motions.

[HN2] Under the doctrine of primary assumption of risk, a person who voluntarily participates in a sporting activity generally consents, by his or her participation, to those injury-causing events, conditions, and risks which are inherent in the activity (see Morgan v State of New York, 90 NY2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421; Turcotte v Fell, 68 NY2d 432, 439, 502 N.E.2d 964, 510 N.Y.S.2d 49). Risks inherent in a sporting [**254] activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation (see Morgan v State of New York, 90 NY2d at 484; Turcotte v Fell, 68 NY2d at 439). Because determining the existence and scope of a duty of care requires “an examination of plaintiff’s reasonable expectations of the care owed him by others” (Turcotte v Fell, 68 NY2d at 437), the [*3] plaintiff’s consent does not merely furnish the defendant with a defense; it eliminates the duty of care that would otherwise exist. Accordingly, when a plaintiff assumes the risk of participating in a sporting event, “the defendant is relieved of legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence” (id. at 438, quoting Prosser and Keeton, Torts § 68, at 480-481 [5th ed]).

The policy underlying the doctrine of primary assumption of risk is “to facilitate free and vigorous participation in athletic activities” (Benitez v New York City Bd. of Educ., 73 NY2d 650, 657, 541 N.E.2d 29, 543 N.Y.S.2d 29). Without the doctrine, athletes may be reluctant to play aggressively, for fear of being sued by an opposing player. [HN3] As long as the defendant’s conduct does not unreasonably increase the risks assumed by the plaintiff, the defendant will be shielded by the doctrine of primary assumption of risk (see Morgan v State of New York, 90 NY2d at 485; Benitez v New York City Bd. of Educ., 73 NY2d at 658; Muniz v Warwick School Dist., 293 AD2d 724, 743 N.Y.S.2d 113).

[HN4] The doctrine also has been extended to the condition of the playing surface. If an athlete is injured as a result of a defect in, or feature of, the field, court, track, or course upon which the sport is being played, the owner of the premises will be protected by the doctrine of primary assumption of risk as long as risk presented by the condition is inherent in the sport (see Trevett v City of Little Falls, 6 NY3d 884, 849 N.E.2d 961, 816 N.Y.S.2d 738; Sykes v County of Erie, 94 NY2d 912, 728 N.E.2d 973, 707 N.Y.S.2d 374; Ribaudo v La Salle Inst., 45 AD3d 556, 846 N.Y.S.2d 209). If the playing surface is as safe as it appears to be, and the condition in question is not concealed such that it unreasonably increases risk assumed by the players, the doctrine applies (see Fintzi v New Jersey YMHA-YWHA Camps, 97 NY2d 669, 765 N.E.2d 288, 739 N.Y.S.2d 85; Turcotte v Fell, 68 NY2d at 439; Rosenbaum v Bayis Ne’Emon, Inc., 32 AD3d 534, 820 N.Y.S.2d 326; Joseph v New York Racing Assn., 28 AD3d 105, 108, 809 N.Y.S.2d 526).

The Court of Appeals has had no occasion to expound upon the threshold question of what type of activity qualifies as participation in a sporting event for purposes of applying the doctrine of primary assumption of risk. In Turcotte v Fell, for [**255] example, the Court had little difficulty in concluding that the doctrine applied to the plaintiff, a professional jockey riding in [***660] a horse race at a track owned and operated by the New York Racing Association. Here, had the plaintiff been a professional athlete involved in a bicycle race on a track or a closed course, the doctrine of primary assumption of risk clearly would apply (cf. Morgan v State of New York, 90 NY2d at 486; Joseph v New York Racing Assn., 28 AD3d at 108-109). This case, however, presents different circumstances.

[HN5] In determining whether a bicycle rider has subjected himself or herself to the doctrine of primary assumption of risk, we must consider whether the rider is engaged in a sporting activity, such that his or her consent to the dangers inherent in the activity may reasonably be inferred. In our view, it is not sufficient for a defendant to show that the plaintiff was engaged in some form of leisure activity at the time of the accident. If such a showing were sufficient, the doctrine of primary assumption of risk could be applied to individuals who, for example, are out for a sightseeing drive in an automobile or on a motorcycle, or are jogging, walking, or inline roller skating for exercise, and would absolve municipalities, landowners, drivers, and other potential defendants of all liability for negligently creating risks that might be considered inherent in such leisure activities. Such a broad application of the doctrine of primary assumption of risk would be completely disconnected from the rationale for its existence. The doctrine is not designed to relieve a municipality of its duty to maintain its roadways in a safe condition (see Sykes v County of Erie, 94 NY2d at 913 [“the doctrine of assumption of risk does not exculpate a landowner from liability for ordinary negligence in maintaining a premises”]), and such a result does not become justifiable merely because the roadway in question happens to be in use by a person operating a bicycle, as opposed to some other means of transportation (see Caraballo v City of Yonkers, 54 AD3d 796, 796-797, 865 N.Y.S.2d 229 [“the infant plaintiff cannot be said, as a matter of law, to have assumed risk of being injured by a defective condition of a pothole on a public street, merely because he was participating in the activity [*4] of recreational noncompetitive bicycling, and using the bicycle as a means of transportation”] [citations omitted]).

In prior decisions involving injuries sustained by bicycle riders, this Court has concluded that the doctrine of primary assumption of risk applies in some situations, but not in others. For example, in Calise v City of New York (239 AD2d 378, [**256] 657 N.Y.S.2d 430), the plaintiff was thrown from a mountain bike, which he was riding on an unpaved dirt and rock path in a park, when the bike struck an exposed tree root. This Court held that the plaintiff’s action was barred by the doctrine of primary assumption of risk, reasoning that “[a]n exposed tree root is a reasonably foreseeable hazard of the sport of biking on unpaved trails, and one that would be readily observable” (id. at 379; see Rivera v Glen Oaks Vil. Owners, Inc., 41 AD3d 817, 820-821, 839 N.Y.S.2d 183 [doctrine of primary assumption of risk applied to plaintiff who was injured when his bicycle struck a hole in a dirt trail located in a wooded area]; Restaino v Yonkers Bd. of Educ., 13 AD3d 432, 785 N.Y.S.2d 711 [doctrine of primary assumption of risk applied to plaintiff whose bicycle struck “a pothole or rut in the closed parking lot/driveway area of a public school”]; Goldberg v Town of Hempstead, 289 AD2d 198, 733 N.Y.S.2d 691 [doctrine of primary assumption of risk applied to plaintiff who was injured when her bicycle struck a hole in the [***661] ground as she rode on a dirt base path of a baseball field]).

By contrast, in both Vestal v County of Suffolk (7 AD3d 613, 776 N.Y.S.2d 491) and Moore v City of New York (29 AD3d 751, 816 N.Y.S.2d 131), this Court held that the plaintiffs, who were injured while riding their bicycles on paved pathways in public parks, ” cannot be said as a matter of law to have assumed risk of being injured as a result of a defective condition on a paved pathway merely because [they] participated in the activity of bicycling’” (Moore v City of New York, 29 AD3d at 752, quoting Vestal v County of Suffolk, 7 AD3d at 614-615; see Caraballo v City of Yonkers, 54 AD3d at 796-797; Berfas v Town of Oyster Bay, 286 AD2d 466, 729 N.Y.S.2d 530 [defendant failed to establish, as a matter of law, that action by plaintiff, who was thrown from his bicycle when he hit a rut in a paved road, was barred by primary assumption of risk doctrine]). Significantly, this Court reached the same conclusion in Phillips v County of Nassau (50 AD3d 755, 856 N.Y.S.2d 172), holding that the doctrine of primary assumption of risk did not apply to a plaintiff who was injured when his bicycle struck a raised concrete mound on a public roadway, even though the plaintiff, like the plaintiff in the instant case, was “an avid bicyclist” and was participating in “a noncompetitive, recreational bicycle ride with about eight or nine other riders” (id. at 756).

These decisions recognize that [HN6] riding a bicycle on a paved public roadway normally does not constitute a sporting activity for purposes of applying the primary assumption of risk doctrine. By contrast, mountain biking, and other forms of off-road [**257] bicycle riding, can more readily be classified as sporting activity. Indeed, the irregular surface of an unimproved dirt-bike path is “presumably the very challenge that attracts dirt-bike riders as opposed to riding on a paved surface” (Schiavone v Brinewood Rod & Gun Club, Inc., 283 AD2d 234, 237, 726 N.Y.S.2d 615).

Of course, the distinction between using a bicycle to engage in a sporting activity and using a bicycle for some other purpose will sometimes be elusive. It is important to draw that line, however, because “[e]xtensive and unrestricted application of the doctrine of primary assumption of risk to tort cases generally represents a throwback to the former doctrine of contributory negligence, wherein a plaintiff’s own negligence barred recovery from the defendant'” (Trupia v Lake George Cent. School Dist., 62 A.D.3d 67, 875 N.Y.S.2d 298, 2009 NY Slip Op 01571, [3d Dept 2009], quoting Pelzer v Transel El. & Elec. Inc., 41 AD3d 379, 381, 839 N.Y.S.2d 84). That tendency is illustrated by the appellants’ briefs in this case, which repeatedly emphasize that the plaintiff was riding too closely behind Deutch. That argument is misplaced, since the issue of whether the plaintiff was following too closely, or otherwise acted negligently, is a matter of [HN7] comparative fault, which must be determined by the factfinder at trial and not as a matter of law at the summary judgment stage (see CPLR 1411; Roach v Szatko, 244 AD2d 470, 471, 664 N.Y.S.2d 101; Cohen v [*5] Heritage Motor Tours, 205 AD2d 105, 618 N.Y.S.2d 387).

In sum, [HN8] it cannot be said, as a matter of law, that merely by choosing to operate a bicycle on a paved public roadway, or by engaging in some other form of leisure activity or exercise such as walking, jogging, or roller skating on a paved public roadway, a plaintiff consents to the negligent maintenance of such roadways by a municipality or a contractor. Adopting such a rule could have the arbitrary effect [***662] of eliminating all duties owed to participants in such leisure or exercise activities, not only by defendants responsible for road maintenance, but by operators of motor vehicles and other potential tortfeasors, as long as the danger created by the defendant can be deemed inherent in such activities. We decline to construe the doctrine of primary assumption of risk so expansively.

For the foregoing reasons, the appellants failed to make a prima facie showing that the primary assumption of risk doctrine is applicable to the activity in which the plaintiff was engaged at the time of her accident. Thus, the Supreme Court properly denied the defendants’ motions for summary judgment dismissing the complaint and all cross claims insofar as asserted [**258] against them and Deutch’s cross motion for summary judgment dismissing the fourth-party complaint and all related cross claims insofar as asserted against him as barred by the doctrine of primary assumption of risk.

Moreover, the defendants failed to establish as a matter of law that the unbarricaded lip created by the road construction was not a “unique and . . . dangerous condition over and above the usual dangers that are inherent” (Owen v. R.J.S. Safety Equipment, Inc.., 79 N.Y.2d 967, 970, 591 N.E.2d 1184, 582 N.Y.S.2d 998) in the activity of bicycle riding on a paved roadway (see Vestal v County of Suffolk, 7 AD3d 613, 614, 776 N.Y.S.2d 491 [plaintiff did not assume risk of being injured while riding bicycle on defective paved pathway where there were “no signs, chains, or barriers” present “to indicate that it was not suitable for bicycling“]; see also Phillips v County of Nassau, 50 AD3d 755, 856 N.Y.S.2d 172; Berfas v Town of Oyster Bay, 286 AD2d 466, 729 N.Y.S.2d 530).

The appellants’ remaining contentions are without merit.

Accordingly, we affirm the order insofar as appealed from.

DILLON, SANTUCCI and BALKIN, JJ., concur.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable by the appellants appearing separately and filing separate briefs.

G-YQ06K3L262

http://www.recreation-law.com

The standard of care for a ropes or challenge course changes based on who is running it and who is using it

Posted: June 4, 2012 | Author: Recreation Law | Filed under: Assumption of the Risk, Challenge or Ropes Course, New York | Tags: #AR, assumption of the risk, challenge course, Expert Witness, New York, Project Adventure, School, School district | Leave a comment

Linthwaite v. Mount Sinai Union Free School District, 2011 N.Y. Misc. LEXIS 6525; 2011 NY Slip Op 33569U

A school owes a higher degree of care to students then a non-school.

This decision was based on a motion for summary judgment filed by the defendants in this matter. The court denied the motion for summary judgment because there were numerous facts at issue. If there are facts that cannot be resolved or are at dispute a motion for summary judgment cannot be granted. The basis for denial was the motion filed by the defendants was deficient on several grounds.

The plaintiff was a student of the defendant. She was participating in a rope’s course described by the court as a challenge by choice event. She was injured when she fell off a low element wall, a wall, attempting to help another student over the wall. Her complaint alleged the defendants had actual and constructive notice of the dangerous conditions which lead to her injury.

The defendant argued the plaintiff assumed the risk of the activity, that it was not negligent in its supervision, and that it did not fail to provide a safe place.

So?

Because the defendant was a school, the court reviewed the standard of care that a school owed to a student.

Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision. The school’s standard of duty to a student is what a reasonable prudent parent would have done under the same circumstances. “The standard for determining whether a school was negligent in executing its supervisory responsibility is, whether a parent of ordinary prudence, placed in the identical situation and armed with the same information, would invariably have provided greater supervision”

Schools are under a duty to adequately supervise its students and can be held liable for foreseeable injuries proximately caused by the failure of supervision. The standard of care for a school is higher than the standard of care for a commercial challenge course, meaning the school owes a higher degree of review and supervision to prevent injuries of students.

The plaintiff must show that the school had sufficient specific knowledge or notice of the dangerous condition or conduct and the breach of the duty to supervise was the cause of the injury.

In order to support its motion the defendants presented attorney affidavits, pleadings and a report from its expert witness. The report from the expert witness went through all the issues and said the school met the standard of care for each of those issues. However, the expert witness failed to attach or explain the standards, failed to identify any support or identify any support for his opinions, and the judge ignored the report.

The expert witness just can’t state a fact; the fact or opinion in the report must be substantiated by research, experience or other information in the field. Worse the expert kept referring to the work of a builder in the industry and then never produced any proof from the builder.

Neither the expert or either party has submitted a copy of the industry standards for Project Adventure, the number and positioning of spotters for the specific activity, the student to adult ratio, the instructions given to spotters, or the instructions to be provided to students participating in the event pursuant to the industry standard.

The next issue that the court quickly dismissed was the extension of the assumption of the risk defense labeled challenge by choice. A witness for the defense testified that the plaintiff was informed the event was a challenge by choice activity and what that meant. Meaning the plaintiff did not have to participate in any or all the activities.

However, the plaintiff came back and testified that during the activity she was told she had to undertake the wall. “However, when it came time for the wall activity, she and her friends were told they had to do it; they were not told that there would be repercussions if they did not do it.” This is enough to create a factual issue that defeats a motion for summary judgment.

This is another problem in this type of activity. The challenge by choice theory is usually repudiated by the defendant during the activity.

The court then listed all the issues the plaintiff had introduced that were still at issue.

Additional factual issues exist as to whether the supervision and spotting was adequate, whether the spotters were properly trained and instructed, and whether a parent of ordinary prudence, placed in the identical situation and armed with the same information, would have provided greater supervision to the students, including adequate placement and training of the appropriate number of spotters.

The defendant’s expert witness had covered all of these issues; however, he had failed to support his opinion in his report with the standards he constantly referred to:

Although Mr. Demas averred that the use of helmets, matting, or the belay system is not consistent with industry standards, he does not state what the industry standard is, and whether the failure to provide such safety equipment is inconsistent with industry standards.

The defendant’s motion for summary judgment was denied.

So Now What?

A school can rarely use a release to stop lawsuits. In New York, it may or not have worked anyway because of New York laws on releases. See States that do not Support the Use of a Release and New York Law Restricting the Use of Releases.

However, the assumption of risk defense could have been stronger if pre-activity work had been done to support the defense.

Assumption of the risk usually means the person assuming the risk knows about, understands and assumes those risks. See Assumption of the Risk. Those risks can be explained in a way that can be reproduced for the court such as a video. For a great example of how this can be done see the OARS Whitewater Orientation Video Series. These videos cover 90% of the risks of whitewater. A plaintiff would be hard-pressed to argue they did not know and understand the risks if they saw the videos.

To prove the client saw the videos, you can have the client prove it in writing. A written (express) assumption of the risk document is a great way to prove the plaintiff assumed the risk. The document can list the major risks and the ones that occur frequently. A jurisdiction and venue clause can be included as well as a statement saying the client has seen and understood the videos.

Plaintiffs will always argue that they were told incorrectly, did not understand, or as in this case, were told conflicting, things that lead to their injury. If your only defense is assumption of the risk, you must be prepared to prove that your version of what happened as well as well, the plaintiff knew and assumed is the only version.

You also need to make sure your expert witness report will meet the scrutiny of the court.

What do you think? Leave a comment.

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

blog@rec-law.us

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:www.recreation-law.com

Mobile Site: http://m.recreation-law.com

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Ropes Course, Challenge Course, Climbing Wall, Challenge by Choice, Mount Sinai Union Free School District, Sachem School District, #NY, New York, #AR, Assumption of the Risk,

WordPress Tags: Linthwaite,Mount,Sinai,Union,Free,School,District,Misc,LEXIS,Slip,degree,students,decision,judgment,defendants,basis,denial,plaintiff,student,defendant,event,complaint,injury,supervision,Schools,injuries,absence,prudence,situation,information,failure,knowledge,attorney,affidavits,opinions,fact,opinion,Worse,builder,industry,Neither,Project,Adventure,ratio,instructions,extension,assumption,repercussions,theory,Additional,placement,Although,Demas,helmets,system,equipment,lawsuits,York,laws,States,Support,Release,Releases,person,Risk,example,OARS,Whitewater,Orientation,Video,Series,client,jurisdiction,venue,clause,statement,Plaintiffs,version,scrutiny,Leave,Twitter,LinkedIn,Recreation,Edit,RecreationLaw,Facebook,Page,Outdoor,Travel,Blog,Mobile,Site,Outside,Moss,James,Tourism,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,Negligence,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,Wall,Choice,Sachem,whether,spotters

Linthwaite v. Mount Sinai Union Free School District, 2011 N.Y. Misc. LEXIS 6525; 2011 NY Slip Op 33569U

Posted: June 4, 2012 | Author: Recreation Law | Filed under: Assumption of the Risk, Challenge or Ropes Course, Legal Case, New York | Tags: assumption of the risk, challenge course, Mount Sinai, New York, New York City, Plaintiff, Ropes course, Sachem School District | Leave a comment

Linthwaite v. Mount Sinai Union Free School District, 2011 N.Y. Misc. LEXIS 6525; 2011 NY Slip Op 33569U

[**1] Rebecca Linthwaite, Plaintiff, – against – Mount Sinai Union Free School District and Sachem School District, Defendants. Index No. 09-26360

09-26360

SUPREME COURT OF NEW YORK, SUFFOLK COUNTY

2011 N.Y. Misc. LEXIS 6525; 2011 NY Slip Op 33569U

December 28, 2011, Decided

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

CORE TERMS: summary judgment, supervision, industry standards, school district, spotters, adventure, spotting, teacher, rope, certified transcript, entitlement, notice, supporting papers, factual issues, issues of fact, extracurricular activity, citations omitted, participating, supervising, proximately, positioning, photograph, opposing, platform, matter of law, notice of claim, cross claims, issue of liability, claims asserted, prima facie

COUNSEL: [*1] For Plaintiff: GLYNN MERCEP & PURCELL LLP, Stony Brook, New York.

For Mount Sinai UFSD, Defendant: CONGDON, FLAHERTY, O’CALLAGHAN, et al., Uniondale, New York.

For Sachem SD, Defendant: DONAHUE, MCGAHAN, CATALANO, et al., Jericho, New York.

JUDGES: PRESENT: Hon. W. GERARD ASHER, Justice of the Supreme Court.

OPINION BY: W. GERARD ASHER

OPINION

Upon the following papers numbered 1 to 46 read on these motions for summary judgment; Notice of Motion/ Order to Show Cause and supporting papers (001) 1-14; Notice of Cross Motion and supporting papers (002) 15-34; Answering Affidavits and supporting papers 35-39; Replying Affidavits and supporting papers 40-41; 42-44; Other 45-46, (~~and after hearing counsel in support and opposed to the motion~~) it is,

ORDERED that motion (001) by the defendant, Mount Sinai Union Free School District, pursuant to CPLR 3212 for summary judgment dismissing the complaint on the issue of liability is denied; and it is further

ORDERED that motion (002) by the defendant, Sachem Central School, pursuant to CPLR 3212 for summary judgment dismissing the complaint and cross claims asserted against it on the issue of liability is denied.

In this action, the plaintiff asserts that the defendants, Sachem [*2] School District (“Sachem”) and Mount Sinai Union Free School District (“Mount Sinai”), were negligent in failing to provide proper instruction and safety equipment, and in supervising the plaintiff while she was taking part in a Mount [**2] plaintiff, after having climbed to the top of a ten foot climbing wall in a “challenge by choice” event, tried to help another student over the wail, lost her balance, and fell backwards. The plaintiff asserts that the defendants had actual and constructive notice of the dangerous conditions which caused her to sustain injury.

In motion (001), the defendant, Mount Sinai, seeks summary judgment dismissing the complaint on the basis that it was not negligent in supervising the plaintiff or in failing to provide a safe and padded area and to warn students not to help others over the wall. It further asserts that the plaintiff assumed the risk of the extracurricular activity, that it exercised reasonable care, that the plaintiff’s injuries were not the result of any breach of duty owed to the plaintiff, that the climbing wall was not located on the grounds of Mount Sinai, and that Mount Sinai did not maintain the wall.

In motion (002), Sachem seeks summary [*3] judgment dismissing the complaint and cross claims against it on the basis that it did not breach any duty to the plaintiff, and that its alleged negligence did not proximately cause the injuries claimed by the plaintiff.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. To grant summary judgment it must clearly appear that no material and triable issue of fact is presented (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 390 N.E.2d 298, 416 NYS2d 790 [1979]; Sillman v Twentieth Century-Fox Film Corporation, 3 NY2d 395, 144 N.E.2d 387, 165 NYS2d 498 [1957]). The movant has the initial burden of proving entitlement to summary judgment (Winegrad v N.Y.U. Medical Center, 64 NY2d 851, 476 N.E.2d 642, 487 NYS2d 316 [1985]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v N.Y.U. Medical Center, supra). Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form…and must “show [*4] facts sufficient to require a trial of any issue of fact” (CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 404 N.E.2d 718, 427 NYS2d 595 [1980]). The opposing party must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established (Castro v Liberty Bus Co., 79 AD2d 1014, 435 NYS2d 340 [2d Dept 1981]).

In support of motion (001), Mount Sinai has submitted, inter alia, an attorney’s affirmation; copies of the notice of claim dated July 2, 2008, summons and complaint, its answer with a cross claim asserted against Sachem, discovery demands, and plaintiff’s verified bill of particulars; a photograph of the wall; copy of the unsigned but certified transcript of the General Municipal Law 50-h hearing of Rebecca Linthwaite dated January 8, 2009; copies of the signed and certified transcript of the examination before trial of Rebecca Linthwaite dated September 21, 2010; the unsigned but certified transcript of Margaret Tuttie on behalf of Sachem dated November 29, 2010; the signed transcript of Karen Blumenthal on behalf of Mount Sinai dated November 29, 2010; and the affidavit of Kenneth R. Demas dated March 15, [*5] 2011, with attendant curriculum vitae.

In support of motion (002), Sachem has submitted, inter alia, two attorney’s affirmations; copies of the notices of claim dated July 2, 2008 with a copy of a photograph of a wall; a copy of the summons and complaint, defendants’ respective answers with cross claims, Mount Sinai’s answer to the cross [**3] claim, plaintiff’s verified bills of particulars: photographs of the wall; a copy of the signed General Municipal Law 50-h transcript of Rebecca Linthwaite dated January 8, 2009; copies of the signed transcript of the examination before trial of Rebecca Linthwaite dated September 21, 2010; Mission Statement by Sachem; the signed and certified transcript of Margaret Tuttle on behalf of Sachem dated November 29, 2010; another copy of the Mission Statement of Sachem with annexed letter from Karen Blumenthal, undated, and a copy of the student accident report signed by Karen Blumenthal; the signed transcript of the examination before trial of Karen Blumenthal on behalf of Mount Sinai dated November 29, 2010; the affidavit of Kenneth R. Demas dated March 15, 2011 with attendant curriculum vitae; and a demand and response to the demand for discovery and [*6] inspection.

Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision (Mirand v City of New York, 84 NY2d 44, 637 N.E.2d 263, 614 NYS2d 372 [1994]). The school’s standard of duty to a student is what a reasonable prudent parent would have done under the same circumstances (NY PJI 2:227). “The standard for determining whether a school was negligent in executing its supervisory responsibility is, [w]hether a parent of ordinary prudence, placed in the identical situation and armed with the same information, would invariably have provided greater supervision” (Mirand v City of New York, 190 AD2d 282, 598 NYS2d 464, aff’d 84 NY2d 44, 637 N.E.2d 263, 614 NYS2d 372 [1994]; see, In the Matter of the Claim of Jane Doe v Board of Education of Penfield School District, et al, 2006 NY Slip Op 51615U, 12 Misc3d 1197A, 824 NYS2d 768 [Sup. Ct. of New York, Monroe County 2006]).

As set forth in Bowles v The Board of Education of the City of New York and the City of New York, 15 Misc. 3d 1110[A], 839 N.Y.S.2d 431, 2007 NY Slip op 50573[U] [Supreme Court of New York, Kings County 2007], “Schools are under a duty to adequately supervise the students [*7] in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision…. To find that a school district has breached its duty to provide adequate supervision, a plaintiff must show that the district had sufficient specific knowledge or notice of the dangerous conduct and that the alleged breach was the proximate cause of the injuries sustained…. Moreover, when an accident occurs in so short a span of time that even the most intense supervision could not have prevented it any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the [defendant school district] is warranted.” citing, Ronan v School District of the City of New Rochelle, citations omitted, quoting Mirand v City of New York, citations omitted, Nocilla v Middle Country School Dist., citations omitted.

Based upon the evidentiary submissions, it is determined that neither Sachem nor Mount Sinai have established prima facie entitlement to summary judgement dismissing the complaint due to the existence of factual issues in the moving papers which preclude summary judgment.

Kenneth Demas set forth in his affidavit that he has been [*8] in the adventure education field since 1982 and has been certified as a national trainer for Project Adventure for 23 years. He set forth the transcripts and materials reviewed and states that the level of supervision was appropriate and in keeping with the nature of the activity. He stated that the Sachem teacher. Margaret Tuttle, was in a position which enabled her to move to either direction in front of or behind the wall, and permitted her to move to an appropriate position in the event that additional spotting was required. He states that both teachers were placed appropriately. He continues that both teachers responded to the loss of balance of Rebecca [**4] in addition to other spotters being present. He continues that the instructions given by Ms. Tuttle was appropriate and in keeping with the accepted model for instruction on this activity. While explaining the challenge to the group, Ms. Tuttle walked the group to the front and rear of the wall and explained the responsibilities associated with each side. She was clear that students were spotters from beginning to end. Demas continues that instruction in any Adventure Education program never explains how to do a particular challenge, [*9] as students, while working together, are to utilize previously learned concepts and experiences to solve the problem. He continues that the wall is considered a low element, and that spotting is the accepted safety procedure for the activity. The use of helmets, matting, and the belay systems is not consistent with industry standards, Demas continues that level 2 certification, which both Karen Blumenthal of Mount Sinai and Tuttle have, involves both a written test and hands on application of skills, such as quality and clarity of instructions, as well as spotting technique, positioning, and practice.

The affidavit of Mr. Demas is not supported by admissible evidence. Expert testimony is limited to facts in evidence (see Allen v Uh, 82 AD3d 1025, 919 NYS2d 179 [2d Dept 2011]; Hornbrook v Peak Resorts, Inc. 194 Misc2d 273, 754 NYS2d 132 [Sup Ct, Tomkins County 2002]; Marzuillo v Isom, 277 AD2d 362, 716 NYS2d 98 [2d Dept 2000]; Stringile v Rothman, 142 AD2d 637, 530 NYS2d 838 [2d Dept 1988]; O’Shea v Sarro, 106 AD2d 435, 482 NYS2d 529 [2d Dept 1984]), which evidence has not been provided herein. Neither the expert or either party has submitted a copy of the industry standards for Project [*10] Adventure, [*11] the number and positioning of spotters for the specific activity, the student to adult ratio, the instructions given to spotters, or the instructions to be provided to students participating in the event pursuant to the industry standard. Although Demas avers that teacher training involves spotting technique, positioning and practice, he does not set forth the standards for the same or aver that such was utilized during the event in which the plaintiff sustained injury. The exact number of students participating has not been established, as Ms. Blumenthal stated she had about fifty students in her two classes and was unsure how many students attended the field trip, but thought it was about 40 students. There was only one teacher supervising the students until Ms. Blumenthal arrived at that particular event, immediately prior to the plaintiff’s fall. Although the defendants claim that Project Adventure is an extracurricular activity and that the plaintiff assumed the risk of the activity, the plaintiff testified that this class was taken in place of the usual physical education class. Thus whether the class was for credit or was an extracurricular activity has not been established.

There [*12] was testimony by Ms. Blumenthal that the event in which the plaintiff was injured was “challenge by choice”, meaning each student did not have to participate in the event. However, the plaintiff testified that her understanding of “challenge by choice” was that she could do the activity by her own free will and that no one was to be forced into an activity. However, when it came time for the wall activity, she and her friends were told they had to do it; they were not told that there would be repercussions if they did not do it. Thus, there are factual issues concerning the definition of “challenge by choice”, if the students had a choice as to participating in the event, or whether there was pressure exerted on them to participate.

There are further factual issues concerning whether the students were properly instructed with regard to the presence and the use of the ropes on the back of the wall, and whether the ropes were suitable to stabilize the student and prevent the student from falling off the narrow platform. The [**5] plaintiff testified that on the date of the incident, there were no mats or other safety precautions. The rope that was on the back wall was used for walking down [*13] the wall and was not there to stabilize when up on the platform. She never noticed loops on the ropes. Ms. Tuttle testified that she tells students there are ropes to put a hand in, if needed, and that there will be spoilers to help them walk down. Additional factual issues exist as to whether the supervision and spotting was adequate, whether the spotters were properly trained and instructed, and whether a parent of ordinary prudence, placed in the identical situation and armed with the same information, would have provided greater supervision to the students including adequate placement and training of the appropriate number of spotters. Although Mr. Demas averred that the use of helmets, matting, or the belay system is not consistent with industry standards, he does not state what the industry standard is, and whether the failure to provide such safety equipment is inconsistent with industry standards. A further question exists as to whether the platform was constructed pursuant to industry standards.

Since defendants failed to establish their entitlement to judgment as a matter of law, the burden has not shifted to the plaintiff to raise a triable issue of tact (see, Krayn v Torella, 40 A.D.3d 588, 833 NYS2d 406, NY Slip Op 03885 [2d Dept 2007] [*14] ; Walker v Village of Ossining, 18 AD3d 867, 796 NYS2d 658 [2d Dept 2005]).

Accordingly, motions (001) and (002) by Sachem and Mount Sinai for summary judgment dismissing the complaint are denied.

Date: Dec. 28, 2011

/s/ W. Gerard Asher

J.S.C.

Pagel v. Marcus Corporation, 2008 WI App 110; 313 Wis. 2d 78; 756 N.W.2d 447; 2008 Wisc. App. LEXIS 423

Posted: February 24, 2012 | Author: Recreation Law | Filed under: Assumption of the Risk, Legal Case, Wisconsin | Tags: Appeal, Appellate Court, Milwaukee, Summary judgment, Trial court, Wisconsin | Leave a comment

Pagel v. Marcus Corporation, 2008 WI App 110; 313 Wis. 2d 78; 756 N.W.2d 447; 2008 Wisc. App. LEXIS 423

Briane F. Pagel, Jr. and Joy Pagel, Plaintiffs-Appellants, v. Marcus Corporation d/b/a Hilton Milwaukee City Center, Defendant, Milwaukee City Center LLC, Defendant-Respondent.

Appeal No. 2007AP1369

COURT OF APPEALS OF WISCONSIN, DISTRICT ONE

2008 WI App 110; 313 Wis. 2d 78; 756 N.W.2d 447; 2008 Wisc. App. LEXIS 423

June 3, 2008, Decided

June 3, 2008, Filed

PRIOR HISTORY:

APPEAL from a judgment of the circuit court for Milwaukee County: RICHARD J. SANKOVITZ, Judge. Cir. Ct. No. 2006CV1145.

DISPOSITION: Affirmed.

COUNSEL: On behalf of the plaintiff-appellant, the cause was submitted on the briefs of J. David Krekeler and Anthony Baer of Krekeler Strother, S.C., of Madison.

On behalf of the defendant-respondent, the cause was submitted on the brief of Ronald G. Pezze, Jr. and Ahndrea R. Van Den Elzen of Peterson, Johnson & Murray, S.C., of Milwaukee.

JUDGES: Before Curley, P.J., Fine and Kessler, JJ.

OPINION BY: KESSLER

OPINION

[**81] [***448] [*P1] KESSLER, J. Briane F. Pagel, Jr., and Joy Pagel (individually and collectively, Pagel) appeal from an order granting summary judgment to Milwaukee City Center LLC (MCC), dismissing all claims by Pagel against it. Pagel asserts that the trial court erred when it applied § 388 of the RESTATEMENT (SECOND) OF TORTS to the [***449] facts here, and concluded that the hazard, which Pagel claims caused his injury, was open and obvious to Pagel, thus relieving MCC of a duty to provide signs warning of the open and obvious hazard. We affirm.

Background

[*P2] Pagel and his family visited an indoor water park owned by MCC in a hotel in Milwaukee. Among the water attractions used by Pagel and his family was a “Lily Pad Walk” which Pagel described as:

The lily pads were a couple of large floating cushions underneath a cargo-style net. Each pad was about [four feet] in diameter and had a vinyl-like coating on them.

….

You grabbed the cargo net and stepped onto the lily pads, holding yourself by your arms as you used the lily pads to try to go ahead. The lily pads were chained to the bottom but loosely so they could float around, and they didn’t float well enough to hold up even a little kid.

[*P3] Pagel testified that before he used the Lily Pad Walk, he “knew the lily pads could tip to cause you to fall into the water.” When he used the Lily Pad Walk the first time, Pagel said his hand slipped off the ropes, the lily pad moved away from his feet, and, as a result, he dropped into the water rather than hanging from the [**82] ropes. Pagel testified about his observation of the mechanics of the Lily Pad Walk during his first time across:

Q: When you used the Lily Pad attraction the first time, why didn’t you continue to hold on to the rope when the lily pad tipped?

A: Because I was going to drop into the water.

Q: Well, you did drop into the water. But my question was, why didn’t you continue holding on to the rope?

A: I didn’t want to be just be [sic] hanging from the rope. When I couldn’t get it by the foot, your only option at that point would be just to hang by the rope and try to go across just with your arms, I guess. And I – that didn’t seem like a smart move, so I just dropped.

Pagel acknowledged that before using the Lily Pad Walk he watched other people using it, saw people fall into the water using it, and saw people trying to traverse across the Lily Pad Walk while he was waiting in line to use it.

[*P4] Pagel alleged that he was injured when he used the Lily Pad Walk when his foot slipped from the lily pad, he lost his grip on the cargo net ropes above the water and lily pads, and fell into the water, injuring his back. The injury occurred the second time he used the Lily Pad Walk. His amended complaint alleged, as material to this appeal, negligence by MCC for failure “to provide a warning of the unsafe condition of the lily pad section of its water park.”

[*P5] Relying on Kessel ex rel. Swenson v. Stansfield Vending, Inc., 2006 WI App 68, 291 Wis. 2d 504, 714 N.W.2d 206, and § 388 of the RESTATEMENT (SECOND) [**83] OF TORTS, the trial court observed that [HN1] “where an injured person already knows what he or she needs to know to avoid a danger, the law does not impose a duty to warn on a person who provides a product for the use of another.” Based on the undisputed facts, the trial court then granted summary judgment dismissing Pagel’s negligence claim against MCC. Pagel appeals.

Standard of Review

[*P6] [HN2] In reviewing motions for summary judgment, we apply the standards set forth in WIS. STAT. § 802.08 (2005-06), ¹ in [***450] the same manner as the trial court. Moua v. Northern States Power Co., 157 Wis. 2d 177, 184, 458 N.W.2d 836 (Ct. App. 1990). “Summary judgment is [properly] granted when there is no genuine issue of material fact and only a question of law is at issue.” Id. The historical facts here are not in dispute. “Whether facts fulfill a particular legal standard is a question of law to which we give de novo review.” Bantz v. Montgomery Estates, Inc., 163 Wis. 2d 973, 978, 473 N.W.2d 506 (Ct. App. 1991); see also DOR v. Exxon Corp., 90 Wis. 2d 700, 713, 281 N.W.2d 94 (1979), aff’d, 447 U.S. 207, 100 S. Ct. 2109, 65 L. Ed. 2d 66 (1980).

1 All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.

[*P7] [HN3] “Where the facts alleged to give rise to a duty are agreed upon, the question of the existence of a duty is one of law.” Rockweit v. Senecal, 197 Wis. 2d 409, 419, 541 N.W.2d 742 (1995) (quoting Olson v. Ratzel, 89 Wis. 2d 227, 251, 278 N.W.2d 238 (Ct. App. 1979)). Where the undisputed facts establish that a danger is open and obvious to the user of the product, as a matter [**84] of law there is no duty to warn the user of that danger and summary judgment is proper. Griebler v. Doughboy Recreational, Inc., 160 Wis. 2d 547, 561, 466 N.W.2d 897 (1991).

Analysis

[*P8] The role an open and obvious danger plays in our tort law has evolved over a long period of time. Describing the open and obvious nature of the danger as a “defense,” the trial court in Griebler granted summary judgment, dismissing a claim of injury in a shallow water diving accident. Id. at 551, 554. The court of appeals reversed, relying on § 343A(1) of the RESTATEMENT (SECOND) OF TORTS (1965) and a related comment which required not only that the reasonable person/user must recognize that an open and obvious danger exists, but that person must also appreciate the gravity of the harm threatened by that danger. Griebler, 160 Wis. 2d at 556-57. Our supreme court rejected § 343A(1), noting that, as in all of the earlier diving cases, the condition of the water is the obvious danger, the risk is that the person diving will hit bottom, and the type of injury that might result (or the person’s knowledge thereof) is irrelevant. Griebler, 160 Wis. 2d at 558. The supreme court reversed our decision and reinstated summary judgment dismissing Griebler’s complaint, stating:

We hold that the open and obvious danger defense applies whenever a plaintiff voluntarily ² confronts an open and obvious condition and a reasonable person in [**85] the position of the plaintiff would recognize the condition and the risk the condition presents.

Id. at 551 (footnote modified). Relying on “nearly twenty years of Wisconsin law holding that diving into water of unknown depth is an open and obvious danger,” ³ id. at 557, where Griebler admitted that he dove headfirst [***451] into water, whose depth he did not know, id. at 557, the supreme court described such conduct as “unreasonable as a matter of law,” id. at 561.

2 By footnote, the court recognized two conditions which would preclude invoking the open and obvious danger defense, namely if the injured person was distracted or if the injured person could not avoid the condition. Griebler v. Doughboy Recreational, Inc., 160 Wis. 2d 547, 551, 466 N.W.2d 897 (1991) (citing Waters v. U.S. Fid. & Guar. Co., 124 Wis. 2d 275, 369 N.W.2d 755 (Ct. App. 1985), and Maci v. State Farm Fire & Cas. Co., 105 Wis. 2d 710, 314 N.W.2d 914 (Ct. App. 1981), overruled on other grounds by Rockweit v. Senecal, 197 Wis. 2d 409, 423, 541 N.W.2d 742 (1995)).

3 The Griebler court relied on Scheeler v. Bahr, 41 Wis. 2d 473, 164 N.W.2d 310 (1969), and Davenport v. Gillmore, 146 Wis. 2d 498, 431 N.W.2d 701 (Ct. App. 1988), for the duration of these holdings. Griebler, 160 Wis. 2d at 557.

[*P9] Four years later, in Rockweit, when a small child walking with his mother fell into a campground fire pit with smoldering embers, our supreme court noted that in previous cases it had

abrogated the common law immunity [for owners of premises] by subsuming the concept of open and obvious danger into the consideration of common law negligence. In the ordinary negligence case, if an open and obvious danger is confronted by the plaintiff, it is merely an element to be considered by the jury in apportioning negligence and will not operate to completely bar the plaintiff’s recovery.

Id., 197 Wis. 2d at 423. This holding placed the characterization of an open and obvious danger as a defense to negligence in the context of applying a comparative negligence analysis. Pagel relies on specific Rockweit [**86] language ⁴ [4] to argue that summary judgment was not proper here because the lack of warning is merely a fact to be considered in apportioning the negligence attributable to MCC. Pagel argues that a jury must decide whether MCC’s common law duty of care is overcome by the defense that there was an open and obvious danger which Pagel recognized before he was injured.

4 [HN4] “In the ordinary negligence case, if an open and obvious danger is confronted by the plaintiff, it is merely an element to be considered by the jury in apportioning negligence ….” Rockweit, 197 Wis. 2d at 423.

[*P10] Pagel’s reliance on this isolated language in Rockweit is misplaced. In Rockweit, a fire pit at a commercial campground was used in common by the large extended family of the child victim, who were camping together. Id. at 414. A family friend, who was staying at a different area of the campground, was invited to a social gathering with the extended family at a fire pit the night before the accident occurred. Id. at 415. The friend, who was also named as a defendant, did not select the fire pit site, took no part in setting, controlling or managing the fire, and did not use that fire pit while she was camping. Id. Her only connection with the fire pit was attending the social gathering to which she was invited. Id. at 415. When the friend and two members of the child’s extended family were the last to leave the social gathering, no one extinguished the embers. Id. at 415-16. The next morning the child was walking with his mother when he stumbled into the pit which still contained live embers. Id. at 416. The child alleged negligence by the friend and the others who were the last to leave and did not extinguish the embers. Id. The jury found the campground owner, the family members present, the child’s mother, and the friend were all negligent. Id.

[**87] [*P11] On appeal, our supreme court concluded that public policy considerations precluded imposing liability on the invited friend. Id. at 429. The court noted that fire is commonly known to be dangerous, id. at 427 (“The dangerous propensities akin to fire are commonplace to a campsite.”), and that the child’s mother, who was with the child when he fell into the pit, knew as much about the danger of the fire pit as the invited friend, id. at 428 (“[Mother] testified that she was fully aware that the fire pit constituted a hazard at the time of the accident and had not relied on a supposition that someone the [***452] night before might have doused the embers ….”). These considerations foreshadowed the court’s later decision to adopt § 388 of the RESTATEMENT (SECOND) OF TORTS in the context of the open and obvious danger of a chattel which is alleged to have caused injury.

[*P12] Five years after Rockweit, our supreme court in Strasser v. Transtech Mobile Fleet Service, Inc., 2000 WI 87, PP57-59, 236 Wis. 2d 435, 613 N.W.2d 142, adopted the RESTATEMENT (SECOND) OF TORTS § 388 (1965), which provides:

[HN5] One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier

(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and

[**88] (b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and

(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.

Strasser involved personal property–a ladder fabricated without safety treads on the rungs–which Strasser used many times before he slipped on a rung and fell. Id., 236 Wis. 2d 435, P19. Our supreme court did not overrule Rockweit (which involved only real property–a fire pit in the ground). Strasser, 2000 WI 87, 236 Wis. 2d 435, P60, 613 N.W.2d 142. Rather, by adopting § 388, the supreme court adopted the law of a real property owner’s responsibility to invitees to codify the common law duty of due care owed by the provider of personal property to the user of personal property when the use for which the property is intended causes injury. Although somewhat awkwardly stated in the negative, § 388(1) establishes that when the danger is open and obvious to a reasonable person, warning of what the reasonable person already knows is unnecessary; thus, the failure to warn cannot be negligent. Strasser, 2000 WI 87, 236 Wis. 2d 435, PP59-60, 613 N.W.2d 142.

[*P13] The adoption of RESTATEMENT (SECOND) OF TORTS § 388 moved the open and obvious danger to the level of being not only a jury issue as a defense to negligence when the material facts of whether the danger is open and obvious are disputed, but also removed any duty to warn from the negligence calculus when the undisputed material facts establish that the danger is open and obvious and the user recognizes/observes/knows of the danger. Approximately four years after Strasser, in Mohr v. St. Paul Fire & Marine Insurance Co., 2004 WI App 5, 269 Wis. 2d 302, 674 N.W.2d 576 (Ct. App. 2003), we discussed § 388(b), noting that:

[**89] As the court explained in Strasser, one of the situations under § 388(b) in which a supplier or manufacturer has no duty to warn of a danger is when “‘a mere casual looking over will disclose [the dangerous condition] unless the circumstances under which the chattel is supplied are such as to make it likely that even so casual an inspection will not be made.'” … When danger is obvious from a mere casual looking over, the supplier or manufacturer has reason to believe that the user will realize the danger.

Mohr, 2004 WI App 5, 269 Wis. 2d 302, P23, 674 N.W.2d 576 (citing Strasser, 2000 WI 87, 236 Wis. 2d 435, PP58-59, 613 N.W.2d 142).

[***453] [*P14] Mohr presented a factual dispute as to whether a diving platform used by a high school for racing dives into 3.5 feet of water, rather than 5 feet of water, was something that a casual observation would disclose as dangerous. Id., P3 (discussing RESTATEMENT (SECOND) OF TORTS § 388 cmt. k). We concluded that summary judgment was inappropriate, not because a jury must always decide whether a danger is open and obvious, but because the facts material to that question were disputed–one high school swim coach had one view, and another swim coach at the same high school had a different view. Id., PP17-18, 25.

[*P15] Later, in Kessel, we held there was no duty to warn of danger from steaming water coming from a hot water dispenser (provided in a hospital waiting room to let patients’ families make hot chocolate) where the hot temperature was obvious from the steam, and both parents admitted they took precautions because they knew that hot water could injure their young child (who tipped the cup and was injured by the scalding water). Id., 291 Wis. 2d 504, PP3-4, 23, 32. We discussed whether Strasser held that RESTATEMENT (SECOND) OF TORTS § 388(1) inevitably required a warning to comply with the duty of care:

[**90] In essence, the court in Strasser concluded that RESTATEMENT (SECOND) OF TORTS § 388 and cmt. k defined the standard of ordinary care in that situation: “This exception in cmt. k recognizes that a warning is not necessary to satisfy the standard of ordinary care when the condition at issue is known to the user.”

Kessel, 2006 WI App 68, 291 Wis. 2d 504, P21, 714 N.W.2d 206 (citation and brackets omitted; emphasis added).

[*P16] As we explained in Kessel, where the supplier of the tangible property has reason to believe that casual inspection will disclose the danger, and the user is aware of the danger, RESTATEMENT (SECOND) OF TORTS § 388 does not require a warning. Kessel, 2006 WI App 68, 291 Wis. 2d 504, P21, 714 N.W.2d 206. Here, it is undisputed that Pagel used the Lily Pad Walk once without injury. It is also undisputed that before, or during, his first use, Pagel personally observed how the Lily Pad Walk worked, knew from observation and experience that the lily pads were not stable, knew that they could not hold up even a small child, and that because of their obvious instability, the only alternatives available to users of the Lily Pad Walk were to drop or fall into the water ⁵ or use their hands to hold on to the cargo net ropes above to cross the area hand over hand. On his first use of the Lily Pad Walk, Pagel chose to get wet rather than travel by hand on the cargo net ropes. Thus, he knew both from experience and from observation that when the pad moved, the only two choices were to drop or fall into the water or to use his hands to hold onto the cargo net ropes to cross the [**91] area. The danger–that the pads would move–was open and obvious. The only ways to avoid the danger while using the Lily Pad Walk–get wet or travel hand over hand on the cargo net ropes–were equally open and obvious.

5 It would seem that the primary purpose of a water park is to get into the water. One would expect that the possibility of getting wet, or even drenched, is the very attraction that brings visitors to these facilities.

[*P17] The terms of RESTATEMENT (SECOND) OF TORTS § 388 apply here. MCC supplied the Lily Pad Walk in the water park for use by visitors to the water park. Section 388(1) (“One who supplies … a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel” under certain conditions.). MCC is liable if it “has reason to know [***454] that the chattel is likely to be dangerous for the use for which it is supplied.” Id. The lily pads were obviously unstable, tending to cause (or allow) users to fall into the water, or to traverse the area using their hands on the cargo net ropes. The “danger” of falling into the water or the “danger” of crossing by hands on ropes is the very purpose of the Lily Pad Walk. These “dangers” are not hidden in any way. These properties were apparent to Pagel before and/or during his uneventful first use of the Lily Pad Walk. Section 388(b) imposes liability if the supplier of the product “has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition.” Id. (emphasis added). Here, the converse is the fact. Because the mechanics of the moving lily pads and cargo net ropes for hand use were open and obvious to anyone who looked, MCC had reason to believe these “dangers” would be immediately apparent to any reasonable person. Hence, as in Strasser, where the lack of safety treads on the ladder was obvious to anyone who looked, and specifically known to Strasser who used the treadless ladder multiple times before his injury, the liability imposed by § 388(b) is not applicable here, where MCC had no [**92] reason to believe these conditions would not be immediately apparent to users of the Lily Pad Walk, and these dangers were specifically known to Pagel, in part because he had used the Lily Pad Walk before the use during which he was injured.

[*P18] Pagel urges us to adopt RESTATEMENT (SECOND) OF TORTS § 343A(1) and apply it to his case. As we explained above, when we relied on the § 343A(1) analysis in Griebler, our supreme court rejected our analysis and overruled our conclusion. See P8, supra. [HN6] It is not our role to reject our supreme court’s policy conclusions. See Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997):

[HN7] [T]he supreme court’s primary function is that of law defining and law development. The supreme court, unlike the court of appeals, has been designated by the constitution and the legislature as a law-declaring court. The purpose of the supreme court is to oversee and implement the statewide development of the law. The supreme court is the only state court with the power to overrule, modify or withdraw language from a previous supreme court case.

(Citations and internal quotation marks omitted.)

[*P19] Where, based on the undisputed facts, the dangerous condition of a chattel is open and obvious to the reasonable user, no warning is required under RESTATEMENT (SECOND) OF TORTS § 388(1), and summary judgment dismissing a negligence claim premised on failure to warn is proper.

By the Court.–Judgment affirmed.

It's not what I write, It's what you Learn

Rate this:

Share this:

Rate this:

Share this:

Rate this:

Share this:

I’ve divided this checklist into three major parts:

Required for your Release to be Valid

Items that may be Needed Dependent upon the Purpose of the Release

Needed

What Your Release Cannot Have

Miscellaneous Clauses your Release may Need

Rate this:

Share this:

Rate this:

Share this:

What do you think? Leave a comment.

Connect

Rate this:

Share this:

To Read an Analysis of this decision see

Rate this:

Share this:

Rate this:

Share this:

Rate this:

Share this:

Rate this:

Share this:

Rate this:

Share this:

Rate this:

Share this:

Rate this:

Share this:

Rate this:

Share this:

Rate this:

Share this:

Rate this:

Share this:

What do you think? Leave a comment.

Rate this:

Share this:

Rate this:

Share this:

To Read an Analysis of this decision see: Ohio adopts the requirement that a skier assumes the risk of a collision with another skier.

Horvath Et Al., v. Ish Et Al., 2012 Ohio 5333; 2012 Ohio LEXIS 2872

Rate this:

Share this:

At trial it is too late to find out that the release you had everyone sign has no value.

So?

So Now What?

What do you think? Leave a comment.

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

Rate this:

Share this:

Basically, in New York, for injuries from the path or roadway, you assume the risk of mountain biking, and you probably did not assume the risk of road biking.

Appellate Court Analysis

So Now What?

What do you think? Leave a comment.

Connect

Rate this:

Share this:

To Read an Analysis of this decision see

Cotty v Town of Southampton, et al., 2009 NY Slip Op 4020; 64 A.D.3d 251; 880 N.Y.S.2d 656; 2009 N.Y. App. Div. LEXIS 3919

Rate this:

Share this:

A school owes a higher degree of care to students then a non-school.

Rate this:

Share this:

Linthwaite v. Mount Sinai Union Free School District, 2011 N.Y. Misc. LEXIS 6525; 2011 NY Slip Op 33569U

Rate this:

Share this:

Rate this:

Share this:

35 Years of Outdoor Retailer

The book for the Outdoor Recreation Industry Professional.

Enter your email address to follow this blog and receive notifications of new posts by email.