Travent, Ltd., v. Schecter, 718 So. 2d 939; 1998 Fla. App. LEXIS 12840; 23 Fla. L. Weekly D 2384 (Fl App 1998)
Posted: May 20, 2013 Filed under: Cycling, Florida, Legal Case, Release (pre-injury contract not to sue) | Tags: Bicycle Tour, Circuit Court, Florida, Ltd., Schecter, Travent Leave a commentTravent, Ltd., v. Schecter, 718 So. 2d 939; 1998 Fla. App. LEXIS 12840; 23 Fla. L. Weekly D 2384 (Fl App 1998)
Travent, Ltd., Appellant, v. Mark Schecter and Karen Schecter, his wife, Appellees.
CASE NO. 97-2491
COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT
718 So. 2d 939; 1998 Fla. App. LEXIS 12840; 23 Fla. L. Weekly D 2384
October 14, 1998, Opinion Filed
SUBSEQUENT HISTORY: [**1] Released for Publication October 30, 1998.
PRIOR HISTORY: Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Robert Lance Andrews, Judge; L.T. Case No. 93-17334 09.
DISPOSITION: REVERSED AND REMANDED.
COUNSEL: Kenneth W. Moffet of Moffet & Alexander, P.A., West Palm Beach, for appellant.
Walter G. Campbell, Jr. of Krupnick, Campbell, Malone, Roselli, Buser, Slama, and Hancock, P.A., Fort Lauderdale, for appellees.
JUDGES: DELL, J., GUNTHER and WARNER, JJ. concur.
OPINION BY: DELL
OPINION
[*939] DELL, J.
Travent, Ltd. appeals the order granting Mark and Karen Schecters’ Motion for Judgment in Accordance with Motion for Directed Verdict and Motion for New Trial. Travent contends that the trial court erred when it granted the Schecters’ motion for directed verdict because they signed an agreement that released their claims. Travent also contends that the trial court erred when it granted the new trial because the Schecters waived any error concerning the admission of the release and invited any error in the jury instructions. We reverse.
The Schecters filed suit alleging that Travent’s negligence in the operation of bicycle tours caused serious injuries [**2] to Mark Schecter when the front wheel of the bicycle he rode fell off. 1 In its amended answer, Travent submitted the document signed by the Schecters, providing in pertinent part,
1 The Schecters also filed suit against Travel Center of Broward, Inc. d/b/a Compass-McQuade Travel. Travel Center is not a party to this appeal.
AGREEMENT: I have read and do understand Cycling Safely stated on the other [*940] side, and agree to follow [the safety precautions stated therein]. In consideration of being permitted to participate in a tour operated by TRAVENT International and TRAVENT Ltd., I do for myself, my heirs, legal representatives and assigns hereby release, waive and discharge TRAVENT International and TRAVENT Ltd., its agents and employees from all liability to myself, my heirs, legal representatives and assigns for any and all loss or damage on account of injury to my person or property, whether caused by negligence or otherwise, while participating in the tour. Furthermore, I assume full responsibility for [**3] the risk of bodily injury, death or property damages while participating in said tour.
Both parties moved for directed verdicts based on the release. The court denied the motions.
The jury found that the agreement signed by the Schecters released Travent from “any acts of negligence,” and that there was no negligence on Travent’s part legally causing damage to the Schecters. Thereafter, the Schecters filed a Motion for Judgment in Accordance with the Motion for Directed Verdict and a Motion for Mistrial, or in the alternative, a Motion for a New Trial. After a hearing, Judge Robert L. Andrews, successor to Judge Levon Ward, concluded,
The Release was insufficient to preclude liability on the part of the Defendant [Travent] . . . . [and that] because the Release contains no specific and unambiguous language asserting that the Defendant cannot be sued for its own negligence, the Plaintiffs were entitled to a Motion for Directed Verdict on the Release as a matter of law.
(emphasis in original). The trial court granted the Schecters’ motion for directed verdict, denied the motion for mistrial, and granted their motion for a new trial.
Travent argues that the trial [**4] court erred when it granted the Schecters’ motion for a directed verdict because their claims were barred by the release. We agree and reverse. In granting the directed verdict, the trial court relied on Zinz v. Concordia Properties, Inc., 694 So. 2d 120 (Fla. 4th DCA 1997). In Zinz, a premises liability case, the document signed by appellants provided that
“the undersigned agree to indemnify and hold Concordia … harmless” and that: the undersigned agree that Concordia … shall in no way be responsible for the action of the undersigned in the access to Villa Mare and/or Villa Costa, nor shall Concordia and the Town of Highland Beach be liable for damages arising out of any activities in which the undersigned are so involved.
Id. at 121. This court concluded that “the general terms ‘indemnify … against any and all claims’ did not sufficiently disclose the intention to indemnify against the negligence of the indemnitee.” Id. Here, the agreement specifically refers to Travent and states that the signator does release, waive and discharge TRAVENT International and TRAVENT Ltd., its agents and employees from all liability to myself, my heirs, legal representatives [**5] and assigns for any and all loss or damage on account of injury to my person or property, whether caused by negligence or otherwise, while participating in the tour.
(emphasis added).
The Schecters cite Witt v. Dolphin Research Center, Inc., 582 So. 2d 27 (Fla. 3d DCA 1991), where the trial court found that an action was barred by the terms of a release and awarded summary judgment in favor of the appellee. Id. The Third District Court of Appeal held, “Since there is no specific reference in the release to the appellee’s ‘negligence’ at all, it is clear that, as a matter of law, they provide no defense to the negligence claim in this case, and that the judgment must therefore be reversed for trial on that ground.” Id.
The Schecters also argue that the trial court’s directed verdict should be affirmed based on Van Tuyn v. Zurich American Insurance Co., 447 So. 2d 318 (Fla. 4th DCA 1984). In Van Tuyn, the appellant sued appellee for injuries she sustained after falling from a mechanical bull. Prior to riding the mechanical device, she signed a written waiver providing in pertinent part,
I hereby voluntarily release, waive, and discharge CLUB DALLAS, [**6] Marr Investments, [*941] Inc., their lessors, heirs successors and/or assigns from any and all claims, demands, damages and causes of action of any nature whatsoever which I, my heirs, my assigns, or my successors may have against any of them for, on account of, or by reason of my riding or attempting to ride this Bucking Brama Bull.
Id. at 320. This court concluded that the agreement in Van Tuyn “is devoid of any language manifesting the intent to either release or indemnify Club Dallas, Marr Investments, Inc., for its own negligence. Therefore, the agreement does not, as a matter of law, bar the Appellant’s recovery.” Id.
In Van Tuyn, the written waiver did not state that it released the subject parties from negligent acts. The release signed by the Schecters differs from that in Witt and Van Tuyn because it releases Travent “for any and all loss or damage on account of injury to my person or property, whether caused by negligence or otherwise, while participating in the tour.”
We find merit in Travent’s argument that the release signed by the Schecters should be considered in light of this court’s decision in Banfield v. Louis, 589 So. 2d 441 (Fla. 4th [**7] DCA 1991). In Banfield, before competing in a triathlon, the appellant completed and signed the official entry form:
In consideration for the acceptance of my entry, I, for my heirs, executors and administrators, release and forever discharge the United States Triathlon Series (U.S.T.S.), CAT Sports, Inc., Anheuser-Busch, the Quaker Oats Company, the city, county, state or district where the event is held and all sponsors, producers, their agents, representatives, successors and assigns of all liabilities, claims, actions, damages, costs or expenses which I may have against them arising out of or in any way connected with my participation in this event, including travel to or from this event, and including injuries which may be suffered by me before, during or after the event. I understand that this waiver includes any claims based on negligence, action or inaction or any of the above parties.
Id. at 443. The trial court concluded that the waiver provision in Banfield barred appellant’s negligence claims against the sponsors, organizers, and promoters, and therefore granted summary final judgment in favor of appellees. Id. at 443-44. This court stated that [HN1] waivers [**8] or exculpatory clauses are “valid and enforceable in Florida if the intent to relieve a party of its own negligence is clear and unequivocal,” id. at 444, and affirmed the summary judgment because “when Banfield signed the waiver, she knew that she was releasing all of the sponsors and promoters, as well as their agents, from liability.” Id. at 445.
As in Banfield, the subject agreement provided that the Schecters were releasing Travent, its agents, and its employees from liability, “whether caused by negligence or otherwise.” There is no meaningful difference between the language used in the subject release from that considered by this court in Banfield. Therefore, the language in the subject release must be interpreted to mean that the Schecters released, waived, and discharged Travent International, Travent, Ltd. and its agents and employees from all liability, caused by their own negligence or otherwise.
We hold that the trial court erred when it granted the Schecters’ motion for directed verdict and ordered a new trial. We further hold that the trial court should have granted Travent’s motion for directed verdict. Accordingly, we reverse the order granting [**9] the directed verdict in favor of the Schecters and ordering the new trial. We remand this cause to the trial court to enter judgment in favor of Travent. Our holding makes it unnecessary to discuss Travent’s remaining point on appeal.
REVERSED AND REMANDED.
GUNTHER and WARNER, JJ. concur.
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More beer less problems!
Posted: May 8, 2013 Filed under: Risk Management, West Virginia | Tags: Athletic Director, Beer, Seven Habits of Highly Effective People, Stadium, Stephen Covey, The 7 Habits of Highly Effective People, West Virginia, West Virginia University, WVU 4 CommentsI can see teetotalers hiding under the bed and certain religious sects nailing me to the cross, but think about the article!
Several years agoWest Virginia University quit selling beer in its football stadium. However, they allowed fans to tailgate at the stadium and leave the stadium during halftime. Consequently, fans would get loaded before the game to have their buzz last till halftime where they would leave the stadium to get buzzed again for the last half of the game. On top of that, sneaking alcohol into the stadium was a bigger game than what was being played on the field. What did the policy create? Problems and challenges.
Oliver Luck is athletic director. At football games at WVU, he started to notice a few familiar sights — the unbelievable, sheer athleticism, the marching bands… and the freshmen barfing all over the stadium.
“People drinking far too much at pre-game parties and tailgate parties before games. Sneaking alcohol into games. Leaving at halftime to drink even more and come back into the game,” said Luck.
WVU like most colleges prohibited alcohol and the sale of alcohol in its stadium. WVU realized that abstinence does not work!
So WVU started selling beer in the stadium. Contrary to popular belief, chaos did not run amuck at WVU football games.
“In 2010, we made 117 arrests on game days. In this past year, we only made 79. See, that’s almost a 35 percent reduction in arrests we made,” said Bob Roberts, West Virginia University police chief.
West Virginia made about $500,000 the sale of beer the first year. More money and less problems. (Sounds like a beer ad.) Believe me, no matter what the fines of the 35% of lost arrests, it would never make up the half million the university made.
You cannot stop people from doing what they want to do. We have millions incarcerated in prisons to prove that point. What we can do is make money on it and help those who want to do it to understand it and maybe exercise a little control over it.
More importantly instead of telling people how to live, let’s work with people to figure out the best way to solve everyone’s problems. As Stephen R. Covey said in “The Seven Habits of Highly Effective People,” make it a “Win Win.”
See Can selling beer help college fans drink less?
What do you think? Leave a comment.
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RELEASE (Waiver) CHECKLIST
Posted: May 1, 2013 Filed under: Assumption of the Risk, Release (pre-injury contract not to sue) | Tags: Assumption of risk, Checklist, Contract, Covenant not to sue, Document Management, Exculpatory Agreement, Exculpatory clause, Insurance, Law, Practice Management, Products, Release, Waiver Leave a commentWhat do I look for when evaluating releases or writing one?
If you are getting ready for your summer recreation business it is always a good idea to make sure your paperwork is up to date and ready to go. This is a checklist to help you check your release and make sure your release is doing more than wasting paper.
Not all of these clauses mentioned in the checklist may be needed. However, some of them are critical and they may all be modified based on your activity, program, employees, and ability to undertake the risks.
I’ve divided this checklist into three major parts:
· Required for your Release to be Valid: What is absolutely required
· Needed: What you should have for your release to be valid in most states
· What Your Release Cannot Have: What you should never have in your document
There are some subsections also that are fairly self-explanatory. This will probably not be in all releases, but may be required in your release based on what you are trying to accomplish or what you are doing.
Required for your Release to be Valid
Contract: The legal requirements for a contract are met if the release is signed
Updated Recently: Has your release been reviewed by an attorney in the past year or do you work with an attorney that updates you on changes you need to make to your release?
Notice of Legal Document: Does your release someplace on its face, give notice to the person signing it that they are signing a release or a legal document?
Parties: You have to identify who is to be protected by the release and who the release applies too.
Assumption of Risk Language: Does your release contain language that explains the risk of the activities the release is designed to protect litigation against.
Agreement to Assume Risks: Do your release have language that states the signor agrees to assume the risk
Magic Word: Negligence: Does your release have the signor give up their right to sue for negligence?
Plain Language: Is the release written so that it can be understood? Is it written in plain English?
Venue: Does your release have a Venue Clause?
Jurisdiction: Does your release have a Jurisdiction Clause?
Signatures: Does your release have a place for the signor to date and sign the release
Nothing in your marketing program invalidates your release.
Information to complete the continuing duty to inform
Items that may be Needed Dependent upon the Purpose of the Release
Parental Release
Product Liability Language
Release of Confidential Medical Information
Signor has viewed the Website
Signor has viewed the Videos
Signor has read the information
Signor has conveyed the necessary information to minor child
Reference to required Statute
Demo Language
Needed
Notice of Legal Document:
Notice of Legal Consequence: Does your release state there may be legal consequences to the signor upon signing?
Opening/Introduction: Does your release have an opening or introduction explaining its purpose
Assumption of Risk Language
Minor Injuries Noticed
Major Injuries Noticed
Death
Mental Trauma
Risks Not Associated with Activity
List Not Exclusive/ Exhaustive
Alternative Resolution
Arbitration
Mediation
Indemnification
Third party costs
First party costs
Severance Clause
How Release is to be interpreted
Breach of Covenant of Good Faith
Permission to release medical information
Waiver of medical confidentiality
Waiver of HIV status
Statement as to Insurance
Incidental issues covered
Plain Language: Readability Level ________
Adequate Typeface: Typeface Size _________
Release language in Plain English
Agreement that the document has been read
Agreement that the signor agrees to the terms
What Your Release Cannot Have
Places to Initial
Small Print
No heading or indication of the legal nature
No indication or notice of the rights the signor is giving up
Release Hidden within another document
Important sections with no heading or not bolded
Multiple pages that are not associated with each other
Miscellaneous Clauses your Release may Need
Electronic Signature Clause
Rental Agreement Clause
Demo Language
Understand use of Equipment
Accept Equipment As Is
Agree to ask questions about Equipment
Understand Demo Equipment has more Risk
Rental Language
More articles about releases.
Release/Waivers: The basics, the very basics! http://rec-law.us/AaqwqH
Releases 101 http://rec-law.us/xGL0I3
States that allow a parent to sign away a minor’s right to sue http://rec-law.us/z5kFan
States that do not Support the Use of a Release http://rec-law.us/zHGQsZ
What is a Release? http://rec-law.us/xMECTc
I found a release on the internet. It will work right! http://rec-law.us/14w6qeh
If you are interested in a Professional Review of your Release please let me know.
What do you think? Leave a comment.
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In Nebraska a release can defeat claims for gross negligence for health club injury
Posted: April 8, 2013 Filed under: Health Club, Nebraska, Release (pre-injury contract not to sue) | Tags: Alegent Health, Defendant, Fitness Center, Gross negligence, Health club, Inc., Lakeside Wellness Center, Negligence, Plaintiff, Precor, Precor USA, Release, Treadmill Leave a commentPalmer v. Lakeside Wellness Center, 281 Neb. 780; 798 N.W.2d 845; 2011 Neb. LEXIS 62
Manufacturer of the health club equipment was able to squeak out a win by making sure the equipment met the applicable standards when the treadmill was manufactured.
This case is a health club fitness which is interesting because it covers several legal issues in ways that most courts will not. It also points out some simple things you can do to keep yourself out of court or losing in court.
A husband and wife, plaintiffs, joined a health club. After five weeks at the club the wife, went to get on a treadmill. She did not notice it was running and upon stepping on the treadmill she was thrown backwards into an elliptical trainer. The plaintiff had an injured hand and chest from the accident.
The area around the treadmill was allegedly, not well lit, however the plaintiff had not complained about the lighting. When she stepped on the treadmill she looked at the control panel but did not look at the belt. The treadmill was in a row of treadmills and the treadmills on either side of the treadmill in question were running. The plaintiff also said the treadmill area was loud.
The plaintiff had been using treadmills for 21 years. She had been using treadmills at the defendants approximately five times a week for five weeks and had used the treadmill in question 10 to 15 times. When she joined the defendant health club she received instructions from a trainer, but she stated she did not need instructions on how to operate a treadmill. The plaintiff also had a treadmill at home.
When the plaintiff and her husband joined the defendant health club she signed two documents which contained releases. The first was titled Membership agreement what had a release that included the word negligence in the language of the contract. The second form was a health history questionnaire which was signed by the plaintiff and also included release language.
The plaintiff and her husband sued the manufacturer of the treadmill, Precor, and the health club, Lakeside Wellness Center for her injuries. She claimed both defendants were negligent and were grossly negligent. Precor was allegedly negligent in making a treadmill without proper safety features and the health club was liable for not providing adequate lighting around the treadmill. There was also a claim that the health club had modified the treadmill belt so that it was unsafe.
The trial court granted both of the defendant’s motions for summary judgment. The plaintiff appealed saying the trial court erred in:
(1) granting summary judgment in favor of Lakeside and Precor;
(2) holding that the waiver and release contained in the membership agreement and health history questionnaire signed by Palmer were clear, understandable, and unambiguous; and
(3) holding that Palmer assumed the risk of using the treadmill.
Summary of the case
The court first looked at the issue of the release. The court ignored the issues of whether the release worked against negligence and reviewed the issues of releases and claims of gross negligence. However before starting its analysis, it dismissed Precor’s argument that it was a third party beneficiary of the release.
A third party beneficiary of a contract is usually identified as someone who is not named in the agreement, but obvious to all parties that they are to receive benefits of the agreement. An example would be a contract between a health club and a supplier of fitness equipment. The third party beneficiaries of that agreement would be the membership of the health club. When the third party beneficiary is not obvious in the agreement then the third parties as usually not construed as beneficiaries and do not have an interest in the contract.
In order for those not named as parties to recover under a contract as third-party beneficiaries, it must appear by express stipulation or by reasonable intendment that the rights and interest of such unnamed parties were contemplated and that provision was being made for them. The right of a third party benefited by a contract to sue thereon must affirmatively appear from the language of the instrument when properly interpreted or construed.
Here the court found that the agreement between a member and the health club did not identify the defendant manufacture by name or by any other identification. Because of that, the manufacturer could not be a third party beneficiary of the release.
Court then went back to the issue of the claim of gross negligence. Under Nebraska law gross negligence is defined as
Gross negligence is great or excessive negligence, which indicates the absence of even slight care in the performance of a duty. 5 Whether gross negligence exists must be ascertained from the facts and circumstances of each particular case and not from any fixed definition or rule.
Under Nebraska law the court could rule on whether the allegations of the complaint give rise to gross negligence. Here the court found the allegations did not. Inadequate lighting and the installation of a new belt on the treadmill did not meet the level needed to prove gross negligence.
Precor, the making of the treadmill in its motion to the trial court presented an affidavit stating that at the time the treadmill was made the treadmill “met or exceeded the voluntary guidelines set by the American Society for Testing and Materials” The affidavit included photographs of the treadmill to show what handrails existed and the fact that treadmill came with a clip that could be attached to the user’s clothing. If the clip was pulled it would disconnect and stop the treadmill. The treadmill was also made 7 years prior to the accident.
The plaintiff hired an expert who stated that the treadmill “should” have various safety features that were not on the treadmill. The court took note that the plaintiff’s expert did not say the treadmill had to have, did not speak in absolutes with regard to the safety features. Because the plaintiff’s expert was hesitant or could not be explicit on what was missing the court held that Precor was not negligent.
A third defense was raised on appeal, assumption of the risk, by the defendants. Because the court had dismissed the claims raised by the plaintiff already, the court did not get into that defense.
So Now What?
Obviously the better your release the greater your chances of winning. However there are several other issues here that you should pay attention too.
The plaintiff claimed that her injury was due to the fact the new belt on the treadmill did not contain markings that would indicate the treadmill was moving. If you replace or repair something, make sure you use equipment that meets the manufactures specs when you bought the machine or better. If the manufacturer had markings on the treadmill belt that indicated that the belt was moving you need to install a replacement belt that has similar markings.
Moreover, if you have the opportunity, whether or not the original belt was marked, to install a belt with markings, why not.
The assumption of the risk defense was not discussed by the court in its analysis, but was definitely part of the facts. In this case the defense team was able to elicit a lot of treadmill experience from the plaintiff. Many times, after an accident, the plaintiff will change their story. Getting experience or history up front is always safer.
And why not!
Why not include in your release language that protects everyone you can from litigation. There was a claim by the husband that one of the people running on the treadmill next to the one at issue had left that treadmill on. In some states, that would be enough to bring that other gym member into the suit. Write your release to keep you out of a lawsuit, also write it to keep everyone associated with your or that you benefit from out of the lawsuit. Just because you might not be named as the negligent party, you can still be brought in by the person who is named as the defendant. Protect you, your employees, other guests, visitors, volunteers, sponsors, and manufacturers dependent on what you do.
How many new customers are going to sign up as members if the word gets out you allowed one of them to be sued for an accident to another member.
If you do hear of problems from your guests or members, you need to respond. One issue that would have made the outcome different in this case would be a stack of “accident forms” or complaints about the lighting. If the plaintiff could prove that the lighting was bad because other people had complained about it or blamed it for their injuries, then I believe this would have had a different outcome. Don’t collect paperwork, solve problems.
Plaintiff: April Palmer
Defendant: Lakeside Wellness Center, Doing Business as Alegent Health, and Precor, Inc.
Plaintiff Claims: Negligence and Gross Negligence
Defendant Defenses: Release, Assumption of the Risk
Holding: for the defendants
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Palmer v. Lakeside Wellness Center, 281 Neb. 780; 798 N.W.2d 845; 2011 Neb. LEXIS 62
Posted: April 8, 2013 Filed under: Assumption of the Risk, Health Club, Legal Case, Nebraska, Release (pre-injury contract not to sue) | Tags: Alegent Health, Appeal, Appellant, Fitness Center, Gross negligence, Health club, Inc., Lakeside Wellness Center, Negligence, Precor, Release, Summary judgment, Treadmill, Waiver Leave a commentPalmer v. Lakeside Wellness Center, 281 Neb. 780; 798 N.W.2d 845; 2011 Neb. LEXIS 62
April Palmer, Appellant, v. Lakeside Wellness Center, Doing Business as Alegent Health, and Precor, Inc., Appellees.
No. S-10-974.
281 Neb. 780; 798 N.W.2d 845; 2011 Neb. LEXIS 62
June 24, 2011, Filed
PRIOR HISTORY: [***1]
Appeal from the District Court for Douglas County: JOSEPH S. TROIA, Judge.
DISPOSITION: AFFIRMED.
HEADNOTES
1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower court’s granting of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, the court views the evidence in the light most favorable to the party against whom the judgment was granted, and gives that party the benefit of all reasonable inferences deducible from the evidence.
3. Contracts: Parties: Intent. In order for those not named as parties to recover under a contract as third-party beneficiaries, it must appear by express stipulation or by reasonable intendment that the rights and interest of such unnamed parties were contemplated and that provision was being made for them.
4. Contracts: Parties. The right of a third party benefited by a contract to sue must affirmatively appear from the language of the instrument when properly inter preted or construed.
5. Negligence: Words and Phrases. Gross negligence is great or excessive negligence, which indicates the absence of even slight care in the performance of a duty.
6. Negligence. Whether gross negligence exists must be ascertained from the facts and circumstances of each particular case and not from any fixed definition or rule.
7. Negligence: Summary Judgment. The issue of gross negligence is susceptible to resolution in a motion for summary judgment.
COUNSEL: Heather Voegele-Andersen and Brenda K. George, of Koley Jessen, P.C., L.L.O., for appellant.
David L. Welch and Ashley E. Dieckman, of Pansing, Hogan, Ernst & Bachman, L.L.P., for appellee Lakeside Wellness Center.
Albert M. Engles and Cory J. Kerger, of Engles, Ketcham, Olson & Keith, P.C., for appellee Precor, Inc.
JUDGES: HEAVICAN, C.J., CONNOLLY, GERRARD, STEPHAN, and MCCORMACK, JJ. WRIGHT and MILLER-LERMAN, JJ., not participating.
OPINION BY: HEAVICAN
OPINION
[**847] [*781] Heavican, C.J.
INTRODUCTION
The appellant, April Palmer, was injured while on a treadmill at Lakeside Wellness Center (Lakeside). The district court granted summary judgment in favor of Lakeside, doing business as Alegent Health, and Precor, Inc. Palmer appeals. We affirm.
FACTUAL BACKGROUND
Palmer’s Accident.
Palmer and her husband joined Lakeside in November 2006. The accident occurred several months later, on March 7, 2007. On that date, Palmer approached the treadmill in question to begin her workout. Unaware that the treadmill belt was running, Palmer stepped onto the treadmill from the back and was thrown off the belt and into an elliptical training [**848] machine located behind [***2] her. During her deposition, Palmer stated that she looked at the treadmill’s control panel before getting on, but did not look at the belt of the treadmill. Palmer indicated that had she looked at the belt, she probably would have been able to see that it was operating, but that since she assumed the treadmill was off, she did not look further. According to Palmer, she thought the area was poorly lit, though she had never complained about it to any Lakeside staff members. And Palmer indicated that the facility was loud and that she was unable to hear whether the machine was operating.
This treadmill was located in a row of treadmills, and the treadmills to the right and left of the machine in question were [*782] being used at the time of the accident. In Palmer’s husband’s deposition, he testified that the woman on a neighboring treadmill told him she had been on that treadmill briefly before switching to the neighboring machine and had mistakenly thought she had turned it off.
Palmer’s Familiarity With Treadmills.
During her deposition, Palmer was asked about her exercise history and her familiarity with treadmills. Palmer testified that she and her husband had been members of other gyms prior [***3] to joining Lakeside. Palmer testified that she received instruction from a trainer after joining Lakeside, though she stated that she did not need specific instruction on how to operate a treadmill. According to Palmer’s testimony, she had been using treadmills for approximately 21 years. At the time of the accident, Palmer had been using the Lakeside facility at least 5 times a week and had used that actual treadmill 10 to 15 times total prior to the accident. Palmer also testified that she had a treadmill in her home.
Palmer’s Membership Agreement and Health History Questionnaire.
At the time Palmer and her husband became members at Lakeside, Palmer filled out and signed a membership agreement and a health history questionnaire. The membership agreement provided:
WAIVER AND RELEASE–You acknowledge that your attendance or use of [Lakeside] including without limitation to your participation in any of [Lakeside’s] programs or activities and your use of [Lakeside’s] equipment and facilities, and transportation provided by [Lakeside] could cause injury to you. In consideration of your membership in [Lakeside], you hereby assume all risks of injury which may result from or arise out of your [***4] attendance at or use of [Lakeside] or its equipment, activities, facilities, or transportation; and you agree, on behalf of yourself and your heirs, executors, administrators, and assigns to fully and forever release and discharge [Lakeside] and affiliates and their respective officers, directors, employees, agents, [*783] successors and assigns, and each of them (collectively the “Releasees”) from any and all claims, damages, rights of action or causes of action, present or future, known or unknown, anticipated or unanticipated, resulting from or arising out of your attendance at or use of [Lakeside] or its equipment, activities, facilities or transportation, including without limitation any claims, damages, demands, rights of action or causes of action resulting from or arising out of the negligence of the Releasees. Further, you hereby agree to waive any and all such claims, damages, demands, rights of action or causes of action. Further you hereby agree to release and discharge the Releasees from any and all liability for any loss or theft of, or damage to, personal property. You acknowledge that you have [**849] carefully read this waiver and release and fully understand that it is a waiver [***5] and release of liability.
The health history questionnaire signed by Palmer stated in relevant part as follows:
1. In consideration of being allowed to participate in the activities and programs of [Lakeside] and to use its facilities, equipment and machinery in addition to the payment of any fee or charge, I do hereby waive, release and forever discharge [Lakeside] and its directors, officers, agents, employees, representatives, successors and assigns, administrators, executors and all other [sic] from any and all responsibilities or liability from injuries or damages resulting from my participation in any activities or my use of equipment or machinery in the above mentioned activities. I do also hereby release all of those mentioned and any others acting upon their behalf from any responsibility or liability for any injury or damage to myself, including those caused by the negligent act or omission of any way arising out of or connected with my participation in any activities of [Lakeside] or the use of any equipment at [Lakeside]. . . .
2. I understand and am aware that strength, flexibility and aerobic exercise, including the use of equipment are a potentially hazardous activity. [***6] I also understand that fitness activities involve the risk of injury and even death, [*784] and that I am voluntarily participating in these activities and using equipment and machinery with knowledge of the dangers involved. I hereby agree to expressly assume and accept any and all risks of injury or death. . . .
Palmer sued Lakeside and Precor for her injuries, which generally consisted of an injured hand and chest. Both Lakeside and Precor filed motions for summary judgment, which were granted. Palmer appeals.
ASSIGNMENTS OF ERROR
Palmer assigns that the district court erred in (1) granting summary judgment in favor of Lakeside and Precor; (2) holding that the waiver and release contained in the membership agreement and health history questionnaire signed by Palmer were clear, understandable, and unambiguous; and (3) holding that Palmer assumed the risk of using the treadmill.
STANDARD OF REVIEW
[1] [HN1] An appellate court will affirm a lower court’s granting of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as [***7] a matter of law. 1
1 Wilson v. Fieldgrove, 280 Neb. 548, 787 N.W.2d 707 (2010).
[2] [HN2] In reviewing a summary judgment, the court views the evidence in the light most favorable to the party against whom the judgment was granted, and gives that party the benefit of all reasonable inferences deducible from the evidence. 2
2 Id.
ANALYSIS
Waiver and Release.
Palmer first argues that the district court erred in finding that the waiver and release contained in the membership agreement and health history questionnaire she completed and signed when joining Lakeside were clear, understandable, and unambiguous. We read Palmer’s argument as contending that the waivers, [**850] while perhaps applicable to instances of ordinary negligence, [*785] could not operate to relieve Lakeside or Precor from gross negligence or willful and wanton misconduct. We further understand Palmer to argue that both Lakeside and Precor committed gross negligence or willful and wanton misconduct–Precor by delivering a treadmill without proper safety features, and Lakeside by not providing adequate space or lighting around the treadmill and by modifying the treadmill’s belt such that the treadmill became unsafe.
[3,4] Before reaching the merits [***8] of Palmer’s argument, we note that contrary to Precor’s argument, Precor is not protected from liability as a result of the waivers signed by Palmer. Precor contends in its brief that it is a third-party beneficiary of these waivers. This court recently addressed a similar issue in Podraza v. New Century Physicians of Neb. 3 In Podraza, we noted that we have traditionally strictly construed who has the right to enforce a contract as a third-party beneficiary.
[HN3] In order for those not named as parties to recover under a contract as third-party beneficiaries, it must appear by express stipulation or by reasonable intendment that the rights and interest of such unnamed parties were contemplated and that provision was being made for them. The right of a third party benefited by a contract to sue thereon must affirmatively appear from the language of the instrument when properly interpreted or construed.
Authorities are in accord that one suing as a third-party beneficiary has the burden of showing that the provision was for his or her direct benefit. Unless one can sustain this burden, a purported third-party beneficiary will be deemed merely incidentally benefited and will not be permitted [***9] to recover on or enforce the agreement. 4
3 Podraza v. New Century Physicians of Neb., 280 Neb. 678, 789 N.W.2d 260 (2010).
4 Id. at 686, 789 N.W.2d at 267.
A review of the record shows that Precor was not explicitly mentioned in the language of the waiver. Nor is there any other evidence that Precor was an intended third-party beneficiary. Precor has the burden to show its status as a third-party beneficiary, and it has failed to meet that burden. As such, Precor [*786] is not shielded from liability as a result of the waivers signed by Palmer.
Lakeside’s Gross Negligence or Willful and Wanton Conduct.
At oral argument, Palmer conceded that by virtue of these waivers, Lakeside was not liable to Palmer for damages caused by ordinary negligence. But, as noted above, Palmer contends that Lakeside is nevertheless liable, because its actions were grossly negligent or were willful and wanton.
Having examined the record in this case, we find that as a matter of law, Palmer’s allegations against Lakeside do not rise to the level of gross negligence. Palmer alleges that the Lakeside facility had inadequate lighting and inadequate spacing between equipment and that Lakeside’s employees modified the treadmill [***10] in question by installing a treadmill belt that did not contain markings.
[5-7] [HN4] Gross negligence is great or excessive negligence, which indicates the absence of even slight care in the performance of a duty. 5 Whether gross negligence exists must be ascertained from the facts and circumstances of each particular case and not from any fixed definition or rule. 6 [**851] The issue of gross negligence is susceptible to resolution in a motion for summary judgment. 7 We simply cannot conclude that the allegations against Lakeside–inadequate lighting and spacing and the installation of a new treadmill belt–rise to such a level. We therefore conclude that as a matter of law, any negligence by Lakeside was not gross negligence or willful or wanton conduct. As such, the district court did not err in granting Lakeside’s motion for summary judgment.
5 Bennett v. Labenz, 265 Neb. 750, 659 N.W.2d 339 (2003).
6 Id.
7 Id.
Precor’s Negligence.
We next turn to the question of whether the district court erred in granting summary judgment in favor of Precor. Because we concluded above that the waiver signed by Palmer did not [*787] act to relieve Precor from liability, we address whether there was a genuine issue of material [***11] fact on the issue of whether Precor breached any duty it had to Palmer.
In arguing that Precor was liable, Palmer alleges that Precor breached its duty by not equipping the treadmill with (1) a safety feature that would prevent the treadmill from operating when no one was on it and (2) handrails extending down the sides toward the back of the treadmill. Palmer originally argued that Precor was also liable because the belt on its treadmill failed to contain adequate markings, but it is this court’s understanding that Palmer no longer makes such allegations with regard to Precor because the belt on the treadmill at the time of the incident was not original to the treadmill and had been installed by Lakeside.
In response to Palmer’s allegations, Precor introduced evidence in the form of an affidavit from its director of product development, Greg May. May averred that at the time of manufacture and delivery, the treadmill met or exceeded the voluntary guidelines set by the American Society for Testing and Materials in that group’s international standard specifications for motorized treadmills in all ways, including handrails. Though there was no specific feature on this treadmill designed [***12] to stop the treadmill from running when no one was operating it, the machine was manufactured with a clip to be attached to the user’s clothing. The manual for this treadmill noted that “by taking this precaution, a tug on the safety switch cord trips the safety switch and slows the running speed to a safe stop.” May also averred that the treadmill in question left Precor’s control on July 29, 1999, or over 7 years prior to the date of the incident.
In addition to May’s affidavit, Precor also introduced photographs of the treadmill at issue, which photographs showed that the treadmill did have front handrails, though not side handrails.
In an attempt to rebut May’s affidavit and show a genuine issue of material fact, Palmer introduced the affidavit of a fitness consultant. That affidavit noted in part that
based on [the consultant’s] experience, in order for treadmills to meet appropriate safety standards from the late [*788] 1990s forward, treadmills should contain adequate safety features, emergency/safety stop mechanisms, warning labels, and markings on a treadmill belt. A treadmill should contain a safety stop mechanism such that the treadmill will turn off if no one is currently on the [***13] treadmill, adequate handrails extending towards the back of the treadmill and warning labels at the rear of the treadmill.
Even after drawing all reasonable inferences in favor of Palmer, we conclude that there is no genuine issue of material fact as to Precor’s alleged breach of duty. While the fitness consultant’s affidavit indicates that treadmills “should” contain [**852] various safety features, he does not speak in absolutes and does not refer specifically to this treadmill. On the other hand, May’s affidavit references the treadmill at issue in this case and details the safety features this treadmill possessed, as well as Precor’s compliance with all applicable, though voluntary, safety standards when manufacturing the treadmill. Because the record affirmatively shows that Precor did not breach any duty it owed to Palmer, we conclude that the district court did not err in granting Precor’s motion for summary judgment.
Assumption of Risk.
Palmer also argues that the district court erred in finding that she assumed the risk of injury when she used the treadmill. Because we conclude that the district court did not err in granting Lakeside’s and Precor’s motions for summary judgment for the [***14] foregoing reasons, we need not address Palmer’s assignment of error regarding the assumption of the risk.
CONCLUSION
The district court’s order granting summary judgment in favor of Lakeside and Precor is affirmed.
AFFIRMED.
Wright and Miller-Lerman, JJ., not participating.
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Hawaii’s deceptive trade practices act sends this case and release back to the trial court
Posted: April 1, 2013 Filed under: Assumption of the Risk, Equine Activities (Horses, Donkeys, Mules) & Animals, Hawaii, Release (pre-injury contract not to sue) | Tags: Contract, Dahana Ranch, Deceptive Trade Practices, Defendant, equestrian, HI, Horse, horseback riding, Inc., Law, Plaintiff, stable, Summary judgment, Trial court, Waiver Leave a commentCourbat v. Dahana Ranch, Inc., 111 Haw. 254; 141 P.3d 427; 2006 Haw. LEXIS 386
The court agrees that the issue of not finding out that you had to sign a waiver until the time of the activity might be a deceptive practice.
This is a very interesting case. A couple booked several activities through a third-party booking agency. The activity in question was a horseback ride. The plaintiffs had booked the ride several months in advance of the ride and upon showing up, were handed a release.
Upon arriving at the defendant, the plaintiff read the waiver signed it, and passed it on to her husband. The husband signed it, testifying in his deposition that he relied on his wife to read such documents.
The record demonstrates that the Courbats were given adequate time and opportunity to fully review the waiver presented to them before they signed it and that both knew that by signing it; they were waiving legal rights in return for being allowed to participate in the ride.
Of note was a statement made by the court that no guest of the defendant had ever refused to sign the waiver.
During the ride, one horse kicked the plaintiff in the shin causing her an injury. She and her husband sued for negligence, gross negligence, and for unfair and deceptive practices.
The defendant responded that the plaintiff assumed the risk, the release barred the plaintiff’s claims and the ranch had done nothing to bring it into the purview of the Hawaiian Deceptive Trade Practices Act. (HRS §§ 480-2 and 480-13)
The trial court granted the defendant’s motion for summary judgment, and the decision was appealed.
Summary of the case
The court spent the most time on the issue that booking a ride several months in advance and not finding out that a waiver had to be signed on arrival was a deceptive practice.
…they assert that the Ranch’s practice of booking ride reservations through an activity company, receiving payment prior to the arrival of the guest, and then, upon the guest’s arrival at the Ranch, requiring the guest to sign a liability waiver as a precondition to horseback riding is an unfair and deceptive business practice to which the remedies of HRS ch. 480 apply.
The plaintiffs did not argue that the waiver was deceptive, only the fact that they were not informed that a waiver had to be signed. If the practice was found to be deceptive, then the waiver would be void.
The Courbats do not allege that the waiver itself is deceptive; rather, they urge that the deceptive practice at issue was the booking agent’s failure to inform them of the waiver requirement during the negotiation and execution of the underlying contract. Nevertheless, if any deceptive omission occurred with respect to the negotiation and execution of the original contract, the operation of HRS § 480-12, see supra note 1, would render both the original contract and the waiver, signed afterward, void.
After analyzing the fact the court found that there was an issue: “…whether a waiver requirement would be materially important in booking a horseback tour remains one for the trier of fact.”
However, if the trier of fact (jury) finds that a failure to warn the plaintiff was not deceptive, then the waiver would be valid.
The court then looked at the waiver to determine if met Hawaiian law. The court found that if the plaintiff signed the wavier, then the plaintiff was bound by its terms. Waivers, exculpatory contracts, are valid if they are “knowingly and willingly made and free from fraud.”
Waivers can be voided for three reasons in Hawaii.
“‘exculpatory clauses will be held void if the agreement is
(1) violative of a statute,
(2) contrary to a substantial public interest, or
(3) gained through inequality of bargaining power.'”
The court then looked at what was a public interest and found a public interest had the following characteristics:
[1] It concerns a business of a type generally thought suitable for public regulation.
[2] The party seeking exculpation is engaged in performing a service of great importance to the public, which is often [***30] a matter of practical necessity for some members of the public.
[3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards.
[4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.
[5] In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence.
[6] Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller of the service, subject to the risk of carelessness by the seller or his agents.
Recreational activities are unsuitable for public regulation; therefore, they do not violate the Hawaiian public interest definition that would void a release.
…while such waivers may be contracts of adhesion, in that they are presented on a “take-it-or-leave-it” basis, they are not unconscionable, but “are of a sort commonly used in recreational settings” and “are generally held to be valid.
Contracts of adhesion are ‘unenforceable if two conditions are present: (1) the contract is the result of coercive bargaining between parties of unequal bargaining strength; and (2) the contract unfairly limits the obligations and liabilities of, or otherwise unfairly advantages, the stronger party.
Because the plaintiffs had time to read and review the waiver, there was no coercion.
The court reviewed one final issue, waivers under Hawaiian law, like most other states do not stop claims for gross negligence or willful misconduct.
Consequently, the case was sent back for a jury to determine if the acts of the defendant, by and through its booking agency, acted deceptively or if the acts of the defendant were grossly negligent. If so the plaintiff would win the suit. If the acts of the defendant were not deceptive or the defendant was not grossly negligent the defendant would win at trial.
There was a dissent which found that the acts were not deceptive by law.
So Now What?
It is so easy to avoid most of the issues that were part of this appeal. Once some signs up for a trip or activity, whether through you or a third party, they must be informed that they are going to sign a release.
It is that easy. Put it on the receipt, put it on the website, put it on the paperwork, in the brochure; put it everywhere. If you are in a state where the release is valid you will not go through the time, cost, and expense of this type of litigation.
Every state has a deceptive trade practice statute. The statutes are enacted to protect consumers from dishonest businesses. The court did not examine the facts in light of an intentional act; just the practice alone was deceptive.
Don’t learn the act, just inform your guests.
Plaintiff: Lisa Courbat and Steven Courbat
Defendant: Dahana Ranch, Inc.
Plaintiff Claims: negligence, gross negligence, violation of the Hawaiian Deceptive Trade Practices statute.
Defendant Defenses: assumption of the risk, release, did not violate the deceptive practices act
Holding: reversed and sent back for trial
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 James H. “Jim” Moss |
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of eight books about legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management,
Outdoor Recreation Insurance, Risk Management, and Law
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
If you are interested in having me write your release, download the form and return it to me.
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Courbat v. Dahana Ranch, Inc., 111 Haw. 254; 141 P.3d 427; 2006 Haw. LEXIS 386
Posted: April 1, 2013 Filed under: Assumption of the Risk, Equine Activities (Horses, Donkeys, Mules) & Animals, Hawaii, Legal Case, Release (pre-injury contract not to sue) | Tags: Deceptive Trade Practices, equestrian, Equine, Hawaii, HI, Horse, horseback riding, Release, Releases / Waivers, stable, Waiver Leave a commentTo Read an Analysis of this decision see
Hawaii Supreme Court agrees that finding out a release is required to be signed upon arrival at the activity and after the activity has been paid for may be a deceptive trade practice.
Hawaii’s deceptive trade practices act sends this case and release back to the trial court
Courbat v. Dahana Ranch, Inc., 111 Haw. 254; 141 P.3d 427; 2006 Haw. LEXIS 386
Lisa Courbat and Steven Courbat, Plaintiffs-Appellants, vs. Dahana Ranch, Inc., Defendant-Appellee, and John Does 1-10, Jane Does 1-10, Doe Associations 1-10, Doe Partnerships 1-10, Doe Corporations 1-10, Doe Entities 1-10, and Doe Governmental Units 1-5, Defendants.
NO. 25151
SUPREME COURT OF HAWAI’I
111 Haw. 254; 141 P.3d 427; 2006 Haw. LEXIS 386
July 10, 2006, Decided
SUBSEQUENT HISTORY: Amended by, Reconsideration granted by, in part, Reconsideration denied by, in part Courbat v. Dahana Ranch, 2006 Haw. LEXIS 417 (Haw., Aug. 3, 2006)
PRIOR HISTORY: [***1] APPEAL FROM THE THIRD CIRCUIT COURT. CIV. NO. 01-1-0049.
COUNSEL: On the briefs:
Andrew S. Iwashita, for the plaintiffs-appellants Lisa Courbat and Steven Courbat.
Zale T. Okazaki, of Ayabe, Chong, Nishimoto, Sia and Nakamura, for the defendant-appellee Dahana Ranch, Inc.
JUDGES: MOON, C.J., LEVINSON AND NAKAYAMA, JJ., AND DUFFY, J., DISSENTING, WITH WHOM ACOBA, J. JOINS.
OPINION BY: LEVINSON
OPINION
[**429] [*256] OPINION OF THE COURT BY LEVINSON, J.
The plaintiffs-appellants Lisa Courbat and Steven Courbat [hereinafter, collectively, “the Courbats”] appeal from the May 13, 2002 judgment of the circuit court of the third circuit, the Honorable Riki May Amano presiding, entered pursuant to the circuit [*257] [**430] court’s April 26, 2002 grant of summary judgment in favor of the defendant-appellee Dahana Ranch, Inc. (the Ranch).
On appeal, the Courbats contend that the circuit court erred: (1) in concluding that Hawai’i Revised Statutes (HRS) § 480-2 et seq. (Supp. 1998) 1 do not apply to the Ranch’s business practices of booking prepaid tours and subsequently requiring liability waivers upon check-in; (2) by applying the rebuttable presumption set forth in HRS § 663B-2(a) [***2] (Supp. 1994) 2 in finding that [*258] [**431] Lisa’s injuries were not due to the negligence of the tour operator; (3) in finding that the Courbats sufficiently read over the waiver before signing it; and (4) in concluding that the waiver was valid as to their negligence claims.
1 HRS ch. 480 provided in relevant part:
§ 480-2 . . . . (a) [HN1] Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are unlawful.
(b) In construing this section, the courts and the office of consumer protection shall give due consideration to the rules, regulations, and decisions of the Federal Trade Commission and the federal courts interpreting section 5(a)(1) of the Federal Trade Commission Act (15 U.S.C. 45(a)(1)), as from time to time amended.
. . . .
§ 480-3 . . . . [HN2] This chapter shall be construed in accordance with judicial interpretations of similar federal antitrust statutes . . . .
. . . .
§ 480-12 . . . . [HN3] Any contract or agreement in violation of this chapter is void and is not enforceable at law or in equity.
§ 480-13 . . . . (b) [HN4] Any consumer who is injured by any unfair or deceptive act or practice forbidden or declared unlawful by section 480-2:
(1) May sue for damages sustained by the consumer, and, if the judgment is for the plaintiff, the plaintiff shall be awarded a sum not less than $ 1,000 or threefold damages by the plaintiff sustained, whichever sum is the greater, and reasonable attorneys’ fees together with the costs of suit; . . . and
(2) May bring proceedings to enjoin the unlawful practices, and if the decree is for the plaintiff, the plaintiff shall be awarded reasonable attorneys’ fees together with the cost of suit.
Effective June 28, 2002, HRS § 480-2 was amended in respects immaterial to the present matter. See 2002 Haw. Sess. L. Act 229, §§ 2 and 6 at 916-18. Effective May 2, 2001, June 28, 2002, and June 7, 2005, HRS § 480-13 was amended in respects immaterial to the present matter. See 2005 Haw. Sess. L. Act 108, §§ 3 and 5 at 265-66, 267; 2002 Haw. Sess. L. Act 229, §§ 3 and 6 at 917-18; 2001 Haw. Sess. L. Act 79, §§ 1 and 5 at 127-28.
[***3]
2 HRS ch. 663B, entitled “Equine activities” and enacted in 1994, see 1994 Haw. Sess. L. Act 229, §§ 1 and 2 at 591-92, provides in relevant part:
§ 663B-1 . . . . [HN5] As used in this [chapter], unless the context otherwise requires:
“Engages in an equine activity” means riding . . . or being a passenger upon an equine . . . .
. . . .
“Equine activity” means:
. . . .
(5) Rides, trips, hunts, or other equine activities of any type however informal or impromptu that are sponsored by an equine activity sponsor; and
. . . .
“Equine activity sponsor” means an individual, group, club, partnership, or corporation . . . which sponsors, organizes, or provides the facilities for, an equine activity. . . .
“Equine professional” means a person engaged for compensation in instructing a participant or renting to a participant an equine for the purpose of riding, driving, or being a passenger upon the equine, or in renting equipment or tack to a participant.
“Inherent risks of equine activities” means those dangers or conditions which are an integral part of equine activities, including, but not limited to:
(1) The propensity of an equine to behave in ways that may result in injury, harm, or death to persons on or around them;
(2) The unpredictability of an equine’s reaction to such things as sounds, sudden movement, and unfamiliar objects, persons, or other animals;
(3) Certain hazards such as surface and subsurface conditions;
(4) Collisions with other equines or objects; and
(5) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the animal or not acting within the participant’s ability.
“Participant” means any person, whether amateur or professional, who engages in an equine activity, whether or not a fee is paid to participate in the equine activity.
§ 663B-2 . . . . (a) [HN6] In any civil action for injury, loss, damage, or death of a participant, there shall be a presumption that the injury, loss, damage, or death was not caused by the negligence of an equine activity sponsor, equine professional, or their employees or agents, if the injury, loss, damage, or death was caused solely by the inherent risk and unpredictable nature of the equine. An injured person or their legal representative may rebut the presumption of no negligence by a preponderance of the evidence.
(b) Nothing in this section shall prevent or limit the liability of an equine activity sponsor, an equine professional, or their employees or agents if the equine activity sponsor, equine professional, or person:
. . . .
(2) Provided the equine and . . . failed to reasonably supervise the equine activities and such failure is a proximate cause of the injury
. . . . (Some brackets in original and some omitted.)
[***4] For the reasons discussed infra in section III.A, we vacate the circuit court’s May 13, 2002 judgment and remand for further proceedings consistent with this opinion.
I. BACKGROUND
The present matter arises out of personal injuries sustained by Lisa on February 1, 1999, while she and Steven were on a horseback riding tour on the Dahana Ranch on the Big Island of Hawai’i. The Courbats had booked the tour and prepaid the fee several months earlier through Island Incentives, Inc., an internet-based tour organizer. When they checked in at the Ranch, the Courbats were presented with a document to review and to sign which laid out the rules for the horseback tour and included a waiver “releas[ing] and hold[ing] harmless . . . [the] Ranch . . . from . . . injury to myself . . . resulting from my . . . being a spectator or participant or while engaged in any such activity in the event[-]related facilities” and stating that the undersigned “acknowledge[s] that there are significant elements of risk in any adventure, sport, or activity associated with horses.” 3 According to admissions by the Courbats in subsequent depositions, Lisa read over the waiver and, having [***5] no questions regarding the rules and regulations it contained, signed it before passing it to her husband to sign. Steven evidently did not read it, but recognized that it was “some kind of release of some sort” and signed it. In fact, no guest of the Ranch had ever refused to sign a waiver. Steven was familiar with the concept of such waivers, having participated with his wife in a snorkeling activity earlier during the vacation, at which time they both signed similar forms.
3 The rules and waiver stated in pertinent part:
In order for us to keep our ride from being a “Nose To Tail Trail Ride[,”] there are certain rules which must be followed for your safety and the horses’ mental well being. FAILURE TO FOLLOW THESE RULES WILL RESULT IN FORFEITURE OF YOUR RIDE WITH NO REFUND.
RULES AND REGULATIONS
FOLLOW RIDING INSTRUCTIONS & DIRECTIONS THROUGHOUT THE RIDE
. . . .
. PLEASE DO NOT RIDE AHEAD OF YOUR GUIDE UNLESS TOLD TO DO SO
. . . .
. DO NOT FOLLOW ONE ANOTHER
. . . .
WAIVER
I/We, the undersigned, hereby release and hold harmless the land owners, managers, operators (William P. Kalawaianui, Daniel H. Nakoa, Dahana Ranch and Nakoa Ranch), [t]he State of Hawai[]i and the Department of Hawaiian Home Lands and all other persons directly related to those listed above for the event listed herein[,] their successors, assigns and affiliates from loss or damage to property or injury to myself or any person . . . resulting from my . . . being a spectator or participant or while engaged in any such activity in the event[-] related facilities. I/We acknowledge that there are significant elements of risk in any adventure, sport or activity associated with horses.
I/WE HAVE READ AND UNDERSTOOD THE FOREGOING RULES, REGULATIONS AND WAIVER.
(Emphasis in original.)
[***6] The Ranch’s guide, Daniel Nakoa, briefed the Courbats on how to handle a horse and general rules of the trail, including the importance of not riding single-file or allowing the horses to bunch up end to end. Out on the ride, Lisa was injured when she rode up behind Nakoa’s horse while Nakoa was speaking with another guest who had approached Nakoa with a question. According to later statements by both Nakoa and Lisa, Lisa approached Nakoa’s horse from the rear while the three horses were in motion, and, when her horse neared Nakoa’s horse, Nakoa’s horse struck out at her horse, hitting Lisa in the left shin. Lisa described the incident in a deposition taken on November 3, 2001:
Q: At what point did you believe that you needed to pull the reins back as you were approaching the guide . . . ? . . .
[*259] [**432] [Lisa]: When I felt that the horse[] was getting too close to the horses above me.
Q: So it appeared to you that the nose end of the horse was getting too close to the butt end of the horse in front?
[Lisa]: To the horse in general. We were coming in. I was just trying to keep a certain space between myself and the horse.
Q: [T]hose two horses, the guide’s [***7] horse and the guest’s horse, they were to the left of your horse, is that correct, to the front left of you?
[Lisa]: Yes.
Q: You recall which hind leg of the horse kicked you? Was it the right or the left?
[Lisa]: It would be the right one.
Q: And that was a horse which was ridden by the guide or the guest?
[Lisa]: The guide.
Q: Just before the horse in front of you kicked you, were all of the horses still in motion? When I say “all the horses,” yours, the guide’s, and the guest that was riding parallel to the guide?
[Lisa]: Just before?
Q: Yes.
[Lisa]: Yes.
Q: Was there any conversation between you and the guide or the guest just before this kicking incident occurred?
[Lisa]: No.
Q: At the time this kicking incident occurred, w[ere] the guide and the guest still talking to each other?
[Lisa]: Yes.
Nakoa described the same incident in a January 9, 2002 deposition:
[Nakoa]: . . . Everybody was facing the gate, the second gate. . . . And I was in the back. And because I lots of times don’t want to be a part of the ride, I started riding to the right. And then a man came to talk to me and [***8] ask me about the horse.
. . . .
Q: On which side of your horse was he at the time?
[Nakoa]: He was on the left side of me.
Q: And were you still moving or were you stopped?
[Nakoa]: We were walking.
. . . .
Q: . . .[H]ad you passed Lisa along the way? . . . .
[Nakoa]: Because of the angle, she was off to my left.
Q: Still in front of you?
[Nakoa]: No. About the same.
. . . .
Q: And when is the next time you notice[] Lisa’s horse before the injury takes place?
. . . .
[Nakoa]: She was still on the left side of me.
Q: . . . [A]bout how far away do you estimate she was from your horse?
[Nakoa]: You know, 30 feet maybe. . . .
Q: And from that point on, . . . were you able to continually observe Lisa riding her horse until the time the injury occurred?
[Nakoa]: Yes. The man was on my left and I was talking to him.
. . . .
Q: . . . [W]hile [the guest is] asking you this question and you can see [Lisa], what is her horse doing as it’s approaching your horse?
[Nakoa]: No, I didn’t see her approaching my horse. That’s what I’m trying to tell you. She was on the [***9] left side of this man and me and we’re all going in that direction (indicating). She was trotting, and I was walking with this man. And I saw her. And then this man asked me something. And the next thing I knew, she was right in back of my horse telling me that my horse kicked her.
Nakoa later acknowledged in the deposition that, if he or his horse had been aware that Lisa’s horse was approaching from behind, his horse would not have been surprised and would not have struck out at her horse. As a result of the impact, Lisa suffered severe pain and swelling, but no broken bones, and [*260] [**433] since the incident has complained of ongoing pain and injury to her leg.
The Courbats filed suit on January 31, 2001, asserting claims of negligence and gross negligence that resulted in physical injury to Lisa and loss of consortium injuries to Steven. On November 21, 2001, they filed a first amended complaint, adding a claim of unfair and deceptive trade practices regarding the waiver they had signed the day of the ride.
On January 16, 2002, the Ranch filed a motion for summary judgment on the grounds: (1) that the Courbats had assumed the risk of the activity; (2) that the Courbats [***10] had waived their rights to sue the Ranch for negligence; and (3) that the Ranch had not committed any acts that brought it under the purview of HRS §§ 480-2 and 480-13, see supra note 1.
The Courbats filed a memorandum in opposition to the Ranch’s motion and a motion for partial summary judgment, urging the circuit court to rule, inter alia: (1) that the Ranch owed Lisa a duty to protect her from injury by Nakoa’s horse; and (2) that the rebuttable presumption of no negligence on a defendant’s part set forth in HRS § 663B-2, see supra note 2, was inapplicable.
The circuit court conducted a hearing on both motions on February 13, 2002 and, on April 26, 2002, entered an order granting the Ranch’s motion and denying the Courbats’ motion. On May 13, 2002, the circuit court entered a final judgment in favor of the Ranch and against the Courbats. On August 8, 2002, the Courbats filed a timely notice of appeal. 4
4 On May 10, 2002, the Ranch filed a notice of taxation of costs which, pursuant to Hawai’i Rules of Appellate Procedure (HRAP) Rule 4(a)(3), tolled the time for filing an appeal. An order as to taxation of costs was never entered, and so, pursuant to HRAP Rule 4(a)(3), the request was deemed denied 90 days later, on August 8, 2002. The Courbats’ appeal, filed prematurely on June 7, 2002, was therefore timely filed as of August 8, 2002, pursuant to HRAP Rule 4(a)(2) and (3).
[***11] II. STANDARDS OF REVIEW
A. Summary Judgment
We [HN7] review the circuit court’s grant or denial of summary judgment de novo . . . .
[S]ummary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties. The evidence must be viewed in the light most favorable to the non-moving party. In other words, we must view all of the evidence and the inferences drawn therefrom in the light most favorable to the party opposing the motion.
[Hawai’i Cmty. Fed. Credit Union v. Keka, 94 Hawai’i 213, 221, 11 P.3d 1, 9 (2000)] (citations and internal quotation marks omitted).
Querubin v. Thronas, 107 Hawai’i 48, 56, 109 P.3d 689, 697 (2005) (quoting Durette v. Aloha Plastic Recycling, Inc., 105 Hawai’i 490, 501, 100 P.3d 60, 71 (2004)) [***12] (internal citation omitted) (some brackets in original).
B. Interpretation Of Statutes
[HN8] The interpretation of a statute is a question of law reviewable de novo. State v. Arceo, 84 Hawai’i 1, 10, 928 P.2d 843, 852 (1996).
Furthermore, our statutory construction is guided by established rules:
[HN9] When construing a statute, our foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. And we must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose.
When there is doubt, doubleness of meaning, or indistinctiveness or uncertainty [*261] [**434] of an expression used in a statute, an ambiguity exists. . . .
In construing an ambiguous statute, “[t]he meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning.” HRS § 1-15(1) [(1993)]. Moreover, the courts may resort to extrinsic aids in determining legislative intent. [***13] One avenue is the use of legislative history as an interpretive tool.
Gray [v. Admin. Dir. of the Court], 84 Hawai’i [138,] 148, 931 P.2d [580,] 590 [(1997)] (footnote omitted).
State v. Koch, 107 Hawai’i 215, 220, 112 P.3d 69, 74 (2005) (quoting State v. Kaua, 102 Hawai’i 1, 7-8, 72 P.3d 473, 479-480 (2003)). [HN10] Absent an absurd or unjust result, see State v. Haugen, 104 Hawai’i 71, 77, 85 P.3d 178, 184 (2004), this court is bound to give effect to the plain meaning of unambiguous statutory language; we may only resort to the use of legislative history when interpreting an ambiguous statute. State v. Valdivia, 95 Hawai’i 465, 472, 24 P.3d 661, 668 (2001).
III. DISCUSSION
A. Inasmuch As The Presence Or Absence Of An Unfair Or Deceptive Trade Practice Is For The Trier Of Fact To Determine, The Circuit Court Erroneously Granted Summary Judgment In Favor Of The Ranch And Against The Courbats.
The Courbats do not dispute that they both signed the Ranch’s waiver form, see supra note 3, prior to their ride. Nor do they dispute that waivers are an accepted [***14] method by which businesses may limit their liability. Rather, they assert that the Ranch’s practice of booking ride reservations through an activity company, receiving payment prior to the arrival of the guest, and then, upon the guest’s arrival at the Ranch, requiring the guest to sign a liability waiver as a precondition to horseback riding is an unfair and deceptive business practice to which the remedies of HRS ch. 480 apply. The Courbats maintain that the practice of withholding the waiver had “the capacity or tendency to mislead” customers, thereby satisfying this court’s test for a deceptive trade practice as articulated in State ex rel. Bronster v. United States Steel Corp., 82 Hawai’i 32, 50, 919 P.2d 294, 312 (1996).
The Intermediate Court of Appeals held in Beerman v. Toro, 1 Haw. App. 111, 118, 615 P.2d 749, 754-55 (1980), that [HN11] the remedies afforded by HRS ch. 480 are not available for personal injury claims. See also Blowers v. Eli Lilly & Co., 100 F. Supp. 2d 1265, 1269-70 (D. Haw. 2000). The Courbats, however, assert that they are not invoking HRS ch. 480 for the purpose of establishing personal injury damages, [***15] but rather because the lack of notice as to the waiver requirement injured them economically, by way of the $ 116 cost of the tour, giving rise to a valid claim under HRS § 480-13, see supra note 1. As a deceptive trade practice, the Courbats maintain, the waiver is void under HRS § 480-12, see supra note 1.
1. The elements of a deceptive trade practice claim for recision of a contract
[HN12] To render the waiver void, the Courbats must establish that it is an unseverable part of a “contract or agreement in violation of [HRS ch. 480].” See HRS § 480-12, supra note 1. Furthermore, any “unfair or deceptive act[] or practice[] in the conduct of any trade or commerce” violates HRS § 480-2.
[HN13] “Deceptive” acts or practices violate HRS § 480-2, but HRS ch. 480 contains no statutory definition of “deceptive.” This court has described a deceptive practice as having “the capacity or tendency to mislead or deceive,” United States Steel Corp., 82 Hawaii at 50, 919 P.2d at 312, 313, but, beyond noting that federal [***16] cases have also defined deception “as an act causing, as a natural and probable result, a person to do that which he [or she] would not do otherwise,” Keka, 94 Hawai’i at 228, 11 P.3d at 16 (brackets in original) (quoting United States Steel Corp., 82 Hawaii at 51, 919 P.2d at 313 (citing Bockenstette v. Federal Trade Comm’n, 134 F.2d 369, 36 F.T.C. 1106 (10th Cir. 1943))), we have not articulated a more refined test.
[HN14] HRS § 480-3, see supra note 1, provides that HRS ch. 480 “shall be construed in accordance with judicial interpretations of similar federal antitrust statutes,” [*262] [**435] and HRS § 480-2(b) provides that “[i]n construing this section, the courts . . . shall give due consideration to the . . . decisions of . . . the federal courts interpreting . . . 15 U.S.C. [§ ] 45(a)(1)[(2000)],” 5 in recognition of the fact that HRS § 480-2 is “a virtual counterpart.” 6 Keka, 94 Hawai’i at 228, 11 P.3d at 16. The Federal Trade Commission (FTC), in In re Cliffdale Assocs., Inc., 103 F.T.C. 110, Trade Cas. (CCH) P22137 (1984), developed [***17] a three-part analytical test for “deception,” 7 which the federal courts have thereafter extensively adopted, see FTC v. Verity Int’l, Ltd., 443 F.3d 48, 63 (2d. Cir. 2006); FTC v. Tashman, 318 F.3d 1273, 1277 (11th Cir. 2003); FTC v. Pantron I Corp., 33 F.3d 1088, 1095 (9th Cir. 1994); FTC v. World Travel Vacation Brokers, Inc., 861 F.2d 1020, 1029 (7th Cir. 1988). Under the Cliffdale Assocs. test, a deceptive act or practice is “(1) a representation, omission, or practice[] that (2) is likely to mislead consumers acting reasonably under the circumstances [where] (3)[] the representation, omission, or practice is material.” Verity Int’l, 443 F.3d at 63. A representation, omission, or practice is considered “material” if it involves “‘information that is important to consumers and, hence, likely to affect their choice of, or conduct regarding, a product.'” Novartis Corp. v. FTC, 343 U.S. App. D.C. 111, 223 F.3d 783, 786 (D.C. Cir. 2000) (quoting Cliffdale Assocs., 103 F.T.C. at 165); see also Kraft, Inc. v. FTC, 970 F.2d 311, 322 (7th Cir. 1992); [***18] FTC v. Crescent Publ’g Group, Inc., 129 F. Supp. 2d 311, 321 (S.D.N.Y. 2001); FTC v. Five-Star Auto Club, Inc., 97 F. Supp. 2d 502, 529 (S.D.N.Y. 2000); FTC v. Sabal, 32 F. Supp. 2d 1004, 1007 (N.D. Ill. 1998). Moreover, the Cliffdale Assocs. test is an objective one, turning on whether the act or omission “is likely to mislead consumers,” Verity Int’l, 443 F.3d at 63, as to information “important to consumers,” Novartis Corp., 223 F.3d at 786, in making a decision regarding the product or service. 8
5 15 U.S.C. § 45(a)(1) provides that ” [HN15] [u]nfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful.”
6 Hawai’i courts have long recognized, therefore, that federal interpretations of 15 U.S.C. § 45(a)(1) guide us in construing HRS § 480-2 “in light of conditions in Hawai’i.” Ai v. Frank Huff Agency, 61 Haw. 607, 613 n.11, 607 P.2d 1304, 1309 n.11 (1980); see also Island Tobacco Co. v. R.J. Reynolds Tobacco Co., 63 Haw. 289, 299, 627 P.2d 260, 268 (1981) overruled on other grounds by Robert’s Hawaii School Bus, Inc. v. Laupahoehoe Transp. Co., Inc., 91 Hawai’i 224, 982 P.2d 853 (1999); Rosa v. Johnston, 3 Haw. App. 420, 426, 651 P.2d 1228, 1233-34 (1982).
[***19]
7 See Cliffdale Assocs., 103 F.T.C. at 164-65 (characterizing the new standard as a refinement of the “tendency or capacity to deceive” test used by the FTC to that point and pronouncing the old test “circular and therefore inadequate to provide guidance”).
8 [HN16] While federal courts have not expressly categorized the test as objective, the FTC, in Cliffdale Assocs., commented that “[t]he requirement that an act or practice be considered from the perspective of a consumer acting reasonably in the circumstances is not new. . . . [The FTC] has long recognized that the law should not be applied in such a way as to find that honest representations are deceptive simply because they are misunderstood by a few. . . . [A]n advertisement would not be considered deceptive merely because it could be unreasonably misunderstood by an insignificant and unrepresentative segment of the class of persons [to] whom the representation is addressed.” 103 F.T.C. at 165 (footnotes and internal quotation signals omitted).
[HN17] Given our obligation under HRS §§ 480-3 [***20] and 480-2(b) to apply federal authority as a guide in interpreting HRS ch. 480, we hereby adopt the three-prong Cliffdale Assocs. test in determining when a trade practice is deceptive. 9
9 Other states have already adopted the Cliffdale Assocs. test. See, e.g., Luskin’s, Inc. v. Consumer Prot. Div., 353 Md. 335, 726 A.2d 702, 713 (Md. 1999); Carter v. Gugliuzzi, 168 Vt. 48, 716 A.2d 17, 23 (Vt. 1998). Our adoption of the Cliffdale Assocs. test does not change the existing rule that, in order to establish a violation of HRS § 480-2, the plaintiff need not establish an intent to deceive on the part of the defendant, World Travel Vacation Brokers, 861 F.2d at 1029; Five-Star Auto Club, 97 F. Supp. at 526, nor any actual deceit, United States Steel Corp., 82 Hawai’i at 51, 919 P.2d at 313.
2. Under The Cliffdale Assocs. Objective Consumer Test, The Determination [***21] Of A Deceptive Omission Is One For The Trier Of Fact, Thereby Rendering Summary Judgment Inappropriate.
The Courbats do not allege that the waiver itself is deceptive; rather, they urge [*263] [**436] that the deceptive practice at issue was the booking agent’s failure to inform them of the waiver requirement during the negotiation and execution of the underlying contract. 10 Nevertheless, if any deceptive omission occurred with respect to the negotiation and execution of the original contract, the operation of HRS § 480-12, see supra note 1, would render both the original contract and the waiver, signed afterward, void. 11 Thus, the waiver’s survival depends on the trier of fact’s determination as to whether the omission of the waiver requirement during Island Incentives, Inc.’s booking process was deceptive and therefore in violation of HRS § 480-2.
10 It is undisputed that Island Incentives, Inc. was acting as the Ranch’s agent in this matter, and “we note that [HN18] an owner is responsible for the representations of his agent made within the scope of his agent’s selling authority.” Au v. Au, 63 Haw. 210, 215, 626 P.2d 173, 178 (1981) (citing Negyessy v. Strong, 136 Vt. 193, 388 A.2d 383, 385 (Vt. 1978)).
[***22]
11 If the waiver were severable from the underlying contract, it could survive despite a determination that the original contract was void. See Ai v. Frank Huff Agency, 61 Haw. 607, 619, 607 P.2d 1304, 1312 (1980) [HN19] (“The wording on HRS § 480-12 might . . . appear to suggest that any contract containing an illegal provision . . . should be held unenforceable in its entirety. . . . [U]nder ordinary contract law, however, . . . a partially legal contract may be upheld if the illegal portion is severable from the part which is legal.”). However, “the general rule is that severance of an illegal provision is warranted and the lawful portion . . . enforceable when the illegal provision is not central to the parties’ agreement.” Beneficial Hawaii, Inc. v. Kida, 96 Hawai’i 289, 311, 30 P.3d 895, 917 (2001). The underlying contract at issue is the sum of the parties’ agreement; the waiver would be considered an addendum to it. Therefore, the waiver is not severable and must stand or fall with the underlying contract.
[HN20] The application [***23] of an objective “reasonable person” standard, of which the Cliffdale Assocs. test is an example, is ordinarily for the trier of fact, rendering summary judgment “often inappropriate.” Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 107, 839 P.2d 10, 24 (1992), cited in Casumpang v. ILWU Local 142, 108 Hawai’i 411, 425, 121 P.3d 391, 405 (2005); Arquero v. Hilton Hawaiian Village LLC, 104 Hawai’i 423, 433, 91 P.3d 505, 515 (2004). “Inasmuch as the term ‘reasonableness’ is subject to differing interpretations . . ., it is inherently ambiguous. Where ambiguity exists, summary judgment is usually inappropriate because ‘the determination of someone’s state of mind usually entails the drawing of factual inferences as to which reasonable [minds] might differ.'” Amfac, Inc., 74 Haw. at 107, 839 P.2d at 24 (quoting Bishop Trust Co. v. Cent. Union Church, 3 Haw. App. 624, 628-29, 656 P.2d 1353, 1356 (1983)). Reasonableness can only constitute a question of law suitable for summary judgment “‘when the facts are undisputed and not fairly susceptible of divergent inferences’ because ‘[w]here, upon [***24] all the evidence, but one inference may reasonably be drawn, there is no issue for the jury.'” Id. at 108, 839 P.2d at 24 (quoting Broad & Branford Place Corp. v. J.J. Hockenjos Co., 132 N.J.L. 229, 39 A.2d 80, 82 (N.J. 1944) (brackets in original)). “‘[A] question of interpretation is not left to the trier of fact where evidence is so clear that no reasonable person would determine the issue in any way but one.'” Id. (quoting Restatement (Second) of Contracts § 212 cmt. e (1981) (brackets in original)). See also Restatement (Second) of Contracts § 212(2) (1981 and Supp. 2005) (“A question of interpretation of an integrated agreement is to be determined by the trier of fact if it depends on the credibility of extrinsic evidence or on a choice among reasonable inferences to be drawn from extrinsic evidence .”) (Emphasis added). There is no genuine issue of material fact regarding the failure to disclose the waiver requirement during negotiation of the original tour contract, but we cannot say that, applying the Cliffdale Assocs. test, reasonable minds could draw [***25] only one inference as to the materiality of that omission to reasonable consumers contemplating the transaction. Therefore, the question whether a waiver requirement would be materially important in booking a horseback tour remains one for the trier of fact.
Because a genuine issue of material fact, resolvable only by the trier of fact, remains in dispute, the grant of summary judgment on the HRS ch. 480 claim was erroneous. We therefore vacate the circuit court’s May [*264] [**437] 13, 2002 judgment and remand for further proceedings consistent with this opinion.
B. The Consequences, On Remand, Of The Determination By The Trier Of Fact As To Whether Nondisclosure Of The Waiver Requirement Was A Deceptive Trade Practice
If, on remand, the trier of fact determines that the nondisclosure of the waiver was a deceptive trade practice, rendering the waiver void, then the Courbats’ negligence claims proceed free of the waiver defense. Nevertheless, for the reasons set forth below and for purposes of any subsequent trial on the Courbats’ negligence claims, we hold that HRS ch. 663B, entitled “Equine activities,” see supra note 2, setting forth a rebuttable presumption of non-negligence [***26] on the part of the tour operator, does not apply to the present matter.
Conversely, if, on remand, the trier of fact determines that the nondisclosure of the waiver was not deceptive, then the Courbats validly waived their negligence claims.
1. The Statutory Presumption Of Non-Negligence For Equine-Related Injuries Set Forth In HRS Ch. 663B Does Not Apply To The Courbats’ Claims.
If the trier of fact determines that the failure to inform the Courbats of the waiver requirement was a deceptive trade practice, then the negligence waiver, along with the underlying contract, will be rendered void, and the Courbats’ negligence claims will be revived. In order to provide guidance on remand, therefore, we hold that it was error for the circuit court in the present matter to apply HRS § 663B-2(a), see supra note 2, which establishes a rebuttable presumption in favor of horseback tour operators that any injury “caused solely by the inherent risk and unpredictable nature of the equine” is not due to the negligence of the tour operator.
HRS § 663B-2(b) provides in relevant part that “[n]othing in [***27] this section shall prevent or limit the liability of an equine activity sponsor . . . if the equine activity sponsor, equine professional, or person: . . . (2) [p]rovided the equine and . . . failed to reasonably supervise the equine activities and such failure is a proximate cause of the injury.” The substance of Lisa’s claim revolves around her assertion that Nakoa failed to monitor her approach toward his horse while he was engaged in conversation with another guest; in other words, Lisa claims that Nakoa “failed to reasonably supervise the equine activities” that were the “proximate cause of [her] injury.” Therefore, we hold that, if Lisa is correct, the presumption of non-negligence set forth in HRS § 663B-2(a) would not apply to the Courbats’ claims.
2. If The Trier Of Fact Determines That The Nondisclosure Of The Waiver Was Not A Deceptive Trade Practice, Then The Courbats Validly Waived Their Negligence Claims.
a. The waiver was validly executed.
Citing Krohnert v. Yacht Sys. of Hawai’i, 4 Haw. App. 190, 201, 664 P.2d 738, 745 (1983), the Courbats assert that, because they manifested no clear [***28] and unequivocal acceptance of the terms of the waiver, the waiver cannot be enforced against them. However, pursuant to the following analysis, we hold that, if the trier of fact finds that the failure to inform the Courbats of the waiver requirement was not a deceptive trade practice, then the waiver, in all other respects, was valid.
[HN21] “The general rule of contract law is that one who assents to a contract is bound by it and cannot complain that he has not read it or did not know what it contained.” Leong v. Kaiser Found. Hosp., 71 Haw. 240, 245, 788 P.2d 164, 168 (1990); see also Joaquin v. Joaquin, 5 Haw. App. 435, 443, 698 P.2d 298, 304 (1985); In re Chung, 43 B.R. 368, 369 (Bankr. D. Haw. 1984); In re Kealoha, 2 B.R. 201, 209 (Bankr. D. Haw. 1980). Furthermore, “‘[p]arties are permitted to make exculpatory contracts so long as they are knowingly and willingly made and free from fraud. No public policy exists to prevent such contracts.'” Fujimoto v. Au, 95 Hawai’i 116, 156, 19 P.3d 699, 739 (2001) (some brackets omitted) (quoting Gen. Bargain Ctr. v. Am. Alarm Co., Inc., 430 N.E.2d 407, 411-12 [*265] [**438] (Ind. Ct. App. 1982)). [***29] “[S]uch bargains are not favored, however, and, if possible, bargains are construed not to confer this immunity.” Fujimoto, 95 Hawai’i at 155, 19 P.3d at 738. Therefore, as a general rule, “‘[e]xculpatory clauses will be held void if the agreement is (1) violative of a statute, (2) contrary to a substantial public interest, or (3) gained through inequality of bargaining power.'” 95 Hawaii at 156, 19 P.3d at 739 (quoting Andrews v. Fitzgerald, 823 F. Supp. 356, 378 (M.D.N.C. 1993)).
The Courbats have not alleged that any of the terms of the waiver, or the use of a waiver by the Ranch, violates a statute; on the contrary, the Courbats concede that waivers are an acceptable method by which tour operators may seek to limit their liability in response to rising insurance and litigation costs.
In Krohnert, the ICA defined the public interest
as involving some or all of the following characteristics:
[1] It concerns a business of a type generally thought suitable for public regulation.
[2] The party seeking exculpation is engaged in performing a service of great importance to the public, which is often [***30] a matter of practical necessity for some members of the public.
[3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards.
[4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.
[5] In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence.
[6] Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller of the service, subject to the risk of carelessness by the seller or his agents.
4 Haw. App at 199, 664 P.2d at 744 (finding under this test that the exculpatory clause contained in a contract for marine surveying was permissible) (brackets omitted) (quoting Lynch v. Santa Fe Nat’l Bank, 97 N.M. 554, 627 P.2d 1247, 1251-52 (N.M. Ct. App. 1981) [***31] (holding that services of escrow agents in New Mexico were not in the nature of a public service so as to render an exculpatory clause unenforceable) (quoting Tunkl v. Regents of Univ. of Cal., 60 Cal. 2d 92, 383 P.2d 441, 445-46, 32 Cal. Rptr. 33 (Cal. Ct. App. 1963) (declaring invalid as against the public interest an exculpatory clause for future negligence required for admission to a public research hospital))); see also 15 Corbin on Contracts § 85.18 (2003 & Supp. 2005) (summarizing a similar test commonly used by courts and noting that courts tend to enforce exculpatory clauses for recreational activities under the test). 12 Entities that have been found to fall under the public interest doctrine, rendering exculpatory clauses void, include common carriers, see Adams Express Co. v. Croninger, 226 U.S. 491, 509, 33 S. Ct. 148, 57 L. Ed. 314 (1913); Shippers Nat’l Freight Claim Council, Inc. v. Interstate Commerce Comm’n, 712 F.2d 740, 746 (2d Cir. 1983); Clairol, Inc. v. Moore-McCormack Lines, Inc., 79 A.D.2d 297, 309-10, 436 N.Y.S.2d 279 (N.Y. App. Div. 1981), and hospitals, see Tunkl, 383 P.2d at 447; Smith v. Hosp. Auth. of Walker, Dade & Catoosa Counties, 160 Ga. App. 387, 287 S.E.2d 99, [*266] [**439] 101 (Ga. Ct. App. 1981); [***32] Belshaw v. Feinstein, 258 Cal. App. 2d 711, 65 Cal. Rptr. 788, 798 (Cal. Ct. App. 1968).
12 Courts have upheld exculpatory clauses relating to car racing, see Cadek v. Great Lakes Dragaway, Inc., 843 F. Supp. 420 (N.D. Ill. 1994); Barbazza v. Int’l Motor Sports Ass’n, 245 Ga. App. 790, 538 S.E.2d 859 (Ga. Ct. App. 2000), snow skiing, see Chauvlier v. Booth Creek Ski Holdings, Inc., 109 Wn. App. 334, 35 P.3d 383 (Wash. Ct. App. 2001), skydiving, see Scrivener v. Sky’s The Limit, Inc., 68 F. Supp. 2d 277 (S.D.N.Y. 1999), and horseback riding, see Street v. Darwin Ranch, Inc., 75 F. Supp. 2d 1296, 1299 (D. Wyo. 1999) (finding that “recreational trail rides are neither of great importance to the public, nor a practical necessity to any member of the public”).
Applying these factors to the present matter, we determine that the public interest here is not at stake: recreational activity tours are not generally [***33] suitable to public regulation, in the manner of common carriers, nor of great importance to the public, nor of an essential nature, in the manner of medical care, such that the provider’s bargaining power is greatly enhanced over any member of the public seeking their services.
Finally, as the United States District Court for the District of Hawai’i noted, in considering negligence waivers in the context of recreational activity, while such waivers may be contracts of adhesion, in that they are presented on a “take-it-or-leave-it” basis, they are not unconscionable, but “are of a sort commonly used in recreational settings” and “are generally held to be valid.” Wheelock v. Sport Kites, Inc., 839 F. Supp. 730, 736 (D. Haw. 1993). [HN22] “[C]ontracts [of adhesion] are ‘unenforceable if two conditions are present: (1) the contract is the result of coercive bargaining between parties of unequal bargaining strength; and (2) the contract unfairly limits the obligations and liabilities of, or otherwise unfairly advantages, the stronger party.'” Fujimoto, 95 Hawai’i at 156, 19 P.3d at 739 (quoting Brown v. KFC Nat’l Mgmt. Co., 82 Hawai’i 226, 247, 921 P.2d 146, 167 (1996)); [***34] see also Wheelock, 839 F. Supp. at 735 (“[A]dhesion contracts are fully enforceable provided that they are not unconscionable and do not fall outside the reasonable expectations of the weaker or adhering party.”). Unequal bargaining strength “involves the absence of alternatives; specifically whether the plaintiffs were ‘free to use or not to use’ [the] defendant’s . . . services.” Krohnert, 4 Haw. App at 199, 664 P.2d at 744 (quoting Lynch, 627 P.2d at 1250). These conditions are generally not germane in the recreational waiver context. In the context of a recreational sport or adventure activity, freely undertaken for pleasure, “coercive bargaining” and “an absence of alternatives” are terms that hold little meaning.
In the present matter, Lisa read through and responded to queries contained in the waiver form and had no further questions or concerns regarding the contents before she signed it. Steven conceded that he routinely relied on his wife to review documents before signing them and that he knew he was waiving rights when he signed the form. The record demonstrates that the Courbats were given adequate time and opportunity [***35] to fully review the waiver presented to them before they signed it and that both knew that by signing it they were waiving legal rights in return for being allowed to participate in the ride. In short, there is no evidence of coercion. By signing the waiver form, they demonstrated that they agreed to its terms, and by reading it, or, in Steven’s case, in relying on the advice of his wife, demonstrated knowledge of its contents. Moreover, they had signed similar waivers that week for another activity and were familiar with what they represented. Accordingly, we hold that, if the trier of fact determines that the nondisclosure of the waiver was not a deceptive trade practice, the Courbats’ waiver was valid.
b. The scope of the Courbats’ waiver does not extend beyond negligence claims.
The language of the waiver, see supra note 3, releases the Ranch and its agents and holds it harmless “from loss or damage to property or injury to [the undersigned] . . . resulting from [the undersigned] . . . being a spectator or participant or while engaged in any such activity in the event[-]related facilities.” However, because [HN23] “‘[e]xculpatory provisions are not [***36] favored by the law and are strictly construed against parties relying on them,'” the effect of the broad exculpatory language contained in the Ranch’s waiver should be construed to limit the waiver’s scope to simple negligence claims; it does not protect the Ranch against its own gross negligence or willful misconduct. Fujimoto, 95 Hawai’i at 156, 19 P.3d at 739 (quoting Andrews, 823 F. Supp. at 378); see also Wheelock, 839 F. Supp. at 736 (interpreting the reasoning in Krohnert to conclude that to allow an exculpatory clause to extend to gross negligence would violate [*267] [**440] the public interest, rendering the clause void).
IV. CONCLUSION
In light of the foregoing analysis, we vacate the circuit court’s May 13, 2002 judgment in favor of the Ranch and against the Courbats and remand for further proceedings consistent with this opinion.
DISSENT BY: DUFFY
DISSENT
DISSENTING OPINION BY DUFFY, J., IN WHICH ACOBA, J., JOINS
I respectfully dissent. In my view, no reasonable person would find that the recreational tour operator’s failure to disclose the waiver requirement of Dahana Ranch, Inc. during negotiation of the horseback riding [***37] activity was a deceptive trade practice under HRS § 480-2. The Courbats concede that waivers are an acceptable method by which recreational tour operators and sponsors may seek to limit their liability in response to rising insurance and litigation costs, and admit that they were required to sign such a waiver before participating in a snorkeling activity earlier during the same Hawai’i vacation. Applying the Cliffdale Assoc. test to the undisputed facts in this case involving the inherently dangerous activity of horseback riding, I respectfully submit that the tour operator’s failure to disclose the waiver requirement of Dahana Ranch, Inc. during negotiation of the horseback riding activity with the Courbats was not a material omission implicating a deceptive trade practice under HRS § 480-2. I would thus affirm the circuit court’s grant of summary judgment in favor of Dahana Ranch, Inc.
G-YQ06K3L262
http://www.recreation-law.com
Colleges, Officials, and a Ski Area are all defendants in this case.
Posted: March 25, 2013 Filed under: Massachusetts, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: Colorado, Duty of care, Edward Grees, Federation Internationale de Ski, FIS, Giant Slalom, Inc., Jeffrey Pier, Jiminy Peak, Jimmy Peak, Jimmy Peak Mountain Resort, Kelly Brush, Massachusetts, Massachusetts Ski Safety Act, Middlebury College, MSSA, NCAA, Negligence, Oyestein Bakken, Ski, Ski Resort, St. Lawrence University, United States Ski and Snowboard Association, USSA, Williams College, Williams College Outing Club, Williams Winter Carnival Leave a commentBrush, v. Jiminy Peak Mountain Resort, Inc., Et Al, 626 F. Supp. 2d 139; 2009 U.S. Dist. LEXIS 52204
MA Ski Safety Act and a release prevent the plaintiff’s suit.
As the court said, this is a sad case; the plaintiff was a student ski racer. She hit a lift tower during a race and became a paraplegic. She sued the ski area, Jimmy Peak Mountain Resort, Williams College, its coaches and several other officials of the race.
The race was part of a weekend Williams Winter Carnival. The carnival was at Jimmy Peak and included ski races. The plaintiff examined the Giant Slalom course. She exited the course during a run and struck an unprotected lift tower. The factual issues resolved around whether the tower was supposed to be protected by B-Netting (the red netting you see on the sides of ski races) or padding.
The race was on a homologated hill (a slope that met FIS regulations). The race organizers prepared a plan for the netting on the course which showed the netting in the area where the plaintiff left the course. When the plaintiff left the course, there was no netting to slow her down or stop her.
The plaintiff argued the “plan” was a requirement to run the race as required by FIS. The defendants argued the plan was where safety equipment might need to be necessary. The B-netting was not set up according to the plan.
Summary of the case
The plaintiff claimed the defendant ski area was liable for “…negligent operation of a ski area in violation of the MSSA (Count I); negligent failure to undertake duties assumed under a contract with Williams (Count II); and negligent inspection (Count III).”
The court fist looked at the definition of Negligence and what the plaintiff must prove under Massachusetts law:
To prevail in a negligence action under Massachusetts law, a plaintiff must prove that (1) the defendant owed the plaintiff a duty of reasonable care; (2) the defendant breached this duty; (3) damage to the plaintiff resulted; and (4) the breach of the duty caused this damage.
The court reading the MSSA found the act served two “somewhat contradictory purposes “(1), to limit the liability of ski operators in order to ensure their economic survival and (2) to ensure skier safety.”
Reading the act the court found the duty that caused the plaintiff’s injuries was on the plaintiff, not the ski area. The lift tower was off the ski trail and therefore, under the MSSA the ski area had no duty to set up netting or pad it. If the netting had been set up voluntarily, then the court found there would still be no liability because negligence in a voluntary act does not create liability under the MSSA.
Indeed, this court has previously noted that “imposing liability on ski area operators for duties voluntarily assumed but negligently performed would undercut a key goal of the MSSA,” because it would discourage ski area operators from adding safety features.
The court then looked at the plaintiff’s claims that the agreements of the college to use the ski area which was enveloped in two contracts created contractual duties that the defendant ski area breached. Under Massachusetts law, a tort can be created from a contractual relationship. (This is a minority view in most states.) However, the court could not find language in the contracts that created a duty to undertake steps to keep the competition safe as possible.
The court found that the defendant ski area had not been negligent and had not violated a duty to the plaintiff and dismissed the defendant Jimmy Peak Ski Area.
The court then looked at the remaining defendants, the colleges and the race officials, most of whom were employees of the colleges. These defendants relied upon the release as their defense. The release was required by the USSA (United States Ski and Snowboard Association) to race in USSA events, which this race was. The release had a venue clause that required Colorado law be applied to interpret the release. Choice of law provisions (jurisdiction and venue clauses) absent substantial Massachusetts public policy reasons are upheld in Massachusetts.
The court then examined the release under Colorado law and found the release to be enforceable. The plaintiff argued the release was ambiguous. The waiver was clear to the signor that signing the release waived all claims against the USSA. The USSA waiver listed every possible person to be protected by the release.
United States Ski and Snowboard Association and “its subsidiaries, affiliates, officers, directors, volunteers, employees, coaches, contractors and representatives, local ski clubs, competition organizers and sponsors, and ski and snowboard facility operators.”
Consequently, the waiver protected the remaining defendants. The third party defendants were also released by the waiver because their liability was contingent on the liability of the first party defendants. If the first party defendants were not liable, the third party defendants could not be liable.
The final argument the court reviewed was the claim the actions of the defendants amounted to gross negligence. Under Colorado law a waiver does not protect against gross negligence.
…under Colorado law an exculpatory agreement cannot “provide a shield against a claim for willful and wanton negligence.” In Colorado an individual who “purposefully committed an affirmative act which he knew was dangerous to another’s person and which he performed heedlessly, without regard to the consequences or rights and safety of another’s person” can be found to have acted with willful and wanton negligence.
The court defined gross negligence as “Gross negligence involves “materially more want of care than constitutes simple inadvertence,” though “it is something less than willful, wanton and reckless conduct.”
The court found the defendants had not acted in a way that was gross negligence, and no jury could find gross negligence on the part of any defendants.
There is no evidence in the record, and indeed, no allegation, that any of the Defendants, or anyone at the competition, became aware that there was an area of the trail without netting where netting was normally placed and declined to remedy the situation. At most, there was a collective failure to take a step that might have lessened the injuries suffered by Plaintiff. No reasonable jury could find that this simple inadvertence, no matter how tragic its consequences, constituted gross negligence.
So Now What?
The first issue was what was the plan? Actually, a point that was not addressed in the decision which should be addressed here was why was there a plan?
How can you create a plan, call it a safety plan and not execute it 100%? If it just a draft, or if it is just ideas, you better label it that way. You cannot create documents like that, that are not going to come back and fry you.
Paperwork is the easiest way for a plaintiff to find something to prove you did something wrong. If your paperwork says you will do something that you did not do, or not do something that you did, the plaintiff will work hard to connect it to the injury. You set your own standards, defined your duty to the customers and/or guests (future plaintiffs) and then violated, breached those duties you created.
The choice of laws clause, jurisdiction and venue clause, did not work as it normally would have in this case. The case was brought in federal court because there were parties to the suit from two different states (called diversity jurisdiction cases). No one seemed to want to argue the jurisdiction and venue clause in the release should be enforced. That is difficult to do in some diversity jurisdiction cases in federal court; however, it is not impossible. The case would have had the same outcome under Colorado law, whether or not it would have been filed at all in Colorado after being dismissed in Massachusetts is the question.
Another flaw in how the defendants could have provided more protection is there was not a separate release for the event or the race. Between the Williams College Outing Club, the ski area and the college, someone should have required the participants to sign a release for the event. It could have been based on the course, not all possible courses in the US. It could have named the colleges and their employees to provide better protection. It could have been based on the facts and law of Massachusetts.
It is sad when a young woman has her life upended and changed. However, the law is the law. As the court stated:
It would, however, be false compassion now to ignore the undisputed facts and the unavoidable law. The Massachusetts Ski Safety Act, in the case of Jiminy Peak, and the USSA waiver, in the case of the other Defendants, forecloses any possibility of liability for payment of damages to Plaintiff in these circumstances. To encourage pursuit of a lawsuit lacking a legal basis would only serve to compound the tragedy.
Plaintiff: Kelly Brush
Defendant: Jiminy Peak, Inc., the operator of the ski area where the accident occurred; Williams College and two of its ski coaches, Edward Grees and Oyestein Bakken, who organized the competition; St. Lawrence University and its ski coach, Jeffrey Pier, who was the referee of the race during which Brush was injured; and Barry Bryant, who served as the competition’s Technical Delegate from the Federation Internationale de Ski (“FIS”). Pier and St. Lawrence University have also filed a third-party complaint seeking contribution from Brush’s school, Middlebury College, and its ski coach Forest Carey, who was a race referee for a race
Plaintiff Claims: negligence or gross negligence, negligent operation of a ski area in violation of the MSSA (Count I); negligent failure to undertake duties assumed under a contract with Williams (Count II); and negligent inspection (Count III).
Defendant Defenses: Massachusetts Ski Safety Act and Release
Holding: For all Defendants
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Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
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Brush, v. Jiminy Peak Mountain Resort, Inc., Et Al, 626 F. Supp. 2d 139; 2009 U.S. Dist. LEXIS 52204
Posted: March 25, 2013 Filed under: Legal Case, Massachusetts, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: Eastern Intercollegiate Ski Association, Edward Grees, Federation Internationale de Ski, FIS, Giant Slalom, Inc., Jeffrey Pier, Jiminy Peak, Jimmy Peak, Jimmy Peak Mountain Resort, Kelly Brush, Massachusetts Ski Safety Act, Middlebury College, MSSA, National Collegiate Athletic Association, NCAA, Oyestein Bakken, St. Lawrence University, United States Ski and Snowboard Association, USSA, Williams College, Williams College Outing Club, Williams Winter Carnival Leave a commentTo Read an Analysis of this decision see Colleges, Officials, and a Ski Area are all defendants in this case.
Brush, v. Jiminy Peak Mountain Resort, Inc., Et Al, 626 F. Supp. 2d 139; 2009 U.S. Dist. LEXIS 52204
Kelly Brush, Plaintiff v. Jiminy Peak Mountain Resort, Inc., Et Al, Defendants and St. Lawrence University, Defendant/Third-Party Plaintiff v. Middlebury College, Et Al, Third-Party Defendants
C.A. No. 07-10244-MAP
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
626 F. Supp. 2d 139; 2009 U.S. Dist. LEXIS 52204
June 11, 2009, Decided
COUNSEL: [**1] For Jeffrey Pier, ThirdParty Plaintiff: Michael H. Burke, LEAD ATTORNEY, George W. Marion, Bulkley, Richardson & Gelinas, Springfield, MA.
For Barry Bryant, Defendant: John B. Connarton, Jr., LEAD ATTORNEY, Luke R. Conrad, Donovan Hatem, LLP, Boston, MA.
For Williams College, Defendant: William J. Dailey, Jr., Brian H. Sullivan, LEAD ATTORNEYS, Sloane & Walsh, LLP, Boston, MA.
For St. Lawrence University, ThirdParty Plaintiff: Thomas E. Day, Edward J. McDonough, Jr., LEAD ATTORNEY, Flanagan & Cohen, PC, Springfield, MA.
For Kelly Brush, Plaintiff: Walter E. Judge, Jr., LEAD ATTORNEY, Downs, Rachlin & Martin, Burlington, VT; Robert B. Luce, LEAD ATTORNEY, Downs, Rachlin & Martin PLLC, Burlington, VT.
For Williams College, Defendant: Lawrence J. Kenney, Jr., Sloane & Walsh, Boston, MA.
For Forest Carey, ThirdParty Defendant: Gerald F. Lucey, Nelson, Kinder, Mosseau & Saturley, P.C., Boston, MA.
For Jiminy Peak Mountain Resort, Inc., Defendant: David B. Mongue, LEAD ATTORNEY, Donovan & O’Connor, LLP, North Adams, MA.
For Middlebury College Middlebury, VT 05753, ThirdParty Defendant: Robert B. Smith, Nelson, Kinder, Mosseau & Saturley, P.C., Boston, MA.
JUDGES: MICHAEL A. PONSOR, United States District [**2] Judge.
OPINION BY: MICHAEL A. PONSOR
OPINION
[*143] MEMORANDUM AND ORDER REGARDING CROSS MOTIONS FOR SUMMARY JUDGMENT
(Dkt. Nos. 135, 137, 138, 139, 140, 143, 157)
PONSOR, D.J.
I. INTRODUCTION
This case stems from a tragic skiing accident that left the plaintiff, Kelly Brush, permanently disabled. The accident occurred during a collegiate ski race on February 18, 2006 when Brush lost control and crashed into a ski lift stanchion just off the trail. In her six-count amended complaint Brush alleges that the severity of her injuries was the result of negligence or gross negligence on the part of the following defendants: Jiminy Peak, Inc., the operator of the ski area where the accident occurred; Williams College and two of its ski coaches, Edward Grees and Oyestein Bakken, who organized the competition; St. Lawrence University and its ski coach, Jeffrey Pier, who was the referee of the race during which Brush was injured; and Barry Bryant, who served as the competition’s Technical Delegate from the Federation Internationale de Ski (“FIS”). Pier and St. Lawrence University have also filed a third-party complaint seeking contribution from Brush’s school, Middlebury College, and its ski coach Forest Carey, who was a race [**3] referee for a race on the same trail the day before Brush’s accident. Before the court are motions for summary judgment from all of the parties.
Jiminy Peak argues that pursuant to the Massachusetts Ski Safety Act (“MSSA”) it, as the ski area operator, has no liability because Plaintiff’s injuries were caused by her collision with an object off the trail. The other Defendants assert that Plaintiff cannot recover from them because she executed a liability waiver that covered Defendants and their alleged negligence when she registered with the United States Ski and Snowboard Association (“USSA”). The Third-Party Defendants argue that as a matter of law they have no obligation to contribute even if Third-Party Plaintiffs Pier and St. Lawrence are liable to Plaintiff. Plaintiff asks the court to rule that the MSSA does not bar her claims against Jiminy Peak and the USSA liability waiver is not applicable to bar the claims of the other Defendants. Finally she asserts that the facts are sufficient to permit this case to go to trial on a theory of gross negligence, even if the USSA waiver is valid.
For the reasons set forth below, the court will allow all Defendants’ motions for [*144] summary judgment, [**4] deny Plaintiff’s motion, and order entry of judgment for Defendants.
II. BACKGROUND
The facts are largely undisputed. Where disputes exist, the court has viewed the facts in the light most favorable to Plaintiff.
A. The Accident.
Brush was injured while competing in the Williams Winter Carnival, a two-day event at the Jiminy Peak ski area in Hancock, Massachusetts hosted by the Williams College Outing Club in association with the Williams College ski team. The Winter Carnival is part of the regular season of the Eastern Intercollegiate Ski Association (EISA), one conference within the ski program of the National Collegiate Athletic Association (NCAA). The competition was also held under the auspices of the USSA and the FIS, which in the United States operates through the USSA. As a result of the USSA/FIS affiliation, all competitors in the Winter Carnival had to be USSA members, though not all had to be NCAA athletes. The USSA/FIS designation meant that skiers could earn “points” to improve their international, individual standing by competing in the Winter Carnival events.
The particular event during which Plaintiff was injured was the Giant Slalom, which took place on the second day of [**5] the Winter Carnival. This event requires skiers to pass through “gates” set along the trail as they descend the slope as quickly as possible. Skiers are ranked based on their best time through the course and are not penalized for any runs they fail to finish, due for example to a fall. Technological changes in the past decade have increased the sport’s risks. New ski designs allow skiers to reach speeds of forty miles per hour. At the same time it has become harder to predict how skiers will fall if they lose control. Some courses now are set with gates at the edges of the trail to maximize the distance skiers must travel from one side of the trail to another in order to slow skiers down. Persons involved with competitive skiing are aware that technical changes have increased the importance of proper placement of safety equipment during competitions.
Under NCAA and USSA rules, members of the “competition jury” have a responsibility to inspect the layout of a trail prior to its use during a competition. The competition jury for the race during which Brush was injured included the “Chief of the Race,” Defendant Edward Grees, the head ski coach at Williams; the “Chief of the Course,” Defendant [**6] Oyestein Bakken, an assistant ski coach at Williams; the “Race Referee,” Jeffrey Pier, a ski coach at St. Lawrence University; and the “Technical Delegate,” Defendant Barry Bryant. Third-party Defendant Forest Carey, the Middlebury coach, was the “Race Referee” for a race that used the same trail the previous day.
The USSA requires that trails used in competitions be “homologated,” which means that the trail has been confirmed to meet the relevant FIS regulations. The USSA also mandates that trails be prepared in keeping with homologation requirements. The parties disagree about whether all members of the jury were responsible for confirming that the trail was set consistent with the homologation report, but for purposes of this memorandum the court will assume they were. Additionally, there is a dispute as to whether the trail was, in fact, prepared as set out in a homologation report drafted in keeping with FIS requirements. Again, for purposes of its rulings here, the court will [*145] assume that the trail was not prepared as the homologation report contemplated.
Plaintiff asserts that the relevant homologation report required that “B-netting,” a type of netting used to slow errant skiers [**7] before they collide with objects, be placed along the edge of the trail starting uphill from any lift tower and continuing downhill some distance past the lift tower. The homologation report, completed in 2002 by Defendant Grees and an FIS representative for the area where Plaintiff was hurt, included a diagram showing such B-netting. While at least some of the defendants assert the report merely displays safety equipment that might be necessary, rather than the minimal required safety equipment, the court will, again, assume for the current purposes that the report indicated that B-netting should have been installed above and below lift towers. The parties do agree that B-netting was not set up according to the diagram on the day Plaintiff was hurt.
At the time of Plaintiff’s accident there was B-netting along the left edge of the trail, stopping at a point approximately even with the gate where Brush lost control and somewhat uphill from a lift tower. No other netting was placed between the trail and the tower, so that the area directly in front of the tower lacked any protection. In prior years B-netting was placed in accordance with a diagram in the homologation report, extending [**8] past the lift tower above and below.
Not only was there less B-netting on February 18, 2006 than there was in the past, there were no triangular nets set around the lift tower itself. Triangular nets are another available type of safety netting used to deflect a skier from a particular hazard. Additionally, neither the tower nor its support stanchion was equipped with a type of padding known as Willy Bags, though such padding is regularly used in speed events.
After the Giant Slalom course was set, Plaintiff had an opportunity to ski down the slope to assess the course, and she did so. Later, during one of her timed runs, Plaintiff caught an edge of one of her skis and lost control. As a result she left the trail and struck the unprotected lift tower support stanchion. The collision caused life-altering injuries to Plaintiff, including paraplegia.
B. Relevant Agreements.
1. USSA Waiver.
At the time of her accident Plaintiff was a member of the USSA and the FIS. During the summer of 2005 registration forms for both organizations were completed on her behalf. 1 The FIS waiver included language acknowledging the risks of skiing competitively. Additionally, it stated that national or club organizations [**9] in the United States may require a skier to waive any liability claims in order to participate in their activities.
1 The parties agree that Plaintiff’s mother signed the relevant USSA Release and FIS Registration with Plaintiff’s full consent and authorization. They further agree that the weight given to those documents should be the same as it would be if Plaintiff had signed them herself. (Dkt. No. 162, Pl.’s Resp. to Defs.’ Joint Statement of Undisputed Material Facts at 18.)
Those completing the USSA registration form had to sign a clearly-labeled liability release. (Dkt. No. 142, Ex. 9.) Pursuant to that release a USSA member
unconditionally WAIVES AND RELEASES ANY AND ALL CLAIMS, AND AGREES TO HOLD HARMLESS, DEFEND AND INDEMNIFY USSA FROM ANY CLAIMS, present or future, to Member or his/her property, [*146] or to any other person or property, for any loss, damage, expense, or injury (including DEATH), suffered by any person from or in connection with Member’s participation in any Activities in which USSA is involved in any way, due to any cause whatsoever INCLUDING NEGLIGENCE and/or breach of express or implied warranty on the part of USSA.
Id.
As used in the release “USSA” referred to the [**10] United States Ski and Snowboard Association and “its subsidiaries, affiliates, officers, directors, volunteers, employees, coaches, contractors and representatives, local ski clubs, competition organizers and sponsors, and ski and snowboard facility operators.” Id. The term “Activities” included “skiing and snowboarding in their various forms, as well as preparation for participation in, coaching, volunteering, officiating and related activities in alpine, nordic, freestyle, disabled, and snowboarding competitions and clinics.” Id.
2. Agreements Between Defendants.
The Williams College ski team utilized the Jiminy Peak ski area for its Winter Carnival and for practice sessions pursuant to a written agreement between the parties. (Dkt. No. 158, Tab 18, Jiminy Peak/Williams College Contract.) That five-paragraph agreement gave Williams and members of its community various types of access to the ski area in exchange for a single annual payment. Jiminy Peak agreed to have its mountain manager work with the Williams alpine coach to determine safe conditions for ski team training and to make and groom snow for the trails that were used during the annual winter carnival.
Jiminy Peak and Williams [**11] College were also parties to an Alpine Schedule Agreement with the USSA. Pursuant to that agreement the competition was listed on the USSA’s official schedule; all competitors had to be members of the USSA; competitors, as noted, were able to earn “points;” competition organizers had to agree to allow some non-collegiate USSA members to compete; and members of the competition jury had to be members of USSA. Additionally, the agreement required that facilities “to be used in the actual competition events . . . conform with applicable rules and with requirements of the [Technical Delegate] and competition jury.” (Dkt. No. 158, Tab 8, Alpine Schedule Agreement 2, P 8.) The competition organizer, the Williams College Outing Club, was responsible for “working with” Jiminy Peak, the USSA, and the competition jury to select facilities and ensure that they were prepared in accordance with “such rules or requirements, and homologation or facility approval requirements according to discipline and type of competition.” Id.
III. DISCUSSION
“Summary judgment is appropriate where ‘there is no genuine issue as to any material fact and [] the moving party is entitled to judgment as a matter of law.'” [**12] Coffin v. Bowater, Inc., 501 F.3d 80, 85 (1st Cir. 2007) (citing Fed. R. Civ. P. 56(c)). “[C]ourts are required to view the facts and draw reasonable inferences ‘in the light most favorable to the party opposing the [summary judgment] motion.'” Scott v. Harris, 550 U.S. 372, 378, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962)). “Cross-motions for summary judgment do not alter the basic Rule 56 standard, but rather simply require us to determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed.” Adria Int’l Group, Inc. [*147] v. Ferre Dev., Inc., 241 F.3d 103, 107 (1st Cir. 2001).
A. Claims Against Jiminy Peak.
Plaintiff asserts three claims against Jiminy Peak: negligent operation of a ski area in violation of the MSSA (Count I); negligent failure to undertake duties assumed under a contract with Williams (Count II); and negligent inspection (Count III). [HN1] “To prevail in a negligence action under Massachusetts law, a plaintiff must prove that (1) the defendant owed the plaintiff a duty of reasonable care; (2) the defendant breached this duty; (3) damage to the plaintiff resulted; and (4) the breach of the duty caused this [**13] damage.” Brown v. United States, 557 F.3fd 1, 3 (1st Cir. 2009) (quoting Jupin v. Kask, 447 Mass. 141, 849 N.E.2d 829, 835 (Mass. 2006)). Jiminy Peak asserts that under the MSSA it did not owe Plaintiff any duty to use reasonable care to prevent her collision with an object off the ski trail. Plaintiff argues that Jiminy Peak had a duty to her pursuant to the MSSA and its agreements with Williams College and the USSA.
1. Statutory Duty.
[HN2] The MSSA serves two somewhat contradictory purposes, (1) to limit the liability of ski operators in order to ensure their economic survival and (2) to ensure skier safety. McHerron v. Jiminy Peak, Inc., 422 Mass. 678, 665 N.E.2d 26, 27 (Mass. 1996). Pursuant to the MSSA a ski area operator has a general duty to operate the “ski areas under its control in a reasonably safe manner.” Mass. Gen. Laws ch. 143, § 71N(6) (2008).
However, this duty is sharply limited by other provisions of the act. Of particular relevance in this case is that the MSSA places “the duty to avoid any collision with any . . . object on the hill below” solely on the skier, so long as the object was not improperly marked. Id. at § 71O. The MSSA does shift the duty to avoid collisions back to the ski area operator [**14] when the ski operator has not marked the obstruction “pursuant to the regulations promulgated by the [recreational tramway] board” or “as otherwise provided” in the statute. Id.; see also Eipp v. Jiminy Peak, Inc., 154 F. Supp. 2d 110, 116 (D. Mass. 2001) (declining to enter summary judgment for the ski area operator where skier was injured after striking “a snowgun in the middle of a ski trail”). At the time of Plaintiff’s accident the only active regulations, at 526 C.M.R. § 10, did not address signage requirements.
The other requirements established by the MSSA require ski area operators to (1) mark maintenance and snow-making equipment that is in use (Id. at § 71N(1)), (2) mark with flashing lights trail maintenance and emergency vehicles in use in a ski area (Id. at § 71N(2)), and (3) mark the location of snow-making hydrants “within or upon a slope or trail” § 71N(4)).
[HN3] Under the MSSA, skiers are also solely responsible for any injuries resulting from skiing anywhere other than on an open slope or trail. 2 Id. at § 71O; Spinale v. Pam F., Inc., 1995 Mass. App. Div. 140, 142 (Mass. App. Div. 1995) (“[Section] 71O expressly imposes responsibility for injuries sustained while ‘skiing [**15] on other than an open slope or trail within the ski area’ on the skier, and thereby exempts the ski area operator from liability for the [*148] same.”). The ski area operator has no duty to provide netting or padding around obstacles off the trail. Walsh v. Jiminy Peak, Inc., No. 02-11890-MAP, 2005 U.S. Dist. LEXIS 18463 at *12-13 (D. Mass. Aug. 29, 2005). Nor does it assume such a duty by padding some obstacles. Id. Indeed, this court has previously noted that “imposing liability on ski area operators for duties voluntarily assumed but negligently performed would undercut a key goal of the MSSA,” because it would discourage ski area operators from adding safety features. 2005 U.S. Dist. LEXIS 18463 at *16.
2 [HN4] A “[s]ki slope or trail” is limited to the “area designed by the person or organization having operational responsibility for the ski area as herein defined, including a cross-country ski area, for use by the public in furtherance of the sport of skiing . . . .” Mass. Gen. Laws ch. 143, § 71I.
The parties agree that the lift tower stanchion 3 Plaintiff struck was “off the course and off the trail.” (Dkt. No. 162 at 23.) Given these facts, the MSSA placed the duty to avoid collisions on Plaintiff alone. 4
3 Plaintiff [**16] separately argues that Jiminy Peak had a specific duty to protect skiers from collisions with ski lift stanchions pursuant to 526 C.M.R. 10.09(4)(b). That regulation specifies that ski area operators are to fence or barricade any area of the tramway that could cause injury to a person. However, that requirement appears within a section entitled “Protection Against moving parts or Other Hazards and Clearance Envelopes.” Id. at 10.09(4). Given that context, it is clear that this fencing requirement is only intended to keep members of the public from getting too close to moving parts of a tramway system which might cause injury and does not apply to nonmoving elements like stanchions and support towers.
4 Ski area operators’ liability is also limited such that they “shall not be liable for damages to persons or property, while skiing, which arise out of the risks inherent in the sport of skiing.” Mass. Gen. Laws ch. 143, § 71N(6). The parties disagree about the applicability of this limitation to this case. Jiminy Peak argues that collisions with off-trail objects, regardless of their cause, are a risk inherent in the sport of skiing. Plaintiff notes that the “inherent risks” enumerated [**17] in the statute are natural conditions that can cause a skier to lose control, not dangers that result from such a loss of control. Id. at § 71O (enumerating the “risks inherent in the sport of skiing” as including “variations in terrain, surface or subsurface snow, ice conditions or bare spots”). Plaintiff appears to have the stronger argument that off-trail collisions, though not unexpected, are in a different category than the inherent risks identified in § 71O. As neither party suggests that Plaintiff’s crash resulted from an encounter with a natural condition like those listed in the statute, the limitation on ski area operator liability related to inherent risks of skiing is irrelevant. The determinative fact in this case, undisputed on the record, is that Plaintiff lost control and struck a stationary object, the stanchion, off the trail. The MSSA shields Jiminy Peak from liability in this situation. There is no need for an “inherent risk” analysis.
Plaintiff argues that Jiminy Peak’s duty to her was not fully circumscribed by the MSSA because her injury occurred during the course of a race. Ski racing is certainly dangerous, perhaps more dangerous than ordinary recreational skiing [**18] because speed is pursued sometimes to the limit of a skier’s competence, and beyond. Jiminy Peak undoubtedly was aware of the dangers associated with ski racing and took some steps, together with the race organizers, to try to reduce those dangers. However, no authority suggests that Jiminy Peak or any other ski operator in Massachusetts owes a greater duty to racing skiers than to other, perhaps less experienced, recreational skiers.
Plaintiff asserts that Jiminy Peak assumed a greater duty to racing skiers, similar to the heightened duty one Massachusetts trial court determined ski area operators owed to a minor child enrolled in an instructional program. Sanchez-Souquet v. Jiminy Peak, Inc., 1997 MBAR-094, 1997 Mass. Super. LEXIS 198 (Mass. Super. Ct. 1997). In Sanchez-Souquet, the state court concluded that it was unfair to require “a ski student to ‘assume the risk’ for his injury” [*149] because ski area operators knew that such skiers lacked experience and judgment and were relying on their instructors to keep them safe. 1997 Mass. Super. LEXIS 198 at *9. Plaintiff urges this court to conclude that racing skiers also should be held to a lower standard than regular recreational skiers because, like students [**19] learning to ski, competitive skiers ski at the edge of their ability. Even if the court was persuaded that the court reached the correct outcome in Sanchez-Souquet (a decision the court need not, and does not, reach) it would not be inclined to carve out a further exception for competitive skiers. While it may be unreasonable to presume that a child learning to ski “know[s] the range of his own ability to ski on any slope, trail or area,” a similar presumption cannot be applied to collegiate competitive skiers. Mass. Gen Laws ch. 143, § 71O.
More importantly, [HN5] the MSSA applies to all skiers, a group which includes “any person utilizing the ski area under control of a ski area operator for the purpose of skiing . . . .” Id. at § 71I; Fetzner v. Jiminy Peak, The Mountain Resort, 1995 Mass. App. Div. 55, 56 (Mass. App. Div. 1995) (“The definition of skier in G.L.c. 143 includes any person utilizing the ski area.”). Competitive skiers thus have the same responsibility to avoid collisions with objects off the trail as other skiers. Ski area operators simply have no duty under the statute to prevent the injuries suffered by a skier who collides with an off-course obstacle. Without such a duty, [**20] Jiminy Peak’s alleged negligence cannot give rise to liability. McHerron v. Jiminy Peak, Inc., 422 Mass. 678, 665 N.E.2d 26, 28 (Mass. 1996) (“As the defendant had no duty to remedy a statutorily defined unavoidable risk inherent in the sport of skiing, the defendant’s alleged negligence in failing to eliminate the [risk] does not create liability.”).
2. Contractual Duty.
Plaintiff asserts that even if Jiminy Peak did not have a duty to her pursuant to the MSSA or through its voluntary safety efforts, it did have a contractual duty to undertake specific steps to ensure the competition would be as safe as possible. Failing to take those steps, Plaintiff asserts, constituted a breach of a separate, non-statutory duty. Massachusetts recognizes that “a claim in tort may arise from a contractual relationship . . . and may be available to persons who are not parties to the contract.” Parent v. Stone & Webster Engineering Corp., 408 Mass. 108, 556 N.E.2d 1009, 1012 (Mass. 1990). However, Jiminy Peak did not obligate itself to provide particular safety measures, such as netting or padding, in either of the two contracts relied on by Plaintiff. Pursuant to its agreement with Williams College, Jiminy Peak agreed to consult [**21] about safe training conditions for Williams skiers and to permit use of several trails for the Winter Carnival competition. Under the Alpine Schedule Agreement, the competition organizers are responsible for “working with” the ski area operator to ensure that ski facilities were prepared in accordance with all USSA rules, regulations, and applicable homologation requirements. The ski area operator, Jiminy Peak, did not itself undertake that responsibility and therefore any failure to ensure that applicable safety requirements were met did not give rise to tort liability.
B. Claims Against Competition Organizers and Officials.
1. The USSA Waiver.
Defendants collectively argue that Plaintiff’s various negligence claims are precluded by the liability waiver executed when her USSA membership was renewed the summer before her accident. Plaintiff [*150] asserts that the waiver does not bar her claims because its language was ambiguous as to the persons and entities it covered. In resolving this question the court applies Colorado law, as urged by Plaintiff and agreed to by Defendants. The waiver includes a choice of law provision selecting Colorado law and [HN6] in the absence of a “substantial Massachusetts [**22] public policy reason,” Massachusetts law honors choice of law provisions in contracts. Jacobson v. Mailboxes Etc. U.S.A., 419 Mass. 572, 646 N.E.2d 741, 744 (Mass. 1995).
[HN7] Under Colorado law “[e]xculpatory agreements are disfavored and, therefore, they are strictly construed against the party seeking to limit its liability.” Del Bosco v. United States Ski Ass’n, 839 F. Supp. 1470, 1473 (D. Colo. 1993). Under Colorado law the applicability of a liability waiver is a legal question to be resolved by the court after consideration of four factors: “(1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.” Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981) (citations omitted). Plaintiffs urge the court to rule that the waiver invoked by Defendants is inapplicable under the third and fourth factors.
As to the third factor, Plaintiff argues that the USSA waiver was a contract of adhesion because the USSA’s dominance over amateur ski racing in this country prevented her from being able to negotiate less onerous contract terms with the USSA. [HN8] “Colorado [**23] defines an adhesion contract as ‘generally not bargained for, but imposed on the public for a necessary service on a take it or leave it basis.'” Bauer v. Aspen Highlands Skiing Corp., 788 F. Supp. 472, 474 (D. Colo. 1992) (citing Jones v. Dressel, 623 P.2d 370, 374 (Colo. 1981)).
On the undisputed facts of this case, Plaintiff’s “adhesion” argument must fail, because under Colorado law recreational activities and services are not essential. Rowan v. Vail Holdings, Inc., 31 F. Supp. 2d 889, 898 (D. Colo. 1998) (holding that waiver was not fairly entered because skier was skiing “as a part of work, not as a part of recreation”); Bauer, 788 F. Supp. at 475 (enforcing waiver executed as part of ski rental, even though all ski rental outlets used similar waivers, because such services were recreational, not essential). Plaintiff completed the USSA waiver in order to engage in a recreational activity. The nature of the activity is not changed by its competitive nature, its subjective importance in Plaintiff’s life, or the fact that a single entity controlled virtually all opportunities to engage in the recreational activity. But see O’Connor v. United States Fencing Ass’n, 260 F. Supp. 2d 545, 552 (E.D.N.Y. 2003) [**24] (concluding that a liability waiver was not binding under Colorado law because the waiver’s author so controlled the sport of fencing that an athlete wishing to compete had no choice but to agree to the terms in the waiver).
Finally, Plaintiff argues that the waiver did not express the parties’ intentions in clear and unambiguous language. Having reviewed the waiver, the court concludes that the language of the waiver was clear and unambiguous. Clear language indicates that the signer is waiving all claims against the USSA including those based on negligence, as indicated in bold, italic, capital letters. See Jones, 623 P.2d at 378. The waiver defined USSA quite expansively to encompass a host of individuals and groups including all affiliates, volunteers, competition organizers, sponsors, coaches, and representatives. It is clear that the list was meant to encompass any [*151] one involved in running a competition sanctioned by the USSA. Finally, it is undisputed that skiers, including Plaintiff, participating in the Williams Winter Carnival knew the event was sanctioned by the FIS through the USSA because they knew they were competing, in part, for FIS points.
2. Gross Negligence.
Plaintiff [**25] asserts that even if the USSA waiver is valid, she should be able to proceed against these Defendants on a theory of gross negligence. The argument is colorable but ultimately unpersuasive.
It is true that [HN9] under Colorado law an exculpatory agreement cannot “provide a shield against a claim for willful and wanton negligence.” Id. at 376. In Colorado an individual who “purposefully committed an affirmative act which he knew was dangerous to another’s person and which he performed heedlessly, without regard to the consequences or rights and safety of another’s person” can be found to have acted with willful and wanton negligence. Barker v. Colorado Region–Sports Car Club, Inc., 35 Colo. App. 73, 532 P.2d 372, 379 (Colo. Ct. App. 1974). In Massachusetts, waivers may only release a defendant from ordinary negligence. Zavras v. Capeway Rovers Motorcycle Club, Inc., 44 Mass. App. Ct. 17, 687 N.E.2d 1263, 1265 (Mass. App. Ct. 1997).
Plaintiff has alleged in her complaint that Defendants were grossly negligent. [HN10] Gross negligence involves “materially more want of care than constitutes simple inadvertence,” though “it is something less than [] willful, wanton and reckless conduct.” Altman v. Aronson, 231 Mass. 588, 121 N.E. 505, 506 (Mass. 1919). Despite [**26] the severity of Plaintiff’s injuries, the conduct alleged by Plaintiff is simple inadvertence. There is no evidence in the record, and indeed no allegation, that any of the Defendants, or anyone at the competition, became aware that there was an area of the trail without netting where netting was normally placed and declined to remedy the situation. At most there was a collective failure to take a step that might have lessened the injuries suffered by Plaintiff. No reasonable jury could find that this simple inadvertence, no matter how tragic its consequences, constituted gross negligence.
C. Third-Party Claims.
Having concluded that all Defendants, including the Third-Party Plaintiffs, are entitled to summary judgment, the court necessarily grants Third-Party Defendants’ motion for summary judgment on the third-party contribution claims asserted against them. Any negligence on the part of Forest Carey, whether in his capacity as a race official or as Plaintiff’s coach is expressly covered by the USSA waiver. Even if the court had concluded that the waiver was inapplicable, Third-Party Defendants would be entitled to summary judgment because Carey simply did not breach any duty he owed [**27] to Plaintiff. His role as a race official concluded the day before Plaintiff’s accident. As a competitor on the following day, Plaintiff was outside the group of people likely to be injured by his acts or omissions as a referee. Therefore he had no duty with respect to her safety. See Matteo v. Livingstone, 40 Mass. App. Ct. 658, 666 N.E.2d 1309, 1312 (Mass. App. Ct. 1996) (citing Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99 (N.Y. 1928)). The risk which caused Plaintiff harm, improper safety fencing, was similarly not reasonably foreseeable to Carey in his capacity as her coach. See Moose v. Mass. Inst. of Tech., 43 Mass. App. Ct. 420, 683 N.E.2d 706, 710 (Mass. App. Ct. 1997) (upholding a jury’s finding that a coach was negligent where the risk which caused a student-athlete’s [*152] injury was reasonably foreseeable). Third-party Defendants would thus be entitled to summary judgment even absent the USSA waiver.
IV. CONCLUSION
This is a terribly sad case. A young woman has been tragically, permanently injured. Putting aside considerations of legal liability, somebody connected with the 2006 Winter Carnival should, as a matter of conscience and professionalism, have noticed the unprotected ski tower and made sure that appropriate netting [**28] was installed to provide a greater degree of protection to the competitors.
It would, however, be false compassion now to ignore the undisputed facts and the unavoidable law. The Massachusetts Ski Safety Act, in the case of Jiminy Peak, and the USSA waiver, in the case of the other Defendants, forecloses any possibility of liability for payment of damages to Plaintiff in these circumstances. To encourage pursuit of a lawsuit lacking a legal basis would only serve to compound the tragedy.
For the reasons set forth above, Defendants’ Motions for Summary Judgment (Dkt. Nos. 135, 137, 138, 139, 140) are hereby ALLOWED, Third-Party Defendants’ Motion for Summary Judgment (Dkt. No. 143) is hereby ALLOWED, and Plaintiff’s Motion for Partial Summary Judgment (Dkt. No. 157) is hereby DENIED. The trial scheduled for September 28, 2009 will obviously not go forward.
The Clerk is ordered to enter judgment for Defendants; the case may now be closed.
It is So Ordered.
/s/ Michael A. Ponsor
MICHAEL A. PONSOR
U. S. District Judge
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Georgia does not have a lot of skiing, but you can rent skis there.
Posted: March 18, 2013 Filed under: Georgia, Release (pre-injury contract not to sue), Skiing / Snow Boarding | Tags: Defendant, GA, Georgia, Inc., Lawsuit, Negligence, Plaintiff, RDL, Rocky Mountain Ski Shop, Ski Rental, skiing, Summary judgment Leave a commentRelease for renting skis stops litigation over failing of the binding to release.
In this case, the plaintiff rented skis from the defendant in Georgia. The plaintiff completed the rental agreement which included a fairly well-written release. The rental company from the decision, asked the proper questions to calculate the DIN setting which in this case was 5 ½.
The plaintiff took the rented equipment on a ski trip. He made several runs, falling “uneventfully” the first day. None of those falls released the plaintiff from the bindings. On the last run while attempting to stop he fell releasing one binding but not the other. The leg in binding that failed to release suffered the classic skiing injury, torn ligaments in the plaintiff’s knee.
After the injury, the ski rental shop tested the binding which the test showed the binding passed.
The plaintiff sued for “breach of warranty, breach of contract, and negligence” and the plaintiff’s spouse sued for loss of a consortium. The defendant used the defense of release, and the trial court granted the defense motion for summary judgment.
Summary of the case
The first area of the law the court spoke to was the fact the relationship between the plaintiff and the defendant were bailor-bailee. Normally, this term is applied to someone in possession of another’s property. A valet is the bailee of your car when you hand over the keys. You are the bailor, the legal owner who has given temporary possession to another.
Once the court determined the relationship between the parties, then the court could conclude that the relationship was governed by the rental agreement.
The court then found that the plaintiff had failed to produce any evidence of negligence upon the part of the defendant. Then in a footnote, the court found that if the plaintiff had found evidence of negligence, the plaintiff still would have been bound by assumption of the risk. The court then went back to release and stated that even if negligence had been shown, the release would have prevented the suit.
“…in Georgia, the general rule is that a party may exempt himself by contract from liability to the other party for injuries caused by his negligence, and the agreement is not void for contravening public policy.”
The court then concluded the release did just that.
The remaining claims of the plaintiff were dismissed based on the analysis or the release.
The court finished with this line.
It is difficult to envision how the waiver language here could have been any clearer.
So Now What?
Get a good release written. Have your clients sign the release. Make sure your equipment meets the standards of the industry and maybe if you are faced with this issue, you will see this short and sweat answer to any litigation.
Plaintiff: Mr. and Mrs. Benford, no first name was ever given
Defendant: RDL, Inc. d/b/a Rocky Mountain Ski Shop
Plaintiff Claims: breach of warranty, breach of contract, and negligence and Mrs. Benford’s claim of loss of consortium
Defendant Defenses: Release
Holding: For the defendant on the release
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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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Benford et al. v. RDL, Inc., 223 Ga. App. 800; 479 S.E.2d 110; 1996 Ga. App. LEXIS 1284; 96 Fulton County D. Rep. 4312
Posted: March 18, 2013 Filed under: Georgia, Legal Case, Release (pre-injury contract not to sue), Skiing / Snow Boarding | Tags: Benford, GA, Georgia, Inc., RDL, Recreation, Rocky Mountain Ski Shop, Ski Rental, skiing, Summary judgment Leave a commentTo Read an Analysis of this decision see: Georgia does not have a lot of skiing, but you can rent skis there.
Benford et al. v. RDL, Inc., 223 Ga. App. 800; 479 S.E.2d 110; 1996 Ga. App. LEXIS 1284; 96 Fulton County D. Rep. 4312
Benford et al. v. RDL, Inc.
A96A1458.
223 Ga. App. 800; 479 S.E.2d 110; 1996 Ga. App. LEXIS 1284; 96 Fulton County D. Rep. 4312
December 4, 1996, Decided
SUBSEQUENT HISTORY: [***1] Certiorari Applied For.
PRIOR HISTORY: Bailment; release. Fulton Superior Court. Before Judge Cook.
DISPOSITION: Judgment affirmed.
COUNSEL: James B. Gurley, for appellants.
Long, Weinberg, Ansley & Wheeler, Kenneth M. Barre, for appellee.
JUDGES: ANDREWS, Judge. Pope, P. J., and Smith, J., concur.
OPINION BY: ANDREWS
OPINION
[**111] [*800] ANDREWS, Judge.
Mr. Benford and his wife appeal from the trial court’s grant of summary judgment to RDL, Inc. d/b/a Rocky Mountain Ski Shop in Mr. Benford’s suit alleging breach of warranty, breach of contract, and negligence and Mrs. Benford’s claim of loss of consortium.
1. Viewed under the standard of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 S.E.2d 474) (1991), the evidence on summary judgment was that Mr. Benford went to the ski shop on December 12, 1992 to rent skis and boots for an upcoming ski trip. He was assisted by Cooper, [*801] who asked Benford to pick out a pair of boots and to complete and sign a Rental Agreement and Release of Liability. Benford acknowledged reading, initialling, and signing the document which states that:
“I accept for use as is the equipment listed on this form and accept full responsibility for the care of this equipment. I have made no misrepresentations to this [***2] ski shop regarding my height, weight, age or skiing ability.
“I understand and am aware that skiing is a HAZARDOUS activity. I understand that the sport of skiing and the use of this ski equipment involve a risk of injury to any and all parts of my body. I hereby agree to freely and expressly assume and accept any and all risks of injury or death to the user of this equipment while skiing.
“I understand that the ski equipment being furnished forms a part or all of a ski-boot-binding system which will NOT RELEASE at all times or under all circumstances, and that it is not possible to predict every situation in which it will or will not release, and that its use cannot guarantee my safety or freedom from injury while skiing. I further agree and understand that this ski-boot- binding system may reduce but NOT eliminate the risk of injuries to the lower portion of my leg. However, I agree and understand that this ski-boot-binding system does NOT reduce the risk of injuries to my knees or any other parts of my body.
“I agree that I will release this ski shop from any and all responsibility or liability for injuries or damages to the user of the equipment listed on this form, or to any [***3] other person. I agree NOT to make a claim against or sue this ski shop for injuries or damages relating to skiing and/or the use of this equipment. (Please initial ) [Benford’s initials].
“In consideration for being able to rent this ski equipment, I hereby agree to accept the terms and conditions of this contract. This document constitutes the final and entire agreement between this ski shop and the undersigned. There are NO WARRANTIES, express or implied, which extend beyond the description of the ski equipment listed on this form.
“I have carefully read this agreement and release of liability and fully understand its contents. I am aware that this is a release of liability and a contract between myself and this ski shop and I sign it of my own free will.”
Pursuant to the height, weight, and skill level information provided by Benford, Cooper set the bindings of the skis at 5 1/2. This setting was based on a chart used in the business which the person doing the settings consults and then makes adjustments to the bindings, toes and heels of the boots.
[**112] Benford picked the skis up on December 26 and left with his wife [*802] and some friends on a ski trip. On the first day of the [***4] trip, Benford had made six or seven ski runs and had fallen uneventfully a couple of times. These falls did not cause the bindings to release. On his last run, Benford was in the process of coming to a stop to assist his wife who had fallen. Because of a change in the slope where he stopped, his center of gravity got out over his skis and he fell. While the right ski did release, the left one did not and he tore ligaments in his left knee. When he returned the skis to the shop, he was given a free week ski rental, good any time.
Because Benford was injured and contended the skis did not release, Jackson, the store manager, had the bindings tested with the Vermont Calibrator, a device used to measure the torque it takes to remove a boot from its binding, and the skis rented by Benford passed the test. All skis rented by the ski shop were tested on this device once a year, and randomly selected sets were tested periodically.
2. Benford acknowledges that these facts establish the relationship of bailor-bailee, pursuant to O.C.G.A. § 44-12-60. Therefore, the relationship between them is governed by the terms of the Rental Agreement and the statutory obligations of a bailor under O.C.G.A. § [***5] 44-12-63. Mark Singleton Buick v. Taylor, 194 Ga. App. 630, 632 (1) (391 S.E.2d 435) (1990); Hall v. Skate Escape, Ltd., 171 Ga. App. 178 (319 S.E.2d 67) (1984).
3. Benford has failed totally to come forward with evidence concerning negligence by the ski shop. Lau’s Corp., supra; Prince v. Atlanta Coca-Cola Bottling Co., 210 Ga. App. 108, 109 (1) (435 S.E.2d 482) (1993). 1
1 Even had he been able to do so, this is one of those rare cases where, as a matter of law, it can be said that Benford assumed the risk of exactly what happened to him. Beringause v. Fogleman Truck Lines, 200 Ga. App. 822, 823 (409 S.E.2d 524) (1991).
Also, even assuming some negligence had been shown, [HN1] “in Georgia, the general rule is that a party may exempt himself by contract from liability to the other party for injuries caused by his negligence, and the agreement is not void for contravening public policy. [Cits.]” Hall, supra at 179. Here, the agreement clearly and prominently did just that. Mercedes-Benz [***6] Credit Corp. v. Shields, 199 Ga. App. 89, 91 (403 S.E.2d 891) (1991).
4. Benford’s claims of breach of warranty and contract suffer the same fate. There is no showing by Benford of any latent defect in the skis or bindings, such as that in Hall, supra. Therefore, the covenant not to sue is not in contravention of O.C.G.A. § 44-12-63 (3). Mercedes-Benz, supra; Citicorp Indus. Credit v. Rountree, 185 Ga. App. 417, 422 (2) (364 S.E.2d 65) (1987). It is difficult to envision how the waiver language here could have been any clearer.
[*803] Judgment affirmed. Pope, P. J., and Smith, J., concur.
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Indemnification agreements? What are you signing?
Posted: March 13, 2013 Filed under: Contract, Insurance | Tags: Business, Contract, Indemnification, Indemnification Agreement, Indemnification Contract, Indemnity, Insurance, Insurance policy, Lawsuit, Manufacturer, Product liability Leave a commentSuddenly, indemnification agreements are flying around the outdoor industry. Make sure you know what you are signing.
Indemnification agreements, either as part of another document or individually are being tossed around the outdoor industry. So far, they have all been written by non-attorneys. By that I mean they are written badly or by someone who does not understand what they are and how they work. Before you sign an indemnification agreement, you need to understand what you are signing and the ramifications of signing it.
An indemnification agreement is similar, not like, but similar, to an insurance policy. Most times an indemnification agreement says you will pay us (indemnify) for any money we spend because of your actions that have cost us money, including our costs and attorney’s fees.
An insurance policy is slightly different than indemnification policy for two reasons.
1. An insurance policy is very specific on what if covers. If it is not written in the policy as something that is insured, then you will not get money.
2. You pay for a policy. The amount of money you pay is based on the risk; the greater the risk, the more money you pay for the policy.
Indemnification agreements in the past have been narrow and focused on specific issues that the parties negotiate. The indemnification agreement said if something you did brings us into a lawsuit, you have to reimburse us for our costs if we are sued because of what you did. Indemnification agreements were written into contracts as part of the overall deal.
An Example would be:
A manufacturer makes a product with a defect, and the retailer is sued because of the defect by the consumer who purchased the product. The liability issues are set forth because the agreement says the retailer must be sued or there must be liability or a claim.
First Problem: Consideration
For a contract to be valid there must be consideration. Consideration is a benefit flowing from one party to the other party. Normally, consideration is money. If a contract and a course of dealing exist between two parties, if one party now wants an indemnification agreement signed, there must be new consideration. You have to pay for the new agreement to be a contract and to be binding. No consideration, no contract.
Second Problem: Overly Broad
The indemnification agreements I am seeing recently have been very broad and cover everything. There are major issues with a document this broad because it is impossible to comply with. By that I mean there are realistic limits to what can be indemnified. The major item controlling indemnification agreements is money. If you don’t have a bank account with enough cash in the account to cover the indemnification bill when it comes due, why sign the agreement to begin with?
1. You can only sign what you can pay for.
Unless you are dealing with broken products (replacement) or fixed amounts (breach of contract), you can only sign an indemnification agreement that has limits that you can afford. If you sign an indemnification agreement knowing there are no way you can pay for it, you are creating additional problems; misrepresentation and fraud (see below). If you can’t pay the bill when it comes due, you will either file bankruptcy and or go out of business.
Make sure you know how much indemnification will cost you and whether or not you can deal with the bill. If you don’t have the cash, then you better have an insurance policy.
2. You can only sign what your insurance policy says it will cover.
99% of the time, an indemnification agreement is really based on your insurance company stepping up and writing a check. The insurance company does that because:
A. There is a legitimate claim covered by the policy.
B. The claim is within the limits of the policy.
C. The insurance company knew about the indemnification and agreed to it in advance! (Oh?)
If your policy is not broad enough, does not cover everything covered in the indemnification, you are again on the hook yourself. Your commercial policy is very different from your homeowner’s policy. Your commercial policy says it covers everything on the list of covered items in the policy. If the claim is not on the list, you have no insurance coverage.
Your insurance policy is written to pay claims, not necessarily contracts. If the indemnification is not based on a claim or legal liability, your insurance policy may just ignore the issue. The insurance company is not contractually required to pay what is not covered in the policy.
3. If your insurance company does not know about the indemnification and agree to it, you still may not have coverage. You are back to writing a check.
Your insurance company in many cases can cover indemnification; however, many policies require knowledge in advance or in some cases need to approve indemnification. Sending an indemnification claim to an insurance company based on a contract you signed without the insurance company knowing about the indemnification agreement in advance is an easy way to get the claim denied or the policy non-renewed the next time it comes up for renewal.
4. Signing an indemnification agreement without the ability to back it up is a misrepresentation in some states.
Misrepresentation pierces the corporate veil making you personally liable for the claims. (The sole exception to this MAYBE if you are an LLC; however several states have not ruled that an LLC can be pierced for misrepresentation and fraud.) Simply put, you sign a contract knowing you cannot complete the contract that is called misrepresentation and maybe fraud. Misrepresentation and fraud on the part of the owner of a corporation, when dealing with monetary issues, is a way to pierce the corporate veil. Piercing the corporate veil is one way of making your personal assets liable for the claims against your business.
This might be a stretch in some cases, but it is clearly within the realm of possibilities, especially if you have a lot of personal assets. Attorneys and insurance companies work harder if they know there is a payoff.
If you can’t fulfill the indemnification agreement, and you have no insurance to cover it, you better not sign it.
5. You should not indemnify someone for something that you are not liable for.
This is simple. If you don’t owe the money, why would you say you owe the money? Many of these agreements are asking for indemnification for issues that you have no legal liability for. It is hard to be liable for how a product is used if they do not read the instructions. An example would be an employee of a retailer store is demonstrating your product without reading the instructions, attending the tech clinic or understanding the product. During the demonstration to the consumer, he injures the consumer.
Why would that be your fault and why should you pay for it? Yet a few indemnification agreements I’ve read lately would require the manufacture to pay for the injuries.
As a manufacturer you are not legally liable for that claim. It is not your fault; you were not negligent. However, the indemnification agreement you signed said you would pay for any claim based on your product. The consumer has a claim against the retailer, because of the product, but not because the product was defective. The retailer is solely liable for the claim, and you should not be.
A. You should only indemnify someone for what you are responsible for.
Conversely, you should agree to indemnify someone for what you are liable for. If it is your fault, you should pay. Many indemnification agreements are being written because the cost of getting a manufacturer or liable party to pay up exceeds the amount owed. I understand that reasoning, and it is sound and smart.
A good example of these is: you are running an event on property owned by a third party. You accept the money for the event, set up the course, review the entrants and totally control the event. The landowner’s sole responsibility in the event was providing the land and pointing out any known or reasonably foreseeable dangers on the land.
If someone is hurt in the event and sues the landowner, the event promoter should protect the landowner.
B. You should not indemnify someone for what you do not have control over.
If the landowner is told by the event promoter that he cannot tell the event promoter how to run the event, the landowner should not be liable. The landowner has no control over the event. Therefore, the landowner should not be liable.
The manufacturer can only be liable for the product. If the sales person working for the retailer tells the consumer that this product will save their lives and prevent all injuries contrary to the manufacturer’s warnings, manual, instructions and marketing, then the manufacturer should not pick up the tab for the injured consumer. The manufacturer had no control over the salesperson, did not even know the salesperson existed, and therefore, should not be liable for someone they have no control over.
A manufacture could be liable if they have not disclaimed the warranty of merchantability or the warranty of fitness for a particular purpose, but that is for another article.
C. You should only indemnify someone for what your insurance company agrees to indemnify someone for.
That means you should only indemnify someone for:
a. What you can control.
b. What you are liable for.
c. What insurance policy says it will cover?
But they are my friends; they would never sue me based on the agreement!
They might not, but your friend may not always be in control of that agreement. Anyone who becomes a beneficiary or an owner of the contract can use the indemnification to sue you. The two best examples of this are:
A Bankruptcy Trustee: A bankruptcy trustee is an attorney whose job is to find every dime that may be owed to the bankrupt business. Any contract that has not been fulfilled, any invoice that has not been paid, and any indemnification agreement that may have money tied available, will be fair game. If the Bankruptcy Trustee can determine if the business that signed the indemnification agreement owes the bankrupt business money, the Trustee by law, must get the money back.
The Bankruptcy Trustee will sue in the name of the Bankrupt Company claiming indemnification for an earlier claim. You will think you are free and clear because the company you signed the indemnification agreement with filed bankruptcy. However, the Bankruptcy Trustee will come rowing back to the courtroom and hold you liable to the point of forcing you to file bankruptcy.
The Insurance Company under the Subrogation clause of an insurance policy believing the indemnification agreement allows them to collect from you. Every insurance policy has a subrogation clause. That means that the insurance company has the right to recover from anyone who caused the claim that the insurance company wrote a check for. Insurance companies will spend days looking for anyone who they can recover money from, and an indemnification agreement is a perfect opportunity. I would guess that 30% or more of the lawsuits in the US are insurance company subrogation claims.
Subrogation claims can be filed by worker’s comp accidents, car accidents, general liability or health insurance claims.
Again, the lawsuit will be in the name of the company you signed the indemnification agreement with, and that company has no choice. If the company does not cooperate with the insurance company, the original claim may not get paid. Insurance companies will finance the lawsuit, so there are no legal games to be played; they know what they want, and they understand the cost of getting it.
If you want Indemnification Agreements…. And you should then get them in a way that works for everyone.
Spending time money legal fees on an agreement that won’t be used or cannot be collected on is a waste of time.
1. Be realistic.
a. With you asking to indemnify for what
b. What they can pay or what insurance they can purchase and afford.
c. With what you need indemnified, with what someone other than you is legally liable for.
2. Be prepared to offer one in return. Why should I sign yours if you are going to leave me out in the cold for any claim or liability you cause? Besides mutual indemnification, agreements take out the consideration issue if written correctly.
3. Make sure it is signed by the right person. A corporation has officers. The board of directors of the corporation authorizes the officers to sign agreements for the corporation. An indemnification agreement is a big deal so make sure the person signing it has the authority to sign the agreement. Having a sales person or sales manager sign the agreement is a waste of trees.
4. An indemnification agreement without a Certificate of Insurance or an Additional Insured document that is tied to the Indemnification Agreement, not just with it, is worthless.
The certificate of insurance must be legally tied to the indemnification agreement or both are worthless. There is no insurance to cover the indemnification and not money to indemnify the problem.
5. Have an attorney write your indemnification agreement so it works.
One last point
Signing indemnification agreements may increase your insurance rates. Basically, instead of insuring you, your policy is not insuring dozens of other businesses and their employees. Your insurance company, if they continue to renew your policy, may increase your premium because the risk has increased.
(Insurance companies also do this based on the number of Additional Insured’s you issue and the coverage you make available to the Additional insured’s. Again, that is another article for another day.)
Indemnification agreements work, but only if written correctly and written with knowledge of how and why they work.
What do you think? Leave a comment.
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Copyright 2012 Recreation Law (720) Edit Law
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Missouri decision about ski rental form and a release that does not conform to MO law spell a mess for the ski resort
Posted: March 4, 2013 Filed under: Assumption of the Risk, Missouri, Ski Area, Skiing / Snow Boarding | Tags: assumption of the risk, Business Invitee, Carrie Lewis, Failure to Warn, Inc., Invitee, Landowner, Law, Lesa Moffatt, Missouri, Resort, Ski, ski area, Ski Resort, skiing, Snow Creek Leave a commentLewis v. Snow Creek, Inc., 6 S.W.3d 388; 1999 Mo. App. LEXIS 421
A judge that works hard to find problems does not help.
This case is an appeal of two separate ski area injuries that were combined on appeal. The facts in each case, as set forth by the appellate court are identical. The plaintiffs were both represented by the same attorney.
The plaintiffs went to Snow Creek to ski. They rented ski equipment at Snow Creek. While standing in line to get their ski equipment, they were handed the rental form which contained release language.
Both women claimed they felt pressure to move along and did not have enough time to read and “fully comprehend” the rental form. Both went skiing at the resort and fell on ice suffering injuries and sued the ski area. The claims were:
I. Defendant owed a duty to plaintiff as a business invitee, and breached that duty by failure to warn of the icy condition where the fall occurred;
II. Defendant negligently adjusted and maintained the bindings on Plaintiff’s skis because they failed to release when the plaintiffs fell, injuring the plaintiff’s leg;
III. Defendant created a dangerous condition by making artificial snow; and
IV. IV. Defendant was grossly negligent in failing to warn plaintiff of the dangerous condition on its premises.
The defense used assumption of the risk as its defense. It could not use release, because it has failed to plead release as an affirmative defense. An affirmative defense is one of two dozen or so releases that must be pled, or they are waived. Here the defense firm forgot or did not know to plead the affirmative defense of release, thus it could not be used to stop the lawsuit.
Summary of the court’s analysis
The court first looked at the legal issues of a land owner. In most states, a ski area statute, takes the land owner duties off the table. Missouri had no skier statute so that a land owner, ski area, owes someone on its land a duty based on how the person on the land is defined. Missouri like most states defines people on land of another as:
· Trespasser
· Invitee
· Business Invitee
Here, the injured skiers were either “invitees” or “business invitees.”
An invitee “is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.” As business invitees, the Appellants were entitled to reasonable and ordinary care by Respondent to make its premises safe. A possessor of land is liable to an invitee only if the possessor:
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
The issue then becomes whether the ice on the ski area was open and obvious. The plaintiff claimed the ice was covered by a layer of snow. The defendant argued that the plaintiffs had skied the run several times in the past and therefore, had to have known about the ice. Because there was a difference in the facts, the judge could not make the decision for the ski area and had to send the case back to the trial court for trial.
The next legal issue was whether the plaintiffs assumed the risk. The court defined the four types of assumption of the risk a plaintiff can encounter under Missouri’s law.
· Express
· Implied
· Primary
· Implied Secondary
Express assumption of risk occurs when the plaintiff expressly agrees in advance that the defendant owes him no duty. Recovery is completely barred since there is no duty in the first place.
The release identified the risk as snow. Because the plaintiffs claimed they fell on ice, the release did not bar the claim because the plaintiff did not assume the risk of ice.
Then the judge went out to argue that the release was ineffective anyway, even though later in the opinion the judge in one paragraph denies the defense of release.
Under Missouri’s law a release must be written with “clear, unambiguous, unmistakable, and conspicuous language…”
The language of the exculpatory clause must effectively notify a party that he or she is releasing the other party from claims arising from the other party’s own negligence. General language will not suffice. “The words ‘negligence’ or ‘fault’ or their equivalents must be used conspicuously so that a clear and unmistakable waiver and shifting of risk occurs.” Whether a contract is ambiguous is a question of law to be decided by the court. “An ambiguity arises when there is duplicity, indistinctness, or uncertainty in the meaning of the words used in the contract.
The court found, even though the release used the term negligence, it was not enough.
In 49 other states 99.999% of the time, use of the word negligence would have been satisfactory!
In this case, the court found the term negligence to be too broad and to include intentional torts and gross negligence. Both types of claims are barred under Missouri’s law. “[T]here is no question that one may never exonerate oneself from future liability for intentional torts or for gross negligence, or for activities involving the public interest.”
The court held the word negligence in this release was too broad and covered claims that could not be released.
The exculpatory clause uses general language, to wit, “any claim based on . . . other legal theory.” This language includes intentional torts, gross negligence or any other cause of action not expressly listed. “A contract that purports to relieve a party from any and all claims but does not actually do so is duplicitous, indistinct and uncertain.”
The court also found the form was not effective as a release because the heading was Snow Creek Ski Area Rental Form. That did not notify the signers of the form that they were signing a release. The title was in large type and could not be construed to be a document attempting to relieve the ski area of liability.
The release clause language was in 5 point type at the bottom of the form. The court found “A provision that would exempt its drafter from any liability occasioned by his fault should not compel resort to a magnifying glass and lexicon.” “The language and format of the exculpatory clause leaves doubt that a reasonable person agreeing to the clause actually would understand what future claims he or she is waiving.”
The court then went back to the assumption of the risk discussion.
Implied assumption of risk includes two sub-categories, implied primary and implied secondary. Implied primary assumption of risk involves the question of whether the defendant had a duty to protect the plaintiff from the risk of harm. It applies where the parties have voluntarily entered a relationship in which the plaintiff assumes well-known incidental risks.
Implied primary assumption of the risk is a complete bar to recovery under Missouri’s law.
…implied secondary assumption of the risk occurs when the defendant owes a duty of care to the plaintiff but the plaintiff knowingly proceeds to encounter a known risk imposed by the defendant’s breach of duty. In implied secondary assumption of the risk cases, the question is whether the plaintiff’s action is reasonable or unreasonable. If the plaintiff’s action is reasonable, he is not barred from recovery. If the plaintiff’s conduct in encountering a known risk is unreasonable, it is to be considered by the jury as one element of fault. This case involves implied primary assumption of the risk.
The discussion came down to whether or not falling on ice while skiing was an inherent risk of skiing. With no statute for guidance, the court could not answer the question and sent this issue back to the lower court for a jury to decide. “…there is a genuine dispute regarding whether encountering the ice in this case is an inherent risk of skiing.”
The third claim was the release. As stated above, because the release was not pled as an affirmative defense, the court with one paragraph eliminated the defense.
The fourth claim was that artificial snow created a dangerous condition. A land owner does not have to protect invitees against conditions that are open and obvious. Artificial snow is obvious.
So Now What?
The appellate court in this case worked hard to justify throwing the win in the lower court out. It worked so hard it was somewhat scary, but educational on Missouri’s law.
1. Give your guests the opportunity to read and review your release. Post the release on line so they can review it when they are checking out your business or site. Give it to them on a clip board, first page up, so they can read it. Let them know they have all the time in the world to read it and ask questions.
2. Releases must list the risks of the activity. The perfect example of that is this case. If the release fails for any reason, then the release can be used to prove the guest assumption of the risk. Here the release language was so limited that the document could not be used to assume the risk of the accident.
3. No release should have any type on it of less than 10 points or the smallest type allowed by the court in pleadings. PERIOD! That means 5, 6 or 8 point type is too small and can’t be used in a release.
4. If you have a release, make sure you hand it to your insurance company and your attorney. When you send notice of your claim to your insurance company send copies of all important documents, including a copy of the release. Hand an identical packet to the adjuster if one is assigned to the case. Get one to your attorney and make sure they understand what it says. (Crazy I know but do it.)
5. If you do not have a statute that defines the risks of your activity, you cannot use a release written by someone for a state that does. You must list the risks of your activity, sport or program. You must list the major risks and the minor ones. You must list the risks that you encounter all the time and those you rarely encounter.
And even when you are prepared you can have a judge, who does not understand the sport and does not want you to win.
Plaintiff: Lesa Moffatt and Carrie Lewis
Defendant: Snow Creek, Inc.
Plaintiff Claims: Landowner duty, failure to warn, negligent adjustment of ski bindings, gross negligence
Defendant Defenses: Assumption of the Risk
Holding: for the plaintiff, sent back for trial on 3 of the 4 arguments.
What do you think? Leave a comment.
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Copyright 2013 Recreation Law (720) Edit Law
Email: blog@rec-law.us
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Lewis v. Snow Creek, Inc., 6 S.W.3d 388; 1999 Mo. App. LEXIS 421
Posted: March 4, 2013 Filed under: Assumption of the Risk, Legal Case, Missouri, Ski Area, Skiing / Snow Boarding | Tags: Appeal, Appellant, assumption of the risk, Business Invitee, Carrie Lewis, Failure to Warn, Inc., Invitee, Landowner, Lesa Moffatt, Plaintiff, ski area, skiing, Snow Creek, St. Louis Missouri, Summary judgment, Supreme Court Leave a commentLewis v. Snow Creek, Inc., 6 S.W.3d 388; 1999 Mo. App. LEXIS 421
Carrie Lewis, Lesa Moffatt, Appellants, v. Snow Creek, Inc., Respondent.
WD 55070
COURT OF APPEALS OF MISSOURI, WESTERN DISTRICT
6 S.W.3d 388; 1999 Mo. App. LEXIS 421
March 31, 1999, Opinion Filed
SUBSEQUENT HISTORY: [**1] Respondent’s Motion for Rehearing and/or Transfer to Supreme Court Passed June 1, 1999. Respondent’s Motion for Rehearing and/or Transfer to the Supreme Court Denied July 27, 1999. Opinion Readopted and Mandate Issued January 6, 2000, Reported at: 2000 Mo. App LEXIS 7.
PRIOR HISTORY: Appeal from the Circuit Court of Platte County, Missouri. The Honorable Ward B. Stuckey, Judge.
DISPOSITION: Affirmed in part and reversed in part.
COUNSEL: Fritz Edmunds, Jr., Overland Park, KS, for Appellants.
Thomas Magee, St. Louis, MO, for Respondent.
JUDGES: Albert A. Riederer Judge. Lowenstein and Stith, JJ., concur.
OPINION BY: ALBERT A. RIEDERER
OPINION
[*391] This is an appeal from summary judgments granted in each of two separate suits filed by two different plaintiffs making identical claims against Respondent. Pursuant to a motion filed by Appellants and Respondent, the cases have been consolidated on appeal. Because we find that there is disputed evidence regarding both Respondent’s liability as a possessor of land and Appellant’s implied assumption of the risk, and because we find that express assumption of the risk did not apply under the facts in this record, we reverse on those issues. However, because there is no disputed evidence regarding count III of the petitions, and because Respondent is entitled to judgment as a matter of law on that count, we affirm as to that count.
Factual and Procedural Background
On January 8, 1995, Appellant Lesa Moffatt rented skis at Snow [**2] Creek Ski Area and signed a “Snow Creek Ski Area Rental Form.” On January 21, 1995, Appellant Carrie Lewis rented skis at Snow Creek Ski Area and signed a “Snow Creek Ski Area Rental Form.” The form states in pertinent part:
10. I hereby release from any legal liability the ski area and its owners, agents and employees, as well as the manufacturers and distributors of this equipment from any and all liability for damage and injury or death to myself or to any person or property resulting from the selection, installation, maintenance, adjustment or use of this equipment and for any claim based upon negligence, breach of warranty, contract or other legal theory, accepting myself the full responsibility for any and all such damage, injury or death which may result.
This document was signed by both Lewis and Moffatt during the process of renting equipment. Lewis and Moffatt both stood in line with people in front of and behind them when they received this form. The form had to be completed before obtaining skis and equipment. Both Lewis and Moffatt claim that they felt pressured to move along and did not have an adequate opportunity to read and fully comprehend the rental form.
Lewis [**3] and Moffatt both fell on ice at Snow Creek and were injured. Lewis and Moffatt each filed a separate petition against Respondent which included the same four counts: I. Defendant owed a duty to plaintiff as a business invitee, and breached that duty by failure to warn of the icy condition where the fall occurred; II. Defendant negligently adjusted and maintained the bindings on Plaintiff’s skis because they failed to properly release when plaintiff fell, injuring plaintiff’s leg; III. Defendant created a dangerous condition by making artificial snow; and IV. Defendant was grossly negligent in failing to warn plaintiff of the dangerous condition on its premises. Respondent generally [*392] denied Appellant’s claims in its answer and asserted affirmative defenses of comparative fault and assumption of the risk.
Respondent filed a motion for summary judgment in each case. Respondent submitted as evidence the “Snow Creek Ski Area Rental Form” and the deposition of the plaintiff in each case. In response to Respondent’s motions for summary judgment, each Appellant submitted additional evidence in the form of her own affidavit. Both motions for summary judgment were granted. Lewis’ and Moffatt’s [**4] claims are identical, and they have been consolidated on appeal.
Standard of Review
[HN1] Our standard of review of a summary judgment is essentially de novo. Lawrence v. Bainbridge Apartments, 957 S.W.2d 400, 403 (Mo. App. 1997) (citing, ITT Commercial Finance Corp., v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993)). We review the record in the light most favorable to the party against whom judgment was entered and grant the non-moving party the benefit of all reasonable inferences from the record. Id. [HN2] To be entitled to summary judgment a movant must demonstrate that there is no genuine dispute of material fact and that he or she is entitled to judgment as a matter of law. Id.
In accordance with the law, we analyze whether summary judgment is appropriate on the record developed by the parties and presented to this court. The Respondent advances several arguments why summary judgment is appropriate. First, it claims as a possessor of land, it has no duty to warn a business invitee of dangers which are open and obvious as a matter of law and that the ice alleged to have caused the fall and injury was [**5] open and obvious as a matter of law. Second, it claims Appellants expressly assumed the risk of this injury by signing the Rental Form. Third, it claims Appellants impliedly assumed the risk of this injury by engaging in the sport of skiing. Fourth, it claims the Rental Form operates as a release.
I. Duty of the Possessor of Land
Respondent claims that the presence of ice on a ski slope should be determined to be an open and obvious danger as a matter of law.
A. Duty Owed To A Business Invitee
” [HN3] The standard of care owed by a possessor of land is dependent upon the status of the injured party.” Peterson v. Summit Fitness, Inc., 920 S.W.2d 928, 932 (Mo. App. 1996). An invitee “is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.” Harris v. Niehaus, 857 S.W.2d 222, 225 (Mo. banc 1993) (quoting, Restatement (Second) of Torts, § 332 (1965). As [HN4] business invitees, the Appellants were entitled to reasonable and ordinary care by Respondent to make its premises safe. Peterson, 920 S.W.2d at 932. A possessor of land is [**6] liable to an invitee only if the possessor:
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
Id. Generally, [HN5] a possessor of land does not have a duty to protect invitees against conditions that are open and obvious as a matter of law. Id. at 933. “The exception to this rule is where ‘the possessor should anticipate the harm despite such knowledge or obviousness.'” Id. A condition is open and obvious if invitees should reasonably be expected to discover it. Id.
Given the preceding principles, the pivotal question is whether the ice was an open and obvious condition on the land [*393] as a matter of law. If we determine the ice was an open and obvious condition on the land as a matter of law, Respondent as possessor has no liability – unless he should anticipate the harm despite such knowledge or obviousness. Id. [**7] Thus, the next question would be whether Respondent could reasonably rely on its invitees – skiers – to protect themselves from the danger of ice or whether Respondent should have expected that skiers would not appreciate the danger thus posed. Harris, 857 S.W.2d at 226. We need not reach the second question because this court is unwilling, under the facts as developed in this case, to declare that the conditions on Respondent’s property, which allegedly caused the fall, were open and obvious as a matter of law. To the contrary, we find there is a genuine dispute regarding a material fact: the nature and character of the ice alleged to have caused the fall. “For purposes of Rule 74.04, [HN6] a ‘genuine issue’ exists where the record contains competent materials that evidence two plausible, but contradictory, accounts of the essential facts.” ITT, 854 S.W.2d at 382. “A ‘genuine issue’ is a dispute that is real, not merely argumentative, imaginary or frivolous.” Id. In this case, Appellants characterized the ice as large areas of thick impenetrable ice hidden under a dusting of snow. The evidence is that the Appellants fell on ice which they did not see because [**8] of the snow. Respondent maintained that both Appellants encountered ice on trails that the Appellants had been down several times before they fell. This is not sufficient evidence for this court to find that the ice Appellants encountered was an open and obvious danger as a matter of law. It is not clear that the Appellants should have reasonably been expected to have discovered the icy condition. Peterson, 920 S.W.2d at 933. ” [HN7] When there is disputed evidence – as in this case – on whether the landowner had reason to expect this type of accident . . ., the case properly belongs to the jury.” Harris, 857 S.W.2d at 229. Therefore, we find that Respondent was not entitled to summary judgment because there is a genuine issue regarding the ice, and the ice in question was not an open and obvious danger as a matter of law.
II. Assumption of Risk
Appellants claim that the trial court erred in granting summary judgment because the defense of assumption of the risk requires a jury determination as to disputed material facts. Specifically, Appellants claim that a jury should decide whether they knew of the ice and whether they understood and appreciated the [**9] danger posed by the ice. Respondent claims that the Appellants’ injuries were the result of a risk inherent in the sport of skiing, and therefore, the Appellants assumed the risk, or in the alternative, that Appellants expressly assumed the risk by signing the rental form. [HN8] Assumption of risk is generally categorized as express, implied primary, and implied secondary (reasonable and unreasonable). Sheppard v. Midway R-1 School District, 904 S.W.2d 257, 261-62 (Mo. App. 1995).
A. Express Assumption of Risk
[HN9] Express assumption of risk occurs when the plaintiff expressly agrees in advance that the defendant owes him no duty. Id. Recovery is completely barred since there is no duty in the first place. Id. Respondent argues that the Rental Form, signed by both Appellants, specifically mentioned the snow. Respondent correctly argues that the Rental Form relieves it of liability for injury due to snow. The evidence is that the Appellants knew about the snow and voluntarily assumed that risk. However, we cannot agree that the Rental Form relieves Respondent from injury liability due to ice. First, the Rental Form did not mention injury due to ice. [**10] In addition, the Rental Form could only relieve Respondent of such liability if the general reference to “negligence” is sufficient to do so. The clause of the Rental Form reads as follows:
[*394] 10. I hereby release from any legal liability the ski area and its owners, agents and employees, as well as the manufacturers and distributors of this equipment from any and all liability for damage and injury or death to myself or to any person or property resulting from the selection, installation, maintenance, adjustment or use of this equipment and for any claim based upon negligence, breach of warranty, contract or other legal theory, accepting myself the full responsibility for any and all such damage, injury or death which may result.
” [HN10] Although exculpatory clauses in contracts releasing an individual from his or her own future negligence are disfavored, they are not prohibited as against public policy.” Alack v. Vic Tanny International of Missouri, Inc., 923 S.W.2d 330, 334 (Mo. 1996). “However, contracts exonerating a party from acts of future negligence are to be ‘strictly construed against the party claiming the benefit of the contract, and clear and explicit language [**11] in the contract is required to absolve a person from such liability.'” Id. (quoting, Hornbeck v. All American Indoor Sports, Inc., 898 S.W.2d 717, 721 (Mo. App. 1995)).
“Historically, [HN11] Missouri appellate courts have required that a release from one’s own future negligence be explicitly stated.” 923 S.W.2d at 336 (emphasis in original). The Court in Alack determined that the best approach was to follow precedent and decisions from our state as well as others and to require [HN12] clear, unambiguous, unmistakable, and conspicuous language in order to release a party from his or her own future negligence. 923 S.W.2d at 337. The language of the exculpatory clause must effectively notify a party that he or she is releasing the other party from claims arising from the other party’s own negligence. Id. General language will not suffice. Id. “The words ‘negligence’ or ‘fault’ or their equivalents must be used conspicuously so that a clear and unmistakable waiver and shifting of risk occurs.” Id. [HN13] Whether a contract is ambiguous is a question of law to be decided by the court. Id. “An ambiguity arises when there is [**12] duplicity, indistinctness, or uncertainty in the meaning of the words used in the contract.” Id.
Respondent’s exculpatory clause uses the term “negligence.” However, that does not end our inquiry. We must determine whether the exculpatory clause uses “clear, unmistakable, unambiguous and conspicuous language.” Id. The exculpatory clause purports to shield Respondent from “any claim based on negligence and . . . any claim based upon . . . other legal theory. . . .” Alack teaches us that “there is no question that one may never exonerate oneself from future liability for intentional torts or for gross negligence, or for activities involving the public interest.” Id. Respondent argues that the language from paragraph 8 of the rental form “does not purport to release defendant from liability for intentional torts, gross negligence, or activities involving the public interest ” and that use of the word “negligence” results in a clear understanding of the acts for which liability is released. We disagree. The exculpatory clause uses general language, to wit, “any claim based on . . . other legal theory.” This language includes intentional torts, [**13] gross negligence or any other cause of action not expressly listed. ” [HN14] A contract that purports to relieve a party from any and all claims but does not actually do so is duplicitous, indistinct and uncertain.” Id. Here, the Rental Form purports to relieve Respondent of all liability but does not do so. Thus, it is duplicitous, indistinct and uncertain, Id., and thence arises an ambiguity. Rodriguez v. General Accident, 808 S.W.2d 379, 382 (Mo. banc 1991).
In addition, the exculpatory language and its format did not effectively notify the Appellants that they were releasing Respondent from claims arising from its negligence. The form the Appellants signed was entitled “Snow Creek Ski Area Rental Form.” It did not indicate it [*395] was a release. This title was in large type and could not be reasonably construed to include release of liability. By contrast, the exculpatory clause is in approximately 5 point type at the bottom of the form. “[ [HN15] A] provision that would exempt its drafter from any liability occasioned by his fault should not compel resort to a magnifying glass and lexicon.” Alack, 923 S.W.2d at 335. The Appellants had to sign [**14] the Rental Form to receive ski equipment and had to do so while in a line. The language and format of the exculpatory clause leaves doubt that a reasonable person agreeing to the clause actually would understand what future claims he or she is waiving. Id. at 337-38. The language drafted by Respondent is not “unambiguous” or “conspicuous,” and thus does not meet the standard of Alack. Id.
Thus, Respondent cannot rely on that language to claim the Appellants expressly assumed the risk of the injury complained of in the petition.
B. Implied Assumption of Risk
[HN16] Implied assumption of risk includes two sub-categories, implied primary and implied secondary. Implied primary assumption of risk involves the question of whether the defendant had a duty to protect the plaintiff from the risk of harm. Sheppard, 904 S.W.2d at 261. It applies where the parties have voluntarily entered a relationship in which the plaintiff assumes well-known incidental risks. Id. The plaintiff’s consent is implied from the act of electing to participate in the activity. Id. Implied primary assumption of the risk is also a complete bar [**15] to recovery. Id. at 262. On the other hand, [HN17] implied secondary assumption of the risk occurs when the defendant owes a duty of care to the plaintiff but the plaintiff knowingly proceeds to encounter a known risk imposed by the defendant’s breach of duty. Id. In implied secondary assumption of the risk cases, the question is whether the plaintiff’s action is reasonable or unreasonable. Id. If the plaintiff’s action is reasonable, he is not barred from recovery. Id. If the plaintiff’s conduct in encountering a known risk is unreasonable, it is to be considered by the jury as one element of fault. Id. This case involves implied primary assumption of the risk.
Appellants claim the trial court erred when it ruled, “the court finds that the Plaintiff assumed the risk of injury by skiing on the Defendant’s ski slope and that Plaintiff’s injuries were of a type inherent to the sport of skiing and that this incident involves dangers so obvious that the Defendant does not owe a duty to the Plaintiff and therefore is not required to warn the Plaintiff of such danger.” Respondent argues that the Appellants are barred by [**16] implied primary assumption of risk because by engaging in the sport of skiing, they impliedly assumed the risk of falling on the ice.
“Generally, [HN18] assumption of risk in the sports context involves primary assumption of risk because the plaintiff has assumed certain risks inherent in the sport or activity.” Id.
[HN19] Under comparative fault, if the plaintiff’s injury is the result of a risk inherent in the sport in which he was participating, the defendant is relieved from liability on the grounds that by participating in the sport, the plaintiff assumed the risk and the defendant never owed the plaintiff a duty to protect him from that risk. If, on the other hand, the plaintiff’s injury is the result of negligence on the part of the defendant, the issue regarding the plaintiff’s assumption of that risk and whether it was a reasonable assumption of risk, is an element of fault to be compared to the defendant’s negligence by the jury.
Id. at 263-64. [HN20] The basis of implied primary assumption of risk is the plaintiff’s consent to accept the risk. Id. “If the risks of the activity are perfectly obvious or fully comprehended, plaintiff has consented to [**17] them and defendant has performed [*396] his or her duty.” Martin v. Buzan, 857 S.W.2d 366, 369 (Mo. App. 1993).
[HN21] As a “defending party,” Respondent may establish a right to summary judgment by showing that there is no genuine dispute as to the existence of each of the facts necessary to support its properly pleaded affirmative defense and that those factors show Respondent is entitled to judgment as a matter of law. ITT, 854 S.W.2d at 381. In order for Respondent to have established its right to summary judgment based upon implied primary assumption of the risk, Respondent had to show that there was no genuine dispute that the Appellants’ injuries were the result of falling on ice, and that ice was a risk inherent in the sport of skiing. While there is no question that the Appellants’ injuries were a result of falling on ice, there is a genuine dispute regarding whether encountering the ice in this case is an inherent risk of skiing. Respondent notes that many states including Colorado, Idaho, Maine, Michigan, Montana, New Hampshire, New Jersey, New Mexico, Ohio, and West Virginia have all enacted statutes which codify assumption of the risk as is pertains to the sport [**18] of snow skiing. However, there is no such statute in Missouri, and this court is not willing to say, as a blanket rule, that all ice encountered on Respondent’s property is an inherent risk in the sport of snow skiing. There is a genuine dispute as to the nature of the ice. Was it “large areas of thick impenetrable ice hidden under a dusting of snow on the ski slopes,” as the Appellants claim, or was it ice on the slopes that the Appellants had been over several times prior to falling. These are questions which must be answered by a fact-finder. [HN22] While the basis of implied primary assumption of the risk is the plaintiff’s consent to accept the risk, the plaintiff must be aware of the facts that create the danger and they must appreciate the danger itself. Shepard, 904 S.W.2d at 264. Thus, the standard is a subjective one: “what the particular plaintiff in fact sees, knows, understands and appreciates.” Id. Here, the record does not include evidence that the Appellants were aware of the facts that created the danger or that they appreciated the danger itself. In fact, there was only evidence to the contrary, that the Appellants did not know, understand or appreciate [**19] the ice because it was under snow.
Therefore, we find that summary judgment cannot, on this record, be based upon express or implied primary assumption of the risk.
III. Release
Respondent argues on appeal that the “Rental Form” operated as a release. Respondent did not plead release as an affirmative defense in its answer. [HN23] Release is an affirmative defense that must be pleaded in an answer. Rule 55.08. Failure to plead an affirmative defense constitutes a waiver of the defense. Leo’s Enterprises, Inc. v. Hollrah, 805 S.W.2d 739, 740 (Mo. App. 1991). Since Respondent did not plead the affirmative defense of release, summary judgment would not be proper based upon the theory of release.
Artificial Snow
We affirm the trial court’s grant of summary judgment on Count III of the Appellants’ petitions. The Appellants state in Count III of their petitions that Respondent created a dangerous condition by making artificial snow and dispersing it on the ski slope and that Respondent owed a duty to them as business invitees not to create dangerous conditions on the premises. The trial court was correct in granting Respondent’s summary judgment [**20] on Count III, because [HN24] a possessor of land does not have a duty to protect invitees against conditions that are open and obvious as a matter of law. Peterson, 920 S.W.2d at 933. A condition is open and obvious if invitees should reasonably be expected to discover it. Id. Respondent could be liable only if it was not reasonable [*397] for it to expect the Appellants to see and appreciate the risk and to take reasonable precautions. Harris, 857 S.W.2d at 226. Artificial snow at Snow Creek is an open and obvious condition, and it is reasonable for Respondent to expect the Appellants to see and appreciate the risk of artificial snow and to take appropriate precautions.
Conclusion
The judgment of the trial court is affirmed as to Count III of each of the petitions. It is reversed and remanded for further proceedings on counts I, II, & IV.
Albert A. Riederer, Judge
Lowenstein and Stith, JJ., concur.
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Keep Writing Your Own Release
Posted: February 26, 2013 Filed under: Release (pre-injury contract not to sue) | Tags: AdventureTravel, Jim Moss, Recreation Law, Recreation-Law.com, Release, Risk Management, Waiver Leave a commentI make more money after you get sued over a bad release.
I watched an attorney tell another shopper in an office-supply store to go ahead and buy the will making software the shopper was holding. I was, to say the least, confused. After the shopper left I asked the attorney why he had said that.
The attorney’s answer was simple. I can get $500 for writing a will. If that guy write’s his own, I or some attorney will get $5000 or more to fix his mistakes once he dies.
Yup, Keep writing your own releases.
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Good record keeping proves defendant ski area did not operate lift improperly
Posted: February 18, 2013 Filed under: Assumption of the Risk, New York, Ski Area, Skiing / Snow Boarding | Tags: American National Standards Institute, lift, lift attendant, New York, Peter Harris, Ski, Ski Resort, skiing, Song Mountain Ski Center, South Slope Development Corp. Leave a commentPlaintiff’s case is hard to prove when two other people exit the lift properly from the same chair.
Plaintiff was riding a triple lift at the defendant’s ski area with her nine-year-old son and her ex-husband. She became entangled with her son’s skis and remained on the lift after her son, and ex-husband exited the lift. She then exited the lift before the lift hit the safety gate, falling and injuring herself.
A safety gate is a trip mechanism which stops the lift because a rider still on the lift trips it. It is designed to stop the lift if someone fails to exit the lift.
The plaintiff was an experienced intermediate skier. She owned her own skis, and boots had skied more than fifty times and had ridden the lift twice the day she was injured.
After the accident, the plaintiff completed and signed an “incident report form.” The form indicated she had stayed on the lift to allow her son to get off the lift. When she jumped she jumped 6 feet and landed on her left hip.
Prior to the accident, the lift was inspected by the New York Department of Labor and found to be in good condition. The lift met all standards as developed by ANSI (American National Standards Institute). The standards say a triple (obviously fixed grip) chair lift can travel a maximum of five hundred feet per minute (5 miles per hour). This lift was traveling between 400 and 500 feet per minute at the time.
The lift attendant’s daily log was up to date and indicated that everything was operating correctly on the lift. The lift
…fully checked on that date to ensure that all systems were working properly. The stops switches and safety gate were working, the ramps were snow covered and at a proper grade, the phones were working properly and the counter weight on the lift was clear and within normal limits.
One key point the court pointed out was simple. The plaintiff’s husband and son exited the lift with no problems. If the lift was not operating correctly they should have had problems getting off the lift also.
Summary of the case
The court reviewed the defenses and found that nothing was wrong with the lift. The plaintiff did not have an expert witness or any witness who could testify that the lift failed to operate properly. The court quickly dismissed the plaintiff’s claims that the lift failed to operate properly, and the ski area failed to operate the lift properly.
The claims were not supported by the plaintiff with any evidence.
The court looked at the New York statutes concerning skiing GOL §18-102 and GOL §18-104. The NY statute GOL §18-102 covers the duties of passengers who requires a passenger to familiarize themselves with the safe use of any lift prior to using it. GOL §18-104 states
A ski area operator is relieved from liability for risks inherent in the sport of downhill skiing, including the risks associated with the use of a chair lift when the participant is aware of, appreciates and voluntarily assumes the risk.
The court found that the plaintiff failed to comply with the requirements of the skiing code by disembarking at the appropriate location and therefore, assumed the risk of her accident.
The plaintiff’s final argument was a prior case that had been sent back to the trial court because the lift attendant had failed to stop the lift when a mother and son’s ski equipment became entangled. In that case, the court found the son had been yelling and was excited. The plaintiff’s expert witness testified that there was time for the lift attendant to see the child in distress and stop the lift.
Here the court found that no one had indicated to the lift attendant that there were in distress so therefore the lift attendant had no obligation to stop the lift.
So Now What?
The ski area followed all standards and kept great records concerning the lift. The records proved that nothing was wrong with the lift at the time of the accident.
The ski area could prove, through records that it exceeded the requirements or standards for training lift attendants.
Finally, the plaintiff simply failed to present any evidence that the defendant had breached any duty to it.
Simply put, if you have a requirement to keep records, you better do an excellent job of keeping records. The resort’s records were up to date and covered every claim the plaintiff argued.
Plaintiff: Christina J. Tone and Steven Tone
Defendant: Song Mountain Ski Center and South Slope Development Corp. and their Agents, Servants and Employees, and Peter Harris, Individually and d/b/a Song Mountain Ski Center, and Individually as a member, officer, share-holder and director of South Slope Development Corp. and Song Mountain Ski Center
Plaintiff Claims: defendant failed to operate the lift correctly and the lift did not operate correctly and the lift attendants were not properly trained.
Defendant Defenses: Lift operated and was designed correctly and plaintiff assumed the risk.
Holding: Summary judgment granted for the defendant.
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Tone v. Song Mountain Ski Center, et al., 37 Misc. 3d 1217A; 2012 N.Y. Misc. LEXIS 5136; 2012 NY Slip Op 52069U
Posted: February 18, 2013 Filed under: Assumption of the Risk, Legal Case, New York, Skiing / Snow Boarding | Tags: American National Standards Institute, Chairlift, lift, lift attendant, Peter Harris, Ski, Ski lift, skiing, Song Mountain Ski Center, South Slope Development Corp. Leave a commentTone v. Song Mountain Ski Center, et al., 37 Misc. 3d 1217A; 2012 N.Y. Misc. LEXIS 5136; 2012 NY Slip Op 52069U
Christina J. Tone and Steven Tone, Plaintiffs, against Song Mountain Ski Center and South Slope Development Corp. and their Agents, Servants and Employees, and Peter Harris, Individually and d/b/a Song Mountain Ski Center, and Individually as a member, officer, shareholder and director of South Slope Development Corp. and Song Mountain Ski Center, Defendants.
2009-7913
SUPREME COURT OF NEW YORK, ONONDAGA COUNTY
37 Misc. 3d 1217A; 2012 N.Y. Misc. LEXIS 5136; 2012 NY Slip Op 52069U
November 2, 2012, Decided
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
CORE TERMS: lift, chair lift, attendant, skis, skier, mountain, chairlift, skiing, triple, gate, inspection, ski lift, ski area, training, riding, slowed, feet, ramp, snow, speed, deposition testimony, issue of fact, deposition, ex-husband, passenger, downhill, tramway, sport, safe, top
HEADNOTES
[*1217A] Negligence–Assumption of Risk–Skier Injured on Chair Lift.
COUNSEL: [**1] For Plaintiffs: MICHELLE RUDDEROW, ESQ., OF WILLIAMS & RUDDEROW, PLLC.
For Defendants: MATTHEW J. KELLY, ESQ., OF ROEMER, WALLENS, GOLD & MINEAUX, LLP.
JUDGES: Donald A. Greenwood, Supreme Court Justice.
OPINION BY: Donald A. Greenwood
OPINION
The defendants have moved for summary judgment dismissal of the complaint against them, which alleges that the plaintiff suffered a fractured hip at Song Mountain on February 25, 2007 while attempting to exit a chair lift. The defendants move for dismissal on the grounds that all of the evidence shows that the ski lift was properly designed and operated and that the plaintiff assumed the risk of her injury.
As the proponent of the motion, the defendants are required to establish their entitlement to dismissal as a matter of law through the tender of admissible evidence. See, Hunt v. Kostarellis, 27 AD3d 1178, 810 N.Y.S.2d 765 (4th Dept. 2006). The defendants have done so here through their [***2] reliance, inter alia, on the plaintiff’s deposition testimony. The plaintiff testified that she was skiing with her nine year old son at the time and that she was an intermediate level skier with approximately fifteen years of experience. She owned her own skis and boots and had skied more than fifty times. [**2] On the date of the accident, she took two runs down the mountain and on both occasions rode the triple chair lift without incident. On her third occasion up the mountain she again rode the triple chair lift. Her son was with her, as was her ex-husband. Plaintiff testified that she sat on the right side of the chair, her son sat in the middle and the ex-husband sat on the left side. According to plaintiff, while riding up the chair lift she noticed that her skis were crossed with her son’s skis, so she let her son get off the chair lift first. Her ex-husband also got off the chair lift, but plaintiff waited. During her deposition, the plaintiff was shown the “Incident Report Form” completed at the time, which she signed. The form indicates that plaintiff said that she let her son get off first because their skis were crossed and that “I waited too late, and when I jumped approximately 6 feet, landed on my left hip.” When asked at her deposition what she did after her son got off, she responded that she did not remember, that she did not recall trying to get off, but that it happened so quickly that when the chairlift made its turn she “just flew off.”
The defendants also rely upon an [**3] inspection report completed by the Department of Labor on December 12, 2006, two months before the accident. An inspection of the chairlift was conducted by the Industry Inspection Bureau. Two violations unrelated to the design of the lift or exit ramp were found at that time and two unrelated violations were subsequently determined. Defendants note, however, that no deficiencies were found with respect to the design of the lift or exit ramp, the speed of the lift, or the location of the safety gate on the lift.
In addition, the defendants rely upon New York State regulations referenced in the Department of Labor inspections and standards promulgated by the American National Standards Institute which address industry wide safety standards for a variety of products and industries. Those regulations provide that the maximum relative carrier speed in feet per minute for chair lifts states that a triple chairlift carrying skiers may travel at a maximum speed of five hundred feet per minute. Defendants also provide an affidavit of Peter Harris, the President of South Slope Development Corporation, the operator of Song Mountain. Harris indicates that the chairlift traveled at a maximum speed [**4] of four hundred to five hundred feet per minute, which is equal to less than five miles per hour. He also claims that plaintiff failed to depart from the chairlift at the appropriate time, despite being warned by the unload signs. In addition, he indicates that the lift has certain safety mechanisms and if the plaintiff was to stay on the lift as it turned around the bull wheel heading downhill, her skis would hit the safety gate, which would stop the lift and allow for a safe evacuation of the lift. Plaintiff instead jumped from the lift before the safety gate, resulting in her being injured. He notes that the design of the lift specifically would have prevented the injury if she had remained on it, and the fact that the lift operated property is demonstrated by the fact that of the three people on the lift, two of them exited the lift in accordance with proper procedure and were not injured.
Defendants have also established in the first instance that any argument that the lift attendants were not properly trained is without merit, since Harris testified at his deposition that Song Mountain uses an industry standard lift operating training program designed by the National Ski Areas [**5] Association and that the program includes an in depth training DVD, training [***3] manuals and tests. The defendants also rely upon the deposition testimony of Carl Blaney, a long time attendant, who testified that the lift attendants took annual quizzes prior to the start of the season in order to demonstrate that they understood their duties in operating the lifts. It is also argued that plaintiff’s contention that the lift should have been slowed because plaintiff’s nine year old son was riding is incorrect. Blaney testified that the lift would not have been slowed for that reason, nor is there any evidence that simply because a child is riding the lift that it should be slowed. Defendants also point to the lift attendant’s daily log for the date of the accident, which demonstrates that the triple chair lift was fully checked on that date to ensure that all systems were working properly. The stops switches and safety gate were working, the ramps were snow covered and at a proper grade, the phones were working properly and the counter weight on the lift was clear and within normal limits. It is argued that since all of the evidence demonstrates that the lift was operating properly, the [**6] cause of the accident was solely plaintiff’s failure to disembark at the appropriate location, followed by her failure to remain seated once she missed the off load ramp. The defendants have met their burden in establishing that since there is no evidence that they improperly maintained the ski lift or that it was negligently designed, plaintiff cannot make a showing that the risks to her were increased or hidden. See, Sontag v. Holiday Valley, Inc., 38 AD3d 1350, 832 N.Y.S.2d 705 (4th Dept. 2007); see also, Painter v. Peek’n Peak Recreation, Inc., 2 AD3d 1289, 769 N.Y.S.2d 678 (4th Dept. 2003).
The defendants have also met their burden in the first instance of establishing that the plaintiff assumed the risk of her injury. Defendants point to the General Obligations Law, which addresses safety in skiing. The triple chair lift is identified as a “passenger tramway”, a mechanical device intended to transport skiers for the purpose of providing access to ski slopes and trails as defined by the Commissioner of Labor… See, GOL §18-102. Under “duties of passengers” the following are listed: to familiarize themselves with the safe use of any tramway prior to its use and…to board or disembark from passenger tramways only at [**7] points or areas designated by the ski area operator. See, GOL §18-104; see also, 12 NYCRR 54.4(a). A ski area operator is relieved from liability for risks inherent in the sport of downhill skiing, including the risks associated with the use of a chair lift when the participant is aware of, appreciates and voluntarily assumes the risk. See, DeLacy v. Catamount Development Corp., 302 AD2d 735, 755 N.Y.S.2d 484 (3rd Dept. 2003). In assessing whether one injured in the course of participating in a sporting or recreational event has assumed the risk posed by an assuredly dangerous condition, the critical inquiry is whether that condition is unique, constituting a hazard over and above the usual dangers that are inherent in the sport. See, Simoneau v. State of New York, 248 AD2d 865, 669 N.Y.S.2d 972 (3rd Dept. 1998), citing, Morgan v. State of New York, 90 NY2d 471, 685 N.E.2d 202, 662 N.Y.S.2d 421 (1997). Defendants have established that plaintiff was an experienced skier and had skied extensively at Song Mountain. It is further argued that the plaintiff assumed the risk of her injury by failing to comply with the requirements of the safety and skiing code by disembarking at the appropriate location. Plaintiff testified that she failed to get off the lift [**8] at the dismount area and had she stayed on she would have tripped the safety gate, which would have stopped the lift automatically. Inasmuch as the defendants have met their burden in the first instance, the burden shifts to the plaintiff to raise an [***4] issue of fact. See, Hunt, supra.
The plaintiff points to a recent Fourth Department case where the plaintiff skier was riding a chair lift with her son, a snow boarder. Plaintiff’s skis became entangled with the snow board and her son panicked and began yelling that he could not untangle the skis, despite frantic attempts. See, Miller v. Holiday Valley, Inc., 85 AD3d 1706, 925 N.Y.S.2d 785 (4th Dept. 2011). Plaintiff’s son exited the lift, but he pulled the plaintiff out of the lift chair in the process and she was injured. See, id. Plaintiff alleged that the top lift attendant should have slowed or stopped the lift because she and her son reached the unloading area. See, id. The court found that a question of fact existed as to whether the alleged failure to operate the ski lift in a safe manner was a proximate cause of the accident. See, id. In so finding, the court noted plaintiff’s deposition testimony that her son was yelling and making frantic attempts [**9] to untangle the skis and snow board and that plaintiff’s expert relied on that testimony in concluding that “the top lift attendant had sufficient time to observe plaintiff’s distress and to engage in what defendant’s night lift operation supervisor characterized as the exercise of judgment to slow or stop the lift.” Id. Defendants correctly argue that there is no evidence in the present case that plaintiff and her son caused any type of commotion prior to reaching the unloading area or tried to alert the attendant in any way for the top lift attendant to have noticed they were having any difficulty. The plaintiff has failed to come forward with proof in admissible form as in Miller, supra. that either the ski lift operator saw or should have seen that the plaintiff was in distress. Nor does plaintiff provide an expert opinion that based upon the facts here, the operator had time to take an action that would have prevented plaintiff’s fall. Plaintiff has likewise failed to raise an issue of fact as to whether she assumed the risk of her injury. Plaintiff does not dispute her experience as a skier or that she was familiar with the subject lift, as required by law. See, GOL §18-104; see [**10] also, 12 NYCRR §54.4. Nor has she submitted evidence to raise an issue of fact as to whether the defendants “created a dangerous condition over and above the usual dangers inherent in the sport of [downhill skiing]” Bennett v. Kissing Bridge Corporation, 17 AD3d 990, 794 N.Y.S.2d 538 (4th Dept. 2005), quoting, Owen v. RJS Safety Equip., 79 NY2d 967, 591 N.E.2d 1184, 582 N.Y.S.2d 998 (1992); see also, Miller, supra, quoting, Sontag, supra.
The plaintiff has also failed in her burden with respect to whether the lift attendants were properly trained, and in fact points to the National Ski Area’s Association Training completed by defendant’s employees. Nor has the plaintiff raised an issue as to whether the lift was properly operating on the day of the accident. Plaintiff has not disputed the inspection reports or the defendants’ compliance with the requisite regulations.
NOW, therefore, for the foregoing reasons, it is
ORDERED, that the defendant’s motion for summary judgment dismissal is granted.
ENTER
Dated: November 2, 2012
Syracuse, New York
DONALD A. GREENWOOD
Supreme Court Justice [***5]
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Is an entry form for a race, event or tour a contract? Maybe (it’s a legal answer!)
Posted: February 13, 2013 Filed under: Contract, Racing | Tags: Acceptance, Contract, Entry Form, Legal Capacity, Marathon, New York City Marathon, Offer, Offer and acceptance Leave a commentIt depends on what the agreement says and what you agree too. I.e what is a contract?
This issue popped up when the New York City Marathon was canceled because of Hurricane Sandy. See Is A Race Entry a Contract? The issue in that discussion was whether or not the entry fees would or could be refunded.
Instead of looking at dozens of entry forms let’s look at how you can determine whether you have created a contract or not with your entry form.
First: You should have a release for your event. Your release should not be part of your entry form or entry contract. This also separates the known contract, the release from what you are making. If you do not want to have a contract, then separating it from the release will assist in this goal.
Second: Are you making promises which the entrants are going to rely upon? Are you expecting the entrants to rely upon your statements or promises? The promises have to be important, substantial and something that you can do or would be expected by your guests or entrants.
See If you make a promise to attract participants, you must come through on your promises.
Third: Have your created a contract?
Was there an offer to enter a contract? If you give me money, I’ll give you a race/tour/event usually meets that requirement. Is there an acceptance of the offer? Again if the participants pay their money, they have accepted your offer.
Most times the offer is pretty easy. Advertising, websites or brochures are offers. Acceptance is equally easy, a credit card or check along with the information required in the offer (entry form) are completed.
Is there a meeting of the minds? Do both sides of the agreement agree there is an agreement, a contract? Do both sides understand what they are giving and getting by entering the contract? Is there consideration, money or something of value flowing between the parties?
In a race example, the race organizer is offering a race, t-shirt, prizes for winners and maybe aid stations. If that offer is accepted by the racer paying the entry fee and signing any required form or contract. The entrant gets a race, and the race organizer gets a participant.
Both sides must have the legal capacity to contract. This means that both sides cannot be minors, and both sides must be competent. Legally competent is defined by state law; however, in general this is a very low threshold test.
The sole issue of whether or not there is a contract is the issue of whether the parties intend to be legally bound by the terms of the agreement. Either side can argue that it was not a contract, the side not wanting to be bound by a contract. The other side will want the agreement to be a contract. However, in most cases there is a presumption that if the other issues outlined above are met there is a contract between the parties.
The original question posed in the article was whether or not people would get their money back. If the contract said the entry fee was non-refundable, then no. If there was a contract between the parties, and it was silent as to whether of the entry fees were refundable, then the courts would look to the usage in the industry. Honestly, this could be a toss-up or no. The organizer would argue the money was spent and cannot be refunded.
Do Something
1. Separate your release from your entry agreement.
2. Determine whether you want your entry to be a contract or not.
3. Make sure you understand what promises you are making with or without a contract and make sure you fulfill those promises.
For more articles about contracts see:
Athlete Contracts; as a manufacture do you need one? http://rec-law.us/zxhJaP
Plaintiff raised argument in work/team building situation that they were forced to sign release http://rec-law.us/XiKRug
What do you think? Leave a comment.
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New Hampshire season pass release protects ski area from claim for injury due to snowmobile accident
Posted: February 4, 2013 Filed under: New Hampshire, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: Bennington, Crotched Mountain Ski Area, Inc., New Hampshire, NH, Peak Resorts, Release, ski area, skiing, SNH Development, Snowmobile, Special Relationship, Waiver Leave a commentMcGrath v. SNH Development, Inc. 2008 N.H. Super. LEXIS 45
Language of the release was broad enough to cover those claims that were not clearly contemplated by the parties to the release.
The facts in this case are simple. The plaintiff was a season pass holder of Crotched Mountain Ski Area in Bennington, New Hampshire. Crotched Mountain Ski Area is owned by SNH Development, Inc., which is a subsidiary of Peak Resorts, Inc. While skiing at the resort one day an employee of the ski area drove a snowmobile into the plaintiff’s path causing a collision.
The plaintiff sued, and the defendants raised the defense of the release.
Summary of the case
The court reviewed the legal issues fairly extensively under New Hampshire law. Releases are upheld under New Hampshire law, as long as they:
(1) do not violate public policy; (2) the plaintiff understood the import of the agreement or a reasonable person in his position would have understood the import of the agreement; and (3) the plaintiff’s claims were within the contemplation of the parties when they executed the contract.”
Under New Hampshire law, to violate public policy the release must be between parties with a special relationship or there was a disparity in bargaining power. A special relationship exists if the defendant “is a common carrier, innkeeper or public utility, or is otherwise charged with a duty of public service...” The court found the ski area did not meet the definition to create a special relationship to the plaintiff.
There was no disparity of bargaining power because to have that situation, the services offered by the defendant must be a “matter of practical necessity.” A necessity is something needed to survive in this day and age, food, power, phone or utilities generally. Skiing is not necessary to survive; it is recreation.
The plaintiff also argued the release violated public policy because New Hampshire has a statute governing snowmobiles. Because the snow mobile was operating on private land, the court also rejected this argument.
The next claim was the release should not be upheld because it the plaintiff did not contemplate that the release would be used to bar a claim for an accident with a snowmobile. Under New Hampshire law the release does not have to name with any specificity, the possible claims that it will protect against. The release only has to adopt language that covers a broad range of accidents.
Thus, in order to release a defendant from liability for his own negligence, “the contract must clearly state that the defendant is not responsible for the consequences of his negligence.” There is no requirement that the term “negligence” or any other magic words appear in the release as long “as the language of the release clearly and specifically indicate the intent to release the defendant from liability for personal injury caused by the defendant’s negligence.”
From the quote from another New Hampshire case, Audley v. Melton, 138 N.H. 416, 418, 640 A.2d 777 (1994), it is obvious that in New Hampshire, you do not have to use the word negligence in a release. However, doing so creates more opportunities to test the release and the law.
The plaintiff argued that the release does not use the word snowmobile so a collision with a snowmobile falls outside of the release. However, a review of the release by the court found the language was broad enough to cover the facts in the case, a collision with a snowmobile.
This argument also created an argument that the release only covered the inherent risks of skiing. Inherent risks are those risks those are part and parcel of the risk. Inherent risks, unless changed by statute, do not cover any increases in the risk caused by man’s involvement. So a snowmobile is not an inherent risk of skiing.
However, the court found the release did not use the term inherent in it so the risks contemplated by the release were not limited to the inherent risks of the sport of skiing.
So Now What?
Like all cases involving a release, the release must be written carefully so not to be thrown out. This means someone who knows the law, knows the sport or activity you engage in and knows you must write the release.
Here, if the release had incorporated the word inherent, as many releases do, the release would have failed.
Plaintiff: Marcella McGrath f/k/a Marcella Widger
Defendant: SNH Development, Inc.
Plaintiff Claims: Negligence
Defendant Defenses: Release
Holding: Release bars the claims of the plaintiff
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McGrath v. SNH Development, Inc. 2008 N.H. Super. LEXIS 45
Posted: February 4, 2013 Filed under: Legal Case, New Hampshire, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: Bennington, Crotched Mountain, Crotched Mountain Ski Area, Inc., New Hampshire, New Hampshire Superior Court, New Hampshire Supreme Court, NH, Peak Resorts, Release, ski area, skiing, SNH Development, Snowmobile, Special Relationship, Summary judgment, Waiver 1 CommentMcGrath v. SNH Development, Inc. 2008 N.H. Super. LEXIS 45
Marcella McGrath f/k/a Marcella Widger v. SNH Development, Inc. and John Doe, an unnamed individual
No. 07-C-0111
SUPERIOR COURT OF NEW HAMPSHIRE, HILLSBOROUGH COUNTY
2008 N.H. Super. LEXIS 45
May 19, 2008, Decided
NOTICE:
THE ORDERS ON THIS SITE ARE TRIAL COURT ORDERS THAT ARE NOT BINDING ON OTHER TRIAL COURT JUSTICES OR MASTERS AND ARE SUBJECT TO APPELLATE REVIEW BY THE NEW HAMPSHIRE SUPREME COURT.
SUBSEQUENT HISTORY: Affirmed by McGrath v. SNH Dev., Inc., 158 N.H. 540, 969 A.2d 392, 2009 N.H. LEXIS 43 (2009)
CORE TERMS: skiing, ski area, personal injury, snowmobile, negligence claim, summary judgment, public policy, reasonable person, exculpatory, property damage, inherent hazard, public service, bargaining power, contemplate, import, common occurrence, relationship existed, citations omitted, hazardous, disparity, sport, exculpatory provision, exculpatory clause, public interest, privately owned, horseback riding, contemplation, collision, racing, voluntarily assume
JUDGES: [*1] GILLIAN L. ABRAMSON, PRESIDING JUSTICE.
OPINION BY: GILLIAN L. ABRAMSON
OPINION
ORDER
The plaintiff commenced the instant action alleging negligence against the defendants, SNH Development, Inc. (“SNH Development”) and John Doe, an unnamed individual. The defendants now move for summary judgment, and the plaintiff objects.
For purposes of the defendants’ motion for summary judgment, the parties do not appear to dispute the following facts. SNH Development is a subsidiary of Peak Resorts, Inc. and owns and operates the Crotched Mountain Ski Area in Bennington, New Hampshire. On October 23, 2003, the plaintiff signed an application (the “application”) for a season pass to the Crotched Mountain Ski Area. The application provides:
I understand and accept the fact that alpine skiing in its various forms is a hazardous sport, and I realize that injuries are a common occurrence. I agree, as a condition of being allowed to use the ski area facility, that I freely accept and voluntarily assume all risks of personal injury or death of property damage, release Crotched Mountain its owners and its agents, employees, directors, officers and shareholders from any and all liability for personal injury or property damage [*2] which results in any way from negligence, conditions on or about the premises, the operations of the ski area including, but not limited to, grooming snow making, ski lift operations, actions or omissions of employees or age the area, or my participation in skiing, accepting myself the full responsibility
Defs.’ Mot. for Summ. J., Ex. B. Moreover, on December 20, 2003, the plaintiff signed a Liability Release Agreement, which provides:
I understand and accept the fact that alpine skiing in its various forms is a hazardous sport, and I realize that injuries are a common occurrence. I agree, as a condition of being allowed to use the area facility, that I freely accept and voluntarily assume all risks of personal injury or death or property damage, and release Peak Resorts, Inc, all of its subsidiaries, and its agents, employees, directors, officers, shareholders and the manufacturers and distributors of this equipment and the school and group organizers (collective “providers’), from any and all liability for personal injury, death or property damage which results in any way from negligence, conditions on or about the premises, the operation of the area including, but not limited to grooming, [*3] snowmaking, lift operations, actions or omissions of employees or agents of the areas, or my participating in skiing, snowboarding, blading, accepting myself the full responsibility.
Id. On February 20, 2004, the plaintiff was skiing 1 a trail at the Crotched Mountain Ski Area when an employee of SNH Development drove a snowmobile into the plaintiff’s path, causing a collision.
1 Some of the pleadings state that the plaintiff was skiing, while other’s state that the plaintiff was snowboarding.
The defendants now move for summary judgment, arguing that the plaintiff signed the application and the Liability Release Agreement, both of which are valid, enforceable exculpatory contracts. The plaintiff objects, arguing that the application and the Liability Release Agreement violate public policy and that the parties did not contemplate that the application or the Liability Release Agreement would bar the plaintiff’s negligence claim.
In ruling on a motion for summary judgment, the Court “consider[s] the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party.” White v. Asplundh Tree Expert Co., 151 N.H. 544, 547, 864 A.2d 1101 (2004). [*4] The Court must grant a motion for summary judgment if its “review of the evidence does not reveal a genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law Id. A fact is material “if it affects the outcome of the litigation under the applicable substantive law.” Palmer v. Nan King Restaurant, 147 N.H. 681, 683, 798 A.2d 583 (2002).
New Hampshire law generally prohibits exculpatory contracts, but the Court will enforce them if; “(1) do not violate public policy; (2) the plaintiff understood the import of the agreement or a reasonable person in his position would have understood the import of the agreement; and (3) the plaintiff’s claims were within the contemplation of the parties when they executed the contract.” Dean v. MacDonald, 147 N.H. 263, 266-267, 786 A.2d 834 (2001). Thus, the Court considers each of these requirements in turn.
Regarding the first requirement, an exculpatory contract violates public policy if a special relationship existed between the parties or if there was some other disparity in bargaining power. See Barnes v. N.H. Karting Assoc., 128 N.H. 102, 106, 509 A.2d 151 (1986) (“A defendant seeking to avoid liability must show that the exculpatory agreement does [*5] not contravene public policy i.e that no special relationship existed between the parties and that there was no other disparity in bargaining power.”).
A special relationship exists “[w]here the defendant is a common carrier, innkeeper or public utility, or is otherwise charged with a duty of public service….” Id. The plaintiff contends that a special relationship existed between the parties because any person operating a snowmobile has a statutory duty to yield the right of way, RSA 215-C:49, XII (Supp. 2007), and because the Crotched Mountain Ski Area serves the public. Assuming that RSA 215-C:49, XII applies to the operation of a snowmobile on a privately owned ski area, the plaintiff has not offered any legal support for the conclusion that this statute somehow charges the defendants with a duty of public service. Moreover, the fact that the Crotched Mountain Ski Area serves the public is not conclusive. For example, Barnes, involved a negligence claim arising from a collision at an enduro kart racing facility. In Barnes, the New Hampshire Supreme Court noted that the defendant’s served the public but held that the defendant’s were not charged with a duty of public service because [*6] Endurokart racing is not “affected with a public interest.” Barnes, 128 N.H. at 108. Similarly, skiing is a recreational activity not affected with a public interest, and the Court finds that the defendant’s are not charged with a duty of public service.
The Plaintiff also contends that she was at an obvious disadvantage in bargaining power because all ski areas require skiers to sign releases. The Court disagrees.
This case … does not have any hallmarks of a disparity in bargaining power. The [skiing] service offered by the defendant is not a “matter of practical necessity.” Nor did the defendant in this ease have monopoly control over this service such that the plaintiff could not have gone elsewhere.
Audley v. Melton, 138 N.H. 416, 418, 640 A.2d 777 (1994) (quoting Barnes, 128 N.H. at 108). 2
2 The Plaintiff also argues that the application and the Liability Release Agreement violate public policy because they relieve the defendant’s from compliance with RSA chapter 215-C, which governs snowmobiles. Assuming that RSA chapter 215-C applies to the operation of a snowmobile on privately owned ski area, the application and the Liability Release Agreement would have no bearing on the enforcement of RSA chapter 215-C. [*7] See RSA 215-C-32 (Supp.2007) (providing for the enforcement of RSA chapter 215-C).
“Once an exculpatory agreement is found unobjectionable as a matter of public policy, it will be upheld only if it appears that the plaintiff understood the import of the agreement or that reasonable person in his position would have known of the exculpatory provision.” Barnes, 128 N.H. at 107. “The plaintiff’s understanding presents an issue of fact, and the plaintiff should have an opportunity to prove the fact at trial unless the exculpatory language was clear and a misunderstanding was unreasonable.” Wright v. Loon Mt. Recreation Corp., 140 N.H. 166, 169, 663 A.2d 1340 (1995). The Court
therefore examine[s] the language of the release to determine whether “a reasonable person in [the plaintiff’s] position would have known of the exculpatory provision.” A reasonable person would understand the provision if its language “clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence….”
Id. (citations omitted) (quoting Barnes, 128 N.H. at 107). The Court “will assess the clarity. the contract by evaluating it as a whole, not by examining [*8] isolated words and phrases. Id. at 169-170.
The plaintiff does not appear to dispute that she understood the import of the application or the Liability Release Agreement. Rather, the plaintiff argues that the parties did not contemplate that the application or the Liability Release Agreement would bar the plaintiff’s negligence claim. Thus, the Court turns to the third requirement.
“[T]he plaintiff’s claims must have been within the contemplation of the parties at the time of the execution of the agreement. The parties need not, however, have contemplated the precise occurrence that resulted in the plaintiff’s injuries. They may adopt language to cover, a broad range of accidents….” Barnes, 128 N.H. at 107 (citation omitted). To determine the scope of a release, the Court examines its language, strictly construing it against the defendant. Dean, 147 N.H. at 267.
Thus, in order to effectively release a defendant from liability for his own negligence, “the contract must clearly state that the defendant is not responsible for the consequences of his negligence.” There is no requirement that the term “negligence” or any other magic words appear in the release as long “as the language of [*9] the release clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence.”
Audley, 138 N.H. at 418 (citations omitted) (quoting Barnes, 128 N.H. at 107).
The plaintiff contends that the parties did not contemplate that the application or the Liability Release Agreement would bar the plaintiff’s negligence claim because neither the application nor the Liability Release Agreement reference snowmobiles. As rioted above, the parties need not have contemplated a negligence claim arising from a snowmobile accident. Rather, it is sufficient that the parties adopted language to cover a broad range of accidents. The application releases the defendants “from any and all liability for personal injury or property damage which results in any way from negligence,” and the Liability Release Agreement releases the defendants “from any and all liability for personal injury, death or property damage which results in from negligence.” Defs.’ Mot. for Summ. J., Ex. B. This language clearly states that the defendants are not responsible for the consequences of their negligence.
The Plaintiff also contends that the parties did [*10] not contemplate that the application or the Liability Release Agreement would bar the plaintiff’s negligence claim because snowmobiles are not an inherent hazard of skiing. The plaintiff relies on Wright. In Wright, the New Hampshire Supreme Court noted:
The paragraphs preceding the exculpatory clause emphasize the inherent hazards of horseback riding. Because the exculpatory clause is prefaced by the term “therefore,” a reasonable person might understand its language to relate to the inherent dangers of horseback riding and liability for injuries that occur “for that
Wright, 140 N.H. at 170. Here, however, the application and the Liability Release Agreement do not mention the inherent hazards of skiing. Rather, the application and the Liability Release Agreement note that skiing is a hazardous sport and that injuries are a common occurrence and then, without using the term “therefore,” release the defendants from any and all liability. Because the application and the Liability Release Agreement do not use the phrase “inherent hazards of skiing” or the term “therefore,” this case is distinguishable from Wright. A reasonable person would have contemplated that the application and the [*11] Liability Release Agreement would release the defendants from a negligence claim, whether nor not that claim arouse from an inherent hazard of skiing.
Based on the foregoing, the defendant’s motion for summary judgment is GRANTED.
So ORDERED.
Ski Binding Failure to Release under Indiana Law
Posted: January 28, 2013 Filed under: Assumption of the Risk, Indiana, Release (pre-injury contract not to sue), Skiing / Snow Boarding | Tags: Indiana, Plaintiff, Product liability, Salomon North America, Sitzmark Corporation, Ski, Ski binding, Summary judgment Leave a commentIndiana, like most states’, product liability law is controlled by statute which severely limits the defenses available to a defendant. Here the retailer and manufacture were sued for injuries when a ski binding failed to release, both being in the chain of the sale of the product. The plaintiff had signed a “sales slip” which contained release language when she picked up the skis; however the sales slip (release) was only effective against one of the three claims of the plaintiff.
The defendants had filed a motion for summary judgment at the trial court which was granted on all counts. The plaintiff appealed and the appellate court reversed on two of the three product liability claims.
The plaintiff had purchased new skis and bindings from the retailer Sitzmark Corporation which included bindings manufactured by Salomon North America. On the plaintiff’s third run while skiing and her first fall on her new equipment she fell suffering a compound fracture.
The plaintiff sued claiming negligence and strict liability. The negligence claim included two sub-claims negligent design of the bindings and negligent adjustment of the bindings by the retailer. The defenses were “incurred risk” and the release contained in the sales slip. Indiana uses the term incurred risk instead of the term assumption of the risk.
Summary of the case
The language in the sales slip that constituted the release language, excerpted below, did not contain the magic word release. It only talked about assumption of the risk issues. The plaintiff did acknowledge understanding the language.
I have been instructed in the use of my equipment, I have read the manufacturer’s instruction pamphlet (new bindings only), I have made no misrepresentation in regard to my height, weight, age, or skiing ability . . . . I understand that there are inherent and other risks involved in the sport for which this equipment is to be used, snow skiing, that injuries are a common and ordinary occurrence of the sport and I freely assume those risks. I understand that the ski boot binding system will not release at all times or under all circumstances, nor is it possible to predict every situation in which it will release and is therefore no guarantee for my safety. I therefore release the ski shop and its owners, agents and employees from any and all liability for damage and from the selection, adjustment and use of this equipment, accepting myself the full responsibility for any and all such damage or injury which may result.
The court reversed the lower court and reinstated the plaintiff’s strict liability claim. Strict liability is set out by statute in Indiana, Ind. Code 33-1-1.5-1 et seq. The court stated the statute had a three part test for the manufacture and retailer to use as a defense in a strict liability claim.
First, a plaintiff’s knowledge of the defect.
Second, a plaintiff’s unreasonable use of the product despite knowledge of the defect.
Third, a plaintiff’s injuries caused by the product.
The court analyzed the arguments and decided that neither defendant could prove that the plaintiff new of any defect in the binding. This was different from the argument they could prove, through the release language that “Moore knew her bindings would not release under all circumstances.” Because neither defendant could win on step one the case was sent back.
The first negligence claim was a common law negligence claim. Common law meaning the law that evolved over time (and not based on statute), usually from the law carried over from Great Britain. The common law was developed in England during the 1500’s from the King’s decrees and the church’s equity decisions. As time progressed these laws became more streamline and eventually codified, or written down. The common law still exists in all states and is the basis for the law in every state (Louisiana being the sole exception). Only when a statute has been created will a section of the common law for that state disappear or cease to exist. Ninety-nine percent of all negligence claims are common law. A state may have a void in its common law, an area that has never been decided in the state before, however this is getting rare now days.
A common law product liability action in Indiana can be defeated by the defense of incurred or assumption of the risk. However assumption of the risk as a defense had been merged into comparative negligence in Indiana at this time.
The defendants argued that by signing the sales slip the plaintiff assumed the risk of the defect in the product. The court however found the sales slip was proof of assumption of the risk, but not of assumption of negligence the difference is the greater requirement of knowledge required by the statute. Because the first time she fell was also the time she was injured the plaintiff had no direct knowledge of the defect of the product. In this case defect would mean failure of the binding to release. As such, the defense failed because there was no proof of assumption of the risk of negligence. Because the binding has not failed to release prior to the injury, the plaintiff had no knowledge of the binding failing to release that she could assume. This claim was also sent back to the lower court.
The third and final claim was based on negligently “setting, adjusting or checking the bindings.” Here the sales slip with its release language was effective. The court stated “These alleged acts of negligence are exactly those for which Moore granted Sitzmark a release of liability when she read and signed the sales slip.” This final claim was dismissed by the appellate court.
This case is a little confusing because of two issues. Indiana law on product liability is different from many states and the release language in the sales slip was very poorly written. There is not much that can be done about Indiana’s product liability law and the limitation on the defenses available manufacture’s and retailers. However a well written release might have prevented one of the product liability claims.
So Now What?
The release is not clearly identified, other than in a sales slip in this opinion. However during this period, these releases were fairly uniform and used by shops across the US. These preprinted forms are written in a way as to not cause a problem with any state laws rather than to effectively stop a claim.
Having a release in this case that specifically used the word the negligence and identified the defendants as the shop, by name and all manufactures would be the first start. The court spent a lot of space finding a way to bring the manufacture into the defense provided by the release language when the language did not specifically mention the manufacture. The language of the release should incorporate the necessary defenses of the Indiana Strict Liability Act so that the defense in the act is available. The negligence claims should be identified both for negligent acts, negligent mounting and setting and negligent in the design, manufacture or construction of the product. The language should also include more specific assumption of the risk language so the purchaser or customer who is having repairs done understands the risks are not that the binding may not work, but that the risk is the binding will not work and that the user should ski knowing that and in a safe way.
A well written release, based on Indiana law may be difficult to do. However, a well written release will still be better than the one at issue here. Each claim that survives the motions and appeal increases the cost of litigating and the cost of a possible settlement. If the release had eliminated one more of the claims a lower settlement would be easier to achieve, maybe even a complete win at trial.
Plaintiff: Eldonna Moore
Defendant: Sitzmark Corporation and Salomon North America, Inc.,
Plaintiff Claims: negligence (product liability) and strict liability
Defendant Defenses: Assumption of the Risk (Incurred Risk) and Release
Holding: One claim dismissed based on the release and the two remaining claims sent back to the trial court.
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