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Rogatkin v. Raleigh America Inc., 69 F. Supp. 3d 294; 2014 U.S. Dist. LEXIS 164154

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

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Do you have contracts with all of your athletes? Manufacturers who provide more than swag to athletes may be sued without a written agreement.

Posted: September 7, 2015 | Author: Recreation Law | Filed under: Contract, Cycling, Massachusetts, Mountain Biking | Tags: Athlete, BMX, Competitor, Cycling team, Cyclists, Defamation, Diamondback, Misrepresentation, Negligent Misrepresentation, Nicholi Rogatkin, Raleigh, Raleigh America, Raleigh America Inc., Sponsored Athlete, Sponsorship | Leave a comment

In this case the manufacturer one because the damages were not able to be proven, however, this is just the tip of the iceberg on what could happen. What if the rider was injured, and you were their largest contributor to their income?

State: Massachusetts, UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAS-SACHUSETTS

Plaintiff: Nicholi Rogatkin, Minor by His Father and Next Friend, Vladmir Rogatkin

Defendant: Raleigh America Inc./Diamondback BMX, and John Does 1-8

Plaintiff Claims: : unauthorized use of name and portrait or picture in violation of Mass. Gen. Laws ch. 214 § 3A (Count I); unfair and/or deceptive business practices in violation of Mass. Gen. Laws ch. 93A, §§ 2 & 11 (Count II); defamation (Count III); negligent misrepresentation (Count IV); unjust enrichment (Count V); promissory estoppel (Count VI); and intentional misrepresentation (Count VII).

Defendant Defenses: No evidence and No damages

Holding: for the defendant

Year: 2014

The plaintiff was a very talented BMX rider starting at a very early age. The defendant started sponsoring him at age 11 in 2007. That sponsorship continued for five years until 2012 when the plaintiff moved on to another sponsorship. During that time, the sponsorship started as a bike and other equipment and grew to a monthly income and travel expenses. During that time the plaintiff wore the defendant’s logos and sent photographs and videos to the defendant to be used on their website.

The plaintiff one year flew out to the defendants, at the defendant’s expense to be photographed for the defendant’s catalog. The defendant started asking for in 2010 and was told that he had a great career ahead of him.

Prior to receiving income, the plaintiff and defendant did not have any contract between them. Once the defendant started receiving a monthly income the plaintiff signed a Team Rider Sponsorship Agreement. The agreement was signed by the plaintiff’s father on behalf of the plaintiff. The agreement provided the plaintiff with a monthly payment, and the defendant got unlimited promotional use of the plaintiff’s name and likeness.

At no time, was the plaintiff restricted from receiving sponsorship from other manufacturers. Eventually, the plaintiff was picked up by other manufacturers, including other bike manufacturers. Eventually, he went to one of the manufacturers as a high-paid rider and left the defendant. Soon thereafter the plaintiff, by and through his father, sued the defendant. The claims total seven counts.

unauthorized use of name and portrait or picture in violation of Mass. Gen. Laws ch. 214 § 3A (Count I);

unfair and/or deceptive business practices in violation of Mass. Gen. Laws ch. 93A, §§ 2 & 11 (Count II);

defamation (Count III);

negligent misrepresentation (Count IV);

unjust enrichment (Count V);

promissory estoppel (Count VI);

and intentional misrepresentation (Count VII).

Basically, the plaintiff sued to get more money believing that he was not compensated enough by the defendant for his work prior to leaving. He did not win any of these arguments. The judge granted the defendants motion for summary judgment.

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

The decisions starts with an analysis of the defamation claim. To prove defamation on Massachusetts law the plaintiff must prove:

…the defendant was at fault for the publication of a false statement regarding the plaintiff, capable of damaging the plaintiff’s reputation in the community, which either caused economic loss or is actionable without proof of economic loss.

The plaintiff based his claims on the theory that the defendant did not change the photos on its website fast enough to match the growth of the plaintiff and his riding larger bikes. For a year or so after he had advanced from a 16” (wheel size) bike to 18” then 20” bikes he was pictured on the website riding 16” bikes.

Although Rogatkin admits that the accused material was accurate and non-defamatory when published, he contends that as he grew in age and skill, his static portrayal by Raleigh took on a defamatory undertone.

Because the information was valid at the time it was posted, and the plaintiff’s date of birth was on the site, the court found no major issue with not changing photographs as quickly as the plaintiff wanted. The court even had fun with this argument.

Although Raleigh did not update Rogatkin’s biography with the march of time (the court knows of no duty the law imposes to do as much), it published Rogatkin’s accurate date of birth on the same page — a reasonable assurance that the public would never confuse Rogatkin with, say, Peter Pan or Benjamin Button.

More importantly the plaintiff could not offer any evidence showing that by failing to change the photographs, he had suffered an injury.

A false statement is defamatory if it “would tend to hold the plaintiff up to scorn, hatred, ridicule or contempt, in the minds of any considerable and respectable segment in the community

The court then had fun and brought in Shirley Temple in its analysis of the negative publicity claimed by the plaintiff.

The publication of Rogatkin’s age (12) and characterizing him as a “kid” in a biography is no more susceptible to a defamatory meaning than biographical references to Ambassador Shirley Temple as a child actor or as “America’s Little Darling.

A biography, like a photograph, is a faithful snapshot of a person taken at a particular time in his or her life.

The court also looked at the argument made by the plaintiff as one of not suffering injury from not showing him riding larger bikes, but of failing to post more images of him on larger bikes, which could not be actionable.

Rogatkin alleges that Raleigh’s continued publication of images of him as a 16-inch bike rider led to ridicule and scorn because he was not shown riding a larger bike. This is not an objection to the publications, but to the lack of publication of photos showing Rogatkin riding larger bikes. Rogatkin has not identified any support for the novel proposition that the absence of publication may form the basis of a defamation claim.

The court then looked at the first count, unauthorized use of the name and image of the plaintiff.

The statute at issue allows a private right of action when an image had been used for commercial advertising without the consent of the person. The defendant argued that the emails between them showed consent to use the images. The court agreed.

…Rogatkin does not disagree that he condoned Raleigh’s use of his name and images for purposes of advertising at the time of publication, or that he attended the various photo shoots (such as the one in Seattle in 2008) with any expectation other than that his name and image would be used by Raleigh to promote sales of its bikes.

The court also brought up the fact the emails from the plaintiff complained they were not posting enough photographs of him on the defendant’s website. Again, the plaintiff could not show any damages from the posting of his images. Just because Raleigh made money from using his injuries is not damages for injury upon the plaintiff. “Because Rogatkin has adduced no material evidence of damages attributable to the use of his name and image, Raleigh is entitled to summary judgment on Count I.”

Next the court took on claims IV, VI and VII, Intentional/Negligent Misrepresentation, and Promissory Estoppel.

Under Massachusetts’s law to win a claim of misrepresentation, the plaintiff had to show false statement that induced him to do something.

To sustain a claim of misrepresentation, a plaintiff must show a false statement of material fact made to induce the plaintiff to act, together with reliance on the false statement by the plaintiff to the plaintiff’s detriment. . . . The speaker need not know ‘that the statement is false if the truth is reasonably susceptible of actual knowledge, or otherwise expressed, if, through a modicum of diligence, accurate facts are available to the speaker.’

However, even if the defendant had made a false representation, the plaintiff had to prove he was worse off based on the false representation.

…a plaintiff must allege that (1) a promisor makes a promise which he should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee, (2) the promise does induce such action or forbearance, and (3) injustice can be avoided only by enforcement of the promise.

The plaintiff could have rejected the sponsorship from the defendant, and the plaintiff was free to contract with other manufacturers for sponsorship.

On top of that, the plaintiff could not prove a promissory estoppel claim because he could not prove any terms or elements to create a legal claim.

Under Massachusetts law, “as with a claim for breach of contract, [i]n order to establish the existence of an enforceable promise under promissory estoppel, the plaintiff must show that the defendants’ promise included enough essential terms so that a contract including them would be capable of being enforced.”

Count V, unjust enrichment was reviewed by the court next.

The plaintiff claimed that the defendant unfairly profited from his work and photographs by paying him minimally. To prove an unjust enrichment claim the plaintiff must show:

(1) a benefit conferred upon the defendant by the plaintiff;

(2) an appreciation or knowledge of the benefit by the defendant; and

(3) the acceptance or retention of the benefit by the defendant under circumstances which make such acceptance or retention inequitable.

Damages from an unjust enrichment claim are the disgorgement of the property unjustly appropriated.

Because unjust enrichment is a theory of equitable recovery, and not a separate cause of action, a court may not order restitution as a form of damages; it may only require a party to disgorge property that has been wrongfully appropriated from the rightful possession of the other party.

First because the relationship between the parties was voluntary there were no fraud or “unjust” actions by the defendant. On top of that, the plaintiff benefited from the relationship just as the defendants did.

He also benefited materially from the relationship in terms of equipment, gear, and travel expenses. If Rogatkin found the terms of his association with Raleigh unsatisfactory, he was free to renegotiate, or leave to pursue other opportunities (both of which he eventually did). Because Raleigh did not unfairly retain any benefit conferred by Rogatkin,….

Here again, the plaintiff could show no damages nor could he even show injury in this case.

The court looked at Count II then, Unfair and/or Deceptive Business Practices under Chapter 93A, a Massachusetts statute.

Here again, the plaintiff did not successfully argue this claim because he could not prove that the defendant was unethical, unscrupulous and a fraud.

Rogatkin has not shown that Raleigh’s actions fell within “the penumbra of some common-law, statutory, or other established concept of unfairness . . . or [was] immoral, unethical, oppressive or unscrupulous . . . [or] cause[d] substantial injury to consumers (or competitors or other businessmen).

These arguments were all based in fraud or contract. In all cases, the damages cannot be what the defendant got from third parties but what it cost the plaintiff in dealing with the defendant. Here the plaintiff could not show any damages that qualified, in fact, the court found the plaintiff had benefited from the relationship and at worse was a bad negotiator.

So Now What?

Once you put someone’s image on your website or your give something, specifically to someone based upon their relationship with your product you better have that relationship in writing.

Once you hand product to someone to sue in an effort to promote your product and create a long-term relationship with that person that is not defined by other facts, such as product testers, writers, reviewers, etc., you might look at immortalizing that relationship in writing.

Most states have laws concerning the unauthorized use of someone’s likeness without their permission. That is an easy reason to see why you should have an agreement.

The facts here are another reason. A written contract outlining the relationship from the beginning would have eliminated this lawsuit.

However, this can get worse.

The IRS wants to know what your relationship is. Without an agreement, the IRS is free to determine that relationship on its own with little help. (Although a contract is not persuasive, it helps when dealing with the IRS.) If the sponsored athlete is only sponsored by you and uses your equipment and does not pay taxes, the IRS can look to you for failing to pay withholding for the “employee.” The IRS wants it money and will work hard to get it from anyone who can write a check easily.

Another group that wants money is the athlete’s health insurance carrier or the unpaid hospital and doctors if the athlete does not have any insurance. The health insurance carrier through its subrogation clause can look to anyone it believes is legally responsible for the damages it paid out for the injured athlete’s medical bills. The insurer may see the action as the same way the IRS does; the injured athlete was an employee and should have been covered under your worker’s compensation insurance. A successful lawsuit on this issue will not only cost you money in paying the health insurance company, but double more for penalties to your worker’s comp carrier for not listing the athlete.

The health insurance carrier could also come after you if it believes the bike or another product was defective. Again, a contract with the athlete would eliminate both arguments.

Unpaid medical bills can also trigger claims based on either an employee theory or on the legal theory that you were legally responsible for encouraging the athlete.

It is easy to get these contracts written. You need to specify general issues like medical coverage, health insurance, taxes and the legal definition of the parties and that relationship. More importantly you need to define what you are going to do and all limits to that relationship so that no matter who or what, they cannot exceed the limits placed in the agreement.

You want to get your product out there, and you want to help up-and-coming athletes. However, taking the time to establish legally the relationship will make everyone’s life easier from the start.

Who knows, fifty years from now, that signature on an athlete’s first contract might have value in itself.

What do you think? Leave a comment.

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Author: Outdoor Recreation Insurance, Risk Management and Law

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Soucy, v. Nova Guides, Inc., 2015 U.S. Dist. LEXIS 95438

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

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Rogatkin v. Raleigh America Inc., 69 F. Supp. 3d 294; 2014 U.S. Dist. LEXIS 164154

Posted: September 6, 2015 | Author: Recreation Law | Filed under: Contract, Cycling, Legal Case, Massachusetts, Mountain Biking | Tags: Advertising, benefitted, bicycle, Bike, biography, business practices, catalog, Defamation, defamatory, defamatory meaning, discovery, Email, false statement, greatly increased, material fact, Misrepresentation, Negligent Misrepresentation, photograph, portrait, promissory estoppel, reasonably susceptible, rider, Sponsorship, Summary judgment, team, Travel, unauthorized, unjust enrichment, website, written consent | Leave a comment

Rogatkin v. Raleigh America Inc., 69 F. Supp. 3d 294; 2014 U.S. Dist. LEXIS 164154

Nicholi Rogatkin, Minor by His Father and Next Friend, Vladmir Rogatkin¹ v. Raleigh America Inc./Diamondback Bmx, and John Does 1-8

1 Nicholi Rogatkin was a minor at the commencement of this lawsuit. As he has since reached his majority, the court will regard him as the proper plaintiff.

CIVIL ACTION NO. 13-11574

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

69 F. Supp. 3d 294; 2014 U.S. Dist. LEXIS 164154

November 24, 2014, Decided

November 24, 2014, Filed

PRIOR HISTORY: Rogatkin v. Raleigh Am., 2013 U.S. Dist. LEXIS 130561 (D. Mass., Sept. 12, 2013)

COUNSEL: [**1] For Nicholi Rogatkin, Plaintiff: Stephen J. Atkins, Jr., LEAD ATTORNEY, Atkins & Goulet LLC, Nashua, NH; Shane D. Goulet, Atlas Tack Corporation, Boston, MA.

For Raleigh America, Inc./Diamondback BMX, Defendant: Patrick M. Curran, Jr., LEAD ATTORNEY, Nicole S. Corvini, Ogletree Deakins Nash Smoak & Stewart, Boston, MA.

JUDGES: Richard G. Stearns, UNITED STATES DISTRICT JUDGE.

OPINION BY: Richard G. Stearns

OPINION

[*296] MEMORANDUM AND ORDER ON DEFENDANT RALEIGH AMERICA, INC.’S MOTION FOR SUMMARY JUDGMENT

STEARNS, D.J.

Plaintiff Nicholi Rogatkin, a professional freestyle BMX (bicycle motocross) rider, alleges that defendant Raleigh America, Inc., a bicycle manufacturer and the sponsor of the Diamondback BMX Team, unfairly exploited his youth and inexperience during his 5-year stint as a rider for Team Diamondback. Discovery having been completed, Raleigh moves for summary judgment on all seven counts of the Amended Complaint. For the reasons stated, the motion will be allowed.

BACKGROUND²

2 The facts are viewed most favorably to Rogatkin as the nonmoving party.

Rogatkin became an accomplished BMX rider at an early age. In 2007, at age 11, Rogatkin joined Team Diamondback. At the time of his enlistment, Rogatkin and Raleigh did not [**2] enter into any written agreement, nor did Rogatkin request or receive any monetary compensation from Raleigh.

While competing for Team Diamondback, Rogatkin used equipment provided by Raleigh and wore Raleigh’s logo. Raleigh, in turn, used images of Rogatkin in its catalogs and advertisements,³ and publicized Rogatkin on its diamondbackbmx.com website. A mini-biography of Rogatkin, published on the website until at least November of 2011, described Rogatkin as 12 years old, 4 feet 10 inches tall, and sporting the monikers “little dude” and/or “little kid.” The website featured several photographs of Rogatkin performing tricks on a 16-inch bicycle, see Pl.’s Opp’n Ex. Q, and included a link to Rogatkin’s personal Youtube page.

3 In 2008, Raleigh paid for Rogatkin to travel to and from a photo shoot, where photos of Rogatkin were taken for Raleigh’s catalog. Raleigh also furnished Rogatkin a new bicycle expressly for the photo shoot.

Periodically, Rogatkin sent photos, videos, and biographical information about himself to Raleigh for use on the website. Rogatkin complained on occasion that Raleigh was giving him too little attention on the website. He also repeatedly asked Raleigh to update [**3] his biography and photos to reflect his coming-of-age, and particularly [*297] his switch to bigger bicycles.⁴ Raleigh, however, delayed in doing so because it used Rogatkin’s image to promote sales of its 16-inch bikes.

4 Rogatkin began competing on an 18-inch bike in 2009. He first competed on a 20-inch bike in 2010, and by 2011 was competing exclusively on 20-inch bikes.

Sometime in 2009 and 2010, Rogatkin broached the topic of compensation with Raleigh for his efforts on behalf of Team Diamondback. Although Raleigh stated that it would only consider limited financial support for the time being, it hinted at a bright future for Rogatkin. Rogatkin relates several oral and email⁵ conversations with Raleigh representatives Mike Hammond, Trevor Knesal, Sharon Robinson, and Kristian Jamieson⁶ in which he was assured that he would receive “greatly increased support,” that he had a “green light” to feel optimistic about his career at Team Diamondback, and that he could look forward to a “golden life” if he stayed with Raleigh. Rogatkin Dep. at 39:19-23; 108:15-17; & 71:11-22.

5 Rogatkin believes that certain of these emails have been deleted from his account.

6 Jamieson was not employed by Raleigh. He rather [**4] served as athletic manager for TAOW Productions, LLC and Windells Camps/NW School of Freeride, the promotors Raleigh had contracted to manage Team Diamondback through June of 2009.

In 2010, Raleigh agreed to provide Rogatkin with a $2,000 travel budget.⁷ In June of 2011, Rogatkin and Raleigh executed a Diamondback Team Rider Sponsorship Agreement effective from April 1, 2011 to March 31, 2012.⁸ The Sponsorship Agreement provided that Rogatkin would receive a monthly retainer of $416.66, and up to $5,000 in result-based incentive bonuses from Raleigh.⁹ Rogatkin Dep. Ex. 8 at Addendum A. In return, Raleigh was permitted to make unlimited promotional use of Rogatkin’s name and likeness. Id. ¶ 2.

7 Rogatkin invested substantially more than $2,000 to travel to competitions with his father.

8 Rogatkin’s father, Vladmir Rogatkin, signed on Rogatkin’s behalf.

9 It is undisputed that Rogatkin received the full amount he was entitled to under the Sponsorship Agreement.

Rogatkin left Team Diamondback in June of 2012.¹⁰ While still at Team Diamondback, Rogatkin was approached by Bulldog Bikes (in 2009), DK Bikes (in 2010), and KHE (in 2011), with sponsorship nibbles. Out of loyalty to Team Diamondback, Rogatkin [**5] did not pursue any of these overtures.¹¹ After leaving Team Diamondback, however, Rogatkin became a fulltime rider for KHE. At present, KHE pays Rogatkin a $30,000 annual salary and $8,000 in travel expenses. On or about June 6, 2012, Raleigh removed any references to Rogatkin from the Team Diamondback webpage.

10 Rogatkin made the following public statement concerning his departure from Raleigh.

After five great years, I am sad to say I’m leaving Diamondback. I’ve had the best time with the company and with my forever teammates. I want to especially thank Trevor Knesal, who signed me on to the pro team when I was only 11 and sent me on the best trips and the biggest contests around the world. However, a great opportunity has come up for me outside of DB and I will keep you guys updated when it’s final. Thanks again to everyone at Diamondback.

Rogatkin Dep. Ex. 6.

11 Rogatkin began promoting Kali Protectives and Monster Energy in 2009. Both Kali and Monster have provided Rogatkin with travel expenses. Rogatkin began a limited relationship with KHE in 2011.

[*298] Rogatkin brought this lawsuit in Middlesex Superior Court in May of 2013. The Amended Complaint lists seven counts: unauthorized use of name [**6] and portrait or picture in violation of Mass. Gen. Laws ch. 214 § 3A (Count I); unfair and/or deceptive business practices in violation of Mass. Gen. Laws ch. 93A, §§ 2 & 11 (Count II); defamation (Count III); negligent misrepresentation (Count IV); unjust enrichment (Count V); promissory estoppel (Count VI); and intentional misrepresentation (Count VII). Invoking diversity jurisdiction, Raleigh removed the Complaint to this court in July of 2013. Raleigh filed its motion for summary judgment in July of 2014, following the completion of discovery.

DISCUSSION

Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A material fact is one which has the “potential to affect the outcome of the suit under applicable law.” Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703 (1st Cir. 1993). For a dispute to be “genuine,” the “evidence relevant to the issue, viewed in the light most flattering to the party opposing the motion, must be sufficiently open-ended to permit a rational factfinder to resolve the issue in favor of either side.” Nat’l Amusements v. Town of Dedham, 43 F.3d 731, 736 (1st Cir. 1995) (citation omitted).

Defamation (Count III)

Rogatkin alleges as defamatory Raleigh’s repeated publication of a biography characterizing him as a 12-year old “kid” and of [**7] photographs depicting him as a 16-inch bike rider.¹² To prove defamation, a plaintiff must establish that “the defendant was at fault for the publication of a false statement regarding the plaintiff, capable of damaging the plaintiff’s reputation in the community, which either caused economic loss or is actionable without proof of economic loss.” White v. Blue Cross & Blue Shield of Mass., Inc., 442 Mass. 64, 66, 809 N.E.2d 1034 (2004); see also Phelan v. May Dep’t Stores Co., 443 Mass. 52, 56, 819 N.E.2d 550, (2004).

12 Although Rogatkin admits that the accused material was accurate and non-defamatory when published, he contends that as he grew in age and skill, his static portrayal by Raleigh took on a defamatory undertone.

A false statement is defamatory if it “would tend to hold the plaintiff up to scorn, hatred, ridicule or contempt, in the minds of any considerable and respectable segment in the community.” Phelan, 443 Mass. at 56. “[WJhether a communication is reasonably susceptible of a defamatory meaning [] is a question of law for the court.” Id. “The court [must] examine the statement in its totality in the context in which it was uttered or published. The court must consider all the words used, not merely a particular phrase or sentence.” Amrak Prods., Inc. v. Morton, 410 F.3d 69, 73 (1st Cir. 2005).

The publication of Rogatkin’s age (12) and characterizing him as a “kid” in a biography is no more susceptible to a defamatory [**8] meaning than biographical references to Ambassador Shirley Temple as a child actor or as “America’s Little Darling.” A defamatory statement must be false. There is no dispute that Rogatkin’s biographical details were accurate when initially published (Rogatkin supplied Raleigh with the biography). The publication of true but historical facts (even if outdated) about a person cannot be defamatory as a matter of law. A biography, like a photograph, is a faithful snapshot of a [*299] person taken at a particular time in his or her life. Although Raleigh did not update Rogatkin’s biography with the march of time (the court knows of no duty the law imposes to do as much), it published Rogatkin’s accurate date of birth on the same page — a reasonable assurance that the public would never confuse Rogatkin with, say, Peter Pan or Benjamin Button.

By the same principle, the authentic photographs of Rogatkin performing and riding on a 16-inch bike are also not reasonably capable of a defamatory meaning. Although photographs may take on a defamatory cast if published in a demeaning or derogatory context, see, e.g., Stanton v. Metro Corp., 438 F.3d 119, 125-129 (1st Cir. 2006) (concluding that photograph of high school student juxtaposed with article on teenage [**9] sex was reasonably susceptible of defamatory meaning), or manipulated as in Soviet days to depict something other than reality, there is no suggestion that Raleigh published photographs of Rogatkin that lent themselves to any interpretation other than that he was an accomplished 16-inch bike rider.¹³ Because the accused publications are not reasonably susceptible for defamatory meaning, Raleigh is entitled to summary judgment on Count III.

13 Rogatkin alleges that Raleigh’s continued publication of images of him as a 16-inch bike rider led to ridicule and scorn because he was not shown riding a larger bike. This is not an objection to the publications, but to the lack of publication of photos showing Rogatkin riding larger bikes. Rogatkin has not identified any support for the novel proposition that the absence of publication may form the basis of a defamation claim.

Unauthorized Use of Name and Portrait/Image (Count I)

Rogatkin alleges that because no written contract governed his relationship with Raleigh outside of the April of 2011 to March of 2012 Sponsorship Agreement, Raleigh’s use of his name and image on its website and in its catalogs and other advertising violates Chapter 214, Section 3A [**10] of Massachusetts General Laws. Section 3A grants a right of private action to “[a]ny person whose name, portrait or picture is used within the commonwealth for advertising purposes or for the purposes of trade without his written consent . . . to prevent and restrain the use thereof; and [to] recover damages for any injuries sustained by reason of such use.” (emphasis added).

Raleigh contends that Rogatkin’s email communications constitute sufficient written consent because Section 3A does not require that written consent be memorialized in any particular format. See, e.g., Rogatkin Dep. Ex. 12 (3/10/2007 email from Rogatkin to Knesal) (“Trevor, whatever you’re saying in your letter — make a frame for me?!!, having me in a Diamondback Catalog?!! already sounds like a dream come true. What can I do for Diamondback?”). Moreover, Rogatkin does not disagree that he condoned Raleigh’s use of his name and images for purposes of advertising at the time of publication, or that he attended the various photo shoots (such as the one in Seattle in 2008) with any expectation other than that his name and image would be used by Raleigh to promote sales of its bikes. Rogatkin supplied Raleigh photographs and videos of himself for use on the Raleigh website over the course of his career at Team Diamondback, and if he complained of anything, it was that Raleigh was posting too few of his feats.¹⁴

14 Section 3A protects [**11] “the interest in not having the commercial value of one’s name, portrait or picture appropriated to the benefit of another.” Tropeano v. Atl. Monthly Co., 379 Mass. 745, 749, 400 N.E.2d 847 (1980). As the title of Section 3A makes clear, that interest is infringed only when the use is “unauthorized.” To protect the interests of the parties, consent is optimally memorialized in a written instrument. However, at common law, consent may be given orally or through a course of conduct. Although the language of Section 3A references “written consent,” nothing in the statute suggests a legislative intent to displace common law or the equitable defenses of acquiescence and waiver.

[*300] Even if the court were to adopt Rogatkin’s argument for purposes of summary judgment, that his enthusiastic emails, voluntary participation in the production of his images, and his condonation of their publication are insufficient to satisfy the formalities of the “written consent” required by Section 3A, Rogatkin cannot show any personal damages resulting in Raleigh’s use of his image in its advertisements. His complaint rather is that Raleigh benefitted more from the sales of bikes generated by his image than he did from the exposure. The court knows of no theory of quasi-contract (other than unjust enrichment, [**12] see discussion of Count V infra) that would permit a party to recoup the benefits that the other acquires from an otherwise consensual relationship.¹⁵ Moreover, the only evidence that Rogatkin submits in support of the claim that Raleigh benefitted disproportionately from the association — a chart showing Raleigh’s total sales of 16-inch and 18-inch bikes from October of 2008 to September of 2013 — offers no basis on which a finder of fact could determine what, if any, percentage of these sales is reasonably attributable to the use of Rogatkin’s image in Raleigh’s advertising “in the commonwealth” (or anywhere else). See Bonacorso Const. Co. v. Master Builders, Inc., 1991 U.S. Dist. LEXIS 6057, 1991 WL 72796, at *10 (D. Mass. Apr. 24, 1991) (“The plaintiff has not demonstrated that it will be able to analyze this data [of variable year-to-year sales in Massachusetts] to prove by a preponderance of the evidence that any of the amount of the increase was due to use of its name and likeness.”).¹⁶ Because Rogatkin has adduced no material evidence of damages attributable to the use of his name and image, Raleigh is entitled to summary judgment on Count I.

15 Rogatkin’s testimony that Raleigh treated other riders more generously is inadmissible hearsay, and at best, simply evidence that other riders struck more advantageous [**13] bargains with Raleigh (as Rogatkin later did with KHE). So too with Rogatkin’s complaint that he suffered harm from his failure to pursue sponsorships with other bike companies because of his loyalty to Team Diamondback. There is no evidence of the terms of any concrete competing offer that Rogatkin received and rejected, or any evidence that Raleigh forbid or restrained Rogatkin from entering a relationship with another team or bicycle manufacturer.

16 Raleigh also contends that its use of Rogatkin’s name and images for advertising was not “within the commonwealth.” It is undisputed, however, that Rogatkin’s rider page, featuring his biography and photographs, was accessible in Massachusetts over the internet. Moreover, advertising for Diamondback featuring Rogatkin appeared in BMX magazines that circulated in Massachusetts. See Rogatkin Dep. Ex. 10.

Intentional/Negligent Misrepresentation, and Promissory Estoppel, (Counts IV, VI, and VII)

Rogatkin’s claims of intentional and negligent misrepresentation and promissory estoppel also fail for the lack of any evidence of damages. “To sustain a claim of misrepresentation, a plaintiff must show a false statement of material fact made to induce [**14] the plaintiff to act, together with reliance on the false statement by the plaintiff to the plaintiff’s detriment. . . . The speaker need not know ‘that the statement is false if the truth is reasonably susceptible of actual knowledge, or otherwise [*301] expressed, if, through a modicum of diligence, accurate facts are available to the speaker.'” Zimmerman v. Kent, 31 Mass. App. Ct. 72, 77, 575 N.E.2d 70 (1991), quoting Acushnet Fed. Credit Union v. Roderick, 26 Mass. App. Ct. 604, 605, 530 N.E.2d 1243 (1988)). “Where a plaintiff does not prove that he is worse off than if there had been no misrepresentation he has not made out a case of deceit.” Connelly v. Bartlett, 286 Mass. 311, 315, 190 N.E. 799 (1934). To prove a claim of promissory estoppel under Massachusetts law,

a plaintiff must allege that (1) a promisor makes a promise which he should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee, (2) the promise does induce such action or forbearance, and (3) injustice can be avoided only by enforcement of the promise.

Neuhoff v. Marvin Lumber & Cedar Co., 370 F.3d 197, 203 (1st Cir. 2004).

These theories, as with tort claims generally, require proof of actual damages — here based on reasonable reliance on Raleigh’s representations¹⁷ or promises.¹⁸ There is no evidence that Rogatkin was required by Raleigh to reject other (unspecified) sponsorship offers or that Rogatkin was contractually bound to represent Raleigh [**15] exclusively. As Rogatkin himself admits, he did represent other companies, including KHE, his current primary sponsor, while still a member of Team Diamondback. Without any showing of material damages, Raleigh is entitled to summary judgment on Counts IV, VI, and VII.

17 The statements Rogatkin allegedly relied upon — “greatly increased support,” “green light,” and “golden life” — “fall[] within the ordinary rule that false statements of opinion, of conditions to exist in the future, or of matters promissory in nature are not actionable” as misrepresentations. Yerid v. Mason, 341 Mass. 527, 530, 170 N.E.2d 718 (1960); see also Deming v. Darling, 148 Mass. 504, 505, 20 N.E. 107 (1889) (Holmes, J.).

18 Under Massachusetts law, “as with a claim for breach of contract, [i]n order to establish the existence of an enforceable promise under promissory estoppel, the plaintiff must show that the defendants’ promise included enough essential terms so that a contract including them would be capable of being enforced.” Armstrong v. Rohm & Haas Co., 349 F. Supp. 2d 71, 82 (D. Mass. 2004) (internal quotation marks omitted). Although Rogatkin alleges that Raleigh gave him assurances of future compensation, he cannot recall a specific number that was ever discussed. General statements of optimism such as “greatly increased support,” “green light” and “golden life” are simply too vague to [**16] form the basis of an enforceable promise.

Unjust Enrichment (Count V)

Rogatkin alleges that Raleigh unfairly profited from his efforts to promote Raleigh (both by appearing in Raleigh advertising and competing with Team Diamondback) while compensating him minimally for his efforts. To establish a claim of unjust enrichment, Rogatkin must prove

(1) a benefit conferred upon the defendant by the plaintiff;

(2) an appreciation or knowledge of the benefit by the defendant; and

(3) the acceptance or retention of the benefit by the defendant under circumstances which make such acceptance or retention inequitable.

Stevens v. Thacker, 550 F. Supp. 2d 161, 165 (D. Mass. 2008). Because unjust enrichment is a theory of equitable recovery, and not a separate cause of action, Lopes v. Commonwealth, 442 Mass. 170, 179, 811 N.E.2d 501 (2004), a court may not order restitution as a form of damages; it may only require a party to disgorge property [*302] that has been wrongfully appropriated from the rightful possession of the other party. Santagate v. Tower, 64 Mass. App. Ct. 324, 336, 833 N.E.2d 171 (2005).

The court here sees no inequity in any benefit that Raleigh may have derived from its association with Rogatkin. The undisputed evidence is that Rogatkin’s relationship with Raleigh was voluntary from its inception and throughout. Rogatkin is an avid BMX athlete and he competed not only to promote [**17] Raleigh as his sponsor, but to also to gain experience and advance his standing in the world of BMX biking. Rogatkin was aware of Raleigh’s use of his name and image in advertising and never objected for the obvious reason that he was a direct beneficiary of the publicity. He also benefitted materially from the relationship in terms of equipment, gear, and travel expenses. If Rogatkin found the terms of his association with Raleigh unsatisfactory, he was free to renegotiate, or leave to pursue other opportunities (both of which he eventually did). Because Raleigh did not unfairly retain any benefit conferred by Rogatkin, Raleigh in entitled to summary judgment on Count V.

Unfair and/or Deceptive Business Practices under Chapter 93A (Count II)

Having found that Raleigh is entitled to summary judgment on all of the foundational claims, the court also finds that Raleigh is entitled to summary judgment on the unfair and deception business practices (Chapter 93A) claim. Rogatkin has not shown that Raleigh’s actions fell within “the penumbra of some common-law, statutory, or other established concept of unfairness . . . or [was] immoral, unethical, oppressive or unscrupulous . . . [or] cause[d] substantial [**18] injury to consumers (or competitors or other businessmen).” PMP Assocs., Inc. v. Globe Newspaper Co., 366 Mass. 593, 596, 321 N.E.2d 915 (1975).

ORDER

For the foregoing reasons, Raleigh’s motion for summary judgment is ALLOWED. The claims against the John Doe defendants are also DISMISSED.¹⁹ The Clerk will enter judgment for Raleigh and close the case.

19 This case was removed to this court in July of 2013. Fact discovery closed in April of 2014. Plaintiff has yet to identify and serve the John Doe defendants. “[A] district court otherwise prepared to act on dispositive motions is not obligated to wait indefinitely for [the plaintiff] to take steps to identify and serve . . . unknown defendants.” Figueroa v. Rivera, 147 F.3d 77, 83 (1st Cir. 1998) (internal quotation marks omitted).

SO ORDERED.

/s/ Richard G. Stearns

UNITED STATES DISTRICT JUDGE

No written signature on the release so there is no release, even though the plaintiff acknowledged she would have signed one.

Posted: August 31, 2015 | Author: Recreation Law | Filed under: Colorado, Release (pre-injury contract not to sue) | Tags: All Terrain Vehicle, ATV, Hiking, Jeep Tours, Meeting of the Minds, Mtn. Bike, Nova Guides, Release | Leave a comment

A contract requires a meeting of the minds and the agreement to contract. Even though the defendant proved the plaintiff had the intent, the defendant could not prove their own intent.

State: Colorado

Plaintiff: Megan Soucy

Defendant: Nova Guides, Inc.

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: for the Plaintiff

Year: 2015

Warning, this case is probably not over so any decision, here can be altered, changed or appealed. However, the decision is so interesting it was worth the review.

The case involves an All-Terrain Vehicle (ATV) accident. Normally, engines are outside the scope of these articles. However, the facts surrounding the incident are not at issue or even discussed. The main issue is the defense of release raised by the plaintiff.

The plaintiff, her mother and sister were visiting Colorado. While there the party contracted with the defendant for a jeep tour. During that tour, all three signed a release. Two days later, the parties came back and contracted for an ATV tour. The mother and sister signed the release, but the plaintiff did not.

The release for both activities was identical, in fact, it covered, Jeep Tours, ATV, Mtn. Bike, and Hiking in one document. Dependent upon what activity the person signed up for the appropriate box was checked. For the first tour, the box Jeep Tour was checked. The mother and sisters ATV box was checked for the second tour.

The release in the language even spoke the risks of ATV tours but all in the same sentence as the other tours.

I/We have asked to participate in the sports of mountain biking, all terrain vehicle riding, hiking, and jeep touring and related activities with Nova Guides, Inc. I understand mountain biking, all terrain vehicle use, hiking and jeep touring also include the risk of falling from said vehicles.

However, because the box for the only release the plaintiff signed was for a jeep tour, the court did not by the argument it also applied to the ATV tour.

The interrogatory answers of the plaintiff and her testimony in deposition indicated she knew releases were required, understood them, had signed them in the past and would have signed one if asked for the ATV tour.

Moreover, with respect to the tours with Nova in July 2012, Soucy testified that, had a waiver of liability been presented to her on July 11, 2012, she would have signed it. In fact, Soucy attested that she believed the waiver of liability she executed on July 9, 2012 for the Jeep tour carried over for her participation in the July 11, 2012 ATV tour.

This decision is based on a Motion for Summary judgment filed by the defendant based on “release” which was denied by the court.

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

Under Colorado law contracts can be formed orally and based on the party’s intent.

Under Colorado law, contractual conditions may be express or implied. When interpreting a contract, courts consider “the facts and circumstances attending its execution, so as to learn the intentions of the parties.

A release is an agreement that follows the rules of interpretation and construction of contracts.

By her acts of paying for and taking the ATV tour after admitting she would have signed a release the court found the necessary intent on the part of the plaintiff.

Accordingly, the Court concludes it is not disputed that Soucy paid for a commercial service, willingly received that service, and believed the waiver she signed on July 9, 2012 — in which she “assume[d] the risk of personal injury, death, and property damage … which may result from [her] participation … in … all terrain vehicle riding” and waived “any claims based on negligence or breach of warranty [she] might assert on [her] own behalf … against Nova Guides, Inc.” — was valid and necessary for her participation in the ATV tour on July 11, 2012.

However, the reason why the court dismissed the defendant’s motion for summary judgment was the court could not find the same intent on the part of the defendant.

A contract implied in fact arises from the parties’ conduct that evidences a mutual intention to enter into a contract, and such a contract has the same legal effect as an express contract. … [thus, t]o be enforceable, a contract requires mutual assent to an exchange for legal consideration.” (emphasis added). Nova has proffered no evidence of its intention that Soucy be bound by an agreement to waive liability for the ATV tour on July 11, 2012; that is, nothing in the record demonstrates that either Hilley or any Nova personnel asked Soucy to execute or otherwise agree to a waiver for that tour, either by verbally asking her or by presenting her with a written agreement. Nor has Nova provided any affidavit evidencing, or even an argument by Nova concerning, its intent for this verbal agreement.

Because the defendant could not and did not offer any evidence that it had the same intent as the plaintiff, there was no proof of the intent to contract by the defendant, and the motion was denied.

However, for an oral agreement to be enforceable, there must be mutual assent from both parties. The evidence proffered by the parties does not show that Nova intended to be bound by an agreement with Soucy to waive liability for the ATV tour on July 11, 2012. Because an issue as to this material fact exists, the Defendant’s Motion for Summary Judgment is denied.

Again, this is not a final decision. The issue can be reargued before or at trial with the defendant showing the intent to contract.

So Now What?

There are several major flaws in this case by the defendant besides not being able to prove the intent to contract. This is a classic case of making your release complicated thinking it will save your butt, and the complications created a nightmare.

The first is the defendant is using a release with check boxes. If the wrong box is checked or not checked, then the release has no value. The same thing could have been accomplished, and the case ended if the boxes were eliminated.

The second is no system to make sure the release is signed by all adults and by adults for all children before the trip starts. The classic example was a rafting company that required participants to hand in their release to receive their PFD. No release, no PFD. No PFD you could not board the bus to go to the put in.

While working for one whitewater rafting company the shop manager realized one person had not signed a release. She ran and caught the bus before it pulled out and asked who had not signed the release. No one said anything. She said OK, everyone off the bus; you can get back on when I call your name. She had every release with her, and the bus was not leaving until everyone had signed.

The non-signer, not pretty sheepish, raised his hand and was handed a release to sign.

Normally, I write releases around activities. You can cover the risks of most paddlesports in one release for kayaking, rafting, stand up paddleboards, etc. Oceans pose different threats than lakes and streams so ocean activities are on a different release.

Here, however, the release combined the risks of human powered and motorized activities. Jeep tours and ATV tours probably run similar risks. However, they also have different state laws applicable to them. Mountain biking has different risks than hiking. Dependent upon the area where the mountain biking occurs and the hiking you might be able to cover the risks in one document.

However, to be on the safe side, I think three different releases should be used. Jeep and ATV tours on one, mountain biking on the second and hiking on the third. It would be easy to track them, having each one printed on a separate color of paper. You know based upon the color of the paper on the release what the customers are expecting and where they should be going.

Don’t make your release complicated in an attempt to make it work, or make it cover too much. This is one instance where killing a few more trees to write the release may save a hundred trees in defending a lawsuit.

What do you think? Leave a comment.

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

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Soucy, v. Nova Guides, Inc., 2015 U.S. Dist. LEXIS 95438

Posted: August 30, 2015 | Author: Recreation Law | Filed under: Colorado, Legal Case, Release (pre-injury contract not to sue) | Tags: All Terrain Vehicle, ATV, Hiking, Jeep Tours, Meeting of the Minds, Mtn. Bike, Nova Guides, Release | Leave a comment

Soucy, v. Nova Guides, Inc., 2015 U.S. Dist. LEXIS 95438

Megan Soucy, Plaintiff, v. Nova Guides, Inc., Defendant.

Civil Action No. 14-cv-01766-MEH

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

2015 U.S. Dist. LEXIS 95438

July 20, 2015, Decided

July 20, 2015, Filed

COUNSEL: [*1] For Megan Soucy, Plaintiff: Gregory A. Gold, Sommer D. Luther, LEAD ATTORNEYS, Gold Law Firm, L.L.C, The, Greenwood Village, CO; Joel Stuart Rosen, Cohen Placitella & Roth, Philadelphia, PA.

For Nova Guides, Inc., Defendant: David James Nowak, Tracy Lynn Zuckett , White & Steele, P.C., Denver, CO.

JUDGES: Michael E. Hegarty, United States Magistrate Judge.

OPINION BY: Michael E. Hegarty

OPINION

ORDER ON MOTION FOR SUMMARY JUDGMENT

Michael E. Hegarty, United States Magistrate Judge.

Before the Court is Defendant’s Motion for Summary Judgment [filed May 28, 2015; docket #18]. The motion is fully briefed, and the Court finds that oral argument will not assist in its adjudication of the motion. Based on the record herein and for the reasons that follow, the Court denies the Defendant’s motion.¹

1 On September 8, 2014, the parties consented to this Court’s jurisdiction pursuant to 28 U.S.C. § 636(c).

BACKGROUND

I. Procedural History

Plaintiff Megan Soucy (“Soucy”) initiated this action on June 24, 2014, alleging essentially that Defendant Nova Guides, Inc. (“Nova”) was negligent in causing her injuries when the all-terrain vehicle (“ATV”) she was driving overturned during a trail ride. Complaint, docket #1. In response to the Complaint, Nova filed [*2] an Answer asserting 13 affirmative defenses, including “Plaintiff’s claims may be barred or limited by contracts entered into by the parties.” Answer, docket #7.

Thereafter, the Court held a Scheduling Conference on September 22, 2014 at which the Court set deadlines for discovery and the filing of dispositive motions. Dockets ## 12, 13. Discovery progressed and, well before the deadline, Nova filed the present motion for summary judgment arguing no triable issues exist as to whether Soucy contractually waived her claims in this action. See docket #18. Specifically, Nova contends that its Waiver of Liability is valid pursuant to Colorado law and the waiver is enforceable despite lacking Plaintiff’s signature. Id.

Soucy counters that she was never presented with nor signed a Waiver of Liability before the July 11, 2012 tour during which she was injured. She argues that the July 9, 2012 waiver she signed before a Jeep tour did not apply to the July 11 ATV tour, since only the Jeep tour was referenced in the July 9 waiver. She further asserts that any release that may be construed as signed on her behalf by her mother is unenforceable. Finally, Soucy contends that any evidence of her intent [*3] is factually and legally irrelevant.

Nova replies arguing that Soucy’s own testimony demonstrates she intended to be bound by the Waiver of Liability, despite its lack of her signature.

II. Findings of Fact

The Court makes the following findings of fact viewed in the light most favorable to Soucy, who is the non-moving party in this matter.

1. While vacationing in Vail, Colorado in July 2012, Soucy, her mother, and her sisters participated in a jeep tour on July 9, 2012 and an ATV tour on July 11, 2012, both guided by Ben Hilley of Nova Guides, Inc. Deposition of Megan Soucy, April 6, 2015 (“Soucy Depo”), 97: 20-25; 129: 12 – 130: 16, docket #19-1.

2. Soucy was 20 years old in July 2012. Id., 136: 23 – 137: 4.

3. Based on her past experience, Soucy understood she must typically execute a waiver of liability before engaging in activities such as “ATVing” and the “safari trip” (also referred to as the “Jeep tour”). Id., 143: 13-20; 145: 16-20.

4. Prior to participating in the Jeep tour on July 9, 2012, Soucy signed a Lease Agreement and Waiver of Liability, on which a handwritten check mark appears next to “Jeep tour” as the type of tour selected (the other options are “ATV,” “Mtn. Bike,” and “Hiking”). Id., 144: [*4] 4-145: 7; see also Nova Guides Lease Agreement and Waiver of Liability, July 9, 2012, docket #19-2.

5. Nova’s Waiver of Liability includes the following language:

PARTICIPANT’S AGREEMENT TO ASSUME THE RISKS OF PERSONAL INJURY AND PROPERTY DAMAGE ASSOCIATED WITH MOUNTAIN BIKING, ALL TERRAIN VEHICLE RIDING, HIKING, AND JEEP TOURS AND TO RELEASE NOVA GUIDES, INC., ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, THE U.S. FOREST SERVICE, AND THE U.S. GOVERNMENT FROM ANY AND ALL LIABILITY IN CONNECTION WITH MOUNTAIN BIKING, ALL TERRAIN VEHICLE RIDING, HUMMER AND JEEP TOURING ACTIVITIES.

*THIS IS A RELEASE OF LIABILITY. PLEASE READ BEFORE SIGNING. DO NOT SIGN OR INITIAL THE RELEASE IF YOU DO NOT UNDERSTAND OR DO NOT AGREE WITH ITS TERMS.

1. I/We have asked to participate in the sports of mountain biking, all terrain vehicle riding, hiking, and jeep touring and related activities with Nova Guides, Inc. … I understand mountain biking, all terrain vehicle use, hiking and jeep touring also include the risk of falling from said vehicles. I understand that accidents or illness can occur in remote places without medical facilities. … I understand that route or activity, chosen as a part of our outdoor [*5] adventure may not be the safest, but has been chosen for its interest. I UNDERSTAND THAT THE ACTIVITIES OF MOUNTAIN BIKING, ALL TERRAIN VEHICLE RIDING, HIKING, JEEP TOURING, like all outdoor activities involve the risk of contact with wild animals, falls, equipment failure, collisions and/or contact with manmade or natural objects and other riders and drivers which can result in personal injury, property damage and death.

2. I expressly assume all risk of personal injury, death, and property damage set forth in paragraph 1 above which may result from my participation and my minor children’s participation in mountain biking, all terrain vehicle riding, hiking, and jeep touring and waive any claims based on negligence or breach of warranty I might assert on my own behalf or on behalf of my minor children against Nova Guides, Inc., its officers, directors, agents and employees, the U.S. Forest Service, and the U.S. Government for personal injuries, death, and/or property damage sustained while participating in mountain biking activities, all terrain vehicle riding, hummer and jeep touring with Nova Guides, Inc.

Nova Guides Lease Agreement and Waiver of Liability, docket #19-2.

6. Soucy recognized [*6] that operating an ATV involves a risk of injury. Id.; see also Soucy Depo, 154: 8-13.

7. Prior to Soucy’s and her family’s participation in the ATV tour on July 11, 2012, Soucy’s mother, Susan Pesot, completed and signed a Lease Agreement and Waiver of Liability, on which a handwritten check mark appears next to “ATV” as the type of tour selected. Deposition of Susan Pesot, April 7, 2015 (“Pesot Depo”), 92: 2 – 93: 7; see also Nova Guides Lease Agreement and Waiver of Liability, July 11, 2012, docket #19-3.

8. Soucy did not sign the July 11, 2012 Waiver of Liability. Id.

9. Pesot signed the waiver only on behalf of herself and her two minor children (Soucy’s sisters). Pesot Depo, 92: 12-17. She listed Soucy and Soucy’s other sister as participants on the ATV tour “because Ben told [her] to write down all the people who will be driving the vehicles.” Id., 93: 2-13.

10. Pesot did not sign the waiver on behalf of Soucy, who was not a minor, nor asked Soucy to sign the waiver because “that was not [her] responsibility to have [Soucy] sign it.” Id., 92: 12-25, 93: 1.

11. Also, Hilley did not ask Soucy to sign the waiver; however, Soucy would have signed the Waiver of Liability completed by Pesot on July 11, [*7] 2012, had it been presented to her by Hilley or Pesot and she were asked specifically to sign it. Soucy Depo, 215: 4-8 and 217: 7-15.

12. Soucy thought the Waiver of Liability she signed on July 9, 2012 “carried over” for the ATV tour in which she participated on July 11, 2012. Id., 144: 4 – 145:14.

13. Soucy participated in the ATV tour on July 11, 2012. Id., 171: 17-21.

LEGAL STANDARDS

A motion for summary judgment serves the purpose of testing whether a trial is required. Heideman v. S. Salt Lake City, 348 F.3d 1182, 1185 (10th Cir. 2003). The Court shall grant summary judgment if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A fact is material if it might affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

The moving party bears the initial responsibility of providing to the Court the factual basis for its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). “The moving party may carry its initial burden either by producing affirmative evidence negating an essential element of the nonmoving party’s claim, or by showing that the nonmoving party does not have enough evidence to carry its burden of persuasion at trial.” Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002). Only admissible evidence [*8] may be considered when ruling on a motion for summary judgment. World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir. 1985).

The non-moving party has the burden of showing there are issues of material fact to be determined. Celotex, 477 U.S. at 322. That is, if the movant properly supports a motion for summary judgment, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing a genuine factual issue for trial. Fed. R. Civ. P. 56(e); Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007) (“[t]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.”) (emphasis in original) (citation omitted); see also Hysten v. Burlington Northern & Santa Fe Ry., 296 F.3d 1177, 1180 (10th Cir. 2002). These specific facts may be shown “‘by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves.'” Pietrowski v. Town of Dibble, 134 F.3d 1006, 1008 (10th Cir. 1998) (quoting Celotex, 477 U.S. at 324). “[T]he content of summary judgment evidence must be generally admissible and . . . if that evidence is presented in the form of an affidavit, the Rules of Civil Procedure specifically require a certain type of admissibility, i.e., the evidence must be based on personal knowledge.” Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1122 (10th Cir. 2005). “The court views the record and draws all inferences in the light most favorable to the non-moving party.” [*9] Pepsi-Cola Bottling Co. of Pittsburg, Inc. v. Pepsico, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005).

ANALYSIS

Here, it is undisputed that Soucy did not sign a form waiver of liability for the ATV tour guided by Nova on July 11, 2012. According to Soucy, that is the end of the story. However, Nova argues the lack of a signature on a written agreement “is not always necessary to create a binding agreement.” Motion, docket #18 at 10. Nova contends that Colorado law allows consideration of the parties’ intent in the formation of a contract. Id. Soucy counters that extrinsic evidence, such as the parties’ intent, “is not admissible in a case where the court properly determines as a matter of law that an agreement is unambiguous.” Response, docket #19 at 17. Soucy argues alternatively that, “whether the parties have entered a contract is a question of fact.” Id. at 18.

The Court finds that, because Soucy does not challenge the validity and enforceability of Nova’s waiver of liability, the question is not whether terms of a formal contract are ambiguous (since no formal contract exists between Soucy and Nova from July 11, 2012), but whether an agreement between Soucy and Nova was formed on July 11, 2012 before Soucy was injured on the tour.

Under Colorado law, contractual conditions may be express [*10] or implied. Lane v. Urgitus, 145 P.3d 672, 679 (Colo. 2006) (determining whether an agreement to arbitrate existed between the parties) (citing Goodson v. Am. Standard Ins. Co., 89 P.3d 409, 414 (Colo. 2004)). When interpreting a contract, courts consider “the facts and circumstances attending its execution, so as to learn the intentions of the parties.” Id. (quoting Eisenhart v. Denver, 27 Colo. App. 470, 478, 150 P. 729, (1915), aff’d, 64 Colo. 141, 170 P. 1179 (1918)). “In contractual settings, [courts] can look to the circumstances surrounding the contract’s formation in construing the contract, in order to carry out the intent of the contracting parties.” Id. (citing Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d 1229, 1235 (Colo. 1998)); see also James H. Moore & Assocs. Realty, Inc. v. Arrowhead at Vail, 892 P.2d 367, 372 (Colo. App. 1994) (“Generally, whether a contract exists is a question of fact to be determined by all of the surrounding circumstances.”).

Whether the parties to an oral agreement become bound prior to the drafting and execution of a contemplated formal writing is a question largely of intent on their part. Mohler v. Park Cnty. Sch. Dist. RE-2, 32 Colo. App. 388, 515 P.2d 112, 114 (Colo. App. 1973). “That intent can be inferred from their actions and may be determined by their conduct prior to the time the controversy arose.” Id. (citing Coulter v. Anderson, 144 Colo. 402, 357 P.2d 76 (Colo. 1960)); see also Moore, 892 P.2d at 372.

“A release [of liability] is an agreement to which the general rules of interpretation and construction apply.” Squires v. Breckenridge Outdoor Educ. Ctr., 715 F.3d 867, 878 (10th Cir. 2013). In Squires, the court analyzed extrinsic evidence including a letter and the plaintiff’s statements of belief to determine whether a waiver of liability was [*11] procured through fraudulent inducement. Id. at 878-79.

Here, in response to questions by Nova’s counsel, Soucy testified during her deposition that:

o Based on her past experience, she understood she must typically execute a waiver of liability before engaging in activities such as “ATVing” and the “Jeep tour”;

o Prior to participating in the Jeep tour on July 9, 2012, she signed a Nova Guides Lease Agreement and Waiver of Liability;

o She recognized that operating an ATV involves a risk of injury;

o She did not sign an identical form Waiver of Liability prior to participating in the ATV tour on July 11, 2012;

o She would have signed the Waiver of Liability completed by her mother on July 11, 2012, had it been presented to her by Hilley or her mother and she were asked specifically to sign it; and

o She thought the Waiver of Liability she signed on July 9, 2012 “carried over” for the ATV tour in which she participated on July 11, 2012.

While Soucy’s counsel asked her questions during the deposition, his questions did not concern any waiver of liability. Soucy Depo, 254: 9 – 255: 17. In addition, Soucy did not provide an affidavit or other testimony in response to the present motion. Nova argues that [*12] “the clear, undisputed evidence from plaintiff’s own testimony is that she intended to assent and be bound by Nova Guide’s Waiver of Liability when she participated in the July 11, 2012 ATV tour.” Reply, docket #22 at 5. The Court must agree.

At her deposition, Soucy confirmed not only that she understood the concept of a waiver of liability, but also that she was familiar with such a document, as she had executed waivers in the past.

Q. Are you familiar with the concept of a waiver of liability?

A. Yes.

Q. Have you executed those type of documents in certain situations where you wanted to do an activity and it required a waiver?

A. Yes, yes.

Soucy Depo, 125: 1-7. Moreover, with respect to the tours with Nova in July 2012, Soucy testified that, had a waiver of liability been presented to her on July 11, 2012, she would have signed it. Id., 215: 4-8 and 217: 7-15. In fact, Soucy attested that she believed the waiver of liability she executed on July 9, 2012 for the Jeep tour carried over for her participation in the July 11, 2012 ATV tour.

Q. — did you understand before engaging in an activity such as ATV’ing, that you would typically execute a waiver of liability?

…

THE WITNESS: Yes.

Q. So that’s [*13] something you were familiar with. Did you at the time think that that was the document that he gave your mother?

…

A. I think, actually, the day before, when we got on that thing, Melissa and I filled something out.

Q. So you think that when you kind of took the safari trip —

A. Right.

Q. — where you were in a vehicle, that you actually filled something out?

A. We may have, yeah.

Q. You, yourself, as opposed to your mother?

A. Yes.

Q. Did you read it?

A. I don’t remember.

Q. Do you remember what it was or what it said?

A. No.

Q. And when you say “we,” do you mean you and all your sisters?

A. Melissa and I, separate from my mom.

Q. Did your mother also execute a document on the safari trip?

A. I believe so.

Q. And did Mr. Hilley, on the safari trip, explain what you were executing?

A. I don’t remember.

Q. Did you at the time think it was a waiver of liability?

A. Yeah. I think– and that’s why when we were in the car the next day, I just thought that kind of carried over or something.

Q. So when you were in the bus, going to do the ATV tour, you thought that what you had signed the day before carried over?

…

THE WITNESS: Right.

…

Q. But you generally understood that with respect to these type of activities, [*14] you did need to execute a waiver of liability?

…

THE WITNESS: Yes.

Soucy Depo, 143: 16 – 145: 20. Importantly, Soucy then participated in the ATV tour on July 11, 2012, which presumes that Soucy paid the required fee and Nova performed the requested service of guiding the tour. Soucy’s testimony does not appear to be vague. She assents to the proposition that she believed a waiver of liability she actually signed relating to one activity applied to another activity as well. She does not attempt to contradict that sworn testimony, so it was uncontroverted.

However, an agreement requires intent to be bound by all parties. “A contract implied in [*15] fact arises from the parties’ conduct that evidences a mutual intention to enter into a contract, and such a contract has the same legal effect as an express contract. … [thus, t]o be enforceable, a contract requires mutual assent to an exchange for legal consideration.” Winter v. Indus. Claim Appeals Office, 321 P.3d 609, 614, 2013 COA 126 (Colo. App. 2013) (citations omitted) (emphasis added). Nova has proffered no evidence of its intention that Soucy be bound by an agreement to waive liability for the ATV tour on July 11, 2012; that is, nothing in the record demonstrates that either Hilley or any Nova personnel asked Soucy to execute or otherwise agree to a waiver for that tour, either by verbally asking her or by presenting her with a written agreement. Nor has Nova provided any affidavit evidencing, or even an argument by Nova concerning, its intent for this verbal agreement. Under the circumstances presented here, the Court will not infer such intention. See Celotex Corp., 477 U.S. at 323 (the moving party bears the initial responsibility of providing to the court the factual basis for its motion).

Accordingly, a genuine issue of material fact exists as to whether an agreement was formed by both parties on July 11, 2012 before Soucy participated in the ATV tour and, thus, summary judgment is [*16] improper.

CONCLUSION

Soucy’s deposition testimony reflects her conduct, beliefs and intent regarding whether she agreed to waive Nova’s liability for any negligence claims resulting from the ATV tour on July 11, 2012. No genuine issues of material fact arise from this testimony or any other evidence provided by Soucy as to whether her assent to such agreement existed. The Court must conclude, then, that the evidence demonstrates Soucy’s agreement to waive Nova’s liability for the injuries she suffered on July 11, 2012.

Entered and dated at Denver, Colorado, this 20th day of July, 2015.

BY THE COURT:

/s/ Michael E. Hegarty

Michael E. Hegarty

United States Magistrate Judge

Do not waste paper if you are not going to do it right. Use the magic words needed for a release.

Posted: July 20, 2015 | Author: Recreation Law | Filed under: Challenge or Ropes Course, New York, Release (pre-injury contract not to sue) | Tags: challenge course, General Obligations Law, Negligence, New York, Release, Ropes course | Leave a comment

Challenge course in New York loses lawsuit because their release was poorly written. Besides New York General Obligations Law § 5-326 did not apply to a non-profit treatment facility.

State: New York, Supreme Court of New York, Appellate Division, Fourth Department

Plaintiff: Carol Barone

Defendant: St. Joseph’s Villa

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: for the plaintiff

Year: 1998

All we know in this three paragraph decision is the plaintiff was injured when she fell while “participating in a “challenge’” course” owned by the defendant.

The trial court dismissed the plaintiff’s complaint because of the release she signed. The plaintiff appealed arguing that New York General Obligations Law § 5-326 prevented the defendant from using a release and appealed.

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

In the second paragraph, the court looked at New York General Obligations Law § 5-326 and held that it did not apply in this case because “defendant is not the owner or operator of a “pool, gymnasium, place of amusement or recreation, or similar establishment”

New York General Obligations Law § 5-326 states:

§ 5-326. Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable

Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.

[emphasize added]

The defendant was a non-profit residence for needy adolescents and provided mental health and community services. The challenge course was part of its therapeutic purpose.

The release was not voided because of the New York statute. The court on its own and not as part of the appeal, looked at the wording of the release at issue.

The release was void because under New York law, a release had to have clear and explicit language. The release used the language “plaintiff will hold defendant and its agents “harmless from all damages, losses and expenses” “arising out of [plaintiff’s] use of the premises, operations, or facilities of [defendant]”.

The court stated the release did not mention the word negligence. “Thus, the release may not be construed to bar the claim that plaintiff was injured as a result of defendant’s negligence.”

If you read the release, you can see how the court could interpret the release to mean you can’t sue if you fall down in the hallway. However, if you fall down in the hallway because we tripped you, then the release was void because that was a negligent act not covered by the release.

The appellate court reversed the lower court because the language of the release was insufficient to top a claim of negligence because it did not use the word negligence in the release.

So Now What?

Figure it took three years for the appeal to be heard from the date of the accident, conservatively. Figure legal fees are roughly $50,000 a year more or less to get to this point.

Figure the owners/managers/directors of the defendant spent 500 hours fighting the lawsuit by prepping for and attending depositions, answering discovery, spending time with the attorneys, and worrying at night.

Think it was worth using a badly written release or would they have been better off spending a couple of thousand dollars have a release written properly?

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

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

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

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Watkins, Jr., v St. Francis Camp on the Lake, 2010 Mich. App. Lexis 1814

Posted: July 20, 2015 | Author: Recreation Law | Filed under: Assumption of the Risk, Michigan, Summer Camp | Tags: assumption of the risk, Condition of the Land, Open and Obvious, Special Needs Camp, St. Francis Camp on the Lake, Summer Camp | Leave a comment

Watkins, Jr., v St. Francis Camp on the Lake, 2010 Mich. App. Lexis 1814

Robert Vincent Watkins, Jr., Plaintiff-Appellant, v St. Francis camp on the lake, Defendant-Appellee.

No. 292578

Court of Appeals of Michigan

2010 Mich. App. LEXIS 1814

September 28, 2010, Decided

NOTICE: THIS IS AN UNPUBLISHED OPINION. IN ACCORDANCE WITH MICHIGAN COURT OF APPEALS RULES, UNPUBLISHED OPINIONS ARE NOT PRECEDENTIALLY BINDING UNDER THE RULES OF STARE DECISIS.

PRIOR HISTORY: [*1]

Hillsdale Circuit Court. LC No. 08-000601-NI.

CORE TERMS: water slide, ditch, camper, slide, went down, premises liability, amend, times, counselor, tube, matter of law, nuisance, flipped, invitee, futile, hit, air, obvious danger, pleaded, bottom, rolled, feet, leave to amend, physical condition, duty to protect, duty of care, liability case, liability claim, dangerous condition, ordinary intelligence

JUDGES: Before: MURPHY, C.J., and SAWYER and MURRAY, JJ. MURPHY, C.J. (concurring).

OPINION

PER CURIAM.

Plaintiff Robert Watkins, Jr., appeals by leave granted the trial court’s June 1, 2009, order granting defendant summary disposition, and its order denying his motion to amend. We affirm.

I. FACTS

Plaintiff, who is disabled, was injured using a water slide at a summer camp that defendant St. Francis Camp on the Lake runs for people with special needs. Plaintiff, who suffers from cerebral palsy and is confined to a wheelchair because he is a quadriplegic, was approximately 34 years old at the time of the accident and was living with his parents. At the time of the accident, plaintiff was employed at the Roscommon county courthouse as a mail clerk, where he worked for the previous 15 years for about 20 hours per week. Plaintiff did not have a legal guardian.

A water slide was at the camp. The water slide consisted of a tarp, which was approximately 100 feet long and 20 feet wide, placed on a hill. Water was then sprayed onto the tarp and soap was put onto the campers so that the campers would slide down the tarp faster. Some of the campers would use inner tubes [*2] when going down the hill and some would slide down the hill on their buttocks. At the bottom of the slide was a “little ditch,” which was approximately two and one-half feet long, two feet wide, and 12 to 18 inches deep. There was water and mud in the ditch, and if a camper hit the ditch when sliding down the hill, which “pretty much everybody hit the ditch,” the camper would flip.

Robert Seger was a camp counselor while plaintiff was at the camp. Seger indicated that the camp basically “let the campers decide what they feel they can and can’t do. They try not to place any limitations on anybody. They want them to have the best experience possible there.” Camp counselors kept notes throughout the week about the campers. Seger’s notes about plaintiff reflected, “July 15th, Sunday. Robert W. excited to be at the new camp. Very happy and pleasant all day. Likes to try new things and is determined to do as much as he can do on his own.” Seger’s notes also reflected, “July 17th, Tuesday. Robert W. says he really likes the camp. The best one he has been to. Took him on the slip and slide. He does not let his physical limitations stop him from trying anything new. He loves the water slide.” [*3] ¹

1 Plaintiff’s mother completed plaintiff’s camper medical information form and indicated on the form that plaintiff has suffered from cerebral palsy since birth, was a quadriplegic, used an electric wheelchair, and had a colostomy as well as arthritis and speech problems. One of the questions on the form provided, “Should camper’s activities be limited due to physical condition or illness?” Plaintiff’s mother circled “Yes” and explained “Spine/disc narrowing-disc bulging, and disc herniation.”

Seger testified that, on Tuesday, plaintiff went down the water slide four or five times. Seger testified that plaintiff was loaded onto a tube at the top of the hill, then a camp counselor sat in a tube behind plaintiff’s tube and went down the hill holding onto plaintiff’s tube. Plaintiff was subsequently loaded onto a golf cart and driven back up to the top of the hill. On Wednesday, plaintiff went down the water slide approximately four more times. Seger testified:

So Robby rolled a couple times, got up laughing. It was fine the first day. And that’s when, I believe the second day, he really took a good flip. Elizabeth went down with him on the slide as well. I believe that’s the day he might [*4] have, when he rolled might have hit his foot on the ground too hard. He might have caught it in the ditch down at the bottom. I am not quite too sure exactly the circumstances that led to bones being broken in his foot. But when he complained about it I noticed the bruising and said something to the nurse and had her examine it.

Seger further testified regarding the last two times that plaintiff went down the water slide on Wednesday:

The third time I do remember him flipping. He went one time after that which he flipped as well. So-I’m sorry. Like I said, I can’t necessarily-I don’t remember specific times, but his last two times he flipped really hard. And that’s when he decided he was done. He didn’t want to go anymore. And he had some scratches caused from the gravel from the rolling over. And I think I remember that there was-he complained-got the wind knocked out of him when they rolled over, because he had lain there for a bit. And we went down to check everything out, make sure he was okay, checked his colostomy bag. Because I mean, like I said, he rolled over pretty good. And he said he just kind of had the wind knocked out of him but he was fine. So we got him cleaned up, wiped [*5] the mud off of his face, put him back in the golf cart, took him to the top of the hill. And that was close to the end of the activity, but he didn’t want to go anymore anyways.

On March 6, 2008, plaintiff filed a complaint, which alleged the following:

7. On or about July 19, 2007, the Defendant and its agents and employees, including all camp instructors and supervisors, owed certain duties and obligations to the Plaintiff and those similarly situated, including but not limited to:

a. Ensuring that they were kept from harm;

b. Utilizing all means and methods to ensure that they would not cause serious and permanent injury to Plaintiff;

c. To abide by the wishes and request of any guardian or parent of the Plaintiff or other similar situated individuals so as to ensure that the Plaintiff was not exposed to an increase[d] risk of harm and injury in the activities undertaken during said time at the camp;

d. To ensure that individuals attending the facility such as the Plaintiff herein were protected from severe and permanent injury and damage during the course of normal activity;

e. To ensure that injuries and damages sustained by the Plaintiff or other[s] similar[ly] situated while staying [*6] at the camp were properly and adequately diagnosed and treated and then appropriate and prompt medical attention was provided to these individuals and the Plaintiff herein by qualified and competent medical professionals;

f. To ensure that the facility properly and adequately trained its personnel to recognize the dangers in activities, which they may undertake with campers so as to reduce or eliminate the danger for severe and permanent injury and damage; and

g. Such other duties and obligations as may be identified throughout the course of discovery.

On April 17, 2009, defendant moved for summary disposition, pursuant to MCR 2.116(C)10), arguing that this was a premises liability case and that the alleged hazard was open and obvious. Plaintiff moved to amend his complaint in order to add a claim of nuisance in fact and moved to amend the scheduling order in order to extend scheduling dates 60 days so that he would have enough time to complete discovery. Plaintiff also opposed defendant’s motion.

At the hearing on the motion to amend the complaint, the trial court concluded:

This isn’t a nuisance case. This isn’t an issue that’s something open to the general public. It is for simply the [*7] private campers. You’ve got a negligence action, I think. It would appear that Mr. Watkins-at least from the briefs I’ve read thus far, subject to the arguments of both of you, I believe it’s Friday-didn’t even agree to this activity. It would appear that he simply was picked up out of a wheelchair, put on an inner tube, and he was accompanied by a counselor down the hill. This isn’t a nuisance case, it’s a negligence case. Doesn’t even appear to be a premises liability case.

So I think we’re-it would be futile to amend the complaint at this time. We’ll proceed with the complaint as drafted . . . .

At the hearing, the trial court also indicated that it was denying plaintiff’s request to have the scheduling order dates extended.

At the subsequent hearing on defendant’s motion for summary disposition, the trial court held:

This case has been described as a premises liability case. The reason the Court doesn’t consider it a negligence case in general is that I’m not sitting here with a patient that — or an individual that is not cognizant of what is going on around him. The staff followed his directions.

* * *

[I]n this particular case I’m dealing with a ditch at the bottom of a hill where [*8] water accumulates. As I have described here, based on the depositions, the condition was open, the condition was obvious, it was observed by Mr. Watkins, it was observed by everyone around. This could not be expected that this would result in a serious injury-severe injury. The condition of the premises cannot be considered unreasonable. You don’t have a situation where we could have an especially high likelihood of injury.

Hence, the trial court concluded that defendant’s motion for summary disposition should be granted because plaintiff’s claims were based on premises liability law and the condition was open and obvious and without special aspects that would remove the condition from the open and obvious danger doctrine. The trial court noted, however, that the claim relating to the failure to obtain proper medical services in a timely fashion remained pending. At the end of the hearing on the motion for summary disposition, the trial court entertained plaintiff’s motion for entry of order to dismiss the case without prejudice, which the trial court also granted.

II. ANALYSIS

Plaintiff argues that his claims of negligence should not have been summarily dismissed as claims sounding only [*9] in premises liability because it was defendant’s conduct in not properly and adequately training its personnel to recognize the dangers in activities that led to his injuries. Further, an objective reading of the complaint results in a finding that the negligence clearly involved the conduct of individuals with regard to the water slide activity. Thus, plaintiff’s claims should not have been dismissed on the basis of premises liability law because premises liability law does not apply to conduct.

We review de novo a trial court’s decision to grant summary disposition. Coblentz v City of Novi, 475 Mich 558, 567; 719 NW2d 73 (2006). We review the record in the same manner as the trial court to determine whether the movant was entitled to judgment as a matter of law. Morales v Auto-Owners Ins, 458 Mich 288, 294; 582 NW2d 776 (1998). A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). In evaluating a motion for summary disposition brought under this subsection, a reviewing court considers affidavits, pleadings, depositions, admissions and other evidence submitted by the parties, MCR 2.116(G)(5), in the [*10] light most favorable to the party opposing the motion. Coblentz, 475 Mich at 567-568. Where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law. MCR 2.116(C)(10); MCR 2.116(G)(4); Coblentz, 475 Mich at 568.

Generally, where an injury arises out of a condition on the land, rather than conduct or activity, the action lies in premises liability. James v Alberts, 464 Mich 12, 18-19; 626 NW2d 158 (2001); Laier v Kitchen, 266 Mich App 482, 493; 702 NW2d 199 (2005). In other words:

In a premises liability claim, liability emanates merely from the defendant’s duty as an owner, possessor, or occupier of land. However, that does not preclude a separate claim grounded on an independent theory of liability based on the defendant’s conduct . . . . [Id.]

Premises liability law has been summarized by the Michigan Supreme Court as follows:

Generally, a premises possessor owes a duty of care to an invitee to exercise reasonable care to protect the invitee from an unreasonable risk of harm caused by a dangerous condition on the land. This duty generally does not encompass a duty to protect an invitee from “open [*11] and obvious” dangers. However, if there are “special aspects” of a condition that make even an “open and obvious” danger “unreasonably dangerous,” the premises possessor maintains a duty to undertake reasonable precautions to protect invitees from such danger. [Mann v Shusteric Enterprises, Inc, 470 Mich 320, 328; 683 NW2d 573 (2004) (citations omitted).]

The test to determine if a danger is open and obvious is whether an average user of ordinary intelligence would have been able to discover the danger and the risk presented upon casual inspection. Joyce v Rubin, 249 Mich App 231, 238; 642 NW2d 360 (2002).

We conclude, viewing the evidence in the light most favorable to plaintiff, that defendant’s alleged liability emanated from its duty as the owner of the land. Coblentz, 475 Mich at 568; Laier, 266 Mich App at 493. That is, the question was whether defendant had a duty as the owner of the land to protect plaintiff from harm and thus provide a water slide activity that was free from danger by not allowing a ditch at the bottom of the slide to exist, which propelled participants into the air. Id. The theory of liability directly related to a condition on the land, i.e. the premises. James, 464 Mich at 18-19. [*12] Consequently, although some alleged conduct on the part of defendant may have been involved-i.e. failing to protect plaintiff from harm, allowing the ditch to form, and/or failing to train staff to recognize the danger involved in allowing participants to hit the ditch and be propelled into the air-this does not change the fact that, as a matter of law, this negligence claim was based on premises liability law. Bertrand v Alan Ford, Inc, 449 Mich 606, 609; 537 NW2d 185 (1995); Laier, 266 Mich App at 489. ² Indeed, in Laier we specifically held that the open and obvious doctrine applied to a claim pleaded as “a failure to warn of a dangerous condition or as a breach of a duty in allowing the dangerous condition to exist.” Id. at 489 (emphasis added). Accordingly, the trial court correctly determined that this case was based on premises liability law and analyzed the case under that theory. Id.

2 That is, of course, except for the negligence claim related to plaintiff’s subsequent care and treatment at the camp, which the trial court indicated remained pending, at least until the order dismissing the case without prejudice.

The undisputed facts reveal that the condition was also open and [*13] obvious. Joyce, 249 Mich App at 238. The testimony reflected that almost every time a camper went down the water slide, they hit the ditch and flipped or became covered in mud. In addition, plaintiff specifically testified that before he went down the water slide, he saw other people go down the water slide and fly into the air. Further, the testimony established that plaintiff went down the water slide several times before he was injured and that plaintiff was enjoying the water slide. We find on the record before us that an average user of ordinary intelligence would have been able to discover the danger and the risk presented upon casual inspection. Id. Based on the foregoing, the danger of going down the water slide, hitting the ditch, and flipping into the air, was open and obvious. Id.

Plaintiff argues that because a counselor at the camp did not recognize the danger, there was genuine issue of material fact on whether the condition was open and obvious. However, simply because one counselor did not see any danger in operating the slide (all the evidence pointed to the conclusion that all campers enjoyed the slide) does not result in a conclusion that an average user of ordinary [*14] intelligence would not have been able to discover the danger and the risk presented upon casual inspection by going down a water slide, hitting the ditch, and flipping into the air. Joyce, 249 Mich App at 238. Additionally, there was no evidence of prior injuries. Viewing the evidence in a light most favorable to plaintiff, there is no genuine issue of material fact whether the condition was open and obvious, Coblentz, 475 Mich at 567-568, and no special aspects to this condition were presented. Lugo v Ameritech Corp, 464 Mich 512, 516-520; 629 NW2d 384 (2001). Hence, plaintiff’s claim was barred by the open and obvious doctrine.

In addition, plaintiff argues that defendant should have known or anticipated that, given plaintiff’s physical condition and his parent’s requested restrictions, plaintiff could have been hurt if propelled into the air after hitting the ditch. This argument fails for the simple reason that in a premises liability action when determining whether a condition is open and obvious, “the fact-finder must consider the ‘condition of the premises,’ not the condition of the plaintiff.” Mann, 470 Mich at 329. Hence, plaintiff’s physical condition was not pertinent to [*15] the determination that the condition was open and obvious. Id.

Plaintiff also argues that the trial court abused its discretion when it denied him the opportunity to amend his pleadings with additional theories of ordinary negligence. The grant or denial of leave to amend is within the trial court’s discretion. Weymers v Khera, 454 Mich 639, 654; 563 NW2d 647 (1997). Thus, “[we] will not reverse a trial court’s decision regarding leave to amend unless it constituted an abuse of discretion that resulted in injustice.” PT Today, Inc v Comm’r of the Office of Financial & Ins Servs, 270 Mich App 110, 142; 715 NW2d 398 (2006). “Leave to amend the pleadings should be freely granted to the nonprevailing party upon a grant of summary disposition unless the amendment would be futile or otherwise unjustified.” Lewandowski v Nuclear Mgt, Co, LLC, 272 Mich App 120, 126-127; 724 NW2d 718 (2006). Specifically, “[a]n amendment is futile where the paragraphs or counts the plaintiff seeks to add merely restate, or slightly elaborate on, allegations already pleaded.” Dowerk v Oxford Charter Twp, 233 Mich App 62, 76; 592 NW2d 724 (1998).

For two reasons the trial court did not abuse it’s discretion. First, [*16] the exclusive focus of plaintiff’s motion to amend was to amend the complaint to allege a “nuisance”, and plaintiff does not challenge the trial court’s conclusion that nuisance is not properly pleaded under these facts. Second, an amendment would have been futile because plaintiff’s alleged additional theories of ordinary negligence merely restated, and slightly elaborated on, the theories of negligence that plaintiff already pleaded. Id. And, as already stated above, the open and obvious doctrine applied because defendant’s alleged liability emanated from defendant’s duty as the owner of the land to protect plaintiff from harm, including in allowing the danger to exist. Bertrand, 449 Mich at 609; Laier, 266 Mich App at 493. In other words, the open and obvious doctrine applied to plaintiff’s alleged theories of negligence, which were set forth in his complaint, as well as plaintiff’s alleged additional theories of ordinary negligence (except as noted in footnote 2, supra) because defendant’s alleged liability emanated from defendant’s duty as the owner of the land to protect plaintiff from harm. Id. Thus, there was no abuse of discretion that resulted in an injustice because granting [*17] plaintiff leave to amend his complaint would have been futile. Dowerk, 233 Mich App at 76; Weymers, 454 Mich at 654.

Affirmed.

/s/ David H. Sawyer

/s/ Christopher M. Murray

CONCUR BY: William B. Murphy

CONCUR

MURPHY, C.J. (concurring).

I find it unnecessary to determine whether plaintiff’s lawsuit sounded solely in premises liability law. Assuming that plaintiff alleged an independent cause of action on a pure negligence theory, I would hold, as a matter of law, that defendant owed no specific duty of care to plaintiff that encompassed protecting him from or keeping him off the water slide. I would also analyze the premises liability claim in a slightly different manner. Accordingly, I respectfully concur.

“The elements of an action for negligence are (i) duty, (ii) general standard of care, (iii) specific standard of care, (iv) cause in fact, (v) legal or proximate cause, and (vi) damage.” Moning v Alfono, 400 Mich 425, 437; 254 NW2d 759 (1977). As a general rule, there is no common law duty that obligates one person to protect another person from danger. Dawe v Dr Reuven Bar-Levav & Associates, PC, 485 Mich 20, 25; 780 NW2d 272 (2010). An exception exists when there is a special relationship between a plaintiff [*18] and the defendant. Id. at 25-26. The Dawe Court, quoting Williams v Cunningham Drug Stores, Inc, 429 Mich 495, 499; 418 NW2d 381 (1988), observed:

“The rationale behind imposing a duty to protect in these special relationships is based on control. In each situation one person entrusts himself to the control and protection of another, with a consequent loss of control to protect himself. The duty to protect is imposed upon the person in control because he is best able to provide a place of safety.” [Dawe, 485 Mich at 26.]

Here, plaintiff’s allegations that presumably sounded in negligence were in the nature of claims that defendant had failed to protect him from or keep him off the water slide. Despite his physical limitations, plaintiff is an adult who was fully aware of the ditch at the end of the water slide, and there is nothing in the record to suggest that he was incapable of appreciating any potential dangers, nor that he was incapable of making his own informed decision whether to engage in the activity of using the water slide. The record reflects that plaintiff did not have a guardian and that he was employed as a mail clerk. This case does not present a situation in which plaintiff [*19] entrusted himself to the control and protection of defendant, as he never lost the ability to protect himself, which could have been accomplished by simply declining to participate in the activity. Defendant never forced plaintiff to use the water slide. Indeed, plaintiff later decided against further using the slide. I would hold, as a matter of law, that defendant owed no specific duty of care to plaintiff that encompassed protecting him from or keeping him off the water slide.

With respect to plaintiff’s claims predicated on premises liability law, this case is not truly one that concerns the open and obvious danger doctrine. Rather, we have a situation in which defendant had no duty because plaintiff had actual knowledge of the hazard and chose to proceed. Plaintiff knew that camp patrons, including himself, had flipped over in the ditch, considering that he had slid down the slide and flipped previously, and given that he observed others doing the same. As indicated in Bertrand v Alan Ford, Inc, 449 Mich 606, 610; 537 NW2d 185 (1995), liability will not be imposed on a landowner where a hazard is known or is open and obvious. “[T]he open and obvious doctrine will cut off liability [*20] if the invitee should have discovered the condition and realized its danger.” Id. at 611 (emphasis added). Thus, liability or a duty evaporates when a danger is open and obvious, as it should have been discovered, or when the danger was actually known, as it had been discovered, which is the case here. Plaintiff’s premises liability claim thus fails, as I do not find that the condition remained unreasonably dangerous despite plaintiff’s knowledge of it. Id.

In all other respects, I agree with the majority’s opinion.

I respectfully concur.

/s/ William B. Murphy

Barone, v. St. Joseph’s Villa, 255 A.D.2d 973; 679 N.Y.S.2d 782; 1998 N.Y. App. Div. LEXIS 12242

Posted: July 15, 2015 | Author: Recreation Law | Filed under: Challenge or Ropes Course, Legal Case, New York, Release (pre-injury contract not to sue) | Tags: challenge course, General Obligations Law, Negligence, New York, Release, Ropes course | Leave a comment

To Read an Analysis of this decision see: Don’t waste paper if you are not going to do it right. Use the magic words needed for a release.

Barone, v. St. Joseph’s Villa, 255 A.D.2d 973; 679 N.Y.S.2d 782; 1998 N.Y. App. Div. LEXIS 12242

Carol Barone, Appellant, v. St. Joseph’s Villa, Respondent.

(Appeal No. 2.)

1430.

Supreme Court of New York, Appellate Division, Fourth Department

255 A.D.2d 973; 679 N.Y.S.2d 782; 1998 N.Y. App. Div. LEXIS 12242

November 13, 1998, Decided

November 13, 1998, Filed

Prior History: [***1] (Appeal No. 2.) (Appeal from Order of Supreme Court, Monroe County, Bergin, J. – Reargument.)

Judges: Present—Denman, P. J., Hayes, Pigott, Jr., and Fallon, JJ.

Opinion: [*973] [**783] Order unanimously reversed on the law with costs, motion for summary judgment denied and complaint reinstated.

Plaintiff commenced this action to recover for personal injuries that she sustained in a fall while participating in a “challenge” course owned by defendant. Supreme Court granted defendant’s motion for summary judgment dismissing the complaint based on a release signed by plaintiff before she was injured and, upon reargument, adhered to its determination. On appeal, plaintiff contends that the release is unenforceable under General Obligations Law § 5-326 and cannot be construed to bar a claim alleging defendant’s negligence.

General Obligations Law § 5-326 does not apply to this case because defendant is not the owner or operator of a “pool, gymnasium, place of amusement or recreation, or similar establishment” (General Obligations Law § 5-326; see, Lago v Krollage, 78 NY2d 95, 101; Gross v Sweet, 49 NY2d 102, 107; [***2] [*974] Tedesco v Triborough Bridge & Tunnel Auth., 250 AD2d 758; Chieco v Paramarketing, Inc., 228 AD2d 462, 463; Perelman v Snowbird Ski Shop, 215 AD2d 809, 810). Defendant is a not-for-profit entity that operates a residence for needy adolescents and provides mental health and other community services; it maintains the “challenge” course for therapeutic purposes as part of its mission to deliver mental health and other support services. Because the statute does not apply to this case, the release is not void thereunder.

We conclude, however, that the release may not be construed to exculpate defendant for its own negligence absent clear and explicit language to that effect (see, Gross v Sweet, supra, at 107-110; see also, Lago v Krollage, supra, at 99-100; Ciofalo v Tanney Gyms, 10 NY2d 294, 297). The release recites that plaintiff will hold defendant and its agents “harmless from all damages, losses and expenses” “arising out of [plaintiff’s] use of the premises, operations, or facilities of [defendant].” Defendant’s negligence is not mentioned. Thus, the release [***3] may not be construed to bar the claim that plaintiff was injured as a result of defendant’s negligence (see, Bennett v Genesee Marina, 237 AD2d 908, 908-909; Machowski v Gallant, 234 AD2d 933, 934). (Appeal from Order of Supreme Court, Monroe County, Bergin, J.—Reargument.)

Present—Denman, P. J., Hayes, Pigott, Jr., and Fallon, JJ.

$2.1 M award after jury trial for snow tubing injury in PA.

Posted: June 17, 2015 | Author: Recreation Law | Filed under: Assumption of the Risk, Pennsylvania, Snow Tubing | Tags: Snow Tubing, Tubing, tubing hill | Leave a comment

The way the plaintiff arrived at the hill with tickets unintentionally skirted the release & risk management procedures in this case. The rest of the mistakes were just dumb. Appeal should follow.

This is an article from Pennsylvania written after a jury verdict. It is before an appeal, if any. Do not rely on it for any law, but it is full of interesting risk management issues.

Please read the article: Berks jury awards $2.1M to man in snow tubing crash

A Pennsylvania verdict against a ski area with a tubing hill was for $2.1 million. The plaintiff was part of a group. After skiing all day a friend in the group gave him tubing tickets. He went tubing without signing the release because he already had tickets.

Risk Management Issue Number 1: how do you sell tickets and get release signed

The plaintiff went down the run and hit the stop at the bottom incurring some injuries along the way. Before he could get out of the way, another tuber hit him either increasing his injuries or creating new, worse injuries.

Risk Management Issue Number 2: how do you design a run so that the tubers are not “stopped” but slow to a gentle stop?

Risk Management Issue Number 3: how do you make sure tubers don’t run into each other?

Risk Management Issue Number 4: how do you create a safe exit from the tubing hill

The lawsuit was based on failure to warn which then brings up how many signs can you have posted or should you just put up a drive through screen to have everyone watch for an hour.

I knew a raft company that required people to hand in their release to get their PFD. No PFD you could not get on the bus to go raft.

What else could you do?

Do Something

This case is the perfect example of a combination of “errors” and an injury lead to a massive payout.

This is a great example of holes in a program. How many you can afford to fill is the biggest question. Also remember that the article was based on what the reporter figured out from attending the trial and what he was told by the plaintiff at the end of the trial. The facts might be different.

How knows what the ending may be or where this is going, we probably will never know.

Read the article: Berks jury awards $2.1M to man in snow tubing crash

What do you think? Leave a comment.

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Mcarthur v. Kerzner International Bahamas Limited, 2015 U.S. App. LEXIS 5058

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

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

If you fall down in a foreign country, and you have paid money to be there, you probably have to sue there.

Posted: June 15, 2015 | Author: Recreation Law | Filed under: Adventure Travel, Jurisdiction and Venue (Forum Selection), Kansas | Tags: Bahamas, Forum selection clause, Jurisdiction, Jurisdiction and Venue (Forum Selection), Venue | Leave a comment

The exception is cheap vacations where the hotels and resorts won’t have you sign a forum selection clause when you arrive.

State: Kansas, United States Court of Appeals For The Eleventh Circuit

Plaintiff: John C. Mcarthur, Sandra S. Mcarthur

Defendant: Kerzner International Bahamas Limited, Kerzner International Limited, Island Hotel Company Limited, Paradise Island Limited

Plaintiff Claims: negligence

Defendant Defenses: Forum Selection Clause

Holding: For the Defendant

Year: 2015

The plaintiffs, husband and wife, went to the Bahamas to watch a college basketball tournament. While at a resort, the husband slipped and fell near the pool injuring his back. The plaintiff’s filed a lawsuit in the federal district court in Kansas. The defendants filed a motion to dismiss based on the forum selection clause the plaintiff’s had signed.

A forum selection clause is the same as a jurisdiction and venue clause. It identifies the place and the law that will be applied to the case.

The district court dismissed the plaintiff’s claims and the plaintiff’s, husband and wife, appealed to the Eleventh Circuit Court of Appeals. This is the decision of the Eleventh Circuit Court of Appeals.

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

The plaintiff’s booked their travel through a travel agent who was hired by the university or done in conjunction with the university. The travel agent upon booking the rooms received a contract from the hotel which required the travel agent to inform the guests of the rules and contract provisions.

The relationship between a travel agent and the hotel is different from most contracts. First whether or not a contract exists is based on the relationship. If a contract exists it is to pay a commission a specific way to the travel agent and/or be based on a relationship. However, in every situation there is a third party beneficiary to the contract or third parties that are part of the contract, the travelers. Either way the travelers have an interest in the contract. The travel agent usually has requirements as part of the contract to communicate parts or the entire contract to their customers, the travelers.

Sometimes the travel agent is the agent of the travelers. In cases where the travel agent is an agent, then the travel agent must communicate all things known or required by the hotel to the traveler.

Those terms and provisions, which were to be communicated in this case included:

…two provisions in which the travel agent agrees to notify their clients that when they book their reservation through the travel agent, they are subject to certain terms and conditions governing their stay at Atlantis.

A section of the contract indicates that the additional terms and conditions are available on the Atlantis website.

The terms and conditions provide that the guest will be asked to sign a form agreeing to certain terms related to any claims the guest may have as a result of the guest’s stay at the Atlantis Resort. It specifically states that “I agree that any claim I may have against [several named defendants and others], along with their parent, related and affiliated companies at every tier, . . . resulting from any events occurring in The Bahamas shall be governed by and construed in accordance with the laws of the Commonwealth of The Bahamas, and further, irrevocably agree to the Supreme Court of The Bahamas as the exclusive venue for any such proceedings whatsoever.”

Because the travel agent is an “agent” of the plaintiff the plaintiff had constructive notice of the terms of the agreement before they arrived in the Bahamas. Constructive notice means you legally had notice of the facts or pleadings at issue even if you did not have actual notice.

When the plaintiff’s arrived at the resort, they signed a registration card titled Acknowledgement, Agreement and Release. This too had a choice of forums clause requiring all suits to be brought in the Bahamas.

The court first reviewed the law surrounding forum selection clauses.

A forum selection clause will be invalidated where “(1) its formation was induced by fraud or overreaching; (2) the plaintiff would be deprived of its day in court because of inconvenience or unfairness; (3) the chosen law would deprive the plaintiff of a remedy; or (4) enforcement of the clause would contravene public policy.”

The test on whether a forum selection clause goes too far or overreaches is:

To determine whether there was fraud or overreaching in a non-negotiated forum selection clause, the court looks to “whether the clause was reasonably communicated to the consumer. A useful two-part test of ‘reasonable communicativeness’ takes into account the clause’s physical characteristics and whether the plaintiffs had the ability to become meaningfully informed of the clause and to reject its terms.”

The court found “The Bahamas is an adequate alternative forum, and the public interest factors weigh in favor of transfer.” The court then looked at the arguments raised by the plaintiffs as to why the forum selection clause should be invalidated. However, the plaintiff’s did not argue any of the four factors necessary to overcome the selection in the clause.

Consequently, the court upheld the District Court’s dismissal of the claim. The plaintiffs were free to go to the Bahamas and file their claim again.

So Now What?

The legal term for deciding the case should be dismissed is forum non conveniens. Latin for the forum is not convenient, meaning the right one based on the contract.

There are two keys here that were critical for the court to rule this way. The first was the forum selected was reasonable for the situation. Normally, you have to choose the forum of the defendant, where the defendant is served or where you may catch the defendant temporarily. (There are classic “stories” of serving defendants in airplanes as they flew over a particular state.)

There must be a reasonable reason for the selection you choose. If you are based in one state and the plaintiff’s come from others, you cannot just choose any state with the best law or the hardest courts to find. You must choose a state where the accident happens if you are fixed, what the accident may happen if you are running trips in other states or the state where you are legally based.

The second is the plaintiff’s had the opportunity, whether or not they took it, to see the forum selection clause, and the other contractual terms, prior to leaving their homes. This might have resolved with a different result if the forum selection clause and other contracts, such as a release, had been handed to the plaintiff’s upon the arrival without any notice they would be required to sign it.

If the client had not signed the agreement at the time of check in, and if they claimed they had not read or received the contract, the plaintiff’s might still have been held to the contract because they took advantage of the benefits the contract offered.

Get your release, with its forum selection clause, in front of the plaintiff as soon as possible. Now days it can be part of the sign up process online or posted on your website or emailed to the guest when their credit card is run.

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#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Forum Selection Clause, Jurisdiction and Venue, Jurisdiction, Venue, Bahamas,

Mcarthur v. Kerzner International Bahamas Limited, 2015 U.S. App. LEXIS 5058

Posted: June 9, 2015 | Author: Recreation Law | Filed under: Adventure Travel, Jurisdiction and Venue (Forum Selection), Legal Case | Tags: Atlantis, Bahamas, Forum selection clause, Jurisdiction, Venue | Leave a comment

Mcarthur v. Kerzner International Bahamas Limited, 2015 U.S. App. LEXIS 5058

John C. Mcarthur, Sandra S. Mcarthur, his wife, Plaintiffs – Appellants, versus Kerzner International Bahamas Limited, a Bahamian company, Kerzner International Limited, a Bahamian company, Island Hotel Company Limited, a Bahamian company, Paradise Island Limited, a Bahamian company, Defendants – Appellees.

No. 14-13889 Non-Argument Calendar

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

2015 U.S. App. LEXIS 5058

March 30, 2015, Decided

COUNSEL: For JOHN C. MCARTHUR, SANDRA S. MCARTHUR, Plaintiffs – Appellants: Jeffrey Bradford Maltzman, Rafaela Castells, Steve Holman, Maltzman & Partners, PA, CORAL GABLES, FL; Robert L. Parks, Gabriel A. Garay, The Law Offices of Robert L. Parks, PL, MIAMI, FL.

JUDGES: Before JULIE CARNES, FAY and DUBINA, Circuit Judges.

OPINION

PER CURIAM:

Appellants John C. McArthur and his wife, Sandra S. McArthur, appeal the district court’s order dismissing their civil action under forum non conveniens. After reviewing the record and reading the parties’ briefs, we affirm the order dismissing appellants’ complaint.

I. BACKGROUND

The McArthurs were part of a group of guests who traveled to the Atlantis Resort in The Bahamas with the University of Kansas (“KU”) for a basketball tournament. Travel agent Cate and Mason Travel Partners (“travel agent”) made KU’s reservations and contracted with Atlantis. The contract includes two provisions in which the travel agent agrees to notify their clients that when they book their reservation through the travel agent, they are subject to certain terms and conditions governing [*2] their stay at Atlantis. A section of the contract indicates that the additional terms and conditions are available on the Atlantis website. [Doc. DE-16-1, Ex. 1 ¶ 5, ¶ 8.] The terms and conditions provide that the guest will be asked to sign a form agreeing to certain terms related to any claims the guest may have as a result of the guest’s stay at the Atlantis Resort. It specifically states that “I agree that any claim I may have against [several named defendants and others], along with their parent, related and affiliated companies at every tier, . . . resulting from any events occurring in The Bahamas shall be governed by and construed in accordance with the laws of the Commonwealth of The Bahamas, and further, irrevocably agree to the Supreme Court of The Bahamas as the exclusive venue for any such proceedings whatsoever.” [Id. ¶ 8.]

Upon their arrival at Atlantis, the McArthurs signed a written registration card entitled “Acknowledgement, Agreement and Release” that includes a choice of law provision and forum selection clause:

I agree that any claims I may have against the Resort Parties resulting from any events occurring in The Bahamas shall be governed by and constructed in [*3] accordance with the laws of the Commonwealth of The Bahamas, and further, I irrevocably agree to the Supreme Court of The Bahamas as the exclusive venue for such proceedings whatsoever. . . .

[Id. ¶ 10 & Exh. 4.]

During his stay at the Atlantis Resort, John McArthur slipped and fell on a sidewalk adjacent to the water park attraction known as the Rapid River. In March 2014, the McArthurs filed an amended complaint in federal district court, alleging negligence in connection with John McArthur’s fall. The amended complaint also alleged that as a result of John McArthur’s injuries, his wife suffered the diminishment of her husband’s companionship and consortium. The amended complaint invoked the district court’s diversity based subject-matter jurisdiction under 28 U.S.C. § 1332. It alleged that the McArthurs were domiciled in Kansas, defendant Kerzner International was a Bahamian company with its principal place of business in Florida, defendant Kerzner Bahamas was a Bahamian company with its principal place of business in Florida, defendant Island Hotel was a Bahamian company and a subsidiary of Kerzner International and Kerzner Bahamas, and defendant Paradise Island was a Bahamian company and a subsidiary [*4] of Kerzner International and Kerzner Bahamas.

The defendants moved to dismiss the amended complaint on the basis of forum non conveniens. The district court granted the motion. The McArthurs then perfected this appeal.¹

1 This court issued a jurisdictional question asking the parties to address whether the pleadings sufficiently alleged the citizenship of the parties, in particular, Island Hotel and Paradise Island, to establish the district court’s subject-matter jurisdiction over the case. See Mallory & Evans Contractors & Eng’rs, LLC v. Tuskegee Univ., 663 F.3d 1304, 1304-05 (11th Cir. 2011) (stating that the court must sua sponte raise its concerns regarding subject-matter jurisdiction). The McArthurs concede that the amended complaint failed to allege sufficiently the citizenship of Island Hotel and Paradise Island, but move to amend the amended complaint to add the allegations that both defendants were Bahamian Companies with their principal places of business in the Bahamas. [HN1] The party invoking the court’s jurisdiction bears the burden of establishing federal jurisdiction, and when the pleadings’ allegations of citizenship and jurisdiction are insufficient, a party may amend them in this court. See 28 U.S.C. § 1653; Mallory, 663 F.3d at 1305. The McArthurs’ allegations cure the pleading deficiencies [*5] as to Island Hotel and Paradise Island, and the amended complaint sufficiently alleges that the other defendants are Bahamian companies with their principal places of business in Florida. Because the proposed amendments show that no defendant is a citizen of Kansas, where the McArthurs are domiciled, the district court’s subject-matter jurisdiction is satisfied. Thus, we grant the McArthur’s motion to amend the amended complaint and entertain the instant appeal.

II. DISCUSSION

[HN2] This court reviews a district court’s order of dismissal based on forum non conveniens for an abuse of discretion. Aldana v. Del Monte Fresh Produce N.A., 578 F.3d 1283, 1288 (11th Cir. 2009). [HN3] In addition, we review de novo a district court’s construction of a contractual forum selection clause. Global Satellite Commc’n Co. v. Starmill U.K. Ltd., 378 F.3d 1269, 1271 (11th Cir. 2004).

As a preliminary matter, forum selection clauses “are presumptively valid and enforceable unless the plaintiff makes a ‘strong showing’ that enforcement would be unfair or unreasonable under the circumstances.” Pappas v. Kerzner Int’l Bahamas Ltd., 585 F. App’x 962, 965 (11th Cir. 2014) (quoting Krenkel v. Kerzner Int’l Hotels Ltd., 579 F.3d 1279, 1281 (11th Cir. 2009)). The party seeking to avoid the forum selection clause bears the burden of showing exceptional circumstances, predicated on public interest considerations to justify disturbing the forum selection clause. Atl. Marine Const. v. U.S. Dist. Court, U.S. , , 134 S. Ct. 568, 581, 187 L. Ed. 2d 487 (2013).

A forum selection clause will be invalidated where “(1) its formation [*6] was induced by fraud or overreaching; (2) the plaintiff would be deprived of its day in court because of inconvenience or unfairness; (3) the chosen law would deprive the plaintiff of a remedy; or (4) enforcement of the clause would contravene public policy.” Krenkel v. Kerzner Int’l Hotels Ltd., 579 F.3d 1279, 1281 (11th Cir. 2009). To determine whether there was fraud or overreaching in a non-negotiated forum selection clause, the court looks to “whether the clause was reasonably communicated to the consumer. A useful two-part test of ‘reasonable communicativeness’ takes into account the clause’s physical characteristics and whether the plaintiffs had the ability to become meaningfully informed of the clause and to reject its terms.” Id.

The McArthurs contend that the forum selection clause is invalid because the contents of the forum selection clause were not reasonably communicated to them, and the travel agent never informed them about the forum selection clause. However, as the district court found, the McArthurs had constructive notice of the Atlantis Resort’s terms and conditions that the travel agent received. The travel agent, via its contract with the resort, knew that the attendees at the resort were subject to certain additional terms and conditions, [*7] agreed to notify their clients regarding the terms and conditions, and knew where to obtain the specific terms and conditions. Thus, because the McArthurs’ trip involved travel arrangements made by the travel agent, they are charged with constructive notice of the terms and conditions in the contract the travel agent had with the Atlantis Resort.

Moreover, upon their arrival at the resort, the McArthurs signed a written registration form that read, in part, that the guest agrees that any claims he may have against the resort shall be governed by the laws of The Bahamas and that the Supreme Court of The Bahamas is the exclusive venue. [R. DE 16-5.] By signing this form, the McArthurs agreed to the forum selection clause. Hence, we conclude that the forum selection clause is valid.²

2 The McArthurs also argue that the forum selection clause is invalid because it was obtained through fraud. Their argument centers on their claim that the defendants have a policy that allows guests to delete portions of the guest registration card but they do not inform the guests of that right, and therefore, the defendants obtain the signatures on the cards through fraud. This contention is meritless because [*8] they cannot show that the forum selection clause itself was included in the contract due to fraud. See Rucker v. Oasis Legal Fin., L.L.C., 632 F.3d 1231, 1236 (11th Cir. 2011 ) (noting that in order for a forum selection clause to be invalidated on the basis of fraud or overreaching, a plaintiff must specifically allege that the clause was included in the contract because of fraud).

In addition, The Bahamas is an adequate alternative forum, and the public interest factors weigh in favor of transfer. See Atl. Marine, U.S. at , 134 S. Ct. at 582 (discussing forum selection clauses in the 28 U.S.C. § 1404(a) transfer context). First, the McArthurs do not contest that The Bahamas provides an adequate alternative forum, and they do not assert that they could not reinstate their lawsuit in The Bahamas without undue inconvenience or prejudice. Second, the McArthurs fail to meet their burden to show that this case is exceptional and that the forum selection clause should not apply. Their brief is devoid of any claims as to court congestion, the burden of jury duty, or the difficulties in resolving conflict of law problems and applying foreign law. Third, the McArthurs fail to challenge the substantial interests of The Bahamas. In sum, the McArthurs cannot show that enforcement of the forum selection clause “would be unfair [*9] or unreasonable under the circumstances.” Krenkel, 579 F.3d at 1281. Accordingly, we conclude that the district court properly gave effect to the forum selection clause and granted the defendants’ motion to dismiss.³

3 The McArthurs also take issue with the district court’s order denying their motion for leave to amend the complaint to add Brookfield Asset Management, Inc., the new owner of the Atlantis Resort, as a defendant. The district court did not abuse its discretion in denying the motion because the language of the forum selection clause applies equally to any entity that has owned, operated, or marketed the Atlantis Resort. [R. DE 16-1, Ex. 4 & 16-3.] See Garfield v. NDC Health Corp., 466 F.3d 1255, 1270 (11th Cir. 2006) (stating that [HN4] court reviews for abuse of discretion a district court’s decision to grant or deny leave to amend a pleading).

III. CONCLUSION

For the foregoing reasons, we affirm the district court’s order granting defendants’ motion to dismiss based on forum non conveniens. We also grant the McArthurs’ motion for leave to amend the amended complaint to cure the deficiency in the pleadings.

AFFIRMED and Motion for leave to amend GRANTED.

Dare v. Freefall Adventures, Inc., 349 N.J. Super. 205; 793 A.2d 125; 2002 N.J. Super. LEXIS 155

Posted: May 29, 2015 | Author: Recreation Law | Filed under: Legal Case, New Jersey, Release (pre-injury contract not to sue), Skydiving, Paragliding, Hang gliding | Tags: Fee Shifting Provisions, Freegall Adventures, Release, sky diving, Skydiving, Waiver | Leave a comment

To Read an Analysis of this decision see

New Jersey does not support fee-shifting provisions (indemnification clauses) in releases in a skydiving case.

Dare v. Freefall Adventures, Inc., 349 N.J. Super. 205; 793 A.2d 125; 2002 N.J. Super. LEXIS 155

Joseph Dare and Patricia Dare, his Wife, Plaintiffs-Appellants, v. Freefall Adventures, Inc., John Ed-Dowes, Warren Acron and Eric Keith Johnson, Defendants-Respondents. Joseph Dare and Patricia Dare, his Wife, Plaintiffs-Respondents, v. Freefall Adventures, Inc., and John Eddowes, Defendants-Appellants, Warren Acorn and eric Keith Johnson, Defendants.

A-2629-00T1, A-2789-00T1

SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION

349 N.J. Super. 205; 793 A.2d 125; 2002 N.J. Super. LEXIS 155

February 4, 2002, Argued

March 21, 2002, Decided

COUNSEL: Stephen Cristal, argued the cause for Joseph and Patricia Dare, appellants in A-2629-00T1 and respondents in A-2789-00T1 (Mark J. Molz, attorney; Mr. Cristal, on the brief).

Kelly Johnson, argued the cause for Freefall Adventures, Inc. and John Eddowes, respondents in A-2629-00T1 and appellants in A-2789-00T1 (Ms. Johnson, on the brief).

Vincent J. Pancari, argued the cause for respondent Eric K. Johnson in A-2629-00T1 (Kavesh, Pancari, Tedesco & Pancari, attorneys; Robert Pancari, on the brief).

JUDGES: Before Judges HAVEY, COBURN and WEISSBARD. The opinion of the court was delivered by HAVEY, P.J.A.D.

OPINION BY: HAVEY

OPINION

[**127] [*209] The opinion of the court was delivered by

[**128] HAVEY, P.J.A.D.

Plaintiff Joseph Dare was injured in a skydiving accident when he attempted to avoid colliding with defendant Eric Keith Johnson, a co-participant in the jump. ¹ Prior to the jump, the plaintiff signed a release/waiver agreement with the operator of the skydiving facility, defendant Freefall Adventures, Inc. (Freefall), under [*210] hich the plaintiff released [***2] Freefall from any claims for injuries arising from Freefall’s negligence. The agreement further provided that, in the event plaintiff instituted a suit against Freefall, the plaintiff agreed to pay Freefall’s counsel fees incurred in defending the suit. The trial court granted summary judgment in favor of all defendants dismissing the plaintiffs’ personal injury action. The court concluded that plaintiffs failed to establish a prima facie case of negligence. ² It also dismissed Freefall’s counterclaim in which it demanded counsel fees in accordance with the release/waiver agreement, as well as the Frivolous Claims Statute, N.J.S.A. 2A:15-59.1, and Rule 1:4-8.

1 Two appeals, A-2629-00T1, filed by plaintiffs, and A-2789-00T1, filed by defendants Freefall and John Eddowes, have been consolidated for purpose of this opinion.

2 Plaintiff Patricia Dare, Joseph’s wife, filed a per quod claim.

We conclude that the recklessness standard applied to Johnson and the ordinary negligence standard [***3] applied to Freefall, and, based on the evidentiary material submitted, see Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 666 A.2d 146 (1995), summary judgment was properly granted to all defendants. We further hold that the fee-shifting provision under the release/waiver agreement signed by plaintiff is void as against public policy, and that Freefall is not entitled to counsel fees under the Frivolous Claims Statute. We therefore affirm dismissal of Freefall’s counterclaim.

Considering the evidentiary material in a light most favorable to plaintiffs, id. at 523, 666 A.2d 146, these are the facts. On July 9, 1995, plaintiff Joseph Dare, a licensed and experienced skydiver, having jumped on 137 prior occasions, utilized the skydiving facilities operated by Freefall ³ in Williamstown, Gloucester County. Plaintiff had been using the Freefall facility for over two years and nearly every week for the six months preceding his accident.

3 Freefall refers also to defendant John Eddowes, part owner of Freefall, and defendant Warren Acorn who, according to plaintiffs’ complaint, was a Freefall employee.

[***4] Prior to his jump on July 9, 1995, plaintiff executed a five-page “Waiver of Rights, Release and Indemnity Agreement” which [*211] defined the risks of injury or death associated with skydiving.

Page 3 of the waiver provided:

1. I hereby RELEASE AND DISCHARGE . . . FREEFALL . . . from any and all liability, claims, demands or causes of action that I may hereinafter have for injuries and damages arising out of my participation in parachuting activities.

2. I further agree that I WILL NOT SUE OR MAKE CLAIM against [Freefall] for damages or other losses sustained as a result of my participation in parachuting activities. . . . I also agree to INDEMNIFY AND HOLD [Freefall] HARMLESS from all claims, judgments and costs, including attorneys’ fees, incurred in connection with any action brought as a result of my participation in parachuting activities. . . .

Page 4 provided:

2. EXEMPTION FROM LIABILITY. [Plaintiff] . . . releases [Freefall] [**129] . . . from any and all liability . . . arising out of any . . . injury to [plaintiff] . . . while participating in any of the activities contemplated by this AGREEMENT . . . whether such . . . injury results [***5] from the negligence of [Freefall] . . . .

3. COVENANT NOT TO SUE. [Plaintiff] agrees never to institute any suit or action at law or otherwise against [Freefall], its owners, officers, agents, employees, servants, or lessors . . . by reason of injury to [plaintiff] . . . arising from the activities contemplated by this AGREEMENT. . . .

[Emphasis added.]

A second “Agreement and Release,” signed by plaintiff, in favor of Cross Keys Airport, Inc. and Freefall stated:

5. REIMBURSEMENT FOR LEGAL FEES AND EXPENSES. The [plaintiff] expressly agrees and covenants to fully reimburse [Freefall] for all legal costs and reasonable counsel fees . . . paid by [Freefall], for the . . . defense of any and all actions or cause of action or claim or demand for damages whatsoever, which may hereafter arise or be instituted or recovered against [Freefall], by the [plaintiff] . . . regardless of any negligence on the part of [Freefall] . . . .

[Emphasis added.]

On the day of the jump, plaintiff was accompanied by defendant Eric Johnson, another licensed and experienced skydiver, in the airplane transporting the divers to the drop [***6] zone. Johnson jumped first, followed by plaintiff. Plaintiff claims that he was injured because he was required to make an emergency turn during his descent in order to avoid colliding with Johnson. In his certification, plaintiff states:

Defendant Johnson [was] skydiving in a reckless manner; he was far outside the [landing] pattern, he was too low to the ground over the airplane runway. It was reckless of him to be that close to the runway at that altitude. It is one of the [*212] most basic rules of skydiving that you cannot land on or near a runway. Defendant Johnson was essentially being a “hot-dog,” which is inappropriate.

Because Defendant Johnson was so far outside the [landing] pattern, he had to recklessly cut across wind back toward the drop zone, and in doing so was heading right into [plaintiff’s] path of travel. Had [plaintiff] not maneuvered, [they] would have collided. In trying to avoid the collision, [plaintiff] maneuvered quickly, which caused [plaintiff] to fall down to the ground.

In his deposition plaintiff stated that during his descent the closest he came to Johnson was between 150 and 175 feet. He further acknowledged that since Johnson jumped first, [***7] Johnson had the right of way. ⁴ Plaintiff also admitted that prior to the jump he had arranged with his wife to have her photograph him during his jump. According to defendants, this plan required plaintiff to steer his flight toward a concession trailer operated by his wife, which was surrounded by buildings and other dangerous obstacles. Defendants argue that plaintiff’s sudden diversion from this path was necessary to avoid striking the buildings near his wife’s trailer.

4 [HN1] The United States Parachute Association, Skydiver’s Information Manual § 4.19F (1995), provides:

Right-of-way: The lower person has the right of way, both in freefall and under canopy. The higher person should always yield to anyone below. It is important to avoid collisions at all costs.

[**130] [HN2] The New Jersey Department of Transportation regulates parachuting centers in order “to foster, control, supervise and regulate sport parachuting. . . .” N.J.A.C. 16:58-1.2. The pertinent rules require participants to meet various training and licensing [***8] standards before parachuting, and define the manner and place where a jumper should exit the aircraft. However, the regulations do not impose any express duties upon the operator of the skydiving facility or define the standard controlling a skydiver’s conduct during his descent. See N.J.A.C. 16:58-1.1 to -3.1. Also, the Federal Aviation Administration (FAA) has appointed the United States Parachuting Association (USPA) to oversee the sport of parachuting. The USPA promulgates rules which: (1) require licensing; (2) prohibit jumps into hazardous areas and the use of [*213] alcoholic beverages and drugs; and (3) establish standards regarding canopy control, maneuvering and landing. See Skydiver’s Information Manual, supra, at § 4.06C(1); § 4.19; § 4.20D and § 4.23. Otherwise, skydiving is a self-regulated industry.

In granting summary judgment in favor of Johnson, the trial court concluded that even under the negligence, rather than the recklessness, standard, see Crawn v. Campo, 136 N.J. 494, 643 A.2d 600 (1994), plaintiffs had failed to demonstrate a prima facie case. The court stated:

The facts basically are that this defendant, Johnson, exited the [***9] airplane prior to [plaintiff] exiting the airplane. At the time . . . just before the accident, the plaintiff indicates that the closest he got to Mr. Johnson was between 150 and 175 feet which is half a football field away. Everyone concedes that the person lowest–closest to the ground has the right-of-way. Clearly, [plaintiff] was altering his drop pattern to some extent. His observation was that he thought Johnson was closer to the runway than he should have been, but that does not appear to me to be any proximate cause at all.

I frankly don’t see how reasonable men could differ on this even giving all of the necessary inferences to the plaintiff for this particular motion. I think I am compelled to grant the summary judgment in favor of this defendant. Given the fact that there is no expert to give us any guidance with respect to any other standard of care, even applying a basic standard of care in a negligence matter, I just can’t see how [Johnson] could have contributed to this accident at all.

We are satisfied that plaintiffs had the burden of proving that Johnson’s conduct was reckless, rather than negligent. In Crawn, a case involving an injury during an informal [***10] softball game, the Court held that [HN3] “the duty of care applicable to participants in informal recreational sports is to avoid the infliction of injury caused by reckless or intentional conduct.” Id. at 497, 643 A.2d 600. The Court’s determination was grounded on two policy considerations; the promotion of vigorous participation in athletic activities, and the avoidance of a flood of litigation generated by voluntary participation in games and sports. Id. at 501, 643 A.2d 600. The Court added:

[HN4] Our conclusion that a recklessness standard is the appropriate one to apply in the sports context is founded on more than a concern for a court’s ability to discern [*214] adequately what constitutes reasonable conduct under the highly varied circumstances of informal sports activity. The heightened standard will more likely result in affixing liability for conduct that is clearly unreasonable and [**131] unacceptable from the perspective of those engaged in the sport yet leaving free from the supervision of the law the risk-laden conduct that is inherent in sports and more often than not assumed to be “part of the game.”

[Id. at 508, 643 A.2d 600 (emphasis added).]

Since Crawn, the recklessness [***11] standard of care has been applied to other informal sports activities. See, e.g., Obert v. Baratta, 321 N.J. Super. 356, 729 A.2d 50 (App.Div.1999) (applying recklessness standard when softball player sued teammate for injuries sustained as a result of teammate’s pursuit of fly ball during informal intra-office game); Calhanas v. South Amboy Roller Rink, 292 N.J. Super. 513, 679 A.2d 185 (App.Div.1996) (applying recklessness standard where roller skater suffered broken leg from collision with another skater). In Schick v. Ferolito, 167 N.J. 7, 767 A.2d 962 (2001), where a golfer was struck by an errant tee-shot, the Court expanded the Crawn holding to “all recreational sports,” whether perceived as “contact” or “noncontact” activities. Id. at 18, 767 A.2d 962. The Court observed that:

The applicability of the heightened standard of care for causes of action for personal injuries occurring in recreational sports should not depend on which sport is involved and whether it is commonly perceived as a “contact” or “noncontact” sport. The recklessness or intentional conduct standard of care articulated in Crawn was [***12] not meant to be applied in a crabbed fashion. That standard represented the enunciation of a more modern approach to our common law in actions for personal injuries that generally occur during recreational sporting activities.

[Id. at 18-19, 767 A.2d 962]

[HN5] Skydiving is a popular, “risk-laden” recreational sport. Crawn, supra, 136 N.J. at 508, 643 A.2d 600. Therefore, there is no basis in fact or law to conclude that the recklessness standard under Crawn is inapplicable. Moreover, Crawn’s policy underpinnings clearly apply. As in recreational softball games or golf, it would hardly promote “vigorous participation” in the activity if skydivers were exposed to lawsuits when their mere negligence during descent caused an injury to a co-participant. Further, application of the simple negligence standard may invite a floodgate of [*215] litigation generated by voluntary participation in the activity. Id.136 N.J. at 501, 643 A.2d 600.

Even considering plaintiffs’ proofs most indulgently, we conclude that plaintiffs fail to meet the recklessness standard. [HN6] Reckless behavior entails highly unreasonable conduct, involving “an extreme departure from ordinary care, in a situation where a high degree of danger [***13] is apparent.” Schick, supra, 167 N.J. at 19, 767 A.2d 962 (citing Prosser & Keeton on Torts § 34, at 214 (5th Ed.1984)). “The standard is objective and may be proven by showing that a defendant ‘proceeded in disregard of a high and excessive degree of danger either known to him [or her] or apparent to a reasonable person in his [or her] position.'” Ibid. “Recklessness, unlike negligence, requires a conscious choice of a course of action, with knowledge or a reason to know that it will create serious danger to others.” Schick, supra, 167 N.J. at 20, 767 A.2d 962.

It is undisputed that Johnson, who jumped first, had the right-of-way during the descent and, according to skydiving standards, plaintiff had a duty to yield if, as plaintiff claims, Johnson altered his course. In addition, plaintiff was never closer than 150 to 175 feet to Johnson during the descent. Plaintiffs fail to demonstrate how, considering such a distance, Johnson “‘proceeded in disregard of a [**132] high and excessive degree of danger'” to plaintiff. Id. 167 N.J. at 19, 767 A.2d 962.

Moreover, unlike the applicable standard of care governing an informal softball game, where expert testimony is not required, [***14] Crawn, supra, 136 N.J. at 508-09, 643 A.2d 600, skydiving requires the training and licensing of participants. According to the record, it involves knowledge and conduct peculiar to the activity, including an understanding of wind direction and velocity, proper diver spacing, control of descent, and avoidance of ground hazards. The trial court correctly determined that because of the complexities and variables involved in applying pertinent skydiving guidelines, expert testimony was necessary to establish what standard of care applied to Johnson, and how he deviated from that [*216] standard. See Butler v. Acme Markets, Inc., 89 N.J. 270, 283, 445 A.2d 1141 (1982) [HN7] (expert testimony is necessary when the subject matter “is so esoteric that jurors . . . cannot form a valid judgment as to whether the conduct of the party was reasonable”); see also Giantonnio v. Taccard, 291 N.J. Super. 31, 43-44, 676 A.2d 1110 (App.Div.1996) (holding that expert testimony was required to establish the standard of care in the safe conduct of a funeral procession). Plaintiffs presented no such expert testimony, despite the opportunity to do so. In the circumstances, summary judgment was properly granted in [***15] favor of Johnson.

Plaintiffs next argue that the trial court erred in granting summary judgment to Freefall, contending that fact issues exist as to whether Freefall maintained and operated a reasonably safe skydiving facility. Freefall contends that Crawn’s recklessness standard applies.

Plaintiffs submitted certifications stating that Freefall: (1) exercised no control over the “reckless” behavior of skydivers using the facility; (2) permitted the consumption of drugs and alcohol by skydivers; (3) did not conform to applicable skydiving standards of care; and (4) established a drop zone that was not in conformance with industry standards.

We first reject Freefall’s argument that the recklessness standard applies. The Crawn/Schick recklessness standard was imposed in the context of claims arising out of injuries caused by a co-participant in the sports activity. Here, the question is what duty of care is owed by the operator of a facility where the injury occurred. Since Crawn, we have addressed this distinction.

For example, in Underwood v. Atlantic City Racing Ass’n, 295 N.J. Super. 335, 685 A.2d 40 (App.Div.1996), certif. denied, [***16] 149 N.J. 140, 693 A.2d 110 (1997), we held that the Crawn standard did not apply where a jockey was injured during a race because plaintiff’s theory was that the accident occurred as a result of the [*217] negligent installation of lighting by the racetrack, a condition that was not “inherent in sports and . . . not assumed to be ‘part of the game.'” Id. at 343, 685 A.2d 40 (quoting Crawn, supra, 136 N.J. at 508, 643 A.2d 600).

Similarly, in Rosania v. Carmona, 308 N.J. Super. 365, 367, 706 A.2d 191 (App.Div.), certif. denied, 154 N.J. 609, 713 A.2d 500 (1998), we concluded that the recklessness standard did not apply where a karate (dojo) student was injured by an instructor, holding that:

in this commercial setting, the jury should have been charged that defendants owed a duty to patrons of the dojo not to increase the risks inherent in the sport of karate under the rules a reasonable student would have expected to be in effect at that dojo . . . . the jury [**133] should have been charged that the correct scope of duty owed by the expert instructor and the academy was one of due care . . . .

[Id. at 368, 706 A.2d 191 (emphasis added).]

Thus, the [***17] question for the jury was whether the risks inherent in the karate match between plaintiff and his instructor “were materially increased beyond those reasonably anticipated,” applying “the ordinary duty owed to business invitees. . . .” Id. at 374, 706 A.2d 191.

Finally, in Schneider v. Am. Hockey & Ice Skating Ctr., Inc., 342 N.J. Super. 527, 777 A.2d 380 (App.Div.), certif. denied, 170 N.J. 387, 788 A.2d 722 (2001), we held that the owner of a sports facility owed a “limited” duty to protect spectators from flying hockey pucks by providing secure seats for those spectators who request them, and also to screen any seats “that pose an unduly high risk of injury. . . .” Id. 342 N.J. Super. at 534, 777 A.2d 380. We concluded that imposition of this limited duty was “indirectly” supported by Crawn’s observation that [HN8] “‘the risk of injury is a common and inherent aspect of informal sports activity'” and “‘participants . . . assume the ordinary risks of those activities.'” Id. at 535, 777 A.2d 380 (quoting Crawn, supra, 136 N.J. at 500-01, 643 A.2d 600). We added:

[HN9] Although the operator of a sports facility is subject to a standard of care based on negligence rather than the recklessness [***18] standard applicable to participants in recreational sporting activities, McLaughlin [v. Rova Farms, Inc.], supra, 56 N.J. [288] at 303-04, 266 A.2d 284, it is appropriate in defining a sports facility [*218] operator’s duty of care to consider that any spectators choose to “assume the ordinary risks” of being struck by a flying ball or puck in order to obtain an unobstructed view of the playing field and that these are “common and inherent” risks of attending a baseball or hockey game. Crawn, supra, 136 N.J. at 500-01, 643 A.2d 600.

[Schneider, supra, 342 N.J. Super. at 535, 777 A.2d 380 (emphasis added).]

Consequently, the question here was whether, under the ordinary duty owed to business invitees, considering the nature of the risks associated with skydiving and the foreseeability of injury, Kuzmicz v. Ivy Hill Park Apartments, Inc., 147 N.J. 510, 515, 688 A.2d 1018 (1997), plaintiff’s risk of injury was materially increased beyond those reasonably anticipated by skydiving participants as a result of the manner by which Freefall operated its facility. Rosania, supra, 308 N.J. Super. at 374, 706 A.2d 191. Plaintiffs failed to demonstrate such a material increase [***19] in risk.

There was absolutely no evidence presented that Freefall failed to supervise the divers on the day of plaintiff’s accident. The record established that the loading of the aircraft, its operation, and the jumps themselves, were uneventful. Nothing suggests that Freefall personnel knew or should have known that plaintiff, or any other diver, was in peril because of the conduct of other participants. Moreover, Freefall had no way of controlling plaintiff’s, Johnson’s, or any other jumper’s maneuvering of their parachute canopies during the descent. Both plaintiff and Johnson were trained and licensed skydivers. It is undisputed that [HN10] once airborne, it was their duty alone to proceed with due care.

Further, no competent proof of drug abuse was presented; plaintiff conceded that he knew of no incident of drug use on the day in question. Also, John Eddowes, owner of Freefall, testified that his facility adhered to the industry’s “eight hour rule,” prohibiting consumption of alcohol within eight hours of a jump. Johnson [**134] testified that he complied with this rule, and there was no other evidence presented that Freefall personnel knew or should have known that Johnson or other jumpers [***20] had not complied with it. Although plaintiff stated that he smelled alcohol while on the aircraft, he was unable to say from whom the odor emanated. [*219] Moreover, there was no showing of how, even if alcohol had been consumed, that fact contributed to plaintiff’s accident. Tellingly, plaintiff opted to jump notwithstanding his alleged awareness of alcohol consumption.

Finally, plaintiffs claimed that Freefall’s drop zone was not in accordance with regulatory minimum size requirements. But no evidence, expert or otherwise, was presented to establish: (1) how, and to what degree, Freefall’s drop zone was not in compliance with industry standards; and (2) if the drop zone was substandard, how this deficiency was a proximate cause of plaintiff’s injury. Indeed, it is undisputed that Freefall’s facility was licensed and inspected by the Department of Transportation, and the facility was never cited for the size or condition of the drop zone. We conclude that summary judgment was properly granted in Freefall’s favor.

III

In its separate appeal, Freefall argues that the trial court erred in dismissing its counterclaim demanding counsel fees due it under the release/waiver signed by plaintiff. [***21] Alternatively, Freefall claims that counsel fees should have been awarded to it pursuant to the Frivolous Claims Statute, N.J.S.A. 2A:15-59.1, and the court rule governing frivolous actions. R. 1:4-8.

As noted, prior to his jump plaintiff signed an agreement releasing Freefall from any liability in the event plaintiff is injured, even if the injury was a result of Freefall’s own negligence. Moreover, the agreement had a fee-shifting provision, requiring plaintiff to pay Freefall’s counsel fees in the event plaintiff instituted suit seeking damages. The trial court found it unnecessary to address the enforceability of the release/waiver agreement, since, as it observed during Freefall’s motion for reconsideration, the sole “issue was whether or not [plaintiffs’] claim was frivolous.” In concluding that Freefall failed to make a viable claim under the Frivolous Claims Statute, the court underscored [*220] New Jersey’s public policy “to afford litigants an opportunity to have access to the courts.”

[HN11] In New Jersey, disclaimers or limitations of liability are not favored. Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 373, 161 A.2d 69 (1960). [***22] Nevertheless, courts in other jurisdictions have upheld exculpatory contracts signed by participants in skydiving or parachuting. See e.g., Allan v. Snow Summit, Inc., 51 Cal.App.4th 1358, 59 Cal. Rptr.2d 813 (Cal.App.1996); Paralift, Inc. v. Superior Court, 23 Cal.App.4th 748, 29 Cal. Rptr.2d 177 (Cal.App.1993); Hulsey v. Elsinore Parachute Ctr., 168 Cal. App. 3d 333, 214 Cal. Rptr. 194 (Cal.App.1985); Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781 (Colo.1989); Jones v. Dressel, 623 P.2d 370 (Colo.1981). Other cases hold that such releases are void as to a claim of gross negligence or willful or wanton conduct. See e.g., In re Pacific Adventures, Inc., 27 F. Supp. 2d 1223 (D.Haw.1998); Wheelock v. Sport Kites, Inc., 839 F. Supp. 730 (D.Haw.1993); Falkner v. Hinckley Parachute Ctr., Inc., 178 Ill. App. 3d 597, 533 N.E.2d 941, 127 Ill. Dec. 859 (1989).

Although New Jersey courts have not addressed release/waiver agreements in the context of skydiving, we have considered the effect of such agreements in other sporting activities. For example, we have observed [***23] that a release from liability for injuries arising from ski injuries in an application to become a member of a condominium [**135] association, may be void as against public policy because of its adhesive nature, and further because the release cannot relieve the owner of the ski resort from its statutory duty of care under N.J.S.A. 5:13-3a. Brough v. Hidden Valley, Inc., 312 N.J. Super. 139, 155, 711 A.2d 382 (App.Div.1998). But see McBride v. Minstar Inc., 283 N.J. Super. 471, 486, 662 A.2d 592 (LawDiv.1994), aff’d 283 N.J. Super. 422, 662 A.2d 567 (App.Div.) , certif. denied, 143 N.J. 319, 670 A.2d 1061 (1995) (upholding an exculpatory clause as part of an agreement to purchase ski equipment, because, in part, the release does not undermine a statutory duty of care or contravene public policy).

[*221] In McCarthy v. Nat. Ass’n for Stock Car Auto Racing, Inc., 87 N.J. Super. 442, 449-50, 209 A.2d 668 (LawDiv.1965), aff’d, 90 N.J. Super. 574, 218 A.2d 871 (App.Div.) , certif. granted, 47 N.J. 421, 221 A.2d 221 (1966), aff’d, 48 N.J. 539, 226 A.2d 713 (1967), the Law Division determined that [***24] a release in NASCAR’s favor was void because NASCAR’s obligation to inspect plaintiff’s vehicle was a “positive duty” imposed by New Jersey’s statutory law. See also Chemical Bank of New Jersey Nat. Ass’n v. Bailey, 296 N.J. Super. 515, 527, 687 A.2d 316 (App.Div.), certif. denied, 150 N.J. 28, 695 A.2d 671 (1997) (holding that while an exculpatory clause in a private contract may limit liability, courts will not enforce such a clause “if the party benefitting from exculpation is subject to a positive duty imposed by law or . . . if exculpation of the party would adversely affect the public interest”).

In this case, we need not decide whether, under the agreement signed by plaintiff, he waived his right to sue Freefall, since we have affirmed the summary judgment dismissing plaintiffs’ suit on substantive grounds. However, we must determine whether the contractual fee-shifting provision under the agreement is enforceable.

[HN12] “New Jersey has a strong policy disfavoring shifting of attorneys’ fees.” North Bergen Rex Transp., Inc. v. Trailer Leasing Co., 158 N.J. 561, 569, 730 A.2d 843 (1999). We adhere to the “American rule” that “‘the prevailing [***25] litigant is ordinarily not entitled to collect a reasonable attorneys’ fee from the loser.'” Rendine v. Pantzer, 141 N.J. 292, 322, 661 A.2d 1202 (1995) (quoting Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247, 95 S.Ct. 1612, 1616, 44 L. Ed. 2d 141, 147 (1975)). Thus, our Supreme Court’s basic approach has been “‘that sound judicial administration is best advanced if litigants bear their own counsel fees.'” Satellite Gateway Communications, Inc. v. Musi Dining Car Co., Inc., 110 N.J. 280, 285, 540 A.2d 1267 (1988) (quoting State of New Jersey, Dep’t of Envtl. Prot. v. Ventron Corp., 94 N.J. 473, 504, 468 A.2d 150 (1983)).

[*222] Nevertheless, New Jersey law permits parties to a contract to shift liability for attorneys’ fees. See Cohen v. Fair Lawn Dairies, Inc., 86 N.J. Super. 206, 214-16, 206 A.2d 585 (App.Div.), certif. granted, 44 N.J. 412, 209 A.2d 145 aff’d, 44 N.J. 450, 210 A.2d 73 (1965). “However, even where attorney-fee shifting is controlled by contractual provisions, courts will strictly construe that provision in light of the general policy disfavoring the award of attorneys’ [***26] fees.” North Bergen Rex Transp., Inc., supra, 158 N.J. at 570, 730 A.2d 843. Notably, New Jersey cases which uphold enforcement of such fee-shifting provisions generally involve breach of agreements entered into in the commercial setting, such as leases, sale of goods, construction contracts and promissory notes. See Hatch v. T & L Assocs., 319 N.J. Super. 644, 648, 726 A.2d 308 (App.Div.1999) (promissory note); [**136] McGuire v. City of Jersey City, 125 N.J. 310, 327, 593 A.2d 309 (1991) (lease); Glenfed Fin. Corp. v. Penick Corp., 276 N.J. Super. 163, 182-83, 647 A.2d 852 (App.Div.1994) (loan agreement), certif. denied, 139 N.J. 442, 655 A.2d 444 (1995); Specialized Med. Sys., Inc. v. Lemmerling, 252 N.J. Super. 180, 185-86, 599 A.2d 578 (App.Div.1991) (sale of goods), certif. granted, 127 N.J. 565, 606 A.2d 375, app. dism. 142 N.J. 443, 663 A.2d 1352 (1992). Freefall has cited no New Jersey case holding that a fee-shifting provision as part of a waiver or release given in a sports activity is enforceable.

Essentially, the fee-shifting clause in Freefall’s release/waiver may be construed as an indemnification agreement, [***27] whereby plaintiff has agreed to pay counsel fees incurred by Freefall in defending plaintiffs’ suit, even if the cause of plaintiff’s injuries was Freefall’s own negligence. Such agreements, of course, must also be strictly construed against the indemnitee. Ramos v. Browning Ferris Indus. of So. Jersey, Inc., 103 N.J. 177, 191, 510 A.2d 1152 (1986). Nevertheless, we have held “that [HN13] ‘there is no essential public policy impediment to an indemnitor undertaking to indemnify the indemnitee in respect of the indemnitee’s own negligence.'” Leitao v. Damon G. Douglas Co., 301 N.J. Super. 187, 192, 693 A.2d 1209 (App.Div.), certif. denied, 151 N.J. 466, [*223] 700 A.2d 879 (1997) (quoting Doloughty v. Blanchard Constr. Co., 139 N.J. Super. 110, 116, 352 A.2d 613 (Law Div. 1976)). However, this public policy statement has generally been applied in the context of indemnification clauses under construction contracts. See Leitao, supra, 301 N.J. Super. at 192-93, 693 A.2d 1209, and cases cited therein. That principle is derived “from the judicial recognition that ordinarily the financial responsibility for the risk of injury during the course of a construction [***28] project is shifted in any event by the primary parties to their insurance carriers. . . .” Doloughty, supra, 139 N.J. Super. at 116, 352 A.2d 613.

Against this backdrop, we conclude that the fee-shifting provision in Freefall’s agreement is void as against public policy. It obviously runs counter to our strong policy disfavoring fee shifting of attorneys’ fees. Clearly, it discourages the average recreational participant from seeking the refuge of our courts for fear that he may face the retribution of a substantial legal fee if he does so. [HN14] It is one thing to hold a party to a fee-shifting provision in a contract negotiated in a commercial setting; it is another when an amateur sports participant is asked to agree to such a provision shortly before he engages in the activity. The deterrent effect of enforcing such a fee-shifting agreement offends our strong policy favoring an injured party’s right to seek compensation when it is alleged that the injury was caused by the tortious conduct of another.

Also significant is the fact that both the FAA and New Jersey’s Department of Transportation have recognized that skydiving is a high-risk sport. By regulating the activity, the agencies have [***29] made it a matter of public interest that skydiving facilities be licensed and that agency oversight is necessary to assure that the facilities be operated in a safe and compliant manner. To allow an operator to recoup its counsel fees when, as here, the injured party claims that the operator deviated from those regulations, obviously runs counter to that sound policy. See McCarthy, supra, 87 N.J. Super. at 448-49, 209 A.2d 668 [HN15] (although an immunity [*224] clause may be enforceable if it does not contravene public policy, “[t]he situation becomes entirely different in the eyes of the law when the legislation in question is, as here, [**137] legislation obviously intended for the protection of human life. In such event, public policy does not permit an individual to waive the protection which the statute is designed to afford him”).

We reject Freefall’s argument that the trial court erred in denying its application for counsel fees under the Frivolous Claims Statute, N.J.S.A. 2A:15-59.1, and Rule 1:4-8. We cannot say that plaintiffs’ complaint was filed in bad faith or that plaintiffs knew or should have known that their complaint was without reasonable basis in law or [***30] equity, and could not be supported by a good faith argument under existing law. N.J.S.A. 2A:15-59.1b(1) and 59.1b(2). See also McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546, 548-49, 626 A.2d 425 (1993). In our view, the validity of the release/waiver agreement signed by plaintiff was at least debatable. See McCarthy, supra, 87 N.J. Super. at 446-47, 209 A.2d 668. Furthermore, because the negligence, rather than recklessness, standard applied to Freefall, plaintiffs’ theory based on purported violations of industry standards, though not factually supported, cannot be deemed frivolous. Finally, although we agree with the trial court that ultimately expert testimony was necessary to establish a case against Freefall, that question was at least open to debate when plaintiffs filed their complaint. See Crawn, supra, 136 N.J. at 508-10, 643 A.2d 600 (holding that plaintiff was not required to produce expert testimony to establish tortious conduct of a co-participant in an informal softball game).

Affirmed.

G-YQ06K3L262

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Colorado has a new Epinephrine law allowing most outdoor programs the ability to stock and administer epinephrine without criminal liability

Posted: May 27, 2015 | Author: Recreation Law | Filed under: Colorado, First Aid, Medical | Tags: Colorado, Epinephrine, Good Samaritan, Immunity | Leave a comment

That means recreation camps, colleges and universities, day care facilities, youth sports leagues, amusement parks, restaurants, places of employment, ski areas, and sports arenas can carry epinephrine.

NOTE: The governor signed this measure on 5/14/2015.

HOUSE BILL 15-1232

BY REPRESENTATIVE(S) Ginal and Landgraf, Buckner, Esgar, Fields, Mitsch Bush, Pettersen, Primavera, Rosenthal, Ryden, Salazar, Tyler, Vigil, Williams, Young, Hullinghorst; also SENATOR(S) Todd and Martinez Humenik, Kefalas, Kerr, Newell.

CONCERNING THE EMERGENCY USE OF EPINEPHRINE AUTO–INJECTORS BY AUTHORIZED ENTITIES, AND, IN CONNECTION THEREWITH, MAKING AN APPROPRIATION.

Be it enacted by the General Assembly of the State of Colorado:

SECTION 1. In Colorado Revised Statutes, add article 47 to title 25 as follows:

ARTICLE 47 Use of Epinephrine Injectors by Authorized Entities

25-47-101. Definitions. AS USED IN THIS ARTICLE:

(1) “ADMINISTER“ MEANS TO DIRECTLY APPLY AN EPINEPHRINE AUTO–INJECTOR TO THE BODY OF AN INDIVIDUAL.

(2) “AUTHORIZED ENTITY“ MEANS AN ENTITY OR ORGANIZATION, OTHER THAN A SCHOOL DESCRIBED IN SECTION 22-1-119.5, C.R.S., OR A HOSPITAL LICENSED OR CERTIFIED PURSUANT TO SECTION 25-1.5-103 (1) (a)

(I) (A) OR 25-1.5-103 (1) (a) (II), AT WHICH ALLERGENS CAPABLE OF CAUSING ANAPHYLAXIS MAY BE PRESENT. THE TERM INCLUDES BUT IS NOT LIMITED TO RECREATION CAMPS, COLLEGES AND UNIVERSITIES, DAY CARE FACILITIES, YOUTH SPORTS LEAGUES, AMUSEMENT PARKS, RESTAURANTS, PLACES OF EMPLOYMENT, SKI AREAS, AND SPORTS ARENAS.

(3) “EMERGENCY PUBLIC ACCESS STATION“ OR “EPAS” MEANS A LOCKED, SECURE CONTAINER USED TO STORE EPINEPHRINE AUTO–INJECTORS FOR USE UNDER THE GENERAL OVERSIGHT OF A MEDICAL PROFESSIONAL, WHICH ALLOWS A LAY RESCUER TO CONSULT WITH A MEDICAL PROFESSIONAL IN REAL TIME BY AUDIO, TELEVIDEO, OR OTHER SIMILAR MEANS OF ELECTRONIC COMMUNICATION. UPON AUTHORIZATION OF THE CONSULTING MEDICAL PROFESSIONAL, AN EPAS MAY BE UNLOCKED TO MAKE AN EPINEPHRINE AUTO–INJECTOR AVAILABLE.

(4) “EPINEPHRINE AUTO–INJECTOR“ MEANS A SINGLE–USE DEVICE USED FOR THE AUTOMATIC INJECTION OF A PREMEASURED DOSE OF EPINEPHRINE INTO THE HUMAN BODY.

(5) “HEALTH CARE PRACTITIONER“ MEANS A PERSON AUTHORIZED BY LAW TO PRESCRIBE ANY DRUG OR DEVICE, ACTING WITHIN THE SCOPE OF HIS OR HER AUTHORITY.

(6) “MEDICAL PROFESSIONAL” MEANS A PHYSICIAN OR OTHER PERSON AUTHORIZED BY APPLICABLE LAW TO PRESCRIBE DRUGS IN THIS STATE OR ANOTHER STATE.

(7) “PHARMACIST“ HAS THE MEANING SET FORTH IN SECTION 12-42.5-102 (28), C.R.S.

(8) “PROVIDE“ MEANS TO SUPPLY ONE OR MORE EPINEPHRINE AUTO–INJECTORS TO AN INDIVIDUAL.

25-47-102. Stock supply of epinephrine auto-injectors emergency administration. (1) NOTWITHSTANDING ANY PROVISION OF LAW TO THE CONTRARY:

(a) Prescribing to an authorized entity permitted. A HEALTH

CARE PRACTITIONER MAY DIRECT THE DISTRIBUTION OF EPINEPHRINE AUTO–INJECTORS FROM AN IN–STATE PRESCRIPTION DRUG OUTLET TO AN AUTHORIZED ENTITY FOR USE IN ACCORDANCE WITH THIS ARTICLE, AND HEALTH CARE PRACTITIONERS MAY DISTRIBUTE EPINEPHRINE AUTO–INJECTORS TO AN AUTHORIZED ENTITY; AND

(b) Authorized entities permitted to maintain supply. AN AUTHORIZED ENTITY MAY ACQUIRE AND STOCK A SUPPLY OF EPINEPHRINE AUTO–INJECTORS PURSUANT TO A PRESCRIPTION ISSUED IN ACCORDANCE WITH THIS SECTION.

(2) EPINEPHRINE AUTO–INJECTORS MUST BE STORED:

(a) IN A LOCATION THAT WILL BE READILY ACCESSIBLE IN AN EMERGENCY;

(b) ACCORDING TO THE APPLICABLE INSTRUCTIONS FOR USE; AND

(3) AN AUTHORIZED ENTITY SHALL DESIGNATE EMPLOYEES OR AGENTS WHO HAVE COMPLETED THE TRAINING REQUIRED BY SECTION 25-47-104 TO BE RESPONSIBLE FOR THE STORAGE, MAINTENANCE,CONTROL, AND GENERAL OVERSIGHT OF EPINEPHRINE AUTO–INJECTORS ACQUIRED BY THE AUTHORIZED ENTITY.

25-47-103. Use of epinephrine auto-injectors. (1) AN EMPLOYEE OR AGENT OF AN AUTHORIZED ENTITY OR OTHER INDIVIDUAL WHO HAS COMPLETED THE TRAINING REQUIRED BY SECTION 25-47-104 MAY USE EPINEPHRINE AUTO–INJECTORS PRESCRIBED PURSUANT TO SECTION 25-47-102 TO PROVIDE OR ADMINISTER AN EPINEPHRINE AUTO–INJECTOR TO ANY INDIVIDUAL WHO THE EMPLOYEE, AGENT, OR OTHER INDIVIDUAL BELIEVES IN GOOD FAITH IS EXPERIENCING ANAPHYLAXIS, REGARDLESS OF WHETHER THE INDIVIDUAL HAS A PRESCRIPTION FOR AN EPINEPHRINE AUTO–INJECTOR OR HAS PREVIOUSLY BEEN DIAGNOSED WITH AN ALLERGY, OR TO PROVIDE AN EPINEPHRINE AUTO–INJECTOR TO A FAMILY MEMBER, FRIEND, COLLEAGUE, CAREGIVER, OR PERSON WITH A SIMILAR RELATIONSHIP WITH THE INDIVIDUAL; AND

(2) THE ADMINISTRATION OF AN EPINEPHRINE AUTO–INJECTOR IN ACCORDANCE WITH THIS SECTION IS NEITHER THE PRACTICE OF MEDICINE NOR OF ANY OTHER PROFESSION THAT REQUIRES LICENSURE.

25-47-104. Training. (1) AN EMPLOYEE, AGENT, OR OTHER INDIVIDUAL MUST COMPLETE AN ANAPHYLAXIS TRAINING PROGRAM BEFORE USING AN EPINEPHRINE AUTO–INJECTOR. THE TRAINING MUST BE CONDUCTED BY A NATIONALLY RECOGNIZED ORGANIZATION EXPERIENCED IN TRAINING LAYPERSONS IN EMERGENCY HEALTH TREATMENT OR BY AN INDIVIDUAL OR ENTITY APPROVED BY THE DEPARTMENT OF HEALTH. THE DEPARTMENT OF HEALTH MAY APPROVE SPECIFIC ENTITIES OR INDIVIDUALS TO CONDUCT TRAINING OR MAY APPROVE SPECIFIC CLASSES BY INDIVIDUALS OR ENTITIES. THE TRAINING MAY BE CONDUCTED ON–LINE OR IN–PERSON AND, AT A MINIMUM, MUST COVER:

(a) HOW TO RECOGNIZE THE SIGNS AND SYMPTOMS OF SEVERE ALLERGIC REACTIONS, INCLUDING ANAPHYLAXIS;

(b) THE STANDARDS AND PROCEDURES FOR THE STORAGE AND ADMINISTRATION OF AN EPINEPHRINE AUTO–INJECTOR; AND

(2) THE INDIVIDUAL OR ENTITY THAT CONDUCTS THE ANAPHYLAXIS TRAINING PROGRAM SHALL ISSUE A CERTIFICATE, ON A FORM DEVELOPED OR APPROVED BY THE DEPARTMENT OF HEALTH, TO EACH PERSON WHO SUCCESSFULLY COMPLETES THE ANAPHYLAXIS TRAINING PROGRAM.

25-47-105. Reporting. AN AUTHORIZED ENTITY THAT POSSESSES AND MAKES AVAILABLE EPINEPHRINE AUTO–INJECTORS SHALL SUBMIT TO THE DEPARTMENT OF HEALTH, ON A FORM DEVELOPED BY THE DEPARTMENT OF HEALTH, A REPORT OF EACH INCIDENT ON THE AUTHORIZED ENTITY‘S PREMISES THAT INVOLVES THE ADMINISTRATION OF AN EPINEPHRINE AUTO–INJECTOR PURSUANT TO SECTION 25-47-103. THE DEPARTMENT OF HEALTH SHALL ANNUALLY PUBLISH A REPORT THAT SUMMARIZES AND ANALYZES ALL REPORTS SUBMITTED TO IT UNDER THIS SECTION.

25-47-106. Emergency public access stations – life-saving allergy medication. (1) NOTWITHSTANDING ANY LAW TO THE CONTRARY:

(a) A MEDICAL PROFESSIONAL MAY PRESCRIBE A STOCK SUPPLY OF EPINEPHRINE AUTO–INJECTORS TO ANY AUTHORIZED ENTITY FOR STORAGE IN AN EPAS, AND MAY PLACE A STOCK SUPPLY OF EPINEPHRINE AUTO–INJECTORS IN AN EPAS MAINTAINED BY AN AUTHORIZED ENTITY;

(b) A MEDICAL PROFESSIONAL MAY CONSULT THE USER OF AN EPAS AND MAKE THE EPINEPHRINE AUTO–INJECTORS STORED IN THE EPAS AVAILABLE TO THE USER; AND

(c) ANY PERSON MAY USE AN EPAS TO ADMINISTER OR PROVIDE AN EPINEPHRINE AUTO–INJECTOR TO AN INDIVIDUAL BELIEVED IN GOOD FAITH TO BE EXPERIENCING ANAPHYLAXIS OR TO PROVIDE AN EPINEPHRINE AUTO–INJECTOR TO A FAMILY MEMBER, FRIEND, COLLEAGUE, CAREGIVER, OR PERSON WITH A SIMILAR RELATIONSHIP WITH THE INDIVIDUAL.

(2) THE USE OF AN EPAS IN ACCORDANCE WITH THIS ARTICLE IS NEITHER THE PRACTICE OF MEDICINE NOR OF ANY OTHER PROFESSION THAT REQUIRES LICENSURE.

25-47-107. Good samaritan protections – liability. (1) THE FOLLOWING INDIVIDUALS AND ENTITIES ARE IMMUNE FROM CRIMINAL LIABILITY AND FROM SUIT IN ANY CIVIL ACTION BROUGHT BY ANY PERSON FOR INJURIES OR RELATED DAMAGES THAT RESULT FROM AN ACT OR OMISSION TAKEN PURSUANT TO THIS ARTICLE:

(a) AN AUTHORIZED ENTITY THAT POSSESSES AND MAKES AVAILABLE EPINEPHRINE AUTO–INJECTORS OR AN EPAS AND THE ENTITY‘S EMPLOYEES, AGENTS, AND OTHER INDIVIDUALS;

(b) AN AUTHORIZED ENTITY THAT DOES NOT POSSESS OR MAKE AVAILABLE EPINEPHRINE AUTO–INJECTORS OR AN EPAS AND THE ENTITY‘S EMPLOYEES, AGENTS, AND OTHER INDIVIDUALS;

(d) AN INDIVIDUAL WHO PRESCRIBES OR DISPENSES AN EPINEPHRINE AUTO–INJECTOR;

(e) AN INDIVIDUAL WHO ADMINISTERS OR PROVIDES AN EPINEPHRINE AUTO–INJECTOR;

(f) A MEDICAL PROFESSIONAL WHO CONSULTS THE USER OF AN EPAS AND MAKES THE EPINEPHRINE AUTO–INJECTORS STORED IN THE EPAS AVAILABLE TO THE USER; OR

(g) AN INDIVIDUAL WHO USES AN EPAS.

(2) IMMUNITY UNDER SUBSECTION (1) OF THIS SECTION DOES NOT APPLY TO ACTS OR OMISSIONS THAT ARE GROSSLY NEGLIGENT OR WILLFUL AND WANTON.

(3) THIS SECTION DOES NOT ELIMINATE, LIMIT, OR REDUCE ANY OTHER IMMUNITY OR DEFENSE THAT MAY BE AVAILABLE UNDER STATE LAW, INCLUDING THE PROTECTIONS SET FORTH IN SECTION 13-21-108, C.R.S. PROVIDING OR ADMINISTERING AN EPINEPHRINE AUTO–INJECTOR BY AN ENTITY OR INDIVIDUAL IS DEEMED EMERGENCY CARE OR EMERGENCY ASSISTANCE FOR PURPOSES OF SECTION 13-21-108, C.R.S.

(4) AN AUTHORIZED ENTITY LOCATED IN THIS STATE THAT PROVIDES OR ADMINISTERS AN EPINEPHRINE AUTO–INJECTOR OUTSIDE OF THIS STATE IS NOT LIABLE FOR ANY RESULTING INJURIES OR RELATED DAMAGES IF THE AUTHORIZED ENTITY:

(a) WOULD NOT BE LIABLE FOR THE INJURIES OR RELATED DAMAGES IF THE EPINEPHRINE AUTO–INJECTOR HAD BEEN PROVIDED OR ADMINISTERED IN THIS STATE; OR

(b) IS NOT LIABLE FOR INJURIES OR RELATED DAMAGES UNDER THE LAW OF THE STATE WHERE THE AUTHORIZED ENTITY PROVIDED OR ADMINISTERED THE EPINEPHRINE AUTO–INJECTOR.

25-47-108. Health care professionals – hospitals – obligations under state and federal law. NOTHING IN THIS ARTICLE LIMITS THE OBLIGATIONS OF A HEALTH CARE PROFESSIONAL OR HOSPITAL UNDER STATE OR FEDERAL LAW IN PRESCRIBING, STORING, OR ADMINISTERING DRUGS OR DEVICES.

SECTION 2. In Colorado Revised Statutes, 12-36-117, amend

(1.8) as follows:

12-36-117. Unprofessional conduct. (1.8) A licensee shall IS not be subject to disciplinary action by the board for issuing standing orders and protocols regarding the use of epinephrine auto-injectors in a public or nonpublic school in accordance with the requirements of section 22-1-119.5, C.R.S., or for the actions taken by a school nurse or by any designated school personnel who administer epinephrine auto-injectors in accordance with the requirements of section 22-1-119.5, C.R.S., OR FOR PRESCRIBING EPINEPHRINE AUTO–INJECTORS IN ACCORDANCE WITH THE REQUIREMENTS OF ARTICLE 47 OF TITLE 25, C.R.S.

SECTION 3. In Colorado Revised Statutes, 12-38-125, add (1) (o) as follows:

12-38-125. Exclusions. (1) No provision of this article shall be construed to prohibit:

(o) A PRESCRIPTION BY AN ADVANCED PRACTICE NURSE WITH PRESCRIPTIVE AUTHORITY FOR THE USE OF EPINEPHRINE AUTO–INJECTORS BY AN AUTHORIZED ENTITY IN ACCORDANCE WITH ARTICLE 47 OF TITLE 25,

C.R.S.

SECTION 4. In Colorado Revised Statutes, 12-42.5-102, amend

(42) (b) (XV) as follows:

12-42.5-102. Definitions. As used in this article, unless the context otherwise requires or the term is otherwise defined in another part of this article:

(42) (b) “Wholesale distribution” does not include:

(XV) The distribution, donation, or sale by a manufacturer or wholesaler of a stock supply of epinephrine auto-injectors to public schools or nonpublic schools for emergency use by designated school personnel in accordance with the requirements of section 22-1-119.5, C.R.S., OR TO OTHER ENTITIES FOR EMERGENCY USE IN ACCORDANCE WITH THE REQUIREMENTS OF ARTICLE 47 OF TITLE 25, C.R.S.

SECTION 5. Appropriation. For the 2015-16 state fiscal year, $23,736 is appropriated to the department of public health and environment for use by the disease control and environmental epidemiology division.

This appropriation is from the general fund and is based on an assumption that the division will require an additional 0.4 FTE. To implement this act, the division may use this appropriation for costs to implement this act.

SECTION 6. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.

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Monaco v. Vacation Camp Resorts International, Inc., 86 Mass. App. Ct. 1125; 21 N.E.3d 187; 2014 Mass. App. Unpub. LEXIS 1272

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

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

Duty of care for a Massachusetts campground is to warn of dangerous conditions.

Posted: May 18, 2015 | Author: Recreation Law | Filed under: Assumption of the Risk, Camping, Massachusetts | Tags: Camper, Campground, Commercial Campground, Inc., Land Owner, Landowner, Pathway, Restroom, Shower, Vacation Camp Resorts International, Yogi Bear's Jellystone Park Campground | Leave a comment

Plaintiff assumes the risk of his injury at a commercial campground if there is not dangerous condition and/or he knows about the condition because he walks the trail during the day.

State: Massachusetts, Appeals Court of Massachusetts

Plaintiff: Anthony Monaco

Defendant: Vacation Camp Resorts International, Inc.’s (VCRI’s) Yogi Bear’s Jellystone Park Campground

Plaintiff Claims: negligent in failing to light the “pathway”3 and maintain it in a safe condition, to warn against its use, or to construct a graded path in its place

Defendant Defenses: Assumption of the Risk

Holding: for the defendant

Year: 2014

This case involves a commercial campground. The plaintiff was walking up to the restroom at night and fell on the path. He sued for his injuries. The plaintiff sued the campground and others who were never clearly identified in the appellate decision.

The lower court stated the plaintiff assumed the risk based upon the defendant’s motion for summary judgment, and the plaintiff appealed.

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

The court first reviewed the requirements for a negligence suit to succeed under Massachusetts law and condensed the four steps to one sentence. “To succeed in an action for negligence, the plaintiff must establish duty, breach, causation, and damages.” The duty of care is only owed to those who are foreseeably endangered by the contact with the defendant.

Not every risk that might be foreseen gives rise to a duty to avoid a course of conduct; a duty arises because the likelihood and magnitude of the risk perceived is such that the conduct is unreasonably dangerous.

The duty of a land owner in Massachusetts is that of reasonable care “under all the circumstances in the maintenance and operation of their property.”

Although landowners should anticipate and take measures to avoid the risks that their property poses to invitees, they are not obligated to “consistently and constantly” check for dangerous conditions. The law does not impose a duty on landowners to exercise precautions, unless the dangers are “readily observable” by landowners and imperceptible to invitees. That is, an open and obvious danger negates the existence of a duty of care.

The fact that the plaintiff was injured does not create a legal obligation or duty on the part of the defendant. Evidence is needed to support the lack of care or proof the landowner k of the dangerous condition.

…evidence, other than “the obviousness of the steep slope,” that the pathway posed an apparent danger. To support his claim, the plaintiff submitted expert testimony that the pathway was “rutted,” “uneven,” and “unlit,” and did not comport with International Building Code standards.

The plaintiff had descended the hill earlier and had not seen a dangerous condition. In fact, the plaintiff had been using the campground for eighteen years and had used the path three times the day he fell.

Nor had a dangerous condition on the hillside been identified or spotted during the camps annual inspection.

Both parties had ample opportunities to observe the campground, yet neither noticed any unreasonable dangers. The only risk associated with the pathway was the open and obvious nature of its slope and uneven terrain, which did not impose any duty on the defendants to light or otherwise improve the path.

The court held the defendants owed not duty to protect the plaintiff from the conditions on the pathway.

So Now What?

The requirement that a landowner is not obligated to consistently and constantly check for dangerous conditions is not found in all states. In most states if the dangerous condition exists, the landowner must fix it or warn of it.

The obligations or duties owed to people on your land are usually based upon the reasons why the injured person was originally upon your land. In Massachusetts that issue is not discussed.

Here the obligation was to warn or correct dangerous conditions. It did not matter why the person was on the land.

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Kindrich III et al., v. Long Beach Yacht Club et al., 167 Cal. App. 4th 1252; 84 Cal. Rptr. 3d 824; 2008 Cal. App. LEXIS 1705

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

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Vacation Camp Resorts International, Inc., Yogi Bear’s Jellystone Park Campground, Camper, Campground, Landowner, Land Owner, Pathway, Restroom, Shower, Commercial Campground,

Monaco v. Vacation Camp Resorts International, Inc., 86 Mass. App. Ct. 1125; 21 N.E.3d 187; 2014 Mass. App. Unpub. LEXIS 1272

Posted: May 17, 2015 | Author: Recreation Law | Filed under: Assumption of the Risk, Camping, Legal Case, Massachusetts | Tags: Camper, Campground, Commercial Campground, Inc., Land Owner, Landowner, Pathway, Restroom, Shower, Vacation Camp Resorts International, Yogi Bear's Jellystone Park Campground | Leave a comment

Monaco v. Vacation Camp Resorts International, Inc., 86 Mass. App. Ct. 1125; 21 N.E.3d 187; 2014 Mass. App. Unpub. LEXIS 1272

Anthony Monaco vs. Vacation Camp Resorts International, Inc., & another.¹

1 Jayne Cohen.

14-P-141

APPEALS COURT OF MASSACHUSETTS

86 Mass. App. Ct. 1125; 21 N.E.3d 187; 2014 Mass. App. Unpub. LEXIS 1272

December 18, 2014, Entered

NOTICE: DECISIONS ISSUED BY THE APPEALS COURT PURSUANT TO ITS RULE 1:28 ARE PRIMARILY ADDRESSED TO THE PARTIES AND, THEREFORE, MAY NOT FULLY ADDRESS THE FACTS OF THE CASE OR THE PANEL’S DECISIONAL RATIONALE. MOREOVER, RULE 1:28 DECISIONS ARE NOT CIRCULATED TO THE ENTIRE COURT AND, THEREFORE, REPRESENT ONLY THE VIEWS OF THE PANEL THAT DECIDED THE CASE. A SUMMARY DECISION PURSUANT TO RULE 1:28, ISSUED AFTER FEBRUARY 25, 2008, MAY BE CITED FOR ITS PERSUASIVE VALUE BUT, BECAUSE OF THE LIMITATIONS NOTED ABOVE, NOT AS BINDING PRECEDENT.

PUBLISHED IN TABLE FORMAT IN THE MASSACHUSETTS APPEALS COURT REPORTS.

PUBLISHED IN TABLE FORMAT IN THE NORTH EASTERN REPORTER.

DISPOSITION: [*1] Judgment affirmed.

CORE TERMS: pathway, campground, landowners, summary judgment, favorable, allowance, obvious danger, duty of care, citation omitted, unreasonably dangerous, obstructions, deposition, anticipate, precautions, unexpected, invitees, uneven, slope, fault, owe, shower, paved, path, owed

JUDGES: Cypher, Fecteau & Massing, JJ.

OPINION

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Anthony Monaco seeks to recover for serious injuries he sustained when he fell down a grassy hill that campers used to reach a shower building located on Vacation Camp Resorts International, Inc.’s (VCRI’s) Yogi Bear’s Jellystone Park Campground in New Hampton, New Hampshire. The plaintiff alleges that VCRI and Jayne Cohen² were negligent in failing to light the “pathway”³ and maintain it in a safe condition, to warn against its use, or to construct a graded path in its place. A Superior Court judge allowed the defendants’ motion for summary judgment, reasoning that traversing the shortcut in lieu of existing paved pathways, and in darkness, is an “obvious baseline danger,” and that the defendants therefore owed no duty. We affirm.

2 Cohen served as president of Vacation Camp Resorts International, Inc., during the time of the incident in question.

3 Construing the record in the light most favorable to the plaintiff, and noting that the shower building was marked with a “restroom” sign visible from the paved road above, we accept the plaintiff’s characterization [*2] of the route between the road and the building as a pathway.

In reviewing the trial court judge’s allowance of a motion for summary judgment, we consider the evidence submitted with the motion, which may include “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits.” Highlands Ins. Co. v. Aerovox, Inc., 424 Mass. 226, 232, 676 N.E.2d 801 (1997) (citation omitted). See Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). We construe inferences drawn from the record in the light most favorable to the nonmoving party, and review de novo the trial court judge’s application of the law to the facts. LeBlanc v. Logan Hilton Joint Venture, 463 Mass. 316, 318, 974 N.E.2d 34 (2012). Allowance of the motion will survive appellate review so long as there is “no genuine issue” of “material fact” and “the moving party is entitled to a judgment as a matter of law.” Id. at 325-326. Mass.R.Civ.P. 56(c).

To succeed in an action for negligence, the plaintiff must establish duty, breach, causation, and damages. Ronayne v. State, 137 N.H. 281, 284, 632 A.2d 1210 (1993).⁴ “[P]ersons owe a duty of care ‘only to those who they foreseeably endanger by their conduct.'” Manchenton v. Auto Leasing Corp., 135 N.H. 298, 304, 605 A.2d 208 (1992) [*3] (citation omitted). “Not every risk that might be foreseen gives rise to a duty to avoid a course of conduct; a duty arises because the likelihood and magnitude of the risk perceived is such that the conduct is unreasonably dangerous.” Id. at 305.

4 The trial court judge determined that New Hampshire’s substantive law governed this action. The parties do not dispute that the choice of New Hampshire law is appropriate under the circumstances of this case.

“[O]wners and occupiers of land owe plaintiffs a duty of reasonable care under all the circumstances in the maintenance and operation of their property.” Werne v. Exec. Women’s Golf Assn., 158 N.H. 373, 376, 969 A.2d 346 (2009). Although landowners should anticipate and take measures to avoid the risks that their property poses to invitees, they are not obligated to “consistently and constantly” check for dangerous conditions. See Pesaturo v. Kinne, 161 N.H. 550, 555, 20 A.3d 284 (2011). The law does not impose a duty on landowners to exercise precautions, unless the dangers are “readily observable” by landowners and imperceptible to invitees. Ibid. Lawrence v. Hollerich, 394 N.W.2d 853, 855 (Minn. App. Ct. 1986). That is, an open and obvious danger negates the [*4] existence of a duty of care. Allen v. Dover Co-Recreational Softball League, 148 N.H. 407, 422, 807 A.2d 1274 (2002).

The mere fact that the plaintiff was injured does not trigger a legal duty on the defendants. He must produce some evidence, other than “the obviousness of the steep slope,” that the pathway posed an apparent danger. Lawrence, 394 N.W.2d at 856. To support his claim, the plaintiff submitted expert testimony that the pathway was “rutted,” “uneven,” and “unlit,” and did not comport with International Building Code standards. However, other evidence revealed that the condition of the pathway, as it appeared to both parties, posed no greater risk than walkways maintained by landowners in their ordinary exercise of care. Cf. Paquette v. Joyce, 117 N.H. 832, 835, 379 A.2d 207 (1977). Monaco testified at his deposition that he was not aware of any treacherous condition as he was descending the hill, and Cohen never observed any “unexpected,” unreasonably dangerous condition, Ahern v. Amoskeag Mfg. Co., 75 N.H. 99, 101, 102, 71 A. 213 (1908), during her annual visual inspections of the campground. Thus, Monaco’s inattention to obvious dangers on the pathway was the only risk presented, which did not impose on the [*5] defendants a duty to exercise precautions. Contrast Hacking v. Belmont, 143 N.H. 546, 553, 736 A.2d 1229 (1999) (defendant liable for “unreasonably increased or concealed” risks not inherent in the game of basketball).

Moreover, “[t]here is nothing unfamiliar about the inability to perceive in the dark obstructions to the course of one who walks without light.” Ahern, supra at 101. That is, “[i]f there may be obstructions whose presence cannot be ascertained by the eye, due care requires the use of some other sense to detect them.” Ibid. When the evidence is “uncontradicted” that the plaintiff was familiar with the area where the accident occurred and that the injury occurred because of an “unexpected” condition, the defendant is not at fault for failing to anticipate it. Ibid. Unless the defendant had superior knowledge of the danger, “[i]t cannot reasonably be found that of two persons of equal knowledge and of equal ability to appreciate and understand a danger, one is in fault for not apprehending the danger and the other is not.” Id. at 102.

In this case, Monaco’s knowledge and appreciation of the condition of the pathway was equal to the defendants’. Monaco had camped on the campground once per [*6] year for eighteen years and had used the pathway three times without incident on the day of his fall. Likewise, VCRI had been operating the campground for over two decades, and Cohen was VCRI’s president for approximately six years. Both parties had ample opportunities to observe the campground, yet neither noticed any unreasonable dangers. The only risk associated with the pathway was the open and obvious nature of its slope and uneven terrain, which did not impose any duty on the defendants to light or otherwise improve the path.

Conclusion. Drawing all inferences from the record in the light most favorable to the plaintiff, we conclude that the defendants owed no duty to protect him against the injury-causing condition of the pathway. The allowance of the defendants’ motion for summary judgment was proper.

Judgment affirmed.

By the Court (Cypher, Fecteau & Massing, JJ.⁵),

5 The panelists are listed in order of seniority.

Entered: December 18, 2014.

Assumption of the Risk to be a bar to a claim the defendant must not owe a duty to the plaintiff that means the plaintiff must be involved in recreation or a sport.

Posted: May 11, 2015 | Author: Recreation Law | Filed under: Assumption of the Risk, California | Tags: assumption of the risk, Boating, duty, Primary Assumption of the Risk, Secondary Assumption of the Risk, Yacht Club | Leave a comment

The old idea of you knew what you were doing could result in an injury, and you did it anyway does not necessarily prevent lawsuits now days.

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

Plaintiff: Carl Kindrich, III, Barbara Kindrich, and Michael Kindrich

Defendant: Long Beach Yacht Club and Charles Fuller, skipper

Plaintiff Claims: negligent in their use and maintenance of both the boat and the dock, Barbara claimed loss of consortium, and Michael claimed emotional distress

Defendant Defenses: Assumption of the Risk

Holding: For the Plaintiff

Year: 2008

The facts in this case are easy, and to regular readers, sort of annoying. The plaintiff’s father died. The deceased had been a member of the defendant yacht club and wanted to be buried at sea. The yacht club loaned a boat and a skipper to the deceased family to take his ashes out to sea.

Boarding the boat, there was a set of stairs that allowed everyone to climb on the boat. Upon returning the stairs were removed. The Defendant/Skipper/Boat Captain asked the plaintiff to jump down to tie the boat up. He did, injuring his knee.

Free boat to carry out his father’s wishes, knowing the risk, and he still sues. The plaintiff sued the Yacht Club and the skipper, both of whom were donated for disposing the ashes of the plaintiff’s father.

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

The defendant yacht club filed a motion to dismiss based on assumption of the risk. The trial court granted the defendant’s motion for summary judgment, and the plaintiff appealed.

The court went through a detailed analysis of assumption of the risk in California. The basis of the analysis was the California Supreme Court decision in Knight v. Jewett, 3 Cal. 4th 296; 834 P.2d 696; 11 Cal. Rptr. 2d 2; 1992 Cal. LEXIS 3969; 92 Cal. Daily Op. Service 7261; 92 Daily Journal DAR 11765; 92 Daily Journal DAR 11870.

The court first started by defining when assumption of the risk is applied as a complete bar and the differences between primary and secondary assumption of the risk.

Assumption of risk that is based upon the absence of a defendant’s duty of care is called “‘primary assumption of risk.’ ” “First, in ‘primary assumption of risk’ cases–where the defendant owes no duty to protect the plaintiff from a particular risk of harm–a plaintiff who has suffered such harm is not entitled to recover from the defendant, whether the plaintiff’s conduct in undertaking the activity was reasonable or unreasonable. Second, in ‘secondary assumption of risk’ cases–involving instances in which the defendant has breached the duty of care owed to the plaintiff–the defendant is not entitled to be entirely relieved of liability for an injury proximately caused by such breach, simply because the plaintiff’s conduct in encountering the risk of such an injury was reasonable rather than unreasonable.”

Primary assumption of the risk is a complete bar to a claim. “Primary assumption of risk, “where plaintiff is held to agree to relieve defendant of an obligation of reasonable conduct toward him”” (Knight v. Jewett, supra, 3 Cal.4th at p. 306), remains as a complete defense.”

The court stated that the decision in Knight changed how the court should view assumption of the risk. “Knight shifted the focus of assumption of risk from a plaintiff’s “subjective knowledge and awareness” of the risk to the nature of the activity in question.”

In cases involving ‘primary assumption of risk’–where, by virtue of the nature of the activity and the parties’ relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury–the doctrine continues to operate as a complete bar to the plaintiff’s recovery.” Knight justified maintaining the defense in a sports setting because there “conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself” and imposing liability “might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging in activity that falls close to, but on the permissible side of, a prescribed rule”

The old definition looked at whether the plaintiff knew about the risk and voluntarily assumed the risk. Now the court looks at what was going on to determine what happened. Even if the plaintiff did not understand the activity or the risks, by engaging in the activity, they may still assume the risks. This in many senses is a broader definition which helps the defendant. However, when the activity is not a sport, it is a very narrow definition.

The court then looked at all the California cases that had determined that the defendant did not owe a duty to the plaintiff; therefore, the assumption of the risk was a complete bar to the plaintiff’s claims. From that it determined that the complete bar applied if the plaintiff was participating in a sport.

After reviewing a substantial number of cases applying primary assumption of risk to a variety of activities, the court concluded that “[c]ompiling all of the distinguishing factors, it appears that an activity falls within the meaning of ‘sport’ if the activity is done for enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury.”

Jumping off a boat is not a sport. It is a common everyday occurrence. As such the activity is not one where the plaintiff assumes the risk because the defendant might owe the plaintiff a duty. The existence of the stairs to begin the boat ride is proof that a duty may be owed. The case was reversed and sent back for further proceedings.

So Now What?

So I’ve posted a lot of cases looking at assumption of the risk. However, you need to make sure you understand that normally, assumption of the risk is not a complete bar to a lawsuit as in this case. For assumption of the risk to bar a plaintiff’s suit, the plaintiff must be involved in an activity or sport.

Here the plaintiff was jumping off a boat. Although the facts make it appear like the suit should be thrown out because when you jump from a boat, it is obvious you can be hurt. The rule states it only applies to how much the trier of fact thinks you were responsible for your injury not whether you assumed the risk as in the past.

Assumption of the risk may still be a complete bar to recovery. It will be dependent upon the state and how the jury sees the facts. However, that must be decided by the trier of fact, and cannot be decided by motions.

By that I mean if the plaintiff does not prove that the defendant was at least or 50 or 51% liable (dependent upon the state) for their injury the plaintiff loses. In some states, the percentage of the plaintiff’s fault only reduces the award to the plaintiff by that percentage the plaintiff is liable, so if the plaintiff is found to be 90% liable the plaintiff only recovers 10% of the damages.

The issue as to how assumption of the risk is to be applied to the facts is based on whether the defendant owed a duty to the plaintiff. In a sport, the defendant does not owe any duty unless the acts of the defendant are reckless or intentional, generally (varies by state). Here, the stairs that were there originally created a duty when they were removed.

The reasoning behind keeping assumption of the risk in some activities as a complete bar is, if the risks are removed from the sport, which the defendant would have to do if they were to protect themselves from suit, the sport would not exist. The risk is part and parcel of the sport. Alternatively, without the risks, the sport would not exist.

The controlling term is “sport”. It does not have to be a team sport or a contact sport, but it has to be more than couch surfing or jumping from a boat.

If you are engaging in the activity for a challenge, a thrill, or enjoyment and requires physical exertion, then assumption of the risk may be a complete bar to a claim by the plaintiff.

You could always put that in your release too………….. J

There is a dissent in this case that reasons that “No good deed goes unpunished” and the actions of the plaintiff fit the definition of assumption of the risk, and the older result should apply in this case.

How would they ever be able to tie the boat up if in this fact situation? If a passenger on the boat cannot jump off the boat to tie the boat up, the captain either has to hand over control of the boat to a passenger (see any problems here) or the boat must wait until someone comes down and brings a set of stairs.

Never thought I would write about a “Yacht Club.”

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Kelly, v. United States of America, 2014 U.S. Dist. LEXIS 135289

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

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Federal Judge holds that North Carolina law supports a release signed by the mother of a minor plaintiff to stop a lawsuit

Posted: May 4, 2015 | Author: Recreation Law | Filed under: Challenge or Ropes Course, North Carolina, Release (pre-injury contract not to sue) | Tags: Cam Lejeune, Marine Corps Base Camp Lejeune, Minor, North Carolina, parent, Quasi-Estoppel, Release, Reserve Officers Training Corp., ROTC, United States District Court for the Eastern District of North Carolina, United States federal judge, Waiver | Leave a comment

Still not a decision by the NC Supreme Court which is controlling on this issue, however a very interesting case and a very staunch support of the idea that a parent can sign away a minor’s right to sue.

State: North Carolina, United States District Court for the Eastern District of North Carolina, Southern Division

Plaintiff: Morgan Kelly, Pamela Kelly, and Terry Kelly

Defendant: United States of America

Plaintiff Claims: negligence

Defendant Defenses: Release

Holding: For the Defendant

Year: 2014

A prior decision in this case was written about in North Carolina may allow a parent to sign away a minor’s right to sue for injuries when the minor is engaged in non-profit activities sponsored by schools, volunteers, or community organizations which reviewed Kelly v. United States of America, 2011 U.S. Dist. LEXIS 89741.

This is a decision by a federal court. Federal courts do not make decisions changing state law. Federal Courts can only apply state law to the facts in front of them. If the law is not settled it may surmise what the law it, however the courts of the state where the federal court sits, in this case North Carolina, are not bound by the law. Other websites have reported that federal courts can change the effect of the law in a state which is not true. That is why the precautionary warning on this decision. The North Carolina Supreme Court can rule on this issue at some future date and say the opposite of what this decision says. So until the issue of whether a parent can sign away a minor’s right to sue is reviewed by a state appellate or Supreme Court in North Carolina, not is set in stone.

A quick review of the facts: the minor plaintiff, age fifteen, was injured during a confidence course (obstacle course?) while attending a ROTC weekend at United States Marine Corps Base Camp Lejeune. The mother of the minor signed a release so the minor could attend the weekend.

There are several new facts which were argued in this phase of the case, and not in the prior decision, which are interesting. Allegedly the release was it was signed, was signed with the parent believing the twin sister was attending the camp. However at the time the release was signed there were no names on the release. The sister did not attend, the plaintiff did and the plaintiff filled in her name on the release. An information packet was sent to all attendee’s high schools which described the confidence course. However neither of the minor’s parents saw the packet.

All aspects of the trip were free for the cadets except they had to pay for their meals at the Camp Lejeune dining facility at a reduced rate and pay for anything the plaintiff purchased at the Post Exchange.

Prior to undertaking the confidence course the minor and other cadets completed two obstacle courses. The actual element the minor was injured on was the “slide for life.” While climbing the slide for life the minor fell suffering injuries.

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

The first issue was whether a parent could sign a release and release the minor’s right to sue. The court found in this decision and in the prior decision a parent could sign away a minor’s right to sue.

The court then reviewed other state law where the court’s had allowed a parent to sign away a minor’s right to sue. The court in reviewing those decisions found them analogous to these facts and applicable to this case.

… the court continues to find that these cases are analogous to the circumstances here, where the facilities and instruction of the NJROTC program were provided at no expense and students were charged only for personal purchases from the Post Exchange and for meals at discount rate.

The court found numerous reasons within those cases why the courts upheld the releases.

… the public is best served when risks or costs of litigation regarding such programs are minimized.

… public interest by respecting the realm of parental authority to weigh the risks and costs of physical injury to their children against the benefits of the child’s participation in an activity.

North Carolina, the law to be applied in this case by the court:

…recognized a public interest in respecting parents’ authority over certain life decisions for their children. North Carolina has recognized a public interest in respecting parents’ authority over certain life decisions for their children.

The court also found that this case was not controlled by a public interest argument. The court also found that there was no recognized North Carolina public interest in voiding the release to protect minors over the wishes of the parents. “First, neither the defendant’s status as a government body, nor the volunteer status of a program’s personnel, are controlling factors in the analysis.”

The concluded this analysis and denied a public interest argument in the Federal Tort Claims Act (FTCA).

In turn, JROTC programs promote the community welfare by instilling the values and benefits noted above in the community’s children. Finally, the mere fact that the United States has waived its sovereign immunity through the FTCA does not mean that it should be denied the use of a waiver that other non-governmental volunteer or non-profit organizations could employ. On the contrary, the FTCA only makes the United States liable “in the same manner and to the same extent as a private individual under like circumstances.”

The FTCA is the statute that describes how and for what reasons the federal government, including the military can be sued.

The court then looked at the actual release to see if it met the law of North Carolina to be valid. The plaintiff argued there was no meeting of the minds, a basic requirement for a contract, which a release is. This is also referred to as a “mutual mistake.” “However, a unilateral mistake, unaccompanied by fraud, imposition, undue influence or like circumstances is insufficient to avoid a contract.”

Because the mistake, if any, was only a unilateral mistake, it was not enough to void the release. Unilateral mistake meaning only one part to the contract knew about the problem or was affected by the problem.

The plaintiff then argued that because the release was signed by the mother for one daughter who did not go but used by the second daughter who did go, the plaintiff, the release was void. The court found that even if the release was void for this reason, because the plaintiff’s took advantage of the opportunity, which could not be accepted without a release, they had ratified and affirmed the release.

North Carolina courts have held that, when a release is originally invalid or voidable, it may be ratified and affirmed by subsequent acts accepting the benefits.

Similarly, under the North Carolina theory of quasi-estoppel, also known as “estoppel by benefit,” a party who “accepts a transaction or instrument and then accepts benefits under it may be estopped to take a later position inconsistent with the prior acceptance of that same transaction or instrument.”

The doctrine is grounded “upon a party’s acquiescence or acceptance of payment or benefits, by virtue of which that party is thereafter prevented from maintaining a position inconsistent with those acts.”

Since the opportunities of the weekend could not be accepted or taken without a signed release, the plaintiff could not after accepting the benefits argue the release was void.

Here, the benefits of the Liability Waiver for plaintiff Pamela Kelly consisted of her daughter’s participation in the NJROTC orientation program, with the attendant benefits of introducing her to the culture, skills, and values that the NJROTC seeks to impart.

By accepting the benefit of her child’s attendance at the orientation session, knowing that a liability waiver was required for attendance, plaintiff Pamela Kelly cannot now disavow the effect of the instrument she signed that allowed her child to attend.

The next issue the plaintiff argued was the release did not identify the risks in the release. “As an alternative ground for denying summary judgment, plaintiffs argue that the Liability Waiver cannot be enforced because the government did not identify the risks that the form covered.”

The plaintiff’s argued they did not know their daughter would be engaging in the risky behavior and activities that caused her injury.

Consequently, they state they anticipated that plaintiff Morgan Kelly would only be visiting Camp Lejeune to observe equipment and other military activities, and that she would only be performing the same activities that she had performed in the past, such as marching in formations, drills, and “ground-based physical fitness training.

The court found this was not required under the law. Here the contract language was clear and the intention of the release for one party to waive the negligence and any accompanying risks of the other party was evident.

The heart of a contract is the intention of the parties,” which “must be determined from the language of the contract, the purposes of the contract, the subject matter and the situation of the parties at the time the contract is executed.” Liability waivers are disfavored under North Carolina law, and strictly construed against the parties seeking to enforce them. However, when the language is clear and unambiguous, construction of the agreement is a matter of law for the court, and the court cannot look beyond the terms of the contract to determine the parties’ intent.

The language was clear and unambiguous in its intent.

The next argument was the plaintiff had disaffirmed the release by filing the complaint. “Plaintiffs also argue that summary judgment should be denied because plaintiff Morgan Kelly has disaffirmed it (by filing complaint) and because the Liability.” They buttressed this argument stating the language in the release referred to the plaintiff not a parent. However the court found the plaintiff’s had not provided any legal authority to support their argument.

Yet plaintiffs have not cited any case holding that a form such as that used here, which expressly waives both the claims of the child and her guardians, and which is signed by one of those guardians, cannot be enforced against the guardian who signed it. The court again holds that the Liability Waiver is enforceable to bar the claims of both Morgan and Pamela Kelly.

The next issue was whether the release, signed by the mother and effective against the claims of the mother and daughter also prohibited claims of the father.

The court reasoned the release could not be used against the father if he did not know of the release. If you do not know of the contract you cannot be held to the contract even under a quasi-estoppel theory argued earlier in the case.

However the plaintiff’s themselves destroyed this argument. The release had both names of the parents written in by hand. The father in his deposition did not definitively state that the handwriting was not his. The plaintiff’s also argued the thought the release was not an original (which is not a valid evidentiary argument). The court then ordered the plaintiff’s had additional time to visually inspect the document and determine if it was the one they signed.

No additional arguments or support for the argument was made that the release was not the original or not signed by the parents. The court, then found that claim was no longer valid because it did not create a genuine issue concerning the release which is necessary to deny a motion for summary judgment.

Plaintiffs had opportunity to review the original Release Form, and to have it assessed by an expert if deemed necessary. An opponent of summary judgment “must produce more than frivolous assertions, unsupported statements, illusory issues and mere suspicions.”

The court then went back to the quasi-estoppel claim to further foreclose that argument by the plaintiff: “… because the record shows that plaintiff Terry Kelly accepted the benefits of the Release Form as it applied to the orientation visit.” The court further stated:”[A] party will not be allowed to accept benefits which arise from certain terms of a contract and at the same time deny the effect of other terms of the same agreement”

The court summed up that argument by stating:

The same principle operates here, where plaintiff Terry Kelly signed a Release Form surrendering claims related to his daughter’s participation in NJROTC training, then allowed his daughter to attend a NJROTC training orientation visit. On the evidence, there is no genuine issue that plaintiff Terry Kelly accepted that plaintiff Morgan Kelly’s “membership in the Naval Junior Reserve Officers Training Corps training,” included the orientation visit. In consideration of this training, including the orientation visit, he released “claims, demands, actions, or causes of action, due to . . . injury.” De-fendant reasonably relied on plaintiff Terry Kelly’s writing, in addition to his acquiescence to his [*35] daughter’s attendance at the orientation visit. Plaintiff Terry Kelly cannot be allowed to accept the benefits of the Release Form through his daughter’s attendance, while at the same time denying the release that was required as a condition of that attendance.

That eliminated the last claim and argument by the plaintiff and summary judgement was granted.

So Now What?

Although this decision may not be controlling in North Carolina until the North Carolina state courts rule on it, the court effectively argued each point why the release should be valid. On top of that, I do not know if this case is being appealed, which again, may change the outcome.

One point that was argued that I continually argue to do, to save the time and cost of defending a release is to put in the release the risks the plaintiff will be assuming. If the release is thrown out of court, you can get the release in front of the jury to prove the plaintiff assumed the risk of the injury.

This is great legal reasoning on release law. This is a good case to keep handy when you are arguing why a release is valid. Whether your state allows a parent to sign away a minor’s right to sue or not, the legal analysis used here can be used in many different release cases.

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

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

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

Posted: April 27, 2015 | Author: Recreation Law | Filed under: Massachusetts, Racing, Racing, Release (pre-injury contract not to sue), Triathlon | Tags: #race, Conscious Pain and Suffering, Duty to Warn, Estate, Indemnification, Negligent infliction of emotional distress, Personal Representative, Release, swimming, Triathlon, USA Triathlon, Waiver, Wrongful Death | Leave a comment

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

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

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

Defendant: USA Triathlon

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

Defendant Defenses: Release and indemnification

Holding: not a final ruling

Year: 2014

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

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

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

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

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

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

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

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

And then Massachusetts law on indemnity agreements.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So Now What?

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

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

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

See Indemnification agreements? What are you signing?

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

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

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Kelly, v. United States of America, 2014 U.S. Dist. LEXIS 135289

Posted: April 21, 2015 | Author: Recreation Law | Filed under: Challenge or Ropes Course, Legal Case, North Carolina, Release (pre-injury contract not to sue) | Tags: Benefit, Minor, Orientation, Release, ROTC, training | Leave a comment

Kelly, v. United States of America, 2014 U.S. Dist. LEXIS 135289

Morgan Kelly, Pamela Kelly, and Terry Kelly, Plaintiffs, v. United States of America, Defendant.

NO. 7:10-CV-172-FL

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA, SOUTHERN DIVISION

2014 U.S. Dist. LEXIS 135289

September 25, 2014, Decided

September 25, 2014, Filed

PRIOR HISTORY: Kelly v. United States, 809 F. Supp. 2d 429, 2011 U.S. Dist. LEXIS 89741 (E.D.N.C., 2011)

CORE TERMS: orientation, training, summary judgment, public interest, guardian, non-commercial, attend, cadet, attendance, signature, daughter’s, public policy, enforceable, genuine, waive, obstacle, quasi-estoppel, participating, recreational, undersigned, pre-injury, parental, affirmative defense, genuine issue, transportation, municipalities, educational, unambiguous, discovery, workshop

COUNSEL: [*1] For Morgan Kelly, Pamela Kelly, Terry Kelly, Plaintiffs: Steven Michael Stancliff, LEAD ATTORNEY, James L. Chapman , IV, Crenshaw, Ware and Martin, P.L.C., Norfolk, VA.

For United States of America, Defendant: Matthew Lee Fesak, R. A. Renfer , Jr., LEAD ATTORNEYS, U.S. Attorney’s Office, Raleigh, NC.

JUDGES: LOUISE W. FLANAGAN, United States District Judge.

OPINION BY: LOUISE W. FLANAGAN

OPINION

ORDER

This matter comes before the court on defendant’s motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. (DE 93). This matter has been fully briefed, and the issues raised are ripe for review. For the following reasons, the court grants defendant’s motion.

STATEMENT OF THE CASE

The court refers to and incorporates the case history provided in previous orders, including its recent order on defendant’s motion to dismiss plaintiffs’ claims for gross negligence. Kelly v. United States, No. 7:10-CV-172, 2014 U.S. Dist. LEXIS 114376, 2014 WL 4098943 (E.D.N.C. Aug. 18, 2014) (“August 2014 Order”). Pertinent to the instant motion, plaintiffs commenced this action on September 2, 2010, pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671, et seq., seeking damages in excess of ten million dollars ($10,000,000.00) for injuries allegedly suffered by plaintiff Morgan Kelly, daughter of plaintiffs Terry and Pamela Kelly. The [*2] court previously issued an order August 11, 2011, granting in part and denying in part plaintiffs’ motion to strike, in particular allowing defendant to raise the affirmative defense that plaintiff Pamela Kelly had waived plaintiffs’ claims. Kelly v. United States, 809 F. Supp. 2d 429, 437-38 (E.D.N.C. 2011) (“August 2011 Order”).

On November 25, 2013, defendant filed the instant motion for summary judgment, which also included the motion to dismiss plaintiffs’ gross negligence claim. Plaintiffs responded in opposition on February 27, 2014, and defendant replied on March 13, 2014.

Plaintiffs’ memorandum in opposition included a motion pursuant to Federal Rule of Civil Procedure 56(d) for additional discovery regarding the use, allocation and disposition of monies received from Navy Junior Reserve Officer Training Corps (“NJROTC”) cadets in exchange for the cadets’ attendance in the July 2007 orientation visit at issue in this case. The court granted plaintiff’s motion on March 31, 2014, and subsequently issued an order on scheduling directing the parties to complete the additional discovery by May 30, 2014. Plaintiffs were given until June 13, 2014, to file a supplemental brief in opposition to the government’s motion. However, the deadline passed without such brief being filed.

On August [*3] 18, 2014, the court granted defendant’s motion to dismiss. The order noted that it did not address the motion for summary judgment on plaintiffs’ remaining claims. August 2014 Order, 2014 U.S. Dist. LEXIS 114376, 2014 WL 4098943, at *1, n. 1. This motion comes now before the court.

STATEMENT OF FACTS

The facts, viewed in the light most favorable to the nonmoving party, may be summarized as follows:

In July 2007, plaintiff Morgan Kelly, then fifteen (15) years of age, was a cadet in the NJROTC program at her high school. Plaintiff Morgan Kelly’s twin sister, Magan Kelly, also was a NJROTC cadet. The NJROTC program included an orientation visit to United States Marine Corps Base Camp Lejeune (“Camp Lejeune”).

Prior to the orientation visit, plaintiffs received a “Waiver of Liability and Assumption of Risk Agreement.” (“Liability Waiver”) (DE 94-3). The Liability Waiver included the following language:

In consideration of the privilege of participating in an organized event in a training area at Camp Lejeune, North Carolina, and further recognizing the voluntary nature of my participation in this event, I, the undersigned person, intending to be legally bound, hereby promise to waive for myself, my guardians, heirs, executor, [*4] administrators, legal representatives and any other persons on my behalf, any and all rights and claims for damages, demands, and any other actions whatsoever, including those attributable to simple negligence, which I may have against any of the following persons or entities: the United States of America . . . which said injuries arise out of my participation in the activities comprising the aforesaid event; as well as any use by me of any Marine Corps Base, Camp Lejeune, North Carolina, or government equipment or facilities in conjunction with and furtherance of such participation by me. I FURTHER VERIFY THAT I HAVE FULL KNOWLEDGE OF THE RISKS ASSOCIATED WITH ATTENDING THIS EVENT. I EXPRESSLY, KNOWINGLY, AND VOLUNTARILY ASSUME THE RISKS INVOLVED IN THE PLANNED ACTIVITIES INCLUDING TRANSPORTATION TO AND FROM THE EVENT, AND AGREE TO HOLD THE UNITED STATES HARMLESS FOR ANY RESULTING INJURY. I understand that this assumption of risk agreement shall remain in effect until notice of cancellation is received by the Commanding General, Marine Corps Base, Camp Lejeune, North Carolina. I understand that, should I decline to execute this agreement, I will not be permitted to attend the organized [*5] event.

(DE 94-3 at 1). (See attached as Addendum A hereto.)

Below this language, the form provided lines for the signature and printed name of the minor participant, along with lines for the signature of a parent or guardian, “on behalf of” the minor. Morgan and Magan’s mother, plaintiff Pamela Kelly, signed the form, believing that she was signing it for Magan. She left the blanks which required Magan’s name for Magan to complete. However, plaintiff Pamela Kelly did not sign a form for her other daughter because plaintiff Morgan Kelly originally planned to attend a sailing trip in Florida at the time of the orientation.

Subsequently, plaintiff Morgan Kelly’s sailing trip was cancelled, and she joined the orientation visit. She signed and printed her name onto the Liability Waiver in the spaces that her mother had left for Magan Kelly. The Liability Waiver, in its unredacted format, includes Magan Kelly’s social security number, but it is unclear how this number appeared on the form or who wrote it. The Liability Waiver does not otherwise mention Magan Kelly. It is unclear whether a separate form was submitted for Magan Kelly or whether she attended the orientation.

While planning the [*6] orientation visit, Operations Specialist Frank Acevedo (“Acevedo”) sent a packet of information to plaintiff Morgan Kelly’s high school, including a list of training activities and a brief description of an obstacle course challenge known as the “Confidence Course.” However, neither plaintiff Pamela Kelly nor plaintiff Terry Kelly received a copy of this information packet prior to the orientation visit, and neither parent otherwise communicated with Acevedo or any other government representative from Camp Lejeune before the orientation visit.

The orientation visit began on July 23, 2007. During the visit, the cadets were allowed to use government facilities at Camp Lejeune at no expense, and were not charged for the instruction they received. Cadets were responsible only for paying for meals eaten at a Camp Lejeune dining facility at a Discount Meal Rate, and for personal purchases made at a Post Exchange.¹

1 Although plaintiffs’ memorandum in opposition questioned defendant’s characterization of how the money received from students was used, plaintiffs failed to renew any challenge or provide any support for such a challenge after the court granted their request for additional discovery [*7] on the matter. As such, the court finds that plaintiffs do not object to the government’s description of the collection and use of money from the NJROTC cadets.

On July 27, 2007, plaintiff Morgan Kelly, along with the other cadets, completed two obstacle courses prior to undertaking the series of obstacles known as the “Confidence Course.” Before the cadets completed the Confidence Course, two Marine instructors from the School of Infantry provided preliminary instructions, the content of which is disputed.² The final obstacle of the Confidence Course, called the “Slide for Life,” was a climbing apparatus. Defendant knew that the Slide for Life posed a substantial risk of death or serious bodily injury if it were not successfully negotiated. However, defendant did not assess plaintiff Morgan Kelly’s physical capabilities before she climbed the Slide for Life. Nor did defendant provide any safety harnesses, restraints, or other protection systems that would prevent her from falling. While attempting to climb the Slide for Life, plaintiff Morgan Kelly fell and suffered injuries.

2 Defendant asserts that the instructors “provided a safety brief and a demonstration of how to navigate each obstacle,” [*8] (Def.’s Mem. in Supp. at 1-2) (DE 94), while plaintiffs assert that Marine instructors provided only a “walk-through” of the course, without safety warnings. (Pls.’s Mem. in Opp. at 4) (DE 101).

COURT’S DISCUSSION

A. Standard of Review ³

3 Plaintiffs’ arguments in opposition to the motion for summary judgment raise several issues addressed by the court in its August 2011 Order on motion to strike. The court considers anew plaintiffs’ arguments under the standard applicable to the instant motion for summary judgment.

Summary judgment is appropriate where an examination of the pleadings, affidavits, and other discovery materials properly before the court demonstrates “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) (holding that a factual dispute is “material” only if it might affect the outcome of the suit and “genuine” only if there is sufficient evidence for a reasonable jury to find for the non-moving party).

The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate [*9] the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Once the moving party has met its burden, the non-moving party must then “set forth specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. Anderson, 477 U.S. at 250. In making this determination, the court must view the inferences drawn from the underlying facts in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962).

B. Analysis

Defendant’s motion for summary judgment rests on its argument that the Liability Waiver bars plaintiffs’ claims. As detailed in the court’s August 2011 Order on plaintiffs’ motion to strike, liability waivers are generally enforceable under North Carolina law.⁴ See Kelly v. United States, 809 F. Supp. 2d 429, 433 (E.D.N.C. 2011) (citing Hall v. Sinclair Refining Co., 242 N.C. 707, 709, 89 S.E.2d 396 (1955)). Moreover, because plaintiff Morgan Kelly is a minor and has disaffirmed her waiver by filing complaint, her own waiver is unenforceable under North Carolina law. See id. at 434 (citing Baker v. Adidas Am., Inc., 335 F. App’x 356, 359 (4th Cir. 2009); Creech v. Melnik, 147 N.C. App. 471, 475, 556 S.E.2d 587 (2001); Freeman v. Bridger, 49 N.C. 1 (1856)).

4 In actions under the FTCA, “federal courts apply the substantive law of the state in which the act or omission giving rise to the action occurred.” Myrick v. United States, 723 F.2d 1158, 1159 (4th Cir. 1983). Because the alleged act or omission giving rise to the action occurred in North Carolina, [*10] North Carolina law governs the nature and extent of the government’s liability for plaintiffs’ injuries.

It does not appear that North Carolina courts have ruled on whether a liability waiver signed by a parent on behalf of a minor child is enforceable, yet numerous courts in other jurisdictions have upheld pre-injury liability waivers signed by parents on behalf of minors in the context of litigation filed against schools, municipalities, and clubs providing activities for children. See, e.g., Gonzalez v. City of Coral Gables, 871 So. 2d 1067, 1067-68 (Fla. Dist. Ct. App. 2004); Sharon v. City of Newton, 437 Mass. 99, 106-12, 769 N.E.2d 738 (2002); Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 374, 1998 Ohio 389, 696 N.E.2d 201 (1998); Hohe v. San Diego Unified Sch. Dist., 224 Cal. App. 3d 1559, 1564-65, 274 Cal. Rptr. 647 (1990). In its August 2011 Order the court held that North Carolina would similarly uphold a pre-injury waiver executed by a parent on behalf of a minor child in the context of the facts alleged here. Kelly, 809 F. Supp. 2d at 437. Now on plaintiffs’ motion for summary judgment, the court continues to find that these cases are analogous to the circumstances here, where the facilities and instruction of the NJROTC program were provided at no expense and students were charged only for personal purchases from the Post Exchange and for meals at discount rate.

Plaintiffs nevertheless argue that the Liability Waiver is contrary to public policy. For support, they point to the Fourth Circuit’s recent decision in McMurray v. United States, 551 F. App’x 651 (4th Cir. 2014). Although contracts [*11] seeking to release a party from liability for negligence generally are enforceable in North Carolina, the public policy exception prohibits a person from contracting to protect himself from “liability for negligence in the performance of a duty of public service, or where a public duty is owed, or public interest is involved, or where public interest requires the performance of a private duty.” McMurray, 551 F. App’x at 653-54 (quoting Hall, 242 N.C. at 710).⁵

5 Exculpatory clauses or contracts are also not enforceable when the provisions violate a statute, or are gained through inequality of bargaining power. McMurray, 551 F. App’x at 653; Hall, 242 N.C. at 709-10. The August 2011 Order rejected plaintiffs’ arguments that these two factors applied to the Liability Waiver. Kelly, 809 F. Supp. 2d at 434, n. 6. Plaintiffs have not raised those arguments again here.

In McMurray, the plaintiff, a high school guidance counselor, completed a release of liability form in order to attend a workshop for educational professionals hosted by the Marine Corps at its facility on Parris Island, South Carolina. Id. at 652. The document released the government from any injuries arising out of participation in the workshop, including “riding in government-provided transportation (to include transportation to and from the Educator’s Workshop.)” Id. The [*12] plaintiff subsequently was injured when the Marine recruiter who drove her to the workshop ran a red light and collided with another car. Id. Noting the numerous statutes, regulations and cases governing public roads in North Carolina, the court determined that the state had a “strong public-safety interest in careful driving and the observance of all traffic-related rules and regulations.” Id. at 654. The court concluded that allowing the government to be released from the duty to use reasonable care when driving would violate that policy, and accordingly held the release unenforceable under North Carolina law. Id. at 656.

Plaintiffs argue that the Liability Waiver is contrary to an “equally compelling interest,” in this case being, “the obligation of the government to exercise reasonable care for the safety of minor school children participating in a congressionally-sanctioned (and funded) JROTC program.” (Pls.’s Mem. in Opp. at 20). Protecting the safety of minor school children in programs like JROTC (and NJROTC) is undoubtedly a matter of public interest. However, this case also involves a countervailing public interest in facilitating JROTC’s provision of non-commercial services to children on a [*13] voluntary basis without the risks and overwhelming costs of litigation.

The public’s interest in the benefits provided by JROTC programs is embodied in federal statutes and regulations governing these programs’ purpose and administration, which set forth such objectives as instilling in students “the values of citizenship, service to the United States, and personal responsibility and a sense of accomplishment,” 10 U.S.C. § 2031(a)(2), along with imparting other benefits such as good communication skills, an appreciation of physical fitness, and a knowledge of basic military skills. 32 C.F.R. § 542.4. Moreover, North Carolina has demonstrated a public interest in the non-commercial provision of educational or recreational activities, by enacting statutes such as the recreational use statute, N.C. Gen. Stat. § 38A-4, which encourages landowners to allow public use of their land without charge for educational or recreational purposes by limiting their duty of care to that of refraining from willful or wanton infliction of injury.

The cases from other jurisdictions which have upheld liability waivers such as the one at issue here have concluded that the public is best served when risks or costs of litigation regarding such programs are minimized. [*14] See Zivich, 82 Ohio St. 3d at 372 (“[W]e conclude that although [plaintiff], like many children before him, gave up his right to sue for the negligent acts of others, the public as a whole received the benefit of these exculpatory agreements. Because of this agreement, the Club was able to offer affordable recreation and to continue to do so without the risks and overwhelming costs of litigation.”); Hohe, 224 Cal. App. 3d at 1564 (“The public as a whole receives the benefit of such waivers so that groups such as Boy and Girl Scouts, Little League, and parent-teacher associations are able to continue without the risks and sometimes overwhelming costs of litigation. Thousands of children benefit from the availability of recreational and sports activities.”).

Courts have also found that such releases serve the public interest by respecting the realm of parental authority to weigh the risks and costs of physical injury to their children against the benefits of the child’s participation in an activity. Sharon, 437 Mass. at 109; Zivich, 82 Ohio St. 3d at 374. Likewise, North Carolina has recognized a public interest in respecting parents’ authority over certain life decisions for their children. See Doe v. Holt, 332 N.C. 90, 97, 418 S.E.2d 511 (1992) (“[R]easonable parental decisions concerning children should [not] be reviewed in the courts of this state. Such decisions [*15] make up the essence of parental discretion, discretion which allows parents to shape the views, beliefs and values their children carry with them into adulthood. These decisions are for the parents to make, and will be protected as such.”).

The court remains persuaded by the analysis of those courts upholding liability waivers signed by parents in the context of litigation against schools, municipalities and clubs, which either implicitly or explicitly found the risk presented by such waivers to be outweighed by interests in providing non-commercial activities and respecting parental authority. See Sharon, 437 Mass. at 105 (“In weighing and analyzing [plaintiff’s] public policy arguments, we must also consider other important public policies of the Commonwealth implicated in the resolution of this issue . . . .); Zivich, 82 Ohio St. 3d at 370-71 (“[T]he proper focus is not whether the release violates public policy but rather that public policy itself justifies the enforcement of this agreement.”).

Plaintiffs’ reliance on McMurray is misplaced. The public interest considered in that case, careful driving and observance of traffic rules and regulations, is not at issue here. Nor did that case address whether any contrary public interest was at [*16] stake which might justify the waiver.

Plaintiffs argue that other cases upholding liability waivers signed by parents on behalf of their children are not applicable in this case, because the claims here are directed against the United States and because the JROTC is not a community-based or volunteer-run activity. They note that the officials conducting the orientation visit acted as paid servants of the United States. They argue that the economic considerations at issue in cases from other jurisdictions are not applicable here, where the United States government is self-insured and has waived its immunity. However, none of these arguments are persuasive.

First, neither the defendant’s status as a government body, nor the volunteer status of a program’s personnel, are controlling factors in the analysis. In Sharon, the court upheld a liability waiver in the context of a suit against the city government for a cheerleading program coached by a public school employee, not a volunteer. Sharon, 437 Mass. at 100. Furthermore, the JROTC program is community-based, in that schools must apply for a unit, 10 U.S.C. § 2031(a)(1), and may decide to eliminate the program from their curriculum. See Esquivel v. San Francisco Unified Sch. Dist., 630 F. Supp. 2d 1055 (N.D. Cal. 2008). In this way, JROTC programs are run in cooperation [*17] with the community, and rely on the community for support. In turn, JROTC programs promote the community welfare by instilling the values and benefits noted above in the community’s children. Finally, the mere fact that the United States has waived its sovereign immunity through the FTCA does not mean that it should be denied the use of a waiver that other non-governmental volunteer or non-profit organizations could employ. On the contrary, the FTCA only makes the United States liable “in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674.

It is clear that the July 2007 NJROTC orientation program was offered with a noncommercial purpose, and that students attended voluntarily. Because a liability waiver signed by a parent would be enforceable by a private person offering a non-commercial, voluntary activity of this nature, the United States should also be able to use a parent-signed liability waiver for the noncommercial, voluntary NJROTC orientation visit. See Sharon, 437 Mass. at 111-12 (holding that Massachusetts Tort Claims Act (“MTCA”) would not prevent municipalities from using liability waivers as a precondition for participation in voluntary activities that they [*18] sponsored, because the MTCA gave such municipalities the same defenses as private parties in tort claims).

Aside from their public policy argument, plaintiffs contend that advance court approval is necessary for a parent to extinguish a minor’s personal injury claim. However, their argument is little more than an abbreviated version of their previous argument supporting their motion to strike. The cases they cite do not address the specific circumstances here, of a pre-injury liability waiver in the context of a non-commercial activity provided to children on a voluntary basis. For instance, plaintiffs quote from Justice White’s concurring opinion in International Union v. Johnson Controls, Inc., 499 U.S. 187, 111 S. Ct. 1196, 113 L. Ed. 2d 158 (1991), which recognized that “the general rule is that parents cannot waive causes of action on behalf of their children . . . .” (Pls’. Mem. in Opp. at 21) (quoting Int’l Union, 499 U.S. at 213-14.). The context of this quote was the concurring opinion’s speculation as to a potential justification for an employer’s fetal-protection policy, as a means of avoiding claims brought by children for injuries caused by torts committed prior to conception. Int’l Union, 499 U.S. at 212-14. This is far different than a pre-injury waiver for a non-commercial activity provided to children on a voluntary basis, where [*19] the activity does not generate its own profits and the benefits of the waiver extend to the entire community. Moreover, as the quote itself shows, the rule against parental waivers is only “general.” Id. at 213.

Plaintiffs also cite to the North Carolina cases of Sell v. Hotchkiss, 264 N.C. 185, 191, 141 S.E.2d 259 (N.C. 1965) and Creech, 147 N.C. App. at 475, neither of which involved non-commercial, voluntary activities like the NJROTC program. Moreover, both of these cases involved post-injury liability waivers. Concerns underlying courts’ reluctance to allow parents to dispose of childrens’ existing claims, such as the concern that the hardships posed by caring for an injured child will lead the parents to act for their own financial interest, or that the parents will be more vulnerable to fraud or coercion in such circumstances, are mitigated in the pre-injury release context. See Zivich, 82 Ohio St. 3d at 373. The cases from other jurisdictions noted above, where liability waivers signed by parents were upheld, did not require prior court approval for those waivers. E.g. Gonzalez, 871 So. 2d at 1067-68; Sharon, 437 Mass. at 106-12; Zivich, 82 Ohio St. 3d at 374; Hohe, 224 Cal. App. 3d at 1564-65. Further, as a practical matter, requiring prior court approval would seriously encumber the process for participation in non-commercial, educational activities such as the NJROTC program. Such prior approval is not required.

Having [*20] affirmed that a liability waiver is not unenforceable in the abstract, analysis turns to the particular agreement itself. First, plaintiffs argue that this Liability Waiver should not be enforced because the parties did not reach a “meeting of the minds,” alleging that plaintiff Pamela Kelly believed she was signing the form for plaintiff Morgan Kelly’s twin sister, Magan. A release from liability is subject to avoidance by showing that its execution resulted from mutual mistake. George v. McClure, 266 F. Supp. 2d 413, 418 (M.D.N.C. 2001); see also Marriott Fin. Servs., Inc. v. Capitol Funds, Inc., 288 N.C. 122, 136, 217 S.E.2d 551 (1975). However, a unilateral mistake, unaccompanied by fraud, imposition, undue influence or like circumstances is insufficient to avoid a contract. Marriott Fin. Servs., 288 N.C. at 136. Plaintiffs do not argue that defendant mistakenly believed that the Liability Waiver, to which plaintiff Morgan Kelly admittedly signed her own name, was intended to cover Magan Kelly. Nor do they argue that the government acted in a fraudulent manner or that other like circumstances were present. They have shown no more than a unilateral mistake.

In addition, plaintiff Pamela Kelly cannot avoid the contract because she subsequently allowed plaintiff Morgan Kelly to attend the orientation session, knowing that a liability waiver was required. See (DE 94-3 [*21] at 1) (noting that those who failed to sign the waiver would “not be permitted to attend the organized event”). North Carolina courts have held that, when a release is originally invalid or voidable, it may be ratified and affirmed by subsequent acts accepting the benefits. Presnell v. Liner, 218 N.C. 152, 154, 10 S.E.2d 639 (1940); see also VF Jeanswear Ltd. P’ship v. Molina, 320 F. Supp. 2d 412, 422 (M.D.N.C. 2004). Similarly, under the North Carolina theory of quasi-estoppel, also known as “estoppel by benefit,” a party who “accepts a transaction or instrument and then accepts benefits under it may be estopped to take a later position inconsistent with the prior acceptance of that same transaction or instrument.” Whitacre P’ship v. Biosignia, Inc., 358 N.C. 1, 18, 591 S.E.2d 870 (2004). The doctrine is grounded “upon a party’s acquiescence or acceptance of payment or benefits, by virtue of which that party is thereafter prevented from maintaining a position inconsistent with those acts.” Godley v. Pitt Cnty., 306 N.C. 357, 361-62, 293 S.E.2d 167 (1982).⁶

6 The court notes that defendant did not raise the defense of estoppel in its answer. Generally, estoppel is an affirmative defense that should be raised in the pleadings under Federal Rule of Civil Procedure 8(c). Fed. R. Civ. P. 8(c); Simmons v. Justice, 196 F.R.D. 296, 298 (W.D.N.C. 2000). However, “[I]f an affirmative defense is raised in a manner that does not result in unfair surprise to the opposing party, failure to comply with Rule 8(c) will not result in waiver of the defense.” Simmons, 196 F.R.D. at 298 (quoting United States v. Cook, No. 94-1938, 1995 U.S. App. LEXIS 24342, 1995 WL 508888 (4th Cir. Aug. 29, 1995)). The requirement of pleading [*22] an affirmative defense may be waived if evidence of the defense is admitted into the record without objection. Caterpillar Overseas, S.A. v. Marine Transp. Inc., 900 F.2d 714, 725, n. 7 (4th Cir. 1990). “Courts have been more lenient in the context of motions for summary judgment.” Grunley Walsh U.S., LLC v. Raap, No. 1:08-CV-446, 2009 U.S. Dist. LEXIS 38609, 2009 WL 1298244, at *5 (E.D. Va. May 6, 2009). The defense of quasi-estoppel was raised in defendant’s memorandum supporting summary judgment, and plaintiffs did not object to the defense in their memorandum in opposition. In this instance, no unfair surprise exists and defendant may assert this defense.

Zivich provides a helpful illustration of what constitutes “acceptance” of the benefits of a liability waiver in the context of non-commercial, voluntary recreational activities. Zivich, 82 Ohio St.3d at 375. There, the court held that a mother’s execution of a release would bar the claims of her husband for their son’s soccer practice injury. Id. The court noted that the father “was the parent who was at the practice field” on the evening of that the injury occurred. It held that his “conduct convey[ed] an intention to enjoy the benefits of his wife’s agreement and be bound by it.” Id.

Here, the benefits of the Liability Waiver for plaintiff Pamela Kelly consisted of her daughter’s participation in the NJROTC orientation program, [*23] with the attendant benefits of introducing her to the culture, skills, and values that the NJROTC seeks to impart. By accepting the benefit of her child’s attendance at the orientation session, knowing that a liability waiver was required for attendance, plaintiff Pamela Kelly cannot now disavow the effect of the instrument she signed that allowed her child to attend.

As an alternative ground for denying summary judgment, plaintiffs argue that the Liability Waiver cannot be enforced because the government did not identify the risks that the form covered. Plaintiffs Pamela and Terry Kelly both allege that they never received any information concerning the risks of injury associated with plaintiff Morgan Kelly’s use of the obstacle course. (P. Kelly Decl. ¶¶ 6-11; T. Kelly Decl. ¶¶ 6-11). Consequently, they state they anticipated that plaintiff Morgan Kelly would only be visiting Camp Lejeune to observe equipment and other military activities, and that she would only be performing the same activities that she had performed in the past, such as marching in formations, drills, and “ground-based physical fitness training.” (P. Kelly Decl., ¶ 10; T. Kelly Decl., ¶ 10.)

As a contract, the Liability [*24] Waiver is subject to the recognized rules of contract construction. Adder v. Holman & Moody, 288 N.C. 484, 492, 219 S.E.2d 190 (1975). “The heart of a contract is the intention of the parties,” which “must be determined from the language of the contract, the purposes of the contract, the subject matter and the situation of the parties at the time the contract is executed.” Id. Liability waivers are disfavored under North Carolina law, and strictly construed against the parties seeking to enforce them. Hall, 242 N.C. at 709. However, when the language is clear and unambiguous, construction of the agreement is a matter of law for the court, and the court cannot look beyond the terms of the contract to determine the parties’ intent. Root v. Allstate Ins. Co., 272 N.C. 580, 583, 158 S.E.2d 829 (1968).

In an analogous case, Waggoner v. Nags Head Water Sports, Inc., No. 97-1394, 1998 U.S. App. LEXIS 6792, 1998 WL 163811 (4th Cir. April 6, 1998), the plaintiff rented a jet ski from the defendant, signing a rental agreement in which she “assume[d] all risk of accident or damages to my person . . . which may be incurred from or be connected in any manner with my use, operation or rental of the craft checked above.” 1998 U.S. App. LEXIS 6792, [WL] at *1. Plaintiff alleged that she did not understand that the form allowed defendant to escape liability for negligence. Id. Nevertheless, the court held that the clear and unambiguous language of the clause would bar her claim. 1998 U.S. App. LEXIS 6792, [WL] at *3-4.

Here, the Liability Waiver states [*25] in clear and unambiguous language that it is made “[i]n consideration of the privilege of participating in an organized event in a training area at Camp Lejeune,” and that it serves to waive “any and all rights and claims . . . including those attributable to simple negligence . . . which said injuries arise out of my participation in the activities comprising the aforesaid event; as well as any use by me of any Marine Corps Base, Camp Lejeune, North Carolina, or government equipment or facilities in conjunction with and furtherance of such participation by me.” (DE 94-3).

As such, the waiver provides ample notice to plaintiffs of the potential for a wide range of activities at the event, not limited in any way to marching, drills, or “ground-based physical fitness training.” Plaintiffs do not allege that they were affirmatively misled as to the nature of the activities that would comprise the event, or that they were prevented from inquiring into the activities or the associated risks. They have not provided any reason for the court to look beyond the language clearly and unambiguously covering the circumstances of plaintiff Morgan Kelly’s injury. See Root, 272 N.C. at 583; Waggoner, 1998 U.S. App. LEXIS 6792, 1998 WL 163811 at *3-4; see also Kondrad v. Bismarck Park Dist., 2003 ND 4, 655 N.W. 2d 411, 413-14 (N.D. 2003) (Waiver language relinquishing [*26] all claims for injuries that would occur “on account of my participation of [sic] my child/ward in this program” exonerated park district from liability, even though child’s accident occurred during activity that was not “associated with the program;” language of waiver and release was “clear and unambiguous,” and “not limited only to injuries incurred while participating in activities associated with the program, but to all injuries incurred by the child on account of his participation in the program.”).

Plaintiffs also argue that summary judgment should be denied because plaintiff Morgan Kelly has disaffirmed it (by filing complaint) and because the Liability Waiver does not include express language waiving plaintiff Pamela Kelly’s claims on behalf of herself and her child. As noted above, the Liability Waiver refers to “my participation” in the “organized event” and states “I understand that, should I decline to execute this agreement, I will not be permitted to attend the organized event.” (DE 94-3, at 1). This issue, too, was addressed in the court’s order on plaintiffs’ motion to strike. Kelly, 809 F. Supp. 2d at 434-37. There, the court held that, despite plaintiff Morgan Kelly’s disaffirmation of the Liability [*27] Waiver, the document was nevertheless enforceable as signed by her parent. Id. Although the language of the Liability Waiver was written from plaintiff Morgan Kelly’s perspective, its plain language nevertheless stated that “I, the undersigned person, intending to be legally bound, hereby promise to waive for myself, my guardians, heirs, executor, administrators, legal representatives and any other persons on my behalf . . . .” Id. at 438, n. 8.

Plaintiffs cite cases from other jurisdictions enforcing liability waivers signed by parents in which the waiver was tailored from the perspective of the signing parent. Hamill v. Cheley Colo. Camps, Inc., 262 P. 3d 945, 948 (Colo. App. 2011) (“I, on behalf of myself and my child, hereby release . . .”); Sharon, 437 Mass. at 100-01 (“[I] the undersigned [father of] . . . a minor, do hereby consent to [her] participation in voluntary athletic programs and do forever RELEASE . . . all claims or right of action for damages which said minor has or hereafter may acquire.”). Yet plaintiffs have not cited any case holding that a form such as that used here, which expressly waives both the claims of the child and her guardians, and which is signed by one of those guardians, cannot be enforced against the guardian who signed it. The court again holds that the Liability [*28] Waiver is enforceable to bar the claims of both Morgan and Pamela Kelly.

The question remains whether the Liability Waiver is effective against the claims of plaintiff Terry Kelly, who did not sign the document, and denies ever seeing it prior to plaintiff Morgan Kelly’s orientation visit. (T. Kelly Decl. ¶ 14). Defendant nevertheless argues that plaintiff Terry Kelly’s claims should also be barred, asserting the doctrine of quasi-estoppel described above. As noted above, quasi-estoppel is applied when a party “accepts a transaction or instrument and then accepts benefits under it may be estopped to take a later position inconsistent with the prior acceptance of that same transaction or instrument.” Whitacre P’ship, 358 N.C. at 18. The doctrine faces problems in application to the Liability Waiver, however, where defendant has not directed the court to evidence that plaintiff Terry Kelly knew of the Liability Waiver or its terms.

However, it is not necessary to decide whether plaintiff Pamela Kelly’s signature could bind her husband under these circumstances, because defendant produced a document referred to as the “Naval Junior Reserve Officers Training Corps (NJROTC) Standard Release Form.” (DE 94-4) (“Release Form”) [*29] (See Attached as Addendum B hereto). Page 2 of the Release Form, dated July 13, 2007, provides the following:

I, Terry A Kelly, being the legal parent/guardian of Morgan Kelly, a member of the Naval Junior Reserve Officers Training Corps, in consideration of the continuance of his/her membership in the Naval Junior Reserve Officers Training Corps training, do hereby release from any and all claims, demands, actions, or causes of action, due to death, injury, or illness, the government of the United States and all its officers, representatives, and agents acting officially and also the local, regional, and national Navy Officials of the United States.

(DE 94-4 at 2).

In the paragraph quoted above, the names of plaintiffs Terry and Morgan Kelly are written by hand. Plaintiff Terry Kelly’s declaration provides that page 2 “appears to contains [sic] my handwriting, but I would have to see the original to be certain.” (T. Kelly Decl. at ¶ 16).

Plaintiffs Terry and Pamela Kelly have attempted to challenge the Release Form, stating that they “do not believe that Document No. 94-4 is a genuine document.” In particular, they note that the front page, referenced as page 2 (the certification is appended [*30] as the first page of this filing), is identified as standard form “CNET 5800-4 (Rev. 1-00)” while the final page of the document, which includes a privacy act notification under which plaintiff Pamela Kelly’s name is signed, is identified as “CNET – General 5800/4 (REV. 1-95).” (DE 94-4 at 3; T. Kelly Decl. at ¶ 16; P. Kelly Decl. at ¶ 16). Like her husband, plaintiff Pamela Kelly declares that the writing on page 3 “looks like my signature, but I would need to see the original to be certain.” (P. Kelly Decl. at ¶ 16). She states that she does “not know when Page 3 of 3 was signed or for what purpose.” (Id.).

On April 27, 2011, the court amended its case management order to permit plaintiffs

to have until May 1, 2011, at their option, to visually inspect any original release and/or waiver document or documents relied upon by defendant at defendant’s counsel’s office. This deadline is without prejudice to plaintiffs’ right to have such document or documents examined by experts at a later date, if they deem necessary.

(April 27, 2011, order, p.1, DE 19).

It appears plaintiffs reviewed the Liability Waiver at defendant’s counsel’s office, but not the Release Form. (T. Kelly Decl. at ¶ 15; [*31] P. Kelly Decl. at ¶ 15). No separate request to review was made.

Plaintiffs’ arguments are insufficient to create a genuine issue concerning the Release Form, which is accompanied by a Certificate of Authenticity executed by the Compliance Officer of plaintiff Morgan Kelly’s school district, and notarized by a notary public. (DE 94-4 at 1). “Unsupported speculation . . . is not sufficient to defeat a summary judgment motion.” Ash v. UPS, 800 F.2d 409, 411-12 (4th Cir. 1986)). Plaintiffs had opportunity to review the original Release Form, and to have it assessed by an expert if deemed necessary. An opponent of summary judgment “must produce more than frivolous assertions, unsupported statements, illusory issues and mere suspicions.” Fed. Deposit Ins. Corp. v. Rodenberg, 571 F. Supp. 455, 457 (D. Md. 1983); see also 10A Wright, Miller & Kane, Fed. Practice and Procedure: Civil 3d § 2727 at 510-12 (1998) (“Neither frivolous assertions nor mere suspicions will suffice to justify a denial of summary judgment.”). It is little more than speculation to argue that the Release Form is not genuine, based merely on minor distinctions in form designations between pages. Similarly, plaintiffs’ allegations that they would “have to see the original” to be sure of their signatures amount to nothing more than mere suspicions, [*32] and they had this opportunity. Furthermore, neither Terry nor Pamela Kelly expressly denies seeing or writing on the pages where their names appear. This cannot create a genuine issue for summary judgment.⁷

7 To the extent plaintiffs’ challenge is an attack on the document’s authentication under Federal Rules of Evidence 901 and 902, it still fails to create a genuine issue of material fact. A party may show the existence of a genuine dispute of material fact by objecting “that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). However, the Certificate of Authenticity signed by the school district’s Compliance Officer satisfies the court that this document could be made admissible in evidence at trial.

The document therefore shows plaintiff Terry Kelly’s acceptance of a transaction whereby his claims were released “in consideration of” plaintiff Morgan Kelly’s continued participation in NJROTC training activities. The Release Form refers to “any and all claims.” In Waggoner, the court held that “the term ‘all claims’ must doubtless include a claim for negligence.” Waggoner, 1998 U.S. App. LEXIS 6792, 1998 WL 163811, at *4. See also Young v. Prancing Horse, Inc., No. COA04-727, 2005 N.C. App. LEXIS 1108, 2005 WL 1331065, at *2 (N.C. App. June 7, 2005) (“[W]e cannot agree with plaintiff [*33] that the absence of the word ‘negligence’ makes the release inoperable to bar this claim . . . . With all due regard to the severity of the injuries suffered by plaintiff, they are of the type contemplated and intended by this release.”).

Even if the Release Form failed to refer to the orientation visit in sufficiently specific terms, quasi-estoppel must operate to bar plaintiff Terry Kelly’s claims, because the record shows that plaintiff Terry Kelly accepted the benefits of the Release Form as it applied to the orientation visit. By detailing the kind of activities that he “understood” and “anticipated” his child would be involved in when she arrived at the orientation visit, plaintiff Terry Kelly’s declaration discloses that he knew plaintiff Morgan Kelly would be visiting Camp Lejeune. (T. Kelly Decl. at ¶ 10). He also alleges that “[a] monetary payment was required as a condition of Morgan’s attendance at the orientation visit,” indicating that he consented to payment for the visit. Id. at ¶ 5. He does not allege any objection to his daughters’ attendance or participation. He does not allege that he was estranged from his family, or that he was kept unaware of the upcoming activity. [*34]

“[A] party will not be allowed to accept benefits which arise from certain terms of a contract and at the same time deny the effect of other terms of the same agreement.” Brooks v. Hackney, 329 N.C. 166, 173, 404 S.E.2d 854 (1991). In Brooks, the court determined that even though an agreement to convey real property was invalid because its terms were not sufficiently definite, the plaintiff was estopped from denying its validity because he had made regular payments on the agreement, and therefore that the defendants reasonably relied on the writing. Id. at 171-73.

The same principle operates here, where plaintiff Terry Kelly signed a Release Form surrendering claims related to his daughter’s participation in NJROTC training, then allowed his daughter to attend a NJROTC training orientation visit. On the evidence, there is no genuine issue that plaintiff Terry Kelly accepted that plaintiff Morgan Kelly’s “membership in the Naval Junior Reserve Officers Training Corps training,” included the orientation visit. In consideration of this training, including the orientation visit, he released “claims, demands, actions, or causes of action, due to . . . injury.” Defendant reasonably relied on plaintiff Terry Kelly’s writing, in addition to his acquiescence to his [*35] daughter’s attendance at the orientation visit. Plaintiff Terry Kelly cannot be allowed to accept the benefits of the Release Form through his daughter’s attendance, while at the same time denying the release that was required as a condition of that attendance.

With all of plaintiffs’ claims disposed by waiver and release, summary judgment must be granted.

CONCLUSION

For the reasons set forth above, the court GRANTS defendant’s motion for summary judgment. (DE 93). The clerk is DIRECTED to close this case.

SO ORDERED, this the 25th day of September, 2014.

/s/ Louise W. Flanagan

LOUISE W. FLANAGAN

United States District Judge

ADDENDUM A

Waiver of liability and Assumption of Risk Agreement United States Marine Corps

Dated: July 20, 2007

EXHIBIT B

WAIVER OF LIABILITY AND ASSUMPTION OF RISK AGREEMENT UNITED STATES MARINE CORPS

In consideration of the privilege of participating in an organized event in a training area at Camp Lejeune, North Carolina, and further recognizing the voluntary nature of my participation in this event, I, the undersigned person, intending to be legally bound, hereby promise to waive for myself, my guardians, heirs, executor, administrators, legal representatives and any other [*36] persons on my behalf, any and all rights and claims for damages, demands, and any other actions whatsoever, including those attributable to simple negligence, which I may have against any of the following persons or entities: the United States of America; the Depart of Defense; the Department of the Navy; the United States Marine Corps; Marine Corps Base, Camp Lejeune, North Carolina; any and all individuals assigned to or employed by the United States, including but not limited to the Secretary of Defense; the Secretary of the Navy; the Commandant of the Marine Corps; Commanding General, Marine Corps Base, Camp Lejeune, North Carolina; in both their official and personal capacities; any medical support personnel assigned thereto; and these, persons’ or entities’ representatives, successors, and assigns; which said injuries arise out of my participation in the activities comprising the aforesaid event; as well as any use by me of any Marine Corps Base, Camp Lejeune, North Carolina, or government equipment, or facilities in conjunction with and furtherance of such participation by me. I FURTHER VERIFY THAT I HAVE FULL KNOWLEDGE OF THE RISKS ASSOCIATED WITH ATTENDING THIS EVENT. I EXPRESSLY, [*37] KNOWINGLY, AND VOLUNTARILY ASSUME THE RISKS INVOLVED IN THE PLANNED ACTIVITIES INCLUDING TRANSPORTATION TO AND FROM THE EVENT, AND AGREE TO HOLD THE UNITED STATES HARMLESS FOR ANY RESULTING INJURY. I understand that this assumption of risk agreement shall remain in effect until notice of cancellation is received by the Commanding General, Marine Corps Base, Camp Lejeune, North Carolina. I understand that, should I decline to execute this agreement, I will not be permitted to attend the organized event.

(Signature of Witness)

[TEXT REDACTED BY THE COURT]

/s/ Morgan E. Kelly 7/19/07

(Signature) (Date)

Morgan E. Kelly

(Printed Name)

/s/ Pamela D. Kelly

(Signature of Parent/Guardian)

on behalf of Morgan

(Name of Minor)

Date: 7-20-07

Participants Information/POC Page

FOR OFFICIAL USE ONLY

(Please Print Legibly)

Participant Last Name, First Name, Initial: Kelly Pamela D

Parent/Guardian Name: Pam Kelly

Home Phone: [TEXT REDACTED BY THE COURT]

Work Phone: [TEXT REDACTED BY THE COURT]

Cellular Phone: [TEXT REDACTED BY THE COURT]

Alternative Adult to be Contacted in Case of Emergency and Relation to Participant: Terry Kelly

Home Phone: [TEXT REDACTED BY THE COURT]

Work Phone: [TEXT REDACTED BY THE [*38] COURT]

Cellular Phone: [TEXT REDACTED BY THE COURT]

Does the Participant have Any Allergies or Special Medical Conditions? None

ADDENDUM B

Naval Junior Reserve Officers Training Corps (NJROTC)

Standard Release Form With Certificate of Authenticity

Dated: July 13, 2007

EXHIBIT 2

CERTIFICATE OF AUTHENTICITY

The undersigned certifies that I am the person responsible for keeping of school and\or student records in behalf of the Henry County Board of Education and that the within and attached is a true and accurate copy of certain school system records of

Morgan Kelly (DOB: [TEXT REDACTED BY THE COURT])

thereof kept in the normal course of business of the Henry County School System. This Certificate of Authenticity may be used in lieu of the personal appearance of the person certifying hereto.

/s/ Archie Preston Malcom

Archie Preston Malcom, Bd.D

Compliance Officer (Contracted)

11-14-2013

Sworn to and subscribed before me on this 14th day of November 2013

/s/ Slyvia S/ Burch

Notary Public

My Commission Expires: 07/21/16

Kindrich III et al., v. Long Beach Yacht Club et al., 167 Cal. App. 4th 1252; 84 Cal. Rptr. 3d 824; 2008 Cal. App. LEXIS 1705

Posted: April 21, 2015 | Author: Recreation Law | Filed under: Assumption of the Risk, California, Legal Case, Paddlesports | Tags: assumption of the risk, Boating, duty, Primary Assumption of the Risk, Secondary Assumption of the Risk | Leave a comment

Kindrich III et al., v. Long Beach Yacht Club et al., 167 Cal. App. 4th 1252; 84 Cal. Rptr. 3d 824; 2008 Cal. App. LEXIS 1705

Carl Kindrich III et al., Plaintiffs and Appellants, v. Long Beach Yacht Club et al., Defendants and Respondents.

G038290

COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION THREE

167 Cal. App. 4th 1252; 84 Cal. Rptr. 3d 824; 2008 Cal. App. LEXIS 1705

October 28, 2008, Filed

COUNSEL: Brunick, McElhaney & Beckett and Steven K. Beckett for Plaintiffs and Appellants.

Cogswell Nakazawa & Chang, Christina L. Owen and Dena S. Aghabeg for Defendants and Respondents.

JUDGES: Opinion by Rylaarsdam, J., with Sills, P. J., concurring. Dissenting opinion by Bedsworth, J.

OPINION BY: Rylaarsdam [*1255]

OPINION

[**825] RYLAARSDAM, J.–Plaintiff Carl Kindrich III was injured while disembarking from a boat after participating in casting his late father’s ashes [**826] into the ocean. He sued defendants Long Beach Yacht Club, the owner of the boat and the dock, and Charles Fuller, the boat’s skipper, alleging they had been negligent in their use and maintenance of both the boat and the dock–specifically because they failed either to have someone on the dock to assist in tying off the boat when it returned, or to ensure that the portable steps, previously used in boarding the boat, would be available for his use when he attempted to disembark. Carl’s wife, Barbara, and son, Michael, also sued. Barbara claimed loss of consortium, and Michael claimed emotional distress suffered as an aural percipient witness to his father’s injury. (Because [***2] all three plaintiffs have the same last name, we will refer to them by their first names to avoid confusion and not out of disrespect.)

The trial court granted summary judgment to defendants, reasoning the doctrine of primary assumption of risk applied to Carl’s decision to jump off the boat onto the dock. All plaintiffs appeal, contending the court improperly concluded that the act of jumping onto the dock was an activity subject to the complete defense of primary assumption of risk. We agree that the court’s analysis was incorrect. Carl was not engaged in the type of sporting event where the doctrine of primary assumption of risk should be applied. At most Carl may have assumed risks, categorized as secondary assumption of risk, which are subsumed in contributory negligence. Whether he was contributorily negligent and, if so, how his negligence compares with that of defendants, if any, are questions of fact to be resolved by the trier of fact.

Defendants also contend summary judgment was properly granted because they were not negligent. But this is another question of fact and not subject to summary judgment. Defendants’ additional issues, whether Barbara suffered damages and whether [***3] Michael’s awareness of his father’s accident qualifies him as a “bystander” entitled to recover on a theory of negligent infliction of emotional distress, also raise questions of fact.

We therefore reverse the summary judgment.

FACTS AND PROCEDURAL HISTORY

The complaint alleges that plaintiffs and some of their relatives and friends gathered at the Yacht Club to participate in a “burial at sea” of the ashes of Carl’s late father. The Yacht Club arranged for the attendees to be taken to the burial site on a boat it owned and maintained and assigned Fuller to pilot that boat. The Yacht Club provided portable stairs on the dock to assist the [*1256] attendees in boarding. Plaintiffs contend that, when the boat returned to the dock, the portable steps were no longer in place. According to the complaint, Fuller told Carl to tie off the boat; there was no one on the dock waiting to do so. As Carl “started to jump from the side of the boat onto the dock … , the boat and dock moved relative to each other causing [Carl] to fall and injure himself.”

Plaintiffs allege causes of action for Carl’s personal injury, Barbara’s loss of consortium, and emotional distress suffered by Michael when he witnessed [***4] his father’s accident.

Defendants moved for summary judgment. They argued that Carl’s claim failed as a matter of law because (1) he assumed any risk of injury from his voluntary decision to jump onto the dock from the boat; and (2) they did not breach any duty of care they might have owed him and had no actual or constructive notice that the portable stairs may not have been in place when the boat returned to the [**827] dock. They also asserted that Barbara’s claim failed as a matter of law, both because it was derivative of Carl’s claim and because her discovery responses revealed no loss of consortium damages. Finally, defendants maintained Michael’s claim failed as a matter of law because it was derivative of Carl’s and because Michael was not actually aware of his father’s injury until after it had occurred.

These are the relevant undisputed facts offered in support of the motion: Carl’s father, a member of the Yacht Club before he died, had expressed the wish to be “buried at sea.” The Yacht Club agreed to assist with such a burial and permitted the Kindrich family to use one of its boats, without charge, for the ceremony. The Yacht Club also agreed to let Fuller, one of its long-standing [***5] members and a good friend of Carl’s father, pilot the boat for the ceremony.

Carl, Barbara, and Michael, along with other family members, used portable steps located on the dock to board the boat for the ceremony. After the ceremony was over, Carl and Michael were up on the bridge with Fuller, who piloted the boat back to the dock. According to Carl’s testimony, “[a]fter the burial, we were bringing the boat in and … not too far from the dock, [Fuller] looked to me and says ‘We have to tie up the boat, and someone else will have to help.’ And Michael and I were the only two on the bridge … . And so Michael said that he would help … . [¶] … When [Fuller] turned the boat into the dock and we had gotten up to the dock and we were getting ready to get off the boat, Mike, my son, jumped to the dock. We didn’t see the steps. The steps weren’t there. And then after Mike jumped off, I jumped off, also … .” [*1257]

Carl stated that at the moment he jumped off the boat, it was hit by the wake from another boat, causing it to “go up as he stepped off the boat and when he came down onto the deck, he broke his leg.” The boat used for the burial ceremony does not require more than two [***6] people to tie it up when it reaches the dock–one person to operate the boat and one person on the dock to tie the lines.

Plaintiffs opposed the summary judgment, arguing this was not a proper case for applying the doctrine of primary assumption of the risk, and the case could not be summarily adjudicated on the basis that defendants acted with reasonable care as a matter of law. Plaintiffs argued there were numerous factual disputes relating to whether defendants satisfied the duty of care they owed to the passengers on their boat, and those issues must ultimately be resolved by a jury.

At the hearing, the court explained its initial thinking in favor of granting the summary judgment: “We have some conflicts in the facts as to whether he jumped, or stepped, or lowered himself, or whatever, but that doesn’t matter. What didn’t happen was he wasn’t pushed. He wasn’t ordered. He voluntarily undertook an activity that was inherently dangerous; namely, disembarking from a moving boat obviously onto the dock and he hurt himself. [¶] I believe that without really much hesitation that … primary assumption of the risk applies and the motions should be granted for summary judgment.”

Although [***7] plaintiffs’ counsel attempted to persuade the court that Fuller directed Carl to assist in tying up the boat, and thus his decision to jump from the boat should not be regarded as voluntary, the court did not agree. “[Carl] assumed the risk of something in this recreational activity going wrong. [¶] It did go wrong. The precise wrong is irrelevant. One way or the other he voluntarily disembarked the boat … with the idea of going onto [**828] the dock, and this was an unsafe thing to do.”

The formal order granting the motion cited two bases. First, the court found that “even if the portable steps were actually missing when the vessel … arrived back at dock after the burial at sea, [d]efendants had no notice, constructive or actual, of their absence. … [¶] The Court additionally finds that [d]efendants are entitled to summary adjudication on their Fourth Affirmative Defense because when [p]laintiff … made the deliberate and conscious decision to jump from the vessel … to the dock, he, with full knowledge thereof, knowingly and voluntarily assumed the risk of sustaining injury. (See Meintsma v. United States [(9th Cir. 1947)] 164 F.2d 976 … ; see also DeRoche v. Commodore Cruise Line, Ltd. (1994) 31 Cal.App.4th 802, 810 [46 Cal. Rptr. 2d 468] [***8] (‘[It] is settled that there is no duty to warn of a danger that is as obvious to the injured party as to the defendant.’).)” [*1258]

The order granted summary judgment against Barbara and Michael as well, concluding Barbara’s claim for loss of consortium was derivative as a matter of law and that any distinct claim for emotional distress was precluded by the fact she did not actually witness Carl’s injury. As to Michael’s claim, the court concluded that a bystander’s recovery for extreme emotional distress was dependent upon a determination the injury he witnessed was negligently inflicted. Since Carl’s negligence claim failed, Michael’s did as well.

DISCUSSION

Primary Versus Secondary Assumption of Risk

(1) Even were we to conclude that Carl’s decision to jump off the boat was a voluntary one, and that therefore he assumed a risk inherent in doing so, this is not enough to provide a complete defense. [HN1] Because voluntary assumption of risk as a complete defense in a negligence action was abandoned in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 829 [119 Cal. Rptr. 858, 532 P.2d 1226], only the absence of duty owed a plaintiff under the doctrine of primary assumption of risk would provide such a defense. But that doctrine does not come [***9] into play except when a plaintiff and a defendant are engaged in certain types of activities, such as an “active sport.” That was not the case here; plaintiff was merely the passenger on a boat. Under Li, he may have been contributorily negligent but this would only go to reduce the amount of damages to which he is entitled.

Before Li, contributory negligence and voluntary assumption of risk were distinct and complete defenses in an action for negligence. Under certain circumstances, the “last clear chance” doctrine provided relief from the harshness of the rules. Li changed all that. It adopted the doctrine of comparative negligence and held that “[t]he [HN2] doctrine of last clear chance is abolished, and the defense of assumption of risk is also abolished to the extent that it is merely a variant of the former doctrine of contributory negligence; both of these are to be subsumed under the general process of assessing liability in proportion to negligence.” (Li v. Yellow Cab Co., supra, 13 Cal.3d at p. 829.)

Li recognized that there are at least two distinct forms of assumption of risk. “As for assumption of risk, we have recognized in this state that this defense overlaps that of contributory [***10] negligence to some extent and in fact is made up of at least two distinct defenses. ‘To simplify greatly, it has been observed … that in one kind of situation, to wit, where a plaintiff unreasonably undertakes to encounter a specific known risk imposed by a defendant’s negligence, [**829] plaintiff’s conduct, although he may encounter that risk in a prudent manner, is in reality a form of contributory negligence … . [*1259] Other kinds of situations within the doctrine of assumption of risk are those, for example, where plaintiff is held to agree to relieve defendant of an obligation of reasonable conduct toward him. Such a situation would not involve contributory negligence, but rather a reduction of defendant’s duty of care.’ [Citations.] We think it clear that the adoption of a system of comparative negligence should entail the merger of the defense of assumption of risk into the general scheme of assessment of liability in proportion to fault in those particular cases in which the form of assumption of risk involved is no more than a variant of contributory negligence. [Citation.]” (Li v. Yellow Cab Co., supra, 13 Cal.3d at pp. 824-825.)

(2) So, [HN3] to the extent that “‘”a plaintiff unreasonably [***11] undertakes to encounter a specific known risk imposed by a defendant’s negligence,”‘” he or she is subject to the defense of comparative negligence but not to an absolute defense. (Knight v. Jewett (1992) 3 Cal.4th 296, 305-306 [11 Cal. Rptr. 2d 2, 834 P.2d 696].) This type of comparative negligence has been referred to as ” ‘secondary assumption of risk.’ ” (Id. at p. 308.) Assumption of risk that is based upon the absence of a defendant’s duty of care is called ” ‘primary assumption of risk.’ ” (Ibid.) “First, in ‘primary assumption of risk’ cases–where the defendant owes no duty to protect the plaintiff from a particular risk of harm–a plaintiff who has suffered such harm is not entitled to recover from the defendant, whether the plaintiff’s conduct in undertaking the activity was reasonable or unreasonable. Second, in ‘secondary assumption of risk’ cases–involving instances in which the defendant has breached the duty of care owed to the plaintiff–the defendant is not entitled to be entirely relieved of liability for an injury proximately caused by such breach, simply because the plaintiff’s conduct in encountering the risk of such an injury was reasonable rather than unreasonable.” (Id. at p. 309.)

Primary assumption [***12] of risk, “‘”where plaintiff is held to agree to relieve defendant of an obligation of reasonable conduct toward him”‘” (Knight v. Jewett, supra, 3 Cal.4th at p. 306), remains as a complete defense. That defense was not fully developed until our Supreme Court decided Knight v. Jewett. There, Knight sued Jewett for negligence and assault and battery after she was injured when Jewett knocked her over and stepped on her finger during a touch football game. In affirming summary judgment for the defendant, the court held that under the doctrine of primary assumption of risk, the defendant did not owe the plaintiff a duty. It “conclude[d] that a participant in an active sport breaches a legal duty of care to other participants–i.e., engages in conduct that properly may subject him or her to financial liability–only if the participant intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.” (Id. at p. 320, fn. omitted.) [*1260]

(3) Knight shifted the focus of assumption of risk from a plaintiff’s “subjective knowledge and awareness” of the risk to the nature of the activity in question. (Knight v. Jewett, supra, 3 Cal.4th at p. 313.) [***13] [HN4] “In cases involving ‘primary assumption of risk’–where, by virtue of the nature of the activity and the parties’ relationship to the [**830] activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury–the doctrine continues to operate as a complete bar to the plaintiff’s recovery.” (Id. at pp. 314-315.) Knight justified maintaining the defense in a sports setting because there “conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself” (id. at p. 315), and imposing liability “might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging in activity that falls close to, but on the permissible side of, a prescribed rule” (id. at p. 319). The focus of the questions should consider the nature of the activity and the relationship of the parties to the activity. (Id. at p. 315.)

There are situations other than active sports where under the doctrine of primary assumption of risk a plaintiff is held to agree to relieve a defendant of an obligation of reasonable conduct toward him or her. For example, Knight stated, “In addition to the sports [***14] setting, the primary assumption of risk doctrine also comes into play in the category of cases often described as involving the ‘firefighter’s rule.’ [Citation.] In its most classic form, the firefighter’s rule involves the question whether a person who negligently has started a fire is liable for an injury sustained by a firefighter who is summoned to fight the fire; the rule provides that the person who started the fire is not liable under such circumstances. [Citation.] Although a number of theories have been cited to support this conclusion, the most persuasive explanation is that the party who negligently started the fire had no legal duty to protect the firefighter from the very danger that the firefighter is employed to confront. [Citations.] Because the defendant in such a case owes no duty to protect the firefighter from such risks, the firefighter has no cause of action even if the risk created by the fire was so great that a trier of fact could find it was unreasonable for the firefighter to choose to encounter the risk.” (Knight v. Jewett, supra, 3 Cal.4th at pp. 309-310, fn. 5.)

Other examples of primary assumption of risk are the so-called veterinarian’s rule (e.g., Priebe v. Nelson (2006) 39 Cal.4th 1112, 1121, fn. 1 [47 Cal. Rptr. 3d 553, 140 P.3d 848]) [***15] or where the plaintiff is hired to undertake a particular, dangerous job (e.g., Farnam v. State of California (2000) 84 Cal.App.4th 1448, 1455 [101 Cal. Rptr. 2d 642]; Herrle v. Estate of Marshall (1996) 45 Cal.App.4th 1761, 1765 [53 Cal. Rptr. 2d 713]). But for purposes of this case, we need only consider whether Carl’s injuries occurred while he was engaged in an “active sport,” which relieved defendants of a duty of care. [*1261]

There are more than 100 published cases defining what is and what is not an “active sport” qualifying for application of the doctrine of primary assumption of risk. “Since the decision in Knight, which involved a recreational game of touch football, our state Supreme Court and appellate courts have examined the applicability of the primary assumption of the risk defense in a wide variety of cases involving sports and recreational activities. In Ford[ v. Gouin (1992)] 3 Cal.4th 339 [11 Cal. Rptr. 2d 30, 834 P.2d 724], the companion case to Knight, the Supreme Court expanded the doctrine and applied it to the noncompetitive, nonteam sporting activity of waterskiing. The Supreme Court has applied the doctrine to other sports, including intercollegiate baseball (Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 161 [**831] [41 Cal. Rptr. 3d 299, 131 P.3d 383]), swimming (Kahn[ v. East Side Union High School Dist. (2003)] 31 Cal.4th [990,] 1004-1005 [4 Cal. Rptr. 3d 103, 75 P.3d 30] [***16] [examining coach’s relationship to sport]), and snow skiing (Cheong v. Antablin (1997) 16 Cal.4th 1063, 1067-1068 [68 Cal. Rptr. 2d 859, 946 P.2d 817] …). [Citation.] The Courts of Appeal have applied the primary assumption of the risk rule in cases involving snow skiing (Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8 [45 Cal. Rptr. 2d 855]), ‘off-roading’ with a motorcycle or ‘dune buggy’ (Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1255, 1259-1265 [102 Cal. Rptr. 2d 813]), skateboarding (Calhoon v. Lewis (2000) 81 Cal.App.4th 108, 115-117 [96 Cal. Rptr. 2d 394]), figure ice skating (Staten v. Superior Court (1996) 45 Cal.App.4th 1628, 1632-1636 [53 Cal. Rptr. 2d 657]), and long-distance group bicycle riding (Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1218-1223 [130 Cal. Rptr. 2d 198]), to name a few.” (Truong v. Nguyen (2007) 156 Cal.App.4th 865, 878-879 [67 Cal. Rptr. 3d 675] [primary assumption of risk applied to bar action for injury to passenger on jet ski].)

In Record v. Reason (1999) 73 Cal.App.4th 472 [86 Cal. Rptr. 2d 547], the court held that where the plaintiff was injured when he fell off an inner tube while being towed behind a motor boat, primary assumption of risk applied. In doing so, the court considered the issue of whether a particular activity was a “sport” such that the doctrine should be applied. [***17] After reviewing a substantial number of cases applying primary assumption of risk to a variety of activities, the court concluded that “[c]ompiling all of the distinguishing factors, it appears that an activity falls within the meaning of ‘sport’ if the activity is done for enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury.” (Id. at p. 482.) Although we agree with the result in Record its reliance on a plaintiff’s subjective reasons for participating in a sport seems inconsistent with Knight‘s test, which focuses on whether imposing liability would “alter fundamentally the nature of the sport by deterring participants from” vigorous participation. (Knight v. Jewett, supra, 3 Cal.4th at p. 319.) [*1262]

(4) Stimson v. Carlson (1992) 11 Cal.App.4th 1201, 1205 [14 Cal. Rptr. 2d 670] applied primary assumption of risk to sailing where the plaintiff was one of the crew operating the boat; the court noted that sailing involves swinging booms and physical participation of crew. But in our case, plaintiff was not a participant in the “sport” of boating or in any “active sport.” He was a passenger. Thus [HN5] this activity does not fall within [***18] the test set out in Knight, i.e., that to hold defendants owed no duty to plaintiffs would “alter fundamentally the nature of [a] sport by deterring participants from” vigorous participation. (Knight v. Jewett, supra, 3 Cal.4th at p. 319.)

This case is more analogous to Shannon v. Rhodes (2001) 92 Cal.App.4th 792 [112 Cal. Rptr. 2d 217]. There a six-year-old child and her siblings sued the owner and operator of a ski boat for negligence arising from injuries sustained by the child when she fell from the boat into the boat’s propeller. The Court of Appeal reversed summary judgment, holding that primary assumption of risk did not apply. The court noted, “Our analysis begins by examining with what activity the Knight court was concerned. In Knight, the court came to the commonsense conclusion that when two people are playing a sport together one should not be liable to the other for injuries sustained while playing that sport [**832] absent some recklessness or intentional misconduct. [Citation.] The parties in Knight were engaged in a recreational game of football, clearly a physical activity and ‘sport’ within any common understanding of the word.” (Id. at p. 796.) Shannon held that the defense did not apply where [***19] the plaintiff was merely a passenger in the ski boat. (Id. at p. 801.)

Shannon distinguished Ford v. Gouin, supra, 3 Cal.4th 339, the waterskiing case, by noting that in Ford, our Supreme Court “explicitly used the language ‘noncompetitive but active sports activity’ in applying the doctrine to waterskiing. [Citation.] A review of the reasoning set forth in Ford makes clear that the court focused on the physical skill and risk involved in the waterskiing itself to conclude that the activity of waterskiing was a sport, and the boat driver a coparticipant in that sport. [Citation.] The same certainly cannot be said of a mere passenger in a boat … .” (Shannon v. Rhodes, supra, 92 Cal.App.4th at p. 798.)

(5) Here, the trial court characterized the activity in which plaintiff engaged as “jumping” rather than boating. We disagree that [HN6] we must surgically separate an activity’s constituent parts apart from the general activity in which the plaintiff was engaged. Carl was engaged in boating, not in jumping. If he had been a jumper, in the sense of one who competes in athletic events, our conclusion would be different. But he was disembarking from the boat; his method of doing so, be it leaping, jumping, stepping off, or walking the gangplank, [***20] did not turn his activity into an “active sport.” [*1263]

We therefore conclude that the doctrine of primary assumption of risk does not bar plaintiffs’ action.

Defendants’ Remaining Arguments

(6) We need not expend a great deal of time dealing with the rest of defendants’ arguments. Although these were not the basis for the grant of summary judgment, we will comment briefly. Defendants contend they acted with reasonable care. But this argument should be made not to us but to the trier of facts. [HN7] Whether reasonable care has been exercised is normally a question of fact. (Butigan v. Yellow Cab Co. (1958) 49 Cal.2d 652, 656 [320 P.2d 500].) Even if defendants were not responsible for the removal of the steps, and they contend the steps were there, this would only be one possible theory of liability. And, in light of the conflicting evidence, it is not for us to decide whether the steps were removed and, if so, by whom.

(7) As to defendants’ argument that Carl’s wife, Barbara, did not sustain damages to support her loss of consortium claim, the contention rests on the absence of evidence of physical injuries. But, as plaintiffs point out, “[a]lthough [HN8] loss of consortium may have physical consequences, it is principally a form [***21] of mental suffering.” (Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 401 [115 Cal. Rptr. 765, 525 P.2d 669].)

(8) Defendants’ final argument is equally specious. [HN9] Whether or not Carl’s son, Michael, had such a contemporaneous sensory awareness of the accident as to satisfy the requirements of Thing v. La Chusa (1989) 48 Cal.3d 644, 668-669 [257 Cal. Rptr. 865, 771 P.2d 814] is again a question of fact, not to be resolved by us.

DISPOSITION

The judgment is reversed. Appellants shall recover their costs.

Sills, P. J., concurred.

DISSENT BY: BEDSWORTH

DISSENT

BEDSWORTH, J., Dissenting.–“No good deed goes unpunished” has become a truism of modern life. Today, [**833] by allowing suit against a yacht club that tried to help one of the sons of a member in his time of grief, only to be sued when he hurt himself intruding into their conduct of the good deed, my colleagues give this sad commentary on modern society the force of law. I respectfully dissent from that.

Carl Kindrich III was injured when he jumped off a boat and onto a dock. He did so voluntarily, after he knew his adult son, Michael, had already [*1264] gotten onto the dock to assist in tying off the boat. There is absolutely no evidence that anyone suggested, let alone required, that Kindrich himself must get off the boat prior [***22] to the time the stairs were put into place on the dock for the egress of passengers. Nonetheless, Kindrich, along with his wife and son, sued both the Long Beach Yacht Club and Charles Fuller, the Yacht Club member who captained the boat, alleging they were responsible for his injuries.

The trial court granted summary judgment to defendants, and I would affirm that judgment. I believe the trial court properly concluded that Kindrich’s specific act of “jumping onto the dock,” rather than the more generic and sedate “boating” was the relevant “activity” for purposes of assessing his assumption of risk. In my view, jumping or stepping some two and one-half or three feet off the side of a boat onto a dock–merely because portable steps had not yet been put into place–is no more an integral part of “boating” than diving out a window–because no one has yet opened the door–is an integral part of visiting a house.

This was not an outing or an excursion. It was not a leisurely sail. The trip was made to dispose of the ashes of Kindrich’s father. The injury in question was not the result of “boating.” Kindrich was not swept off the boat by a wave or hit by a jib. He jumped off the [***23] boat at the conclusion of the trip before the boat had been tied up. His injury was the result of his sudden decision he would leap off the boat rather than waiting for his son to finish tying it off and ensuring debarkation could be safely accomplished.

It is undisputed that defendants did not expect, let alone require, that passengers would have to jump off this particular boat as part of the “boating” experience. To my mind, the existence of portable stairs, which had been used by these passengers when boarding the boat, and were intended to be kept on the dock for the passengers to use in both getting on and off the boat, rather conclusively establishes the lack of any such expectation. And Kindrich’s own testimony demonstrates that even he did not consider jumping off the side of the boat onto the dock to be a normal part of this boat ride, let alone an integral part of the activity of “boating” in general. As Kindrich explained it, he not only did not expect that anyone else on the boat would be jumping off, he believed them unable to do it. ¹

1 As Kindrich explained in his deposition, “Jim, my brother, has a back to where he can’t do a lot of jumping; Mary Ann would not be capable [***24] of doing it; Lisa wouldn’t be capable of doing it; my grandsons would not be capable of doing it. And the other two gentlemen would not be capable of doing it.”

Moreover, there is no evidence that anyone–either Fuller or the Yacht Club–imposed some special obligation on Kindrich to jump off the boat and [*1265] be on the dock while it was being tied up. Instead, Kindrich’s own testimony establishes that (1) Fuller merely stated (either directly to Kindrich or generally to him and his son) that it was necessary to tie up the boat, and “someone else” would have to assist; (2) Kindrich’s son immediately volunteered to do that; and (3) Kindrich was aware his son [**834] had already jumped onto the dock for the purpose of tying off lines before his own ill-fated attempt to follow suit. Even assuming it was actually necessary for “someone” to be on the dock–a fact disputed below–it is uncontested that need had been met prior to Kindrich’s jump.

Under these facts, it is clear that jumping off the boat before the stairs were in place was not a requirement placed generally on those who were passengers on the boat, and it was not a requirement placed specifically on Kindrich by any defendant. ² Hence, [***25] Kindrich’s decision to do so was simply an optional, and entirely voluntary act, which must be distinguished, for analytical purposes, from any normal aspect of “boating.”

2 Of course, I do not mean to suggest Kindrich necessarily thought through these events with the specificity I have just employed. Presumably, he just figured if Fuller needed help getting the boat tied onto the dock, he was willing to do whatever he could to assist. But that instinct is the essence of volunteerism: “Somebody ought to do it, might as well be me” is not the same thing as being specifically assigned a task. And the fact Fuller might even have appreciated having two people on the dock is not the same thing as concluding he actually directed Kindrich to get onto the dock–by whatever means possible–as soon as the boat arrived. Based upon the evidence in this case, the trial court correctly determined Kindrich was acting voluntarily when he jumped off the boat.

As my colleagues seem to concede, when Kindrich’s activity is construed not as an integral part of “boating” but rather as simply an impetuous act of “jumping off the boat,” it falls within the scope of “athletic” endeavors, which includes those [***26] noncompetitive activities requiring some level of “physical skill and risk,” and thus primary assumption of the risk would apply. (See Ford v. Gouin (1992) 3 Cal.4th 339, 345 [11 Cal. Rptr. 2d 30, 834 P.2d 724]; Shannon v. Rhodes (2001) 92 Cal.App.4th 792, 798 [112 Cal. Rptr. 2d 217].) Because I see it that way, I would apply that doctrine, and grant the summary judgment.

But I should also note that I disagree with the majority’s analysis for an additional reason. As they explain, they considered Kindrich’s situation to be more analogous to Shannon v. Rhodes, supra, 92 Cal.App.4th 792, in which the injured plaintiff, a six-year-old child, was merely a passenger when she fell out of a boat that lurched unexpectedly, than to Stimson v. Carlson (1992) 11 Cal.App.4th 1201 [14 Cal. Rptr. 2d 670], in which the court applied primary assumption of the risk to a plaintiff who was injured while serving as a crewmember on a sailboat. If that is the analysis, it would lead me to the opposite conclusion. After all, a cornerstone of Kindrich’s theory of liability [*1266] is the assertion he had agreed to help with the docking of the boat, which is why–unlike the other passengers–he could not simply wait for the stairs to be put in place before getting onto the dock. If we accept [***27] his view, it seems clear that at the time of the accident, Kindrich had assumed the role of “crew,” rather than remaining a mere passenger. That would bring him within the majority’s characterization of Stimson. For that reason as well, I would affirm the judgment.

My colleagues have expanded civil liability beyond previous decisional law and beyond my ability to sign on. This ship will have to sail without me.

Respondents’ petition for review by the Supreme Court was denied February 11, 2009, S168902. Werdegar, J., did not participate therein.

Plaintiff in a ropes course injury (Nitro Swing) fails because she assumed the risk

Posted: April 20, 2015 | Author: Recreation Law | Filed under: Assumption of the Risk, Challenge or Ropes Course, New York | Tags: assumption of the risk, challenge course, Nitro Crossing, Nitro Swing, Ropes course, YMCA, YMCA of Greater New York | Leave a comment

It is wonderful when the court looks at the facts and says plainly, no way you are going to win a case because this is a stupid claim, and your expert is clueless.

State: New York, Supreme Court of New York, Appellate Division, First Department

Plaintiff: Kathleen Sajkowski et al

Defendant: Young Men’s Christian Association of Greater New York

Plaintiff Claims: negligent in failing to place shock absorbing material such as wood chips below the Nitro Crossing

Defendant Defenses: Assumption of the Risk

Holding: For the defendant

Year: 2000

This case is written so clearly that most of this article will be quotes from the opinion.

The plaintiff participated in a Wellness for Life weekend put on by the defendant YMCA. One of the activities was a Nitro Swing. The court described the Nitro Swing as:

This event involved nothing more than swinging from a rope. The rope dangled just about 1 1/2 feet from the ground in the center of an imaginary pit that was actually flat, bare dirt. Those who chose to participate in the Nitro Crossing would start out by standing on a log that was lying at ground level. Then, holding on to the rope, they would swing approximately five to seven feet to another log that was also lying at ground level.

Don’t you just love the first sentence! “This event involved nothing more than swinging from a rope.” It distilled the essence of the lawsuit and removed the marketing and hyperbole that clouds life and litigation now days.

While waiting for her turn the plaintiff saw several other participants lose their grip on the rope and fall. When she tried the Nitro Swing she also lost her grip on the rope and fell injuring her ankle.

The plaintiff sued. The trial court dismissed her lawsuit based on assumption of the risk, and the plaintiff appealed the decision.

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

The court said the plaintiff assumed the risk.

…by engaging in a sport or recreational activity, a participant 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.” This encompasses those risks that are associated with the construction of the playing field and any open and obvious defects on it. Thus, if the risks of an activity are fully comprehended or perfectly obvious, one who participates in the activity is deemed to have consented to the risks. Furthermore, where the risk is open and obvious, the mere fact that a defendant could have provided safer conditions is irrelevant

Then the court states in very plain English:

It is also incontrovertible that the risks involved were not concealed and that plaintiff fully comprehended them since she had seen several other participants fall just moments earlier. Moreover, to the extent that the Nitro Crossing failed to have shock absorbing material beneath it, this was nothing more than an open and obvious condition of the playing surface, which, as noted, is not actionable….

The plaintiff, then through the opinion of her expert witness tried to convince the court that the defendant should have padded the ground beneath the swing. The court did not really appreciate her expert’s opinion.

The reason was the expert used by the plaintiff dug up standards for gymnastics for children under 12.

In seeking to demonstrate such violations, plaintiff submitted expert evidence that analogized the Nitro Crossing to a gymnastics event and pointed to the requirements for construction of playgrounds built for children under 12 years of age.

Then the court sort of slams the case closed.

She was only swinging from a rope with her body suspended just barely off the ground. The instructions for such an activity are simple and straightforward–hold the rope and swing. Similarly incongruous was plaintiff’s reliance on standards for the proper construction of playgrounds built for children under 12 years of age. The Nitro Crossing, after all, was not part of a children’s playground.

As much as appellate courts are allowed to, the above paragraph is pretty much an “up yours” in legalese.

So Now What?

Sure, Always Use a Release, but in this case for this particular event, it did not matter.

This is a situation where no matter how stupid the claim or how valid the defenses; the plaintiff still gave rolled the dice hoping for a very sympathetic judge or an easy settlement. The defendant and their insurance company, thankfully, stood up to the stupid claims and fought them; probably to a greater cost than any settlement.

Even in outdoor recreation, you get bad lawsuits. Thankfully, this one was fought all the way rather than settled.

What do you think? Leave a comment.

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