Recreation Law

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

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

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

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

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

No. 73A01-8908-CV-332

Court of Appeals of Indiana, First District

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

June 27, 1990, Filed

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

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

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

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

OPINION BY: BAKER

OPINION

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

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

Moore admits to having read and understood the sales slip.

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

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

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

I. INCURRED RISK

A. Strict Liability

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

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

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

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

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

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

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

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

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

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

B. Negligence

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

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

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

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

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

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

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

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

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

[**12] II. EFFECT OF RELEASE

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

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

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

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

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

Release barred claims for injuries from falling on icy slopes

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

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

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

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

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

Summary of the case

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

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

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

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

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

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

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

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

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

So Now What?

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

Those items include:

· Conspicuous notice of the legal purpose of the document

· Plenty of time to review the release before signing

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

· Important language in the release in bold print

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

· A section that explains the possible risks of the activity

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

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

Plaintiffs: Timothy Joseph Cahill and Anne Leslie Cahill

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

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

Defendant Defenses: Release and Assumption of the Risk

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

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

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

Outdoor Recreation Insurance, Risk Management and Law

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

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

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

Posted: January 14, 2013 | Author: Recreation Law | Filed under: Legal Case, Pennsylvania, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: Assumption of risk, LexisNexis, Pennsylvania, Ski Liberty Operating Corp | Leave a comment

To Read an Analysis of this decision see: A season pass release for a Pennsylvania ski area was limited to the inherent risks of skiing. Consequently, the plaintiff was able to argue his injury was not due to an inherent risk and Pennsylvania case reviews the requirements for a valid release in ski accident claim.

Timothy Joseph Cahill and Anne Leslie Cahill, Plaintiffs v. Ski Liberty Operating Corp. t/d/b/a Ski Liberty and t/d/b/a Liberty Mountain Resort and Snow Time, Inc., Defendants

06-8-29 ¹

1 The parties consistently used the incorrect caption throughout their pleadings. Apparently, the Defendants misread the caption number on the Writ of Summons issued in this matter to read 06-8-29 rather than the proper caption number of 06-S-29. When the Defendants praeciped for a rule to file a complaint, their Praecipe carried the wrong number. All subsequent pleadings have duplicated that initial error. Accordingly, all are advised that the correct caption number, 06-S-29, should be used on all pleadings henceforth.

COMMON PLEAS COURT OF ADAMS COUNTY, PENNSYLVANIA

2006 Pa. Dist. & Cnty. Dec. LEXIS 444; 81 Pa. D. & C.4th 344

November 14, 2006, Decided

JUDGES: [*1] MICHAEL A. GEORGE, Judge.

OPINION BY: MICHAEL A. GEORGE

OPINION

CIVIL

OPINION

[**345] On January 17, 2004, Timothy Joseph Cahill ² was skiing at the Liberty Mountain Ski Resort located in Carroll Valley, Adams County, Pennsylvania. ³ Cahill, an experienced skier, enjoyed skiing privileges at Ski Liberty through his purchase of a season pass. Cahill applied for the 2003-2004 season pass through a website operated by Ski Liberty. In order to complete the application, the website required Cahill to acknowledge that he agreed to the terms of a “season pass and advantage card release agreement” by clicking the “okay” box on the web page. The web page included an explanation of the terms which included a release and assumption of risk clause. Cahill’s application on the website was followed up with a written [**346] application which Cahill signed on January 11, 2004. In a conspicuous location immediately above his signature, the written application provides that he agreed to be legally bound by the “Notice of Risk”, “Assumption of Risk”, “Release from Liability”, and “Acknowledgement” provided to him by Ski Liberty. ⁴

2 Timothy Joseph Cahill will be referred to throughout this pleading as “Cahill.” Plaintiff, Anne Leslie Cahill, [*2] is the wife of Timothy Joseph Cahill and has filed a derivative claim for loss of consortium.

3 Liberty Mountain Ski Resort is owned and operated by Snow Time, Inc., which is a Delaware corporation operating in Adams County. Collectively, the parties will be referred to as “Ski Liberty.”

4 Both the website and the written documents accompanying the application provide as follows:

NOTICE OF RISK

I understand and accept the fact that snowsports (skiing…) in their various forms, including the use of lifts are dangerous with inherent and other risks. These risks include but are not limited to… ice and icy conditions… All of the inherent and other risks of snowsports present the risk of permanent catastrophic injury or death.

ASSUMPTION OF RISK

Understanding and agreeing that snowsports are hazardous, I voluntarily and expressly assume for myself the risk of injury while participating in these sports.

RELEASE FROM LIABILITY

In consideration of the use of the ski area’s facilities, I AGREE NOT TO SUE Ski Liberty Operating Corp., Whitetail Mountain Operating Corp., and/or Ski Roundtop Operating Corp., their owners, agents and employees, if injured while using the facilities, regardless of any negligence [*3] on the part of the Ski Area or its employees.

…

ACKNOWLEDGEMENT

In consideration of being permitted to use the facilities at Liberty Mountain Resort, Whitetail Mountain Resort and Ski Roundtop, I expressly acknowledge:

1. I have read and understand the “Notice of Risk.” “Assumption of Risk,” “Release from Liability,” “Be Aware, Ski with Care,” and “Your Responsibility Code.”

…

3. I voluntarily assume for myself all the risks involved in snowsports.

(emphasis in original)

On the date in question, Cahill fell on an icy area while skiing near the bottom of Eastwind and Strata slopes. He claims that although he was unaware of ice in this area, Ski Liberty knew of the danger since, during the previous [**347] evening, a snow-making water hydrant broke releasing water that ultimately froze into ice because of the cold conditions. As a result of his fall, Cahill claims to have severely injured his face, back, ribs and left hand. A Complaint was filed on March 17, 2006, claiming that Ski Liberty was negligent for failing to properly maintain the ski slopes in a safe manner and/or failing to adequately warn concerning the icy area. Ski Liberty has filed an Answer with New Matter alleging Cahill assumed the [*4] risk of his injuries and released Ski Liberty from all liability. Ski Liberty currently moves for judgment on the pleadings.

[HN1] A motion for judgment on the pleadings is in the nature of a demurrer as it provides the means to test the legal sufficiency of the pleadings. All of the [P]laintiffs’ allegations must be taken as true for the purposes of judgment on the pleadings. Bata v. Central Penn National Bank of Philadelphia, 423 Pa. 373, 224 A.2d 174, 178 (Pa. 1966). Unlike a motion for summary judgment, the power of the court to enter a judgment on the pleadings is limited by the requirement that the court consider only the pleadings themselves and any documents properly attached thereto. Nederostek v. Endicott-Johnson Shoe Co., 415 Pa. 136, 202 A.2d 72, 73 (Pa. 1964). A motion for judgment on the pleadings should be granted only where the pleadings demonstrate that no genuine issue of fact exists and the moving party is entitled to judgment as a matter of law. Dunn v. Board of Property Assessment, Appeals & Review of Allegheny County, 877 A.2d 504 510 n. 12 (Pa. Cmwlth. 2005). Since I find that the release entitles Ski Liberty to judgment as a matter of law, the Complaint will be dismissed.

[HN2] [**348] Although disfavored [*5] under Pennsylvania law, exculpatory agreements, or releases, are valid provided they comply with the safeguards enunciated by our Superior Court in Zimmer v. Mitchell and Ness, 253 Pa. Super. 474, 385 A.2d 437 (Pa. Super. 1978), aff’d, 490 Pa. 428, 416 A.2d 1010 (Pa. 1980) as follows:

Id. at 439. Applying this criteria, I find the releases executed by Cahill to be valid.

The pleadings support the conclusion that the present agreement is not one of adhesion. Cahill was not forced to enter into the contract but did so voluntarily in order to ski at Liberty Mountain. The agreement between the parties related to Cahill’s engaging in a matter of personal choice without any evidence of coercion or inducement negating [*6] the volitional nature of his act. Clearly, this activity is not essential to Cahill’s personal or economic well-being but, rather, was a purely recreational activity. See Kotovsky v. Ski Liberty Operating Corporation, 412 Pa. Super. 442, 603 A.2d 663 (Pa. Super. 1992) (holding that exculpatory agreement signed by skier injured in downhill race was valid).

[**349] The releases also do not contravene public policy. The clauses were purely private in nature and in no way affected the rights of the public. In fact, [HN3] releases such as that before the Court are actually in furtherance of public policy. Our state legislature, in enacting 42 Pa.C.S.A. § 7102(c) (relating to comparative negligence), specifically recognized that there are inherent risks in the sport of downhill skiing and specifically preserved the doctrine of assumption of risk as it applied to downhill skiing injuries and damages. 42 Pa.C.S.A. § 7102(c). This suggests that it is the policy in this Commonwealth to enforce the doctrine of assumption of risk for persons knowingly engaging in downhill skiing. Kotovsky, 603 A.2d at 666.

The releases executed by Cahill are unambiguous in both their language and intent. The language spells out with particularity [*7] the intent of the parties. The captions clearly advise patrons of the contents and purpose of the document as both a notice of risk and a release of liability. The waiver uses plain language informing the skier that downhill skiing is a dangerous sport with inherent risks including ice and icy conditions as well as other forms of natural or man-made obstacles, the condition of which vary constantly due to weather changes and use. Importantly, after advising a patron of these dangers, the documents unequivocally, in both bold and capital letters, releases Ski Liberty from liability for any injuries suffered while using the ski facilities regardless of any negligence on the part of Ski Liberty, its employees, or agents. The application of the releases to use of Ski Liberty facilities is not only spelled out specifically in the document but is reinforced by other references to the releases throughout the body of the document.

[**350] Cahill received, and acknowledged receipt, of the release from liability on two separate occasions. Notably, the first occasion appears to have been well in advance of the sale thereby allowing him ample opportunity to read it before using the facilities. ⁵ This factual [*8] background reveals that the intent of the parties was imminently clear and spelled out with the utmost particularity in plain language. Therefore, under the criteria set forth in Zimmer, the releases are valid.

5 The written application reveals an order date for the season pass of October 31, 2003 which circumstantially establishes the date application was submitted by Cahill over the internet.

Perhaps in recognition of the viability of the releases at issue, Cahill does not challenge their validity but, rather, disputes their application to the current facts. In this regard, Cahill suggests that a hazardous condition created by Ski Liberty, and known to exist by the resort, is not an inherent risk to the sport of skiing thereby making the exculpatory agreements and assumption of risk doctrine inapplicable. In support of this argument, Cahill cites Crews v. Seven Springs Mountain Resort, 2005 PA Super 138, 874 A.2d 100 (Pa. Super. 2005). In Crews, the Superior Court reviewed the trial court’s dismissal of a complaint wherein the plaintiff sought damages for injuries received when the plaintiff was involved in a collision with another snowboarder who was a minor under the influence of alcohol. In reversing [*9] the trial court, the Superior Court concluded that the plaintiff did not assume the risk of a collision with an underage drinker on a snowboard since the same is not an inherent risk of the sport of skiing.

Cahill’s reliance on Crews is misplaced. Primarily, Crews specifically limited the issue before the court to an [**351] analysis of the application of the assumption of risk doctrine. Instantly, this Court addresses a separate and distinct issue concerning the validity of an exculpatory agreement. Although these different issues are dealt with simultaneously in a number of court opinions, they are indeed distinguishable and require separate analysis. Compare Zimmer v. Mitchell and Ness, supra with Crews v. Seven Springs Mountain Resort, supra. Accordingly, I find Crews to be inapplicable to the issue of whether the release agreement entered by Cahill is valid.

Since I have found that Cahill knowingly and voluntarily entered into an exculpatory agreement releasing Ski Liberty from both the inherent dangers of downhill skiing and any negligence on the part of Ski Liberty or its employees, it is not necessary to undertake a detailed analysis of application of the assumption of risk doctrine [*10] to the current matter. Nevertheless, as noted, our legislature has expressly preserved assumption of risk as a defense to actions for downhill skiing injuries. 42 Pa.C.S.A. § 7102(c). Moreover, Ski Liberty provided Cahill prior and detailed notice of the dangerous and inherent risks of skiing. The notice is both thorough and exhaustive. Cahill is an experienced skier who obviously has personal knowledge of the inherent dangers involved in the sport. His experience undoubtedly has taught him that the sport of skiing is not conducted in the pristine and controlled atmosphere of a laboratory but rather occurs in the often hostile and fickle atmosphere of a south central Pennsylvania winter. Those familiar with skiing, such as Cahill, are aware that nature’s snow is regularly supplemented with a man- [**352] made variety utilizing water and a complex system of sprayers, hydrants, and pipes. Human experience also teaches us that water equipment frequently leaves puddles which, in freezing temperatures, will rapidly turn to ice. The risks caused by this variety of ever-changing factors are not only inherent in downhill skiing but, perhaps, are the very nature of the sport. The self-apparent risks [*11] were accepted by Cahill when he voluntarily entered into a business relationship with Ski Liberty. He chose to purchase a ski ticket in exchange for the opportunity to experience the thrill of downhill skiing. In doing so, he voluntarily assumed the risks that not only accompany the sport but may very well add to its attractiveness.

Since I find the exculpatory agreement valid, Cahill’s claim cannot be sustained. Similarly, Mrs. Cahill’s derivative claim for loss of consortium must also automatically fail as a matter of law. See Kiers by Kiers v. Weber National Stores, Inc., 352 Pa. Super. 111, 507 A.2d 406 (Pa. Super. 1986); Scattaregia v. Shin Shen Wu, 343 Pa. Super. 452, 495 A.2d 552 (Pa. Super. 1985); and Little v. Jarvis, 219 Pa. Super. 156, 280 A.2d 617 (Pa. Super. 1971).

For the foregoing reasons, Defendants’ Motion for Judgment on the Pleadings is granted.

BY THE COURT:

MICHAEL A. GEORGE

Judge

Date filed: November 14, 2006

ORDER

AND NOW, this 14<th> day of November, 2006, for the reasons set forth in the attached Opinion, Defendants’ Motion for Judgment on the Pleadings is granted. The Prothonotary is directed to enter judgment in favor of the Defendants, Ski Liberty Operating Corp. and Snow Time, Inc.

BY THE COURT:

MICHAEL A. GEORGE

Judge

Indiana adopts the higher standard of care between participants in sporting events in this Triathlon case

Posted: December 10, 2012 | Author: Recreation Law | Filed under: Cycling, Indiana, Release (pre-injury contract not to sue), Triathlon | Tags: Co-participant, Cycling, Duty of care, Indiana, Standard of Care, Summary judgment, Triathlon, USA Triathlon | Leave a comment

Mark, v. Moser, 46 N.E.2d 410; 2001 Ind. App. LEXIS 671

This decision examines the different legal decisions involving lawsuits between participants in Indiana and other states.

The plaintiff and the defendant were racing in a triathlon. Both agreed to abide by the rules of USA Triathlon, and both signed releases. While in the bicycle portion

of the race, the defendant cut in front of the plaintiff causing a collision. The defendant was disqualified for violating the USA Triathlon rule concerning endangerment.

No cyclist shall endanger himself or another participant. Any cyclist who intentionally presents a danger to any participant or who, in the judgment of the Head Referee, appears to present a danger to any participants shall be disqualified.

The referee stated the defendant’s conduct was not intentional, “rather, he was disqualified for violating the rule “because, by moving over, an accident occurred.” As you can seem the rule, and its interpretation are subject wide interpretation and would lead to more arguments (lawsuits) after that.

The plaintiff sued the defendant for negligence and for acting intentionally, recklessly and willfully causing her injuries. The defendant filed a motion for summary judgment on both claims. The trial court granted the motion on the negligence claim and denied the motion on the second claim, the international acts.

In some jurisdictions, you can appeal motions for summary judgment that do not finish the case in its entirety. Here the plaintiff appealed the decision. Whether or not you can appeal the decision is dependent on the state rules of civil and appellate procedure.

Summary of the case

The Indian appellate court did a thorough analysis of the legal issues after determining this was an issue of first impression in Indiana. An issue of first impression is one where the court has not ruled on this particular legal issue before.

The issue was what was the standard of care owed by co-participants in a sporting event. The standard for a school sporting event was negligence. The court stated that the standard was negligence, low, because of the duty the school personnel had to exercise reasonable care over the students.

The court then looked at other decisions for the duty between co-participants. The court found three states, Arizona, Nevada and Wisconsin where the duty was negligence. The court found California, Connecticut, Illinois, Kentucky, Louisiana, Massachusetts, Michigan, Missouri, Nebraska, New Jersey, New Mexico, New York, Ohio, and Texas had adopted a “reckless or intentional conduct” or a “willful and wanton or intentional misconduct” standard of care. This is a much higher standard of care than the negligence standard.

The court found the higher standard of care was established because participants assume the risk of the activity, to stop mass litigation that would arise every time a foul occurs, and not to limit the sport because of the fear of liability.

The Indiana court determined that participants in sports activities:

…assume the inherent and foreseeable dangers of the activity and cannot recover for injury unless it can be established that the other participant either intentionally caused injury or engaged in conduct so reckless as to be totally outside the range of ordinary activity involved in the sport.

The court granted the summary judgment as to the first count, the negligence claim and sent the second claim back to the lower court to determine if the plaintiff could prove that the action of the defendant was intentional, reckless and willful when he rode his bike. The court sent it back with this statement.

…the trial court must determine whether Kyle’s [defendant] action was an inherent or reasonably foreseeable part of the sport, such that Rebecca [plaintiff] assumed the risk of injury as a matter of law. In our view, it is reasonably foreseeable that a competitor in a cycling race may attempt to cut in front of co-participants in an effort to advance position. Thus, if Rebecca is unable to develop the facts beyond those presented at this juncture, we would conclude that Kyle’s action was an inherent risk in the event that Rebecca assumed as a matter of law, thereby precluding recovery.

That is a very specific statement as to how the lower court must examine the facts in the case.

The appellate court also made another statement that is very important in this day and age.

As is generally the case, the release form that Rebecca signed does not relieve Kyle from liability as co-participants are not listed among the specific entities or individuals released from liability ac-cording to the plain language of the document.

The court looked at the release to determine if the release stopped the suit even though that was not argued by the parties.

So Now What?

It’s OK to play touch football, softball and have fun in Indiana.

At the same time, the court pointed out the fact that if the release had included the term co-participants in the release, the lawsuit might have started because the defendant would have been protected.

Here just one additional word in the release might have stopped a lawsuit.

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Truer words were never spoken!

Posted: November 23, 2012 | Author: Recreation Law | Filed under: Release (pre-injury contract not to sue) | Tags: AdventureTravel, Attorney at law, Frazz, Jef Mallett, Jim Moss, Rock climbing, Ropes course | Leave a comment

Thanks Jef Mallett

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If you really are bad, a judge will figure out a way to void your release

Posted: November 12, 2012 | Author: Recreation Law | Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Kentucky, Release (pre-injury contract not to sue) | Tags: Appeal, Bull, Bull Riding, Charles, Defendant, Gross negligence, Kentucky, Negligence, Plaintiff, Release, Ring of Fear, Rodeo, United States, Waiver | Leave a comment

Davis, v. 3 Bar F Rodeo, 2007 Ky. App. LEXIS 423

Appellate court sends back to trial court on issue that release did not protect against Gross Negligence, and the deceased did not have time to read the release.

I guess I knew that these contests happened. I grew up in a rural community where we had greased pig contests, but nothing like this. The plaintiff entered a contest where he went into a rodeo and stood in a white circle. There were other participants also standing in circles. A bull was released into the ring. The last person standing in a white circle won. Prize money was $50.00. The contest was called the “Ring of Fear.” The bull struck the deceased bursting his liver.

$50.00?

The plaintiff’s spouse sued. The deceased prior to entering the ring signed a release. The release was comprehensive but apparently had all participant signatures on one form. Allegedly, the deceased was not given any time to read the release.

Prior to the bull being released into the ring, the bull was allegedly provoked by jabbing him with a wooden object and beating sticks against the bull’s cage. (I’m guessing PETA is not big in this part of Kentucky…….)

The trial court dismissed the complaint based on the release signed by the deceased. The plaintiff appealed.

Summary of the case

The appellate court first looked at the Kentucky Farm Animals Activities Act (FAAA) KRS 247.401 through KRS 247.4029. The court found the statute was applicable to the facts in this case. The court also found that the warnings found in the act provided immunity to defendants who posted the warnings. Failure to post the warnings did not create a claim of negligence per se or strict liability as the plaintiff argued. Failing to post the warnings simply failed to provide the immunity under the statute.

The court also found that the FAAA allowed farm animal event sponsors to sue the act if they posted the warning signs.

The court found that the FAAA had no duty to reduce or eliminate the inherent risks found in farm animal activities. The court also found that act did not protect sponsors that intentionally mistreat or aggravate a farm animal. That would be the antithesis of the purpose of the act.

The court then looked at the issue of the release and stated,

While agreements to exempt future liability for either ordinary or gross negligence are not invalid per se, they are generally disfavored and are strictly construed against the parties relying upon them. [Emphasize added]

Although not a definitive statement on the issue, it appears that under Kentucky law, a release will protect a defendant against a claim of gross negligence.

Releases in Kentucky will be upheld if they meet the following tests if:

(1) it explicitly expresses an intention to exonerate by using the word “negligence;” or

(2) it clearly and specifically indicates an intent to release a party from liability for a personal injury caused by that party’s own conduct; or

(3) protection against negligence is the only reasonable construction of the contract language; or

(4) the hazard experienced was clearly within the contemplation of the provision.

From a legal point, this is an extremely broad language about how a release will be interpreted by the courts.

The court then examined the release and found no language the court could interpret that could be used to say the release was going to stop a gross negligence claim. The court also found that intentionally mistreating the bull would “at the very least constitute gross negligence.”

The court followed up by stating that infuriating a bull would constitute willful of wanton conduct which “a party may not contract away any liability through a release.”

Finally, the court looked at a laundry list of additional issues raised by the plaintiff:

..that Appellees should have inquired as to the abilities of the participants to participate in the Ring of Fear. Finally, Susan contends that Charles did not have an opportunity to read the release prior to signing it.

The court stated that those were all factual issues to be resolved by a trier of fact.

So Now What?

Although the issue that a release in Kentucky may protect against gross negligence is great as well as the broad language that can be used in a release in Kentucky, the last two issues mentioned by the court allow numerous ways to void releases in Kentucky and place a burden upon the business or program operating in Kentucky and using a release.

That is requiring an outfitter to see if a guest has the sufficient skills, ability and desire to undertake the activities and making sure the person signing a release has sufficient time to read the release.

Solving the problems of the Defendant

First, I would have raised an assumption of risk argument, although I am not sure of the status of A/R in Kentucky. However, I believe that it is pretty obvious that you can get gored by a bull in a ring. The deceased and the plaintiff were going to the event for a rodeo so it had to have been obvious, to some extent.

Second by having separate releases rather than one sign-up sheet, the argument that the deceased did not have time to read the release could have been diffused if not eliminated. If each person has a sheet of paper, then there is no rush to get all the signatures on one sheet of paper.

Still to be resolved

The issue that the defendant did not enquire as to the ability of the participant to participate in the Ring of Fire is an open-ended opportunity for every lawsuit in Kentucky to go to trial.

How are you going to determine the requirements for a participant to undertake an activity? No matter what system, test or determination you make, you did not do a good job if someone is hurt or injured on your trip. Nor can you use medical information to determine if someone can participate because unless you are a physician, that would require diagnosis which you cannot do.

The only solution you can come up with to create a system so the participants can self-determine if they are able to participate. Show a video or create a checklist. Make sure your release states that the person has watched the video, seen your website and reviewed the checklist and understands it is their responsibility to determine if they are able to participate in the activity.

This could be a nightmare in Kentucky.

What do you think? Leave a comment.

James H. “Jim” Moss

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

Outdoor Recreation Insurance, Risk Management, and Law

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Davis, v. 3 Bar F Rodeo, 2007 Ky. App. LEXIS 423

Posted: November 12, 2012 | Author: Recreation Law | Filed under: Kentucky, Legal Case, Release (pre-injury contract not to sue) | Tags: Bull Riding, Kentucky, Release, Ring of Fear, Rodeo, Summary judgment | Leave a comment

To Read an Analysis of this decision see

If you really are bad, a judge will figure out a way to void your release

Davis, v. 3 Bar F Rodeo, 2007 Ky. App. LEXIS 423

Susan Davis, Individually and as Administratrix of the Estate of Charles A. Davis, Deceased, Appellants v. 3 Bar F Rodeo; Marcus Fannin; Bobby Ray Fannin; Grant County Fair, Inc., Appellees

NO. 2006-CA-002212-MR

COURT OF APPEALS OF KENTUCKY

2007 Ky. App. LEXIS 423

November 2, 2007, Rendered

NOTICE:

PLEASE REFER TO THE KENTUCKY RULES REGARDING FINALITY OF OPINIONS. TO BE PUBLISHED. [UNLESS OTHERWISE ORDERED BY THE KENTUCKY SUPREME COURT, OPINIONS DESIGNATED “TO BE PUBLISHED” BY THE COURT OF APPEALS ARE NOT TO BE PUBLISHED IF DISCRETIONARY REVIEW IS PENDING, IF DISCRETIONARY REVIEW IS GRANTED, OR IF ORDERED NOT TO BE PUBLISHED BY THE COURT WHEN DENYING THE MOTION FOR DISCRETIONARY REVIEW OR GRANTING WITHDRAWAL OF THE MOTION.]

SUBSEQUENT HISTORY: As Modified May 2, 2008.

Rehearing denied by Davis v. 3 Bar F. Rodeo, 2008 Ky. App. LEXIS 266 (Ky. Ct. App., May 2, 2008)

Review denied and ordered not published by Grant County Fair, Inc. v. Davis, 2008 Ky. LEXIS 249 (Ky., Oct. 15, 2008)

PRIOR HISTORY: [*1]

APPEAL FROM GRANT CIRCUIT COURT. HONORABLE STEPHEN L. BATES, JUDGE. ACTION NO. 05-CI-00427.

DISPOSITION: REVERSING AND REMANDING.

COUNSEL: BRIEF AND ORAL ARGUMENT FOR APPELLANTS: Jerry M. Miniard, Florence, Kentucky.

BRIEF AND ORAL ARGUMENT FOR APPELLEE, GRANT COUNTY FAIR, INC.: Thomas R. Nienaber, Covington, Kentucky

BRIEFS FILED FOR APPELLEES, 3 BAR F RODEO, MARCUS FANNIN, AND BOBBY RAY FANNIN: Steven N. Howe, Dry Ridge, Kentucky.

JUDGES: BEFORE: LAMBERT, TAYLOR AND WINE, JUDGES. ALL CONCUR.

OPINION BY: WINE

OPINION

REVERSING AND REMANDING

WINE, JUDGE: Susan Davis (“Susan”), individually and as the Administratrix of the Estate of Charles A. Davis (“Charles”), deceased, appeals a summary judgment order entered by the Grant Circuit Court dismissing her claims against the Grant County Fair, Inc. (“GCF”), 3 Bar F Rodeo (“3-BFR”), Marcus Fannin (“M. Fannin”) and Bobby Ray Fannin (“B. Fannin”) (“Appellees” collectively) for the injuries and wrongful death of her husband, Charles, which occurred on September 25, 2004. Specifically, Susan argues the trial court erred by denying her motion for summary judgment based upon the Appellees’ alleged failure to give her husband the mandatory warning pursuant to KRS 247.4027, which resulted in Charles’s severe internal bodily injuries [*2] which ultimately led to his death. For the reasons stated herein, we remand this case as summary judgment was not appropriate.

Appellant, GCF, is a non-profit corporation whose primary function is to own, maintain, and operate the Grant County Fairgrounds. 3-BFR is an unincorporated association comprised of M. Fannin and B. Fannin. 3-BFR’s primary function is to conduct rodeo events for the general public. GCF entered into an agreement with 3-BFR, M. Fannin and B. Fannin whereby 3-BFR would hold a rodeo at the fairgrounds.

On September 25, 2004, Charles and Susan attended the rodeo at the Grant County Fair. The announcer for the rodeo, Aaron Platt (“Platt”), called for participants for a game called the “Ring of Fear.” This game called for audience members to participate by entering the rodeo ring and standing in marked circles on the ground. Kenny, a bull from Ohio, was then released into the ring. The last person standing, without stepping outside of the circle, won the grand prize of $ 50.00. Charles proceeded to the ring to try his luck in the Ring of Fear. Susan alleges Kenny was angered by someone jabbing him with a wooden object and beating sticks against his cage prior to his [*3] release. Once released, Kenny proceeded to drive his head into Charles’s abdomen, lifting him off the ground. Charles made his way back into the stands where his wife Susan was seated. Unknown to Charles or anyone else, Kenny’s blow to Charles’s abdomen had caused his liver to burst and he was bleeding internally. Charles faded into temporary unconsciousness next to his wife in the stands. Charles died the next morning at the University of Cincinnati’s trauma unit. The cause of death was ruled “blunt trauma to torso” and internal bleeding.

Susan then brought a wrongful death action against GCF, 3-BFR and the Fannins, alleging that their negligence had caused her husband’s death. GCF moved for summary judgment based upon a release signed by Charles prior to his participation in the Ring of Fear. 3-BFR, M. Fannin and B. Fannin filed similar motions. After completing more discovery and taking depositions, Susan filed a cross-motion for summary judgment, asserting that the Appellees failed to properly warn of the dangers of the Ring of Fear as required by KRS 247.4027. Susan alleged the Appellees’ failure to warn was a substantial factor in causing the injuries that led to her husband’s [*4] death. The trial court granted summary judgment to the Appellees, finding that the release was sufficient to exempt them from liability in light of Hargis v. Baize, 168 S.W.3d 36 (Ky. 2005). The trial court denied Susan’s cross-motion for summary judgment. This appeal followed.

[HN1] In reviewing a motion for summary judgment, a trial court must consider all the stipulations and admissions on file. CR 56.03. “[S]ummary judgment is proper only where the movant shows that the adverse party cannot prevail under any circumstances.” Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991), citing Paintsville Hospital Co. v. Rose, 683 S.W.2d 255 (Ky. 1985). The standard of review on appeal of a summary judgment is whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law. Scifres v. Kraft, 916 S.W.2d 779, 43 1 Ky. L. Summary 17 (Ky.App. 1996). There is no requirement that the appellate court defer to the trial court because factual findings are not at issue. Goldsmith v. Allied Building Components, Inc., 833 S.W.2d 378, 381, 39 7 Ky. L. Summary 24 (Ky. 1992).

Susan argues the Appellees breached their duty to warn [*5] pursuant to the Farm Animals Activities Act (“FAAA”), found in KRS 247.401 through KRS 247.4029. Specifically, [HN2] the FAAA represents a statutory plan designed to outline the duties and responsibilities of both participants and sponsors conducting animal activities. Having thoroughly read the statute, we agree with Susan that the statute applies to this case. However, KRS 247.4027(2)(a) allows for a waiver of liability if the participant signs a release waiving his right to bring an action against the farm animal event sponsor.

Susan asserts that non-compliance with the warning requirements of KRS 247.401 constitutes negligence per se and/or strict liability. We disagree. KRS Chapter 247 is generally recognized throughout the country as “Equine Activity Statutes” (“EAS”). In general, these statutes are an attempt to limit liability of persons engaging in animal activities. Therefore, [HN3] if a sponsor of an animal activity does post the suggested warnings found in KRS Chapter 247, he is granted immunity from liability if someone gets hurt. If, as in this case, the warnings are not posted, the sponsor loses the immunity and may be held responsible for the injury in accordance with other applicable [*6] law. KRS 247.4013. Therefore, EAS statutes are “immunity statutes,” not negligence per se or strict liability statutes as recognized in many of our sister states. See Anderson v. Four Seasons Equestrian Center, Inc., 852 N.E.2d 576 (Ind. 2006); Amburgey v. Sauder, 238 Mich. App. 228, 605 N.W.2d 84 (Mich. App. 1999).

[HN4] Although KRS 247.402 requires farm animal activity sponsors to warn of the inherent risks, there is no duty to reduce or eliminate the inherent risks. However, to intentionally mistreat or aggravate a farm animal would be the antithesis of this duty.

While it is clear that the Appellees did not have warning signs posted at the ring entrance, it is undisputed that Charles signed a release just prior to his participation in the Ring of Fear. Therefore, the central issue in this case is the validity of the release Charles signed. The release Charles signed states as follows:

We the undersigned hereby request permission (1) to enter the restricted area (2) to participate as a contestant, assistant, official or otherwise rodeo events (3) to compete for money, prizes, recognition or reward.

In consideration of “permissive entry” into the restricted areas, which is the area from which admission to the [*7] general public is restricted, which includes, but is not limited to the rodeo arena, chutes, pens, adjacent walkways, concessions and other appurtenances, I undersigned, my personal representatives, heirs, next of kin, spouses and assigns to hereby:

1. I release, discharge and covenant not to sue the rodeo committee, stock contractor, sponsors, arena operators or owners and each of them, their officers, agents and employees all hereafter collectively referred to as (Releases) from any and all claims and liability arising out of strict liability or ordinary negligence of Releases or any other participant which causes the undersigned injury, death, damages or property damage. I, the undersigned, jointly, severally, and in common, covenant to hold releases from any claim, judgment or expenses that may incur arising out of my activities or presence in the restricted area.

2. Understand that entry into the restricted area and/or participation in rodeo events contains danger and risks of injury or death, that conditions of the rodeo arena change from time to time and may become more hazardous, that rodeo animals are dangerous and unpredictable, and that there inherent danger in rodeo which [*8] I appreciate and voluntarily assume because I chose to do so. Each of the undersigned has observed events of this type and that I seek to participate in. I further understand that the arena surface, access ways or lack thereof, lighting or lack thereof, and weather conditions all change and pose a danger. I further understand that other contestants and participants pose a danger, but nevertheless, I voluntarily elect to accept all risks connected with the entry into restricted areas and/or participate in any rodeo events.

3. I agree that this agreement shall apply to any incident, injury, and accident death occurring on the above date and fore (sic) a period of one (1) year thereafter. All subsequent agreement and release documents signed by any of the undersigned shall amplify, shall in no way limit the provisions of the document.

4. I the undersigned agree to indemnify the Releases and each of them from loss, liability damage or costs they may incur due to the presence or participation in the described activities whether caused by the negligence of the Releases or otherwise.

WE HAVE READ THIS DOCUMENT, WE UNDERSTAND IT IS A RELEASE OF ALL CLAIMS, WE APPRECIATE AND ASSUME ALL RISKS INHERENT IN RODEO. [*9]

Charles’s signature appears below this language along with the signatures of the other participants of the Ring of Fear on September 25, 2004.

[HN5] While agreements to exempt future liability for either ordinary or gross negligence are not invalid per se, they are generally disfavored and are strictly construed against the parties relying upon them. Hargis, 168 S.W.3d at 47.

[A] preinjury release will be upheld only if (1) it explicitly expresses an intention to exonerate by using the word “negligence;” or (2) it clearly and specifically indicates an intent to release a party from liability for a personal injury caused by that party’s own conduct; or (3) protection against negligence is the only reasonable construction of the contract language; or (4) the hazard experienced was clearly within the contemplation of the provision.

Id., citing 57A AM. JUR. 2d, Negligence § 53 (citations omitted). The trial court held that the release met the above requirements in Hargis and, absent genuine issues of fact as to the release, its enforceability warranted summary judgment in favor of Appellees.

We disagree with the trial court that the release form signed by Charles satisfies all of the [*10] factors in Hargis. The release uses the word “negligence.” The release does specifically and explicitly release the Appellees from liability for “any and all claims and liability arising out of strict liability or ordinary negligence of Releases [Appellees] . . . which causes the undersigned [Charles] injury . . . [or] death . . . .”

The language of the release is specific as to its purpose to exonerate the sponsors from ordinary negligence liability. The release specifically warns that rodeo events contain danger and risks of injury or death; that the conditions of the rodeo arena change and may become more hazardous; that rodeo animals are dangerous and unpredictable; and finally that anyone choosing to participate voluntarily assumes the inherent danger that exists in rodeo events. However, there is no language that releases Appellees from conduct that would constitute gross negligence. Susan contends that Appellees provoked Kenny by prodding him and beating on his cage prior to his release into the ring. The intentional provocation of the bull by Appellees to attack the participants is clearly not contemplated by the release. While the Appellees dispute the allegations of intentionally [*11] mistreating Kenny, if true, it would at the very least constitute gross negligence. The release contemplates getting into the ring with a bull and even mentions that rodeo animals are unpredictable. However, the release does not contemplate a bull that has been infuriated by the Appellees prior to its release into the ring. Such conduct could be construed as willful or wanton for which a party may not contract away any liability through a release. Hargis, supra. This material issue of fact as disputed by the parties can only be resolved by a trier of fact and is not appropriately resolved by summary judgment. If the jury determines that Appellees’ conduct was grossly negligent, the release would be unenforceable as to this conduct. Of course, under comparative negligence, the jury could also consider Charles’s own conduct in contributing to his death.

Susan also argues that the trial court was presented with a genuine issue of material fact as to whether the Appellees offered her husband protective chest gear. M. Fannin testified that the participants in the Ring of Fear on the date in question were given an opportunity to put on a protective vest before entering the rodeo ring. Conversely, [*12] Rob Wells (“Wells”), who participated on the same day as Charles, submitted an affidavit indicating that he was never offered a protective vest nor did he observe that there were protective vests available. Susan further submits that Appellees should have inquired as to the abilities of the participants to participate in the Ring of Fear. Finally, Susan contends that Charles did not have an opportunity to read the release prior to signing it. In support of this contention, Susan relies on the affidavit of Wells wherein he indicates that he did not read the release. These are all factual issues to be resolved by a trier of fact.

Accordingly, we reverse and remand this case to the Grant Circuit Court for a jury trial.

ALL CONCUR.

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http://www.recreation-law.com

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NY court explains how it interprets Section 5-326 which disallows releases in NY. Upholds release for a marathon

Posted: October 8, 2012 | Author: Recreation Law | Filed under: New York, Racing, Release (pre-injury contract not to sue) | Tags: Brooklyn, General Obligations Law § 5-326, Jim Moss, New York, New York City, New York Roadrunners Club, New York Supreme Court | Leave a comment

Brookner v New York Roadrunners Club, Inc., et al., 2008 NY Slip Op 4638; 51 A.D.3d 841; 858 N.Y.S.2d 348; 2008 N.Y. App. Div. LEXIS 4393

Language of General Obligations Law § 5-326 is interpreted

In this case, the plaintiff sued the New York Road Runners Club which puts on the ING New York Marathon. His injuries were not stated in the claim nor were his

claims. A New York statute restricts the use of releases. See States that do not Support the Use of a Releaseand no court has ever clearly defined how they get around the statute when a release is raised as a defense.

The Supreme Court of New York, Appellate Division which wrote this decision held that General Obligations Law § 5-326 did not apply.

General Obligations Law § 5-326 states:

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

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

The court then looked at the language of the statute and concluded the release applied in this case because the entry fee for the marathon was not a fee for admission into the streets of New York City. Further the court found the streets of New York City, where the plaintiff was injured were not places of amusement.

…General Obligations Law § 5-326 does not invalidate the release, since the entry fee the plaintiff paid to the NYRRC was for his participation in the marathon, and was not an admission fee allowing him to use the City-owned public roadway over which the marathon was run. Further, the public roadway in Brooklyn where the plaintiff alleges he was injured is not a “place of amusement or recreation”

So Now What?

Although the interpretation by the court could be viewed in another light, clearly most courts in New York want to uphold releases and if given the opportunity will write a decision which does so.

Make sure, if you are based in New York, that when your release is written it takes the statute into consideration. You can have signors of the release agree to the release that you are not a place of amusement, and the fee paid is not for admission.

What do you think? Leave a comment.

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In this cycle race case, the release was void by state law, but could still be used to prove assumption of the risk.

Posted: September 17, 2012 | Author: Recreation Law | Filed under: Assumption of the Risk, Cycling, Montana, Release (pre-injury contract not to sue) | Tags: Adventure travel, Attorney at law, Montana, Motion in Limine, USA Cycling | Leave a comment

Ganz vs. United States Cycling Federation, 1994 Mont. Dist. LEXIS 756

At trial it is too late to find out that the release you had everyone sign has no value.

This is a motion hearing in Federal District Court for the great Western Stage Race held in Missoula. Montana by statute does not allow the use of a release. See States that do not Support the Use of a Release. The plaintiff was attempting to have two issues precluded from the trail:

· The fact the defendant was a non-profit.

· The fact the plaintiff signed a release which is void under Montana’s law.

To do that, you file a motion in limine. A motion in limine argues before the judge that because of a statute or the laws of evidence something the other side is going to try to say or introduce as evidence should be excluded. See Why accident reports can come back to haunt you for more on motions in limine.

The facts that gave rise to the case are the plaintiff was a competitor in the bicycle race. During the race, a pedestrian darted out in front of him and caused him to crash. He was claiming, “alleges negligence on the part of the Defendants for failure to create, establish, follow, and/or enforce appropriate safety standards on the race course.”

The first issue, the non-profit status of the defendant was quickly granted. Because most states have statutes, which state a non-profit is the same as a for-profit corporation, the issue of the defendant being a non-profit would only prejudice the jury.

The second issue, the release is of more interest. Pursuant to Montana’s law, a release is void and against public policy.

M.C.A. § 28-2-702 Contracts that violate policy of law — exemption from responsibility.

All contracts that have for their object, directly or indirectly, to exempt anyone from responsibility for the person’s own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent, are against the policy of the law.

So the release signed by the plaintiff in this case could not be used as a release. The plaintiff’s motion in limine was to exclude the release for any purpose; the jury would never know a release was signed.

So?

The court held the release could be used but only to the extent to show the portion of the release which showed that he was aware of the risks of the race.

The mention of the release form for the purpose of proving that no liability exists is prohibited. However, the Defendants should be allowed to show that Mr. Ganz [the plaintiff] signed that portion of the release which shows that he was aware of the dangers on the race course, without actually showing the release in its entirety to the jury.

Dependent upon how the release was written and the statement of the risks in the release, this could be a powerful document showing the plaintiff knew of and assumed the risks.

So Now What?

Make sure your release is written to include the risks of the activity or program. There are several reasons for doing this.

· Guests who have no clue will have a better time if they understand the risks.

· Guests who read about the risks have a better understanding of the risks and decided if this is the type of opportunity they want to take.

· If your release is thrown out, you can still use the release as proof the plaintiff assumed the risk.

You can’t write all the risks into a release. However, you can write in the following:

1. Those injuries that are common to the activity or program.

2. Those injuries that can cause permanent injury or death.

3. Those risks which are different in your activity from the normal or competitive activities.

The second group is easy to identify. If it is rock climbing, it is falling or having something fall on you resulting in permanent injury or death. In paddlesports it is drowning, hypothermia, or a “near-drowning” resulting in brain injury.

The first is also easy. Look at every injury you have ever seen in your activity. Injuries from falling on the hike to the base of the climb or falling down carrying a boat to the river. After lunch on the river, people sit on a hot raft getting a burn or rope burn while belaying. Those injuries that are not life threatening but occur regularly and deplete your stock of band aids.

The third category is a little harder. How is your program or activity different from the rest of the people in your industry. If the majority of climbing walls have padding on the floor, and yours does not you should identify this as a risk. In cycling, you need to identify if you have a closed course, a race course without cars on it is critical for participants to know.

As always, you have to have your release created by someone who understands your risks, your sport your activity and knows how to write a release.

What do you think? Leave a comment.

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Lloyd v. Sugarloaf Mountain Corp. et al. 2003 ME 117; 833 A.2d 1; 2003 Me. LEXIS 131

Posted: July 2, 2012 | Author: Recreation Law | Filed under: Legal Case, Maine, Mountain Biking, Release (pre-injury contract not to sue) | Leave a comment

Lloyd v. Sugarloaf Mountain Corp. et al. 2003 ME 117; 833 A.2d 1; 2003 Me. LEXIS 131

C. Gary Lloyd v. Sugarloaf Mountain Corp. et al.

Docket: Han-03-76

SUPREME JUDICIAL COURT OF MAINE

2003 ME 117; 833 A.2d 1; 2003 Me. LEXIS 131

June 10, 2003, Argued

September 25, 2003, Decided

PRIOR HISTORY: Lloyd v. Bourassa, 2002 Me. Super. LEXIS 132 (Me. Super. Ct., Aug. 20, 2002)

DISPOSITION: [***1] Affirmed. Remanded.

COUNSEL: Attorneys for plaintiff: Arthur J. Greif, Esq. (orally), Julie D. Farr, Esq., Gilbert & Greif, P.A., Bangor, ME.

Attorneys for defendants: Evan M. Hansen, Esq. (orally), Preti Flaherty Beliveau Pachios & Haley, LLC, Portland, ME, (for Sugarloaf Mountain Corp.).

Stephen J. Burlock, Esq., [John A. Woodcock Jr., Esq (orally), withdrew June 24, 2003], Weatherbee & Burlock, P.A., Bangor, ME, (for USA Cycling).

JUDGES: Panel: SAUFLEY, C.J., and CLIFFORD, RUDMAN, DANA, ALEXANDER, CALKINS, and LEVY, JJ. Majority: SAUFLEY, C.J., and CLIFFORD, RUDMAN, and DANA, JJ. Dissenting: ALEXANDER, CALKINS, and LEVY, JJ.

OPINION BY: RUDMAN

OPINION

[**2] RUDMAN, J.

[*P1] C. Gary Lloyd appeals from a summary judgment entered in Superior Court (Hancock County, Gorman, J.) in favor of Sugarloaf Mountain Corp. and U.S.A. Cycling, Inc., d/b/a National Off-Road Bicycle Association (NORBA), on Lloyd’s negligence complaint and on their counterclaims for indemnification. Lloyd argues that the two releases he signed prior to the Widowmaker Challenge mountain bicycle [***2] race did not effectively discharge Sugarloaf and NORBA from liability for his injury. He contends that the first release, which he signed when he became a member of NORBA, was superseded by the second release, a race entry release he signed a few days before the race, and the entry release was ambiguous and too vague to exonerate Sugarloaf and NORBA from their own negligence. He further argues that because his injury occurred during a practice run instead of the race itself, the releases are inapplicable, and that, in any event, the releases should be unenforceable as contrary to public policy. In addition, Lloyd argues that a summary judgment should not have been granted to Sugarloaf and NORBA on their claims for indemnification. We affirm the judgment for Sugarloaf and NORBA on the complaint because the membership release unambiguously discharged them from liability for damages caused by their negligence, and affirm the judgment for Sugarloaf and NORBA on their claims for indemnification and the award of attorney fees because the indemnification clause is clear and unambiguous.

I. BACKGROUND

[*P2] Lloyd alleges that he was injured in a bicycle accident in August 1995, when [***3] he was participating in a practice session prior to the Widowmaker Challenge at Sugarloaf ski resort. The race was sponsored by NORBA. The injury occurred in a collision with another participant. ¹ All parties agreed that race entrants were required [**3] to participate in the practice session.

1 The other participant was also initially named a defendant but was later dismissed from the suit.

[*P3] Lloyd became a member of NORBA and signed a membership release in June 1995, in which he acknowledged that cycling is an inherently dangerous sport and that his participation was at his own risk. In the membership release, he stated:

I release and forever discharge [NORBA, its employees, agents, members, sponsors, promoters and affiliates from any and all liability, claim, loss, cost or expense, and waive and promise not to sue on any such claims against any such person or organization, arising directly or indirectly from or attributable in any legal way to any negligence, action or omission to act of any such person [***4] or organization in connection with sponsorship, organization or execution of any bicycle racing or sporting event, including travel to and from such event, in which I may participate as a rider, team member or spectator.

[*P4] Lloyd signed another release a few days before the Widowmaker Challenge was to take place. In this entry release, Lloyd again acknowledged the dangers of participating in a bicycle event and the possibility of serious injury. The entry release provided:

I hereby waive, release and discharge . . . any and all rights and claims . . . against the sponsors of this event, [NORBA, the promoter and any promoting organizations(s), property owners . . . through or by which the events will be held for any and all damages which may be sustained by me directly or indirectly in connection with, or arising out of, my participation in or association with the event, or travel to or return from the event.

The entry release also contained an indemnification provision:

Should I or my successors assert my claim in contravention of this agreement, I or my successors shall be liable for the expenses (including legal fees) incurred by the other party or parties in defending, [***5] unless the other party or parties are financially adjudged liable on such claim for wilful and wanton negligence.

[*P5] Several years after his injury, Lloyd filed this action against Sugarloaf and NORBA in which he alleges that both entities acted negligently and with willful and wanton negligence. Both entities defended on the ground that the releases barred any claims, and both counterclaimed for indemnification. Lloyd sought a summary judgment on the counterclaims, and Sugarloaf and NORBA sought a summary judgment on the complaint. The court granted a summary judgment to Sugarloaf and NORBA on both the complaint and counterclaims. The court thereafter approved $ 18,420.50 in attorney fees and an additional amount in costs against Lloyd.

II. DISCUSSION

A. The Exculpatory Releases

[*P6] Lloyd first argues that the membership release was superseded, replaced, and discharged by the entry release because the entry release is more recent and applies to a specific race, and because the two releases are inconsistent. Lloyd claims that the membership release specifically releases claims of negligence whereas the entry release more generally releases “any and all” claims. Additionally, [***6] the entry release contains the indemnification clause providing for legal fees to be assessed against the releaser unless damages for willful and wanton negligence are awarded.

[*P7] While these two releases overlap, they are not inconsistent. The fact that [**4] one release specifies negligence and the other is more general does not create an inconsistency nor does the fact that the entry release contains an indemnification clause. There is nothing in the parties’ statements of material fact that indicates they intended the entry release to supersede or replace the membership release. In fact, the entry release affirmatively states that only NORBA members, that is, people who had signed a membership release, are allowed to sign up for the Widowmaker Challenge. We fail to discern any inconsistency that would demonstrate that the parties intended that the execution of the entry release would abrogate the membership release. The entry release is unambiguous and consistent with the membership release. Thus, we reject Lloyd’s argument that the membership release is inapplicable.

[*P8] [HN1] In order for the releases signed by Lloyd to absolve Sugarloaf and NORBA of their own negligence, [***7] they must “expressly spell out with the greatest particularity the intention of the parties contractually to extinguish negligence liability.” Doyle v. Bowdoin Coll., 403 A.2d 1206, 1208 (Me. 1979) (internal quotation marks omitted). We strictly construe such releases against the party seeking immunity from liability. Id. at 1207-08; see also Hardy v. St. Clair, 1999 ME 142, P6, 739 A.2d 368, 370. The membership release declares with specificity that Lloyd releases and discharges NORBA, as well as any sponsors and promoters, from all liability that arises directly or indirectly from the negligence of anyone connected with the sponsorship, organization, or execution of any bicycle race. Unlike the release in the Doyle case, 403 A.2d at 1208, but similar to the release in the Hardy case, 1999 ME 142, P4, 739 A.2d at 369, there is a specific reference in the membership release to the negligence of the parties seeking immunity. We conclude that the membership release, with its express reference to negligence, sufficiently spells out the parties’ intent to extinguish the negligence liability of NORBA [***8] and Sugarloaf.

[*P9] Lloyd contends the practice or inspection run in which he was injured was not sufficiently connected to the race to be covered by the releases. Given that the parties agree that the practice session was mandatory to participation in the race itself, it would be disingenuous to conclude that the practice run was not, in the words of the membership release, “arising directly or indirectly from or attributable . . . to any negligence . . . in connection with . . . any bicycle racing or sporting event,” and, therefore, we reject this contention. See Hardy, 1999 ME 142, P5, 739 A.2d at 370; see also Barnes v. New Hampshire Karting Ass’n, 128 N.H. 102, 509 A.2d 151, 155-56 (N.H. 1986) (holding that participation in a practice lap came within release language of “participating in the event”). Because the practice run was mandatory, any negligence occurring during the practice run was attributable to the bicycle racing event.

[*P10] Lloyd also argues that if the releases are otherwise valid we should nonetheless reject them as violating public policy. We have held that [HN2] releases saving a party from damages due to that party’s [***9] own negligence are not against public policy. Hardy, 1999 ME 142, P3 n.1, 739 A.2d at 369 (citing Emery Waterhouse Co. v. Lea, 467 A.2d 986, 993 (Me. 1983)).

[*P11] Generally speaking, courts holding that similar releases for recreational activities are void as against public policy do so because they find that the activity is a public service or open to the public; the facility invites persons of every skill level to participate; the facility has the expertise and opportunity to control hazards and guard against negligence; the facility is in [**5] a better position to ensure against risks; and broad releases of liability would remove incentives for the facility to manage risks, thereby requiring the public generally to bear the costs. See Spencer v. Killington, Ltd., 702 A.2d 35, 36-38 (Vt. 1997) (holding entry form release for ski racing event void as against public policy); Umali v. Mount Snow, Ltd., 247 F. Supp. 2d 567, 575 (D. Vt. 2003) (applying Vermont law and finding NORBA releases for mountain bike races void as against public policy). An example of an analysis by a jurisdiction holding that releases [***10] are not against public policy is Barnes, 128 N.H. 102, 509 A.2d 151. In holding that a release of liability of a kart racing facility was valid, the New Hampshire Supreme Court found that the provision of kart racing was neither a public service nor a practical necessity, that the plaintiff was under no compulsion to participate in racing, and, therefore, under no compulsion to sign the release. Id. at 155. See also Schutkowski v. Carey, 725 P.2d 1057, 1060 (Wyo. 1986); Jones v. Dressel, 623 P.2d 370, 375 (Colo. 1981).

[*P12] Even if we had no precedent stating that releases like these are not violative of public policy, we would be hard-pressed on this record to conclude that provision of an event entitled “Widowmaker Challenge” is a public service or that its entrants were under any compulsion to sign the release. We do not accept Lloyd’s invitation to overturn our previous decisions.

B. The Indemnification Provision

[*P13] Lloyd’s final argument is that judgment should not have been granted to Sugarloaf and NORBA on their counterclaims for indemnification. The court held that Sugarloaf and NORBA were [***11] entitled to an award of fees because of the indemnification language in the entry release: ”

[*P14] The language in the entry release could not have been clearer. In his application for membership in NORBA, Lloyd not only released both NORBA and Sugarloaf from any and all liability, but also waived and promised not to sue on any such claims. Lloyd, in spite of the fact that he had signed two waivers, asserted claims against both Sugarloaf and NORBA. As we note, the releases signed by Lloyd prevent him from pursuing claims against either Sugarloaf or NORBA. Therefore, neither Sugarloaf nor NORBA will be “financially liable” on any basis, let alone “for willful and wanton negligence.” The language of the indemnification clause is unambiguous. Lloyd is contractually bound to indemnify the parties defending for the expense they incurred. The trial court appropriately enforced the contractual obligation assumed by Lloyd.

The entry is:

Judgment for NORBA [***12] and Sugarloaf on the complaint and the counterclaims are affirmed. Remand for assessment of attorney fees on the appeal.

DISSENT BY: CALKINS

DISSENT

CALKINS, J., with whom ALEXANDER and LEVY, JJ., join, dissenting.

[*P15] Although I agree with the Court that the membership release, which is unambiguous and specifically refers to negligence, absolves Sugarloaf and NORBA of their own negligence, I write separately because I believe that we should vacate the summary judgment granted to Sugarloaf and NORBA on their counterclaims for indemnification. In my opinion, the indemnification clause, which is contained [**6] in the entry release form, cannot support the judgment for attorney fees against Lloyd because it is unclear and ambiguous.

[*P16] In my analysis, I start with the principle that contracts indemnifying a party from the party’s own negligence are strictly construed against the indemnitee. In Emery Waterhouse Co. v. Lea, 467 A.2d 986 (Me. 1983), we said that such contractual provisions are looked upon with disfavor and are construed strictly. Id. at 993.

It is only where the contract on its face by its very terms clearly and unequivocally reflects [***13] a mutual intention on the part of the parties to provide indemnity for loss caused by negligence of the party to be indemnified that liability for such damages will be fastened on the indemnitor, and words of general import will not be read as expressing such an intent and establishing by inference such liability.

Id. In that case, the tenant had indemnified the landlord “against any and all claims” from damages “arising from or out of any occurrence in, upon or at the leased premises.” Id. However, because another portion of the indemnification clause “inferentially suggested” that attorney fees would be incurred only if the landlord was without fault, we found that the clause was inadequate. Id. In McGraw v. S.D. Warren Co., 656 A.2d 1222 (Me. 1995), we held that the contract indemnifying the defendant by a third party for “any claims” caused by anyone employed by the third party or the defendant was not sufficiently specific to indemnify the defendant for its own negligence. Id. at 1224.

[*P17] Secondly, just as with other contracts, we interpret a particular provision in light of the entirety of the agreement between [***14] the parties. See Crowe v. Bolduc, 334 F.3d 124, 137 (1st Cir. 2003) (applying Maine law and finding ambiguity in two agreements read in conjunction). Here, that means that the indemnification clause must be construed in the context of the contract in which it appears. That contract is the entry release.

[*P18] Thus, I look at the indemnification clause through the lens of strict construction, knowing that we disfavor such clauses, and in the context of the entire contract, and I proceed to decide whether the indemnification clause is clear and unambiguous. In doing so, I consider whether there are different interpretations that can be given reasonably to the contract. “[A contractual provision is considered ambiguous if it is reasonably possible to give that provision at least two different meanings.” Villas by the Sea Owners Ass’n v. Garrity, 2000 ME 48, P9, 748 A.2d 457, 461.

[*P19] The indemnification clause states: ”

I . . . shall be liable for the expenses (including legal fees) incurred by the other party or parties in defending, unless the other party or parties are financially adjudged liable on such claim for willful and wanton [***15] negligence.” Several lines above the indemnification clause and in close proximity to it, there is other language in the entry release that discharges NORBA and Sugarloaf from “any and all damages” for “any and all claims.” Lloyd suggests that the indemnification clause is ambiguous and equivocal because it contains an exception for willful and wanton negligence, whereas the other provision in the entry release exculpates NORBA and Sugarloaf from “any and all claims.”

[*P20] There are several possible constructions of the indemnification clause. First, there is the interpretation urged by Sugarloaf that the exception for willful and wanton negligence is inapplicable because Maine does not recognize the tort of willful and wanton negligence. Thus, Sugarloaf and NORBA cannot be found liable by a Maine court for willful and wanton negligence, [**7] and, therefore, the indemnification clause is consistent with the remainder of the release. NORBA proposes a slightly different interpretation: it could never be found liable for willful and wanton negligence because the entry release excuses it from “any and all claims,” which must include willful and wanton negligence. Although both of these [***16] interpretations have the effect of negating the willful and wanton exception in the clause, they are reasonable interpretations.

[*P21] A third reasonable interpretation is that although the entry release speaks to “any and all claims,” it only applies to claims for ordinary negligence. This construction recognizes the principle enunciated in a number of cases and commentaries that exculpatory releases, which immunize a party from its own gross negligence or willful and wanton negligence, are void as against public policy. Farina v. Mt. Bachelor, Inc., 66 F.3d 233, 235 (9th Cir. 1995); Schutkowski v. Carey, 725 P.2d 1057, 1059 (Wyo. 1986); Mary Ann Connell & Frederick G. Savage, Releases: Is There Still a Place for Their Use by Colleges and Universities?, 29 J.C. & U.L. 579, 603 (2003) (“Courts generally agree that one may not exonerate [oneself from liability for willful or wanton misconduct, for gross negligence, or for intentional torts, even if there is broad exculpatory language.”); Walter T. Champion, Jr., Fundamentals of Sports Law § 11:2 at 209 (1990) (“It is universally held that a release will not bar a claim for gross negligence. [***17] “). This interpretation anticipates that Maine courts would hold that Sugarloaf and NORBA are not exempt from willful and wanton negligence even though the release may excuse them from all other claims.

[*P22] Where the terms of an indemnification clause are not clear and unequivocal, the clause will not suffice to indemnify. Emery Waterhouse Co., 467 A.2d at 993. The indemnification clause here is equivocal, unclear, and ambiguous because it is susceptible to reasonable and differing interpretations. The membership release stands in sharp contrast to the entry release. The former clearly and unambiguously releases NORBA and Sugarloaf for “any and all liability” arising from “any negligence, action or omission to act.” The indemnification clause in the entry release provides for the payment of attorney fees “unless the other party or parties are financially adjudged liable on such claim for willful and wanton negligence,” but that same document discharges the indemnitees from “any and all claims.” The entry release does not unequivocally state that the bringing of a negligence claim against the indemnitee will result in the imposition of costs and attorney fees [***18] against the claimant. For this reason, it cannot be the basis for the imposition of an award for attorney fees. ² Thus, I would vacate the summary judgment on the counterclaim and the award of attorney fees assessed against Lloyd.

2 At least one jurisdiction has held that an indemnity clause with an attorney fee provision in a recreational activity release is void as against public policy. Dare v. Freefall Adventures, Inc., 349 N.J. Super. 205, 793 A.2d 125, 136 (N.J. Super. Ct. App. Div. 2002).

Electronic release upheld in Florida federal court for surfing on a cruise ship

Posted: June 18, 2012 | Author: Recreation Law | Filed under: Florida, Release (pre-injury contract not to sue) | Tags: #Cruise, #FlowRider, Admiralty and Maritime Law, Admiralty Law, Electronic Release, Law, MS Oasis of the Seas, Negligence, Oasis of the Seas, Release, Royal Caribbean Cruises, Royal Caribbean International, Wave Loch | Leave a comment

Johnson v. Royal Caribbean Cruises, Ltd., 2011 U.S. Dist. LEXIS 28128; 2011 AMC 1171

Electronic releases are slowly gathering judicial precedent if you can save paper and go electronic.

English: The Flowrider aboard the Royal Caribbean cruiseliner Freedom of the Seas (Photo credit: Wikipedia)

The defendant Royal Caribbean Cruises, Ltd had a ship, the Oasis of the Seas which had a FlowRider on it. A FlowRider is a wakeboard surfing device/pool/wave. The FlowRider was an amusement that was not part of the fees charged for the cruise but required a separate sign-up and fee payment by people wanting to ride the device.

The plaintiff rode the FlowRider for approximately 45 minutes, falling several times. On her last fall, she hit the rear wall and fractured her ankle. Before her injury, she had allegedly watched a safety video that was on the ship’s cabin TVs. She also watched other riders ride.

To ride the FlowRider the plaintiff had to read and sign an electronic release. The release was three pages long and designed so the readers had to scroll through all three of the pages before it could be signed. The plaintiff scrolled through all three pages and electronically signed the release. The plaintiff later argued she thought she was signing a room charge. (Room charges are three pages long?)

The plaintiff argued that admiralty law applied, which would prevent the use of the release, and that the release was void based on equitable grounds. The decision was later overturned because the court found the admiralty statute was vague and the issue of whether the release worked in this case was an issue that should be litigated.

So?

The admiralty law argument states that if admiralty law applies, releases cannot be used to defeat a claim. The legal relationship is similar to the common carrier’s duty to protect passengers because the control of the transportation is outside of the ability of the passenger to control, the common carrier owes the highest degree of care to the passengers. You are not driving; you are a passenger. You can’t slow down, turn, or hit the break from the rear of the cabin.

For admiralty law to apply it must meet a two-prong test. The incident causing the harm:

(1) must have a potentially disruptive impact on maritime commerce, and

(2) the activity must bear a substantial relationship to traditional maritime activity.

The judge quickly denied that argument. He found that the cruise line industry would not be disrupted because of FlowRider injuries in the future, and the activity is purely recreational and has no relationship to navigation, piloting, or shipping: “…as the FlowRider can hardly be considered essential functions of a common carrier…”

The court then looked at whether the release was valid on equitable grounds. The release used bold language to point out the different important sections. The bold language also indicated the nature and purpose of the document. One page explained the potential risks associated with the activity.

The court found it irrelevant that the plaintiff had not been provided a hard copy of the release and found the plaintiff’s attempt to characterize the release as a room charge as a failure to read the language “clearly presented to her.”

So Now What?

Royal Caribbean International’s, “MS Oasis of the Seas” (Photo credit: Wikipedia)

If you do operate in a legal environment where all or part of your activities may be held to a higher standard of care such as admiralty law or as a common carrier, you can use a release to eliminate claims for associated or side-line activities. To do so you will need to identify the actual nature of the activity and why it is not associated with the higher degree of care needed by the other part of the activity.

What also proved instrumental to the court was the video which was available to everyone on the ship and which the plaintiff said she had watched when she signed the release. It is difficult to argue you did not understand the risk when you agreed to watch a video that explained the exact risk that you are claiming is the cause of your injury.

The Waiver further provides that the passenger agrees not to use the FlowRider until she has watched a safety video. At the time of the alleged incident, the FlowRider safety video was in circulation on the stateroom channel, which is available to all passengers on their cabin TVs.

Another factor the court found important was the fact that the release could not be signed without scrolling through all three of the electronic pages.

The Waiver is three pages long and is designed so that passengers must scroll through all of its language before execution; otherwise it is simply impossible to execute the Waiver.

The issue that the release was electronic was never brought up.

Also of importance and pointed out by the court several times was the fact the plaintiff had watched other riders on the FlowRider and had watched them fall as well as having ridden the FlowRider for 40 minutes before suffering her only injury. It is difficult to argue you did not assume the risk when you clearly saw then experienced the risk.

Even though the release was held effective in stopping the suit, the judge pointed out the assumption of risk issues and the fact the injury the plaintiff claimed was pointed out both in the waiver and in the video.

· Electronic Releases are accepted and used.

· Include the risks in your release as well as the necessary legal language

· Make sure the important sections are not hidden but specifically pointed out to the participant.

· If you can, and you should have the participant watch a video of the risks and acknowledge that they watched the video in the release.

· Be able to prove other issues or facts that support the fact the participant knew and understood the risks of the activity.

However, this decision was overturned in J ohnson v. Royal Caribbean Cruises, Ltd, 449 Fed. Appx. 846; 2011 U.S. App. LEXIS 25240 because of the lack of clarity in the US Admiralty Statutes. The basis for overturning the decision was:

(1) the waiver was clearly a contract with a provision that limited the liability of the owner for personal injury or death caused by the negligence or fault of the owner or the owner’s employees or agents,
(2) the cruise ship owner undoubtedly was the owner of a vessel transporting passengers between a port in the United States and a port in a foreign country, and
(3) the statute contained no exceptions regarding the type of activity in which the passenger is partaking when the injury occurs nor where the particular provision is found.

The court did not overturn the issue of whether the electronic part of the waiver was at issue.

Jim Moss

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

Outdoor Recreation Insurance, Risk Management, and Law

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

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

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Johnson v. Royal Caribbean Cruises, Ltd., 2011 U.S. Dist. LEXIS 28128; 2011 AMC 1171

Posted: June 18, 2012 | Author: Recreation Law | Filed under: Florida, Legal Case, Release (pre-injury contract not to sue) | Tags: #Cruise, #FlowRider, Assumption of risk, Electronic Release, Miami, Negligence, Release, Royal Caribbean Cruises, Royal Caribbean International, Summary judgment, Waiver | 2 Comments

To Read an Analysis of this decision see: Electronic release upheld in Florida federal court for surfing on a cruise ship

Johnson v. Royal Caribbean Cruises, Ltd., 2011 U.S. Dist. LEXIS 28128; 2011 AMC 1171

Charlene I. Johnson, Plaintiff, vs. Royal Caribbean Cruises, Ltd., Defendant.

Case Number: 10-21650-CIV-MORENO

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA, MIAMI DIVISION

2011 U.S. Dist. LEXIS 28128; 2011 AMC 1171

March 18, 2011, Decided

March 18, 2011, Filed

COUNSEL: [*1] For Charlene I. Johnson, Plaintiff: Jonathan Bruce Aronson, ARONSON LAW FIRM, Miami, FL; James Madison Walker, Walker & O’Neill PA, South Miami, FL.

For Royal Caribbean Cruises, Ltd., a Liberian corporation, Defendant: Curtis Jay Mase, LEAD ATTORNEY, Lauren E DeFabio, Scott P. Mebane, Valentina M. Tejera, Mase, Lara, Eversole PA, Miami, FL.

JUDGES: FEDERICO A. MORENO, UNITED STATES DISTRICT JUDGE.

OPINION BY: FEDERICO A. MORENO

OPINION

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

This is a personal injury action against the cruise line arising out of an accident that occurred while Plaintiff was taking a private lesson on the FlowRider, a simulated surfing activity onboard the Defendant’s cruise ship. Defendant argues that Plaintiff’s suit is barred by her execution of a waiver which released Defendant from liability for any negligence or damages associated with Plaintiff’s use of the FlowRider. Plaintiff contends that the waiver is void under 46 U.S.C. § 30509 and general maritime law, and in the alternative, that the waiver should not be enforced on equitable grounds. Both parties have moved for summary judgment. Because the simulated surfing activity [*2] is inherently dangerous and is not an essential function of a common carrier, the Court finds that the waiver is valid and enforceable, and accordingly, GRANTS Defendant’s Motion for Summary Judgment and DENIES Plaintiff’s Motion for Summary Judgment.

I. Background

On January 30, 2010, Plaintiff Charlene Johnson, a 35-year-old woman, departed on a seven-day cruise aboard the M/S Oasis of the Seas (“the vessel”), a cruise ship owned and operated by Defendant Royal Caribbean Cruises, Ltd. On January 31, 2010 Plaintiff purchased a private lesson on the FlowRider. Passenger participation in the FlowRider is voluntary and requires payment of a fee that is separate and distinct from the cruise fare. Prior to using the FlowRider, passengers must sign an electronic Onboard Activity Waiver (“Waiver”), which is presented to passengers in color on an electronic screen. The Waiver is attached hereto as Exhibit “A.” The Waiver states at the top in bold, “Express Assumption of Risk – Waiver & Release of Liability.” The Waiver is three pages long and is designed so that passengers must scroll through all of its language before execution; otherwise it is simply impossible to execute the Waiver.

Plaintiff [*3] signed and executed the Waiver, thereby agreeing to “fully release and forever discharge” Defendant from “any and all actions” arising from “any accident [or] injury” in any way connected to Plaintiff’s use of the FlowRider. The Waiver expressly warns passengers that the “rider/participant can, intentionally or inadvertently, move quickly and unexpectedly from side to side or any direction, which will necessarily result in falls [or wipeouts] from the bodyboard” and which may cause serious injury. The Waiver further provides that the passenger agrees not to use the FlowRider until she has watched a safety video. At the time of the alleged incident, the FlowRider safety video was in circulation on the stateroom channel, which is available to all passengers on their cabin TVs. ¹

1 Barbara Cobas, one of the defense witnesses, initially testified in her deposition that the safety video was not in circulation on the vessel at the time of the alleged incident. Ms. Cobas subsequently discovered that she was mistaken and that the video was in fact in circulation. Defendant accordingly filed an errata sheet, which Plaintiff then moved to strike. The Court, finding sufficient justification for [*4] the change, has denied Plaintiff’s motion.

Before her private lesson on the FlowRider, Plaintiff had observed others using the device, and throughout her lesson she had ridden the FlowRider and fallen off her board multiple times. Approximately forty minutes into her private lesson, Plaintiff was instructed to stand on the board, and once Plaintiff was standing, the instructor let go of the board. Plaintiff immediately fell off the board and hit the back wall of the FlowRider, fracturing her right ankle. As a result, Plaintiff filed the instant negligence action against Defendant.

II. Standard of Review

[HN1] Summary judgment is authorized when there is no genuine issue of material fact. Fed. R. Civ. P. 56(c). [HN2] The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970). The burden then shifts to the party opposing the motion, who must set forth specific facts and establish the essential elements of the case on which it will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). [*5] The nonmoving party may not simply rest upon mere allegations or denials of the pleadings; it must present more than a scintilla of evidence in support of its position. A jury must be able reasonably to find for the nonmovant. Anderson v Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). [HN3] In reviewing a motion for summary judgment, the Court must view the evidence and draw all reasonable inferences in the light most favorable to the non-moving party. Id. at 255.

III. Discussion

The parties have not cited any case with facts similar to this one-where the injury resulted from a recreational and inherently dangerous activity on board a cruise ship, for which a waiver was executed. The core issue presented by the parties’ Motions for Summary Judgment is the validity and enforceability of the Waiver. Plaintiff argues that the Waiver is void under 46 U.S.C. § 30509 and general maritime law, and in the alternative, that the Waiver should not be enforced on equitable grounds. Defendant argues that general maritime law does not apply under the facts of this case, and even if it does, 46 U.S.C. § 30509 does not apply to invalidate the Waiver. Defendant also argues that equity does not prevent enforcement [*6] of the Waiver.

A. Whether General Maritime Law Applies

At the outset, the Court notes that [HN4] admiralty jurisdiction must exist before the Court may apply admiralty law. See Doe v. Celebrity Cruises, Inc., 394 F.3d 891, 899 (11th Cir. 2004). Whether admiralty jurisdiction exists is an independent determination that must be made by the Court. See id. at 900. In order for admiralty jurisdiction to exist, two tests must be satisfied: the location test and the connection test. See Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534, 115 S. Ct. 1043, 130 L. Ed. 2d 1024 (1995) (“[A] party seeking to invoke federal admiralty jurisdiction . . . over a tort claim must satisfy conditions both of location and of connection with maritime activity.”). The location test, requiring that the incident causing the alleged harm occurred in navigable waters, is plainly satisfied.

The connection test has two prongs, both of which must be met: (1) the incident causing the alleged harm must have a potentially disruptive impact on maritime commerce; and (2) the activity giving rise to the incident must bear a substantial relationship to traditional maritime activity. See id.; Doe, 394 F.3d at 900. The Court finds that neither [*7] prong of the connection test is met. While the cruise line industry is itself maritime commerce, it is unlikely that the cruise line industry would be disrupted by future FlowRider-related injuries, as falling off the board and injuring oneself is an inherent and unavoidable risk of using the FlowRider, an activity which is completely voluntary and must be purchased separately from the cruise fare. Even assuming, arguendo, that the first prong of the connection test is satisfied, the second prong is clearly not, as the FlowRider is a purely recreational activity that bears no relationship to traditional maritime activities such as navigation, piloting, and shipping. See Foster v. Peddicord, 826 F.2d 1370, 1376 (4th Cir. 1987) (“[T]his case is about swimming and diving . . . It is not about piloting, shipping, or navigational error, or other aspects of traditional maritime activity. There is simply no predicative relationship upon which an otherwise typical tort claim may properly be described as relating to ‘matters with which admiralty is basically concerned.'”) (quoting Exec. Jet Aviation, Inc. v. City of Cleveland, Ohio, 409 U.S. 249, 270, 93 S. Ct. 493, 34 L. Ed. 2d 454 (1972)). Therefore, because neither prong [*8] of the connection test is satisfied, Federal admiralty jurisdiction is not invoked and general maritime law does not apply.

B. Whether 46 U.S.C. § 30509 Applies

Even assuming, however, that admiralty jurisdiction exists and general maritime law applies, 46 U.S.C. § 30509-the statute under which Plaintiff challenges the Waiver-is inapplicable here. 46 U.S.C. § 30509, formerly cited as 46 U.S.C. § 183(c), reads in pertinent part as follows:

[HN5] (a) Prohibition.–

(1) In general.– The owner, master, manager, or agent of a vessel transporting passengers between ports in the United States, or between a port in the United States and a port in a foreign country, may not include in a regulation or contract a provision limiting–

(A) the liability of the owner, master, or agent for personal injury or death caused by the negligence or fault of the owner or the owner’s employees or agents; or

(B) the right of a claimant for personal injury or death to a trial by court of competent jurisdiction.

(2) Voidness.–A provision described in paragraph (1) is void.

Plaintiff argues that the Waiver in this case is void under § 30509 because it attempts to absolve Defendant from its own negligence in the operation, design, [*9] maintenance, and supervision of the FlowRider. This argument, however, ignores [HN6] the policy rationale behind the statute, which is that common carriers should not be able to secure immunity from liability for their own negligence in providing transportation and other essential functions of common carriers. See Chervy v. Peninsular & Oriental Steam Navigation. Co., 243 F. Supp. 654, 655 (S.D. Cal. 1964) (“[T]he provisions of Title [46 U.S.C. § 30509]… were intended to apply as between common carrier and passengers.”); Weade v. Dichmann, Wright & Pugh, 337 U.S. 801, 807, 69 S. Ct. 1326, 93 L. Ed. 1704 (1949) (“The duty of a common carrier . . . is to transport for hire whoever employs it.”); Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U.S. 397, 441, 9 S. Ct. 469, 32 L. Ed. 788 (1889) (“[T]he law does not allow a public carrier to abandon altogether his obligations to the public, and to stipulate for exemptions which are unreasonable and improper, amounting to an abnegation of the essential duties of his employment.”); Shultz v. Florida Keys Dive Ctr, Inc., 224 F.3d 1269, 1271 (11th Cir. 2000) (“Congress enacted [§ 30509]… to put a stop to practices like providing [exculpatory clauses] on the reverse side of steamship tickets.”) (internal [*10] quotations omitted); Chan v. Society Expeditions, Inc., 123 F.3d 1287, 1292 (9th Cir. 1997) (“[A]dmiralty law has generally prohibited carriers from limiting their liability for transporting passengers from ship to shore.”); Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1336 (11th Cir. 1984) (relying on § 30509 in holding that the provision of an adequate sanitary system on a cruise ship is an “essential function” for which a sea carrier cannot disclaim responsibility).

[HN7] While courts have expanded the essential functions of a ship as common carrier to include the provision of “comfortable accommodations” to passengers, see id. at 1334, recreational and inherently dangerous activities such as the FlowRider can hardly be considered essential functions of a common carrier, nor are they at all related to a carrier’s duty to provide safe transportation to its passengers. Plaintiff has cited to no case suggesting otherwise.

On the other hand, Defendant has cited to two scuba diving cases which, though not directly on point, are particularly illustrative. In Shultz, 224 F.3d at 1269, a widower sued a dive center for the wrongful death of his wife, who died of an apparent drowning while [*11] scuba diving on a trip conducted by the dive center. Id. at 1270. The district court granted summary judgment for the dive center on the basis of a liability release signed by the decedent which the court determined to be valid under 46 U.S.C. § 30509. The Eleventh Circuit, after examining the legislative history of § 30509, affirmed, finding that the statute did not cover the release. In particular, the court stated:

[HN8] Congress enacted [§ 30509] . . . to ‘put a stop to’ practices like ‘providing on the reverse side of steamship tickets that in the event of damage or injury caused by the negligence or fault of the owner or his servants, the liability of the owner shall be limited.’ That ‘practice’ that Congress intended to outlaw was much different than the practice here-requiring a signed liability release to participate in the recreational and inherently risky activity of scuba diving.

Id. at 1271 (internal quotations omitted).

In Borden v. Phillips, 752 So. 2d 69 (Fla. 1st DCA 2000), a decedent’s personal representative sued the defendant boat owner and operator for the wrongful death of the decedent, who died while participating in an advanced scuba diving course taught by the defendant. [*12] Prior to participating in the course, the decedent had signed a waiver releasing the defendant from liability for injuries related to the decedent’s participation in the course. The court held that although 46 U.S.C. § 30509 applied to the dive boat’s voyage because it was a vessel engaged in passenger transportation, id. at 72, the waiver was not void under § 30509, as the alleged negligence was related solely to the activity of scuba diving and the decedent’s death had no relationship to the defendant’s operation or maintenance of the vessel, id. at 73.

While both Shultz and Borden are distinguishable in several respects, as neither involved an injury on board a cruise ship, the Court nonetheless finds their reasoning persuasive and wholly applicable to the instant case. The FlowRider, like scuba diving, is a recreational and inherently dangerous activity. The alleged negligence here is related solely to the FlowRider, and Plaintiff’s injury stems entirely from her use of the FlowRider and has no relationship to the operation or navigation of the cruise ship. The Waiver does not attempt to limit Defendant’s liability associated with its duty to provide safe transport or any other [*13] essential functions, but applies solely to limit Defendant’s liability associated with Plaintiff’s use of the FlowRider, a recreational and inherently dangerous activity that Defendant would simply not be able to offer its passengers otherwise.

Moreover, [HN9] courts have upheld waivers releasing land-based operators from liability for similarly inherently dangerous activities. See In re. Compl. of Royal Caribbean Cruises, Ltd., 403 F. Supp. 2d 1168 (S.D. Fla. 2005)(jet-skiing); Waggoner v. Nags Head Water Sports, Inc., 141 F.3d 1162 (4th Cir. 1998) (same); Theis v. J & J Racing Promotions, 571 So. 2d 92 (Fla. 2d DCA 1990) (race car driving). [HN10] To declare void an otherwise valid waiver simply because the complained-of injury occurred on board a cruise ship, even though the activity giving rise to the injury was totally unrelated to the ship’s duty to provide safe transport or other essential functions, defies both the legislative history of § 30509 as well as common sense. Accordingly, the Court finds that 46 U.S.C. § 30509 does not apply to invalidate the Waiver here.

C. Whether the Waiver is Valid on Equitable Grounds

Finally, the Court rejects Plaintiff’s argument that the Waiver should not [*14] be enforced on equitable grounds. The Waiver clearly and unambiguously released Defendant from liability for any negligence or damages associated with Plaintiff’s use of the FlowRider. The bolded language at the top of the first page of the Waiver conspicuously indicated the nature and purpose of the document, and the second page of the Waiver specifically explained the potential risks associated with using the FlowRider. Furthermore, Plaintiff had observed others using the FlowRider, and had ridden the FlowRider and fallen off her board multiple times throughout her private lesson before injuring herself, so she clearly knew or should have known that she could fall and consequently injure herself while using the FlowRider. That Plaintiff was not provided a hard copy of the Waiver is irrelevant, as the Waiver is only three pages long and Plaintiff had to scroll through its entire language in order to execute her full signature on the third and final page. Moreover, it is Defendant’s policy not to provide a hard copy of the Waiver to any of its passengers. Finally, while Plaintiff asserts she thought she was signing for a room charge when executing the Waiver, this mistaken belief is [*15] solely the result of [HN11] her own failure to read the contractual language clearly presented to her, for which the law of equity provides no remedy.

IV. Conclusion

The Court finds the Waiver here-limited to the inherently dangerous simulated surfing activity-to be valid and enforceable. Because Plaintiff’s execution of the Waiver released the cruise line from liability for any negligence or damages associated with Plaintiff’s use of the FlowRider, Plaintiff’s suit for negligence is barred. Accordingly, it is

ADJUDGED that Defendant’s Motion for Summary Judgment (D.E. 93), filed on January 28, 2011, is GRANTED. Further, it is

ADJUDGED that Plaintiff’s Motion for Summary Judgment (D.E. 90), filed on January 28, 2011, is DENIED.

DONE AND ORDERED in Chambers at Miami, Florida, this 18th day of March, 2011.

/s/ Federico A. Moreno

FEDERICO A. MORENO

UNITED STATES DISTRICT JUDGE

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Ohio Appellate decision upholds the use of a release for a minor for a commercial activity.

Posted: June 11, 2012 | Author: Recreation Law | Filed under: Minors, Youth, Children, Ohio, Release (pre-injury contract not to sue) | Tags: #OH, Minor, Ohio, Release | Leave a comment

Wolfe v. AmeriCheer, Inc., 2012 Ohio 941; 2012 Ohio App. LEXIS 827

More support that the original Zivich decision did not just apply to non-profits or charities.

Many decisions from other states have dismissed Ohio’s court decision upholding the right of a parent to sign away a minor’s right to sue. Several other state courts have dismissed the Ohio decision Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998), decision as “non-persuasive.” These courts have identified the decision as applying only to charities or non-profits to keep insurance costs down.

This decision from an Ohio Appellate court dismisses those ideas and holds a release used by a commercial enterprise signed by a parent on behalf of minor stops the lawsuit by the minor.

This case involved an accident at a cheerleading competition. (Yes, it is outside the normal range of cases I write about; however, it is valuable to the outdoor recreation community.) The plaintiff was 13 years of age and part of a cheerleading team sponsored by a commercial business. This team was not part of a public or private school.

The competition was put on by the defendant. To enter the competition the mother of the plaintiff had to sign a Medical Treatment Authorization and Release of Liability. The language of the release part of the form is included in the decision, but that language barely makes the minimum language necessary to be a release.

The plaintiff was a “base” who supported and lifted other cheerleaders into the air. In this case, the “flyer” fell landing on the plaintiff injuring her. She suffered a T8 spinal compression fracture.

The plaintiff sued based on the:

…wreckless, wanton and complete disregard for the safety of Plaintiff, Defendant failed to provide the proper spotters and coaching, as a result Plaintiff was caused to sustain severe and permanent injuries to her person when her team members fell onto her person.

She claimed the failure of the spotters to be in a proper position was more than negligence it “constituted reckless and wanton disregard for Lindsay’s [the plaintiff] safety.” These allegations would take the issue out of simple negligence, which can be protected by a release, to an issue that must be decided by a jury.

The defendants argued the release and the doctrine of primary assumption of the risk. The trial court granted the defendants motion for summary judgment holding both the release and the doctrine of primary assumption of the risk barred the plaintiff’s claims.

So?

In Ohio, the doctrine of Primary Assumption of the risk is occurs when a plaintiff:

…voluntarily engaged in a recreational activity assumes the inherent risks of that activity and cannot recover for injuries sustained while engaging in that activity unless the defendant acted recklessly or intentionally in causing the injuries

As long as the rules of the game or sport are being followed or someone is acting recklessly or intentionally, a player cannot recover from their injuries.

Negligence is synonymous with:

…with heedlessness, thoughtlessness, inattention, inadvertence, and oversight, and conveys the idea of inadvertence as distinguished from premeditated or formed intention, or a conscious purpose to do a wrong act or to omit the performance of a duty.

Negligence is not converted into wanton misconduct unless the evidence establishes a disposition to perversity on the part of the tortfeasor.

Contrast negligence with Willful, wanton or reckless conduct which is defined by Ohio’s law as:

….a failure to exercise any care whatsoever by one who owes a duty of care to another, and the failure must occur under circumstances where there is a great probability that harm will result from the lack of care

Evidence of willful, wanton or reckless conduct can be shown by acts of “…stubbornness, obstinacy, or persistency in opposing that which is right, reasonable, correct, or generally accepted as a course to follow in protecting the safety of others.”

Reckless disregard for the safety of another occurs if one does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable person to realize, not only that his conduct creates an unreasonable risk of harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.

The court characterized the cheerleading competition as a sporting event. As such, unreasonable risk by participants at a sporting event must take into account the way the particular game is played, including the rules, customs and foreseeable conduct of the participants.

To continue her claim based on the greater than simple negligence allegations, the complaint and motions of the plaintiff must assert acts or omissions on the part of the defendant that prove the willful, wanton or reckless conduct or misconduct. The court could not find anything in the pleadings or the motions that supported those claims.

These facts do not demonstrate a disposition to perversity on the part of the spotters or a failure to exercise any care whatsoever. Therefore, an issue as to whether the spotters’ conduct was wanton does not exist.

The court upheld the lower court decision. In doing so the court did make one statement, which was quite interesting.

It is unfortunate that Lindsay was seriously injured at the competition, and we realize that, because of the accident, she has suffered a great deal. However, there was no evidence of recklessness or wantonness that renders AmeriCheer [Defendant] liable for damages.

So Now What?

This decision upholds the prior decision in Zivich. Decisions that I’ve written about where Zivich was dismissed will not be changed, but those decisions will have a lesser effect in the future. See Delaware holds that mothers signature on contract forces change of venue for minors claims and Alabama follows the majority of states and does not allow a parent to sign away a minor’s right to sue, (Zivich only applies to charities), Texas follows majority with appellate court decision holding a parent cannot sign away a minor’s right to sue and Iowa does not allow a parent to sign away a minor’s right to sue (Zivich only applies to protect volunteers).

This case also supports the use of a release in Ohio to stop a lawsuit by a minor when a minor is injured and the release is signed by a parent or guardian.

What do you think? Leave a comment.

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Wolfe v. AmeriCheer, Inc., 2012 Ohio 941; 2012 Ohio App. LEXIS 827

Posted: June 11, 2012 | Author: Recreation Law | Filed under: Legal Case, Minors, Youth, Children, Ohio, Release (pre-injury contract not to sue) | Tags: #Cheerleading, #OH, Minor, Ohio, Release, Summary judgment | Leave a comment

Wolfe v. AmeriCheer, Inc., 2012 Ohio 941; 2012 Ohio App. LEXIS 827

Lindsay M. Wolfe, Plaintiff-Appellant, v. AmeriCheer, Inc., Defendant-Appellee.

No. 11AP-550

COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN COUNTY

2012 Ohio 941; 2012 Ohio App. LEXIS 827

March 8, 2012, Rendered

PRIOR HISTORY: [**1]

APPEAL from the Franklin County Court of Common Pleas. (C.P.C. No. 10CVH-05-7045).

DISPOSITION: Judgment affirmed.

COUNSEL: Plevin & Gallucci Co., LPA, Michael D. Shroge, and Frank L. Gallucci, III, for appellant.

Reminger Co., L.P.A., Martin T. Galvin and Rafael P. McLaughlin, for appellee.

JUDGES: TYACK, J. BROWN, P.J., and DORRIAN, J., concur.

OPINION BY: TYACK

OPINION

(REGULAR CALENDAR)

DECISION

TYACK, J.

[*P1] Plaintiff-appellant, Lindsay M. Wolfe, was seriously injured while competing in a cheerleading event. She appeals from the May 24, 2011 decision and entry granting defendant-appellee AmeriCheer, Inc.’s (“AmeriCheer”) motion for summary judgment. For the reasons that follow, we affirm.

[*P2] Lindsay M. Wolfe, then 13 years old, participated in a cheerleading competition on February 2, 2003 at the Columbus Convention Center. Americheer sponsored the competition known as the 2003 Winter Championship. As a prerequisite to Lindsay being allowed to participate in the competition, Lindsay’s mother, Barbara Wolfe, signed a “Medical Treatment Authorization and Release of Liability” before the competition. The release contained, in pertinent part, the following language:

I further release AmeriCheer and its representatives from any claims for injury [**2] or illness that may be sustained as a result of their participation in this event. I acknowledge and understand that in participating in this event, there is the possibility they may sustain physical illness or injury in connection with his or her participation. I further understand and acknowledge that my daughter [or] [son] and I assume the full risk of physical injury by their participation and I further release the event location, AmeriCheer, Inc., as well as it’s [sic] representatives, from any claims for personal injury, [or] illness that they may sustain during camp.

[*P3] Lindsay was a member of the Xtreme Team Athletics All-Star Cheer & Dance, a private all-star cheerleading team. Xtreme team members trained and competed in a style of cheerleading characterized by gymnastic-type stunts. At the time of her injury, Lindsay was acting as a “base” who, along with others, supported and lifted another cheerleader, the “flyer,” into the air. At a point in the routine where Lindsay had assisted in raising the flyer, the flyer slipped or lost her balance and fell, landing on Lindsay. Lindsay sustained a T8 spinal compression fracture as a result of the fall.

[*P4] Teams use spotters when cheerleaders [**3] are learning new skills, practicing, or performing stunts in which one or more cheerleaders are elevated above the floor. The spotters are there to catch a cheerleader in case of a fall. AmeriCheer provided the spotters used for the 2003 Winter Championship. In her complaint, Lindsay alleged that:

[D]ue to the wreckless [sic], wanton and complete disregard for the safety of Plaintiff, Defendant failed to provide the proper spotters and coaching, as a result Plaintiff was caused to sustain severe and permanent injuries to her person when her team members fell onto her person.

(Complaint, at ¶ 3.)

[*P5] AmeriCheer moved for summary judgment on the grounds that the release signed by Lindsay’s mother barred any negligence claims. Additionally, AmeriCheer argued that the doctrine of primary assumption of risk also acted to bar Lindsay’s claims.

[*P6] Lindsay responded that the spotters’ failure to be properly positioned and failure to move in when the team started the stunt constituted reckless and wanton disregard for Lindsay’s safety, not mere negligence. Therefore, she argued there existed a genuine issue of material fact as to whether the conduct of the spotters was wanton or reckless.

[*P7] The trial [**4] court found that the release signed by Barbara Wolfe on behalf of her daughter was valid, and therefore, the trial court concluded that Lindsay was precluded, by operation of the lease, from bringing any negligence claims against AmeriCheer related to her injuries. The court also agreed with AmeriCheer that the doctrine of primary assumption of risk precluded the negligence claims. Lindsay has not challenged those issues on appeal.

[*P8] The trial court then considered whether there existed a genuine issue of material fact concerning the issue of willful, wanton, or reckless conduct. The court found that Lindsay had failed to present evidence that satisfied the threshold required for a showing of wanton or reckless conduct.

[*P9] On appeal, Lindsay assigns the following as error:

I. The trial court erred in granting Defendant’s Motion for Summary Judgment because material facts of willful, wanton or reckless conduct exist, placing that issue in dispute for a jury to determine.

II. The trial court erred in concluding that Plaintiff set forth no facts other than those alleged by Plaintiff herself. The trial court’s own Order citing statements garnered from the deposition testimony of Defendant’s President [**5] and CEO clearly establishe a question of fact for which a jury is to determine.

[*P10] At the outset, we address the issue of the deposition testimony of Elizabeth Rossetti, the president and CEO of AmeriCheer. Ms. Rossetti’s deposition was not filed with the court of common pleas. AmeriCheer attached a few pages of excerpts from Ms. Rossetti’s deposition as an exhibit to its reply in support of summary judgment, but the deposition itself was never filed with the court of common pleas. Only the following three depositions were made part of the record: 1) Lindsay Wolfe’s deposition taken on Friday, October 10, 2008; 2) Barbara Wolfe’s deposition taken on December 9, 2008; and 3) Lindsay Wolfe’s second deposition taken on March 15, 2011. A copy of Ms. Rossetti’s entire deposition was attached as part of AmeriCheer’s appendix to its appellate brief. However, since the complete deposition was not made part of the record, we will not consider the entirety of Ms. Rossetti’s deposition.

[*P11] Nevertheless, both parties and the trial court relied on the excerpts of Ms. Rossetti’s deposition without objection in the summary judgment proceedings. The trial court could and did rely on those representations [**6] when it quoted some of Ms. Rossetti’s testimony. Sicard v. Univ. of Dayton, 104 Ohio App.3d 27, 30, 660 N.E.2d 1241 (2d Dist.1995), fn. 1. [HN1] “A trial court, however, can consider non-complying documents in adjudicating a summary judgment motion when no objection to the documents is raised.” New Falls Corp. v. Russell-Seitz, 10th Dist. No. 08AP-397, 2008 Ohio 6514, ¶ 12. “Absent an objection, a trial court has the discretion to consider unauthenticated documents when rendering summary judgment.” Columbus v. Bahgat, 10th Dist. No 10AP-943, 2011 Ohio 3315, ¶ 16. Accordingly, we shall consider the deposition excerpts as well since both parties argue that Ms. Rossetti’s deposition supports their respective arguments.

[*P12] Lindsay’s assignments of error challenge the trial court’s ruling on AmeriCheer’s motion for summary judgment. We [HN2] review the trial court’s grant of summary judgment de novo. Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41, 654 N.E.2d 1327 (9th Dist.1995). [HN3] Summary judgment is proper only when the party moving for summary judgment demonstrates: (1) no genuine issue of material fact exists; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds could come to but one conclusion, [**7] and that conclusion is adverse to the party against whom the motion for summary judgment is made, when the evidence is construed in a light most favorable to the non-moving party. Civ.R 56(C); State ex rel. Grady v. State Emp. Relations Bd., 78 Ohio St. 3d 181, 1997 Ohio 221, 677 N.E.2d 343 (1997).

[*P13] [HN4] Under summary judgment motion practice, the moving party bears an initial burden to inform the trial court of the basis for its motion and to point to portions of the record that indicate that there are no genuine issues of material fact on a material element of the non-moving party’s claim. Dresher v. Burt, 75 Ohio St.3d 280, 1996 Ohio 107, 662 N.E.2d 264 (1996). Once the moving party has met its initial burden, the non-moving party must produce competent evidence establishing the existence of a genuine issue for trial. Id. Additionally, a moving party cannot discharge its burden under Civ.R. 56 simply by making conclusory assertions that the non-moving party has no evidence to prove its case. Id. Rather, the moving party must point to some evidence that affirmatively demonstrates that the non-moving party has no evidence to support his or her claims. Id. “Permitting a nonmoving party to avoid summary judgment by asserting nothing more than ‘bald contradictions [**8] of the evidence offered by the moving party’ would necessarily abrogate the utility of the summary judgment exercise. C.R. Withem Enterprises v. Maley, 5th dist. No. 01 CA 54, 2002 Ohio 5056, at ¶24. Courts would be unable to use Civ.R. 56 as a means of assessing the merits of a claim at an early stage of the litigation and unnecessary dilate the civil process.” Greaney v. Ohio Turnpike Comm., 11th Dist. No. 2005-P-0012, 2005 Ohio 5284, ¶ 16. Bearing this standard in mind, we shall address the two assignments of error as one.

[*P14] Because of the release signed by Lindsay’s mother and the doctrine of primary assumption of risk, Lindsay is precluded from bringing a negligence action against AmeriCheer. [HN5] Under the doctrine of primary assumption of the risk, a plaintiff voluntarily engaged in a recreational activity assumes the inherent risks of that activity and cannot recover for injuries sustained while engaging in that activity unless the defendant acted recklessly or intentionally in causing the injuries. Marchetti v. Kalish, 53 Ohio St.3d 95, 559 N.E.2d 699 (1990), syllabus; Crace v. Kent State Univ., 185 Ohio App.3d 534, 2009 Ohio 6898, ¶ 13, 924 N.E.2d 906 (10th Dist.).

[*P15] In Crace, this court found that the doctrine [**9] of primary assumption of risk barred a negligence claim against a university in connection with a cheerleading injury. Crace, the captain of the Kent State University varsity cheerleading team, was the flyer during a human pyramid stunt. The first two attempts failed, and both times Crace fell from around 15 feet in the air where the spotter at the front of the formation caught her. On the third attempt the stunt failed again. When Crace came down for the third time, the spotter behind her panicked, shielded his eyes and moved out of the way. As a result, Crace’s fall was unbroken, and caused catastrophic injuries. Id. at ¶ 7.

[*P16] As was the case with Crace, Lindsay can only proceed with her personal injury claims if AmeriCheer acted willfully, wantonly, or recklessly. The issue is whether Lindsay has set forth competent evidence establishing a genuine issue of material fact on the issue of willful, wanton, or reckless conduct.

[*P17] [HN6] Ordinarily, the issue of willful, wanton, or reckless conduct is a question for the jury. Matkovitch v. Penn Cent. Transp. Co., 69 Ohio St. 2d 210, 214, 431 N.E.2d 652 (1982). In order to find wanton misconduct, there must be a failure to exercise any care whatsoever by one who [**10] owes a duty of care to another, and the failure must occur under circumstances where there is a great probability that harm will result from the lack of care. Hawkins v. Ivy, 50 Ohio St.2d 114, 363 N.E.2d 367 (1977). By way of contrast, the term “negligence” is synonymous with heedlessness, thoughtlessness, inattention, inadvertence, and oversight, and conveys the idea of inadvertence as distinguished from premeditated or formed intention, or a conscious purpose to do a wrong act or to omit the performance of a duty. Tighe v. Diamond, 149 Ohio St. 520, 525, 80 N.E.2d 122 (1948). Negligence is not converted into wanton misconduct unless the evidence establishes a disposition to perversity on the part of the tortfeasor. Roszman v. Sammett, 26 Ohio St.2d 94, 96-97, 269 N.E.2d 420, (1971), paragraph two of the syllabus. Evidence of a disposition to perversity may be shown by acts of stubbornness, obstinacy, or persistency in opposing that which is right, reasonable, correct, or generally accepted as a course to follow in protecting the safety of others. Id.

[*P18] [HN7] Reckless disregard for the safety of another occurs if one does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know [**11] of facts which would lead a reasonable person to realize, not only that his conduct creates an unreasonable risk of harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent. Thompson v. McNeill, 53 Ohio St.3d 102, 104-05, 559 N.E.2d 705 (1990).

[*P19] “What constitutes an unreasonable risk under the circumstances of a sporting event must be delineated with reference to the way the particular game is played, i.e., the rules and customs that shape the participants’ ideas of foreseeable conduct in the course of a game.” Id.

[*P20] Examining the evidence in the light most favorable to the non-moving party, Lindsay has set forth evidence that two of the three spotters provided by AmeriCheer were not in the positions they should have been at the time of the injury. Whether those actions or inactions create a factual issue as to wanton or reckless misconduct must be determined by applying the evidence to the standards for wanton or reckless disregard for safety. Only one of the spotters was on the mat during the formation of the stunt. The videotape of the competition was not made part of the record, and therefore it is not possible to determine the exact [**12] placement of the spotters during Lindsay’s routine. All that is known is that at least one spotter was standing on the edge of the mat, and two others were observing in the back. (Barbara Wolfe Depo., at 36.) According to Ms. Rossetti’s testimony while watching the video, the middle spotter was moving forward as the team was preparing to execute the mount. Barbara Wolfe estimated the spotters were at the edge of the mat approximately six to eight feet from the cheerleaders. (Barbara Wolfe Depo., at 72.) Lindsay estimated the spotters were 25 feet from where the cheerleaders were forming the stunt. (Lindsay Wolfe Depo., at 165.)

[*P21] Ms. Rossetti testified that spotters were not even necessary at AmeriCheer competitions, but were there to provide additional lines of safety and to help prevent injuries if they were able to do so. (Elizabeth Rossetti Depo., at 17.) When the cheerleaders are about to perform a stunt like the one in which Lindsay was injured, Ms. Rossetti said: “They should be present, near the – – on the mat. If they’re on the mat, they’re close enough to be at a given particular time, if they’re needed.” When asked where on the mat they should be positioned, Ms. Rossetti answered: [**13] “Well, it depends on the routine. It’s hard to point out. But there’s no – – again, it’s judgment on their part. It’s not trained; it’s learned. It’s judgment. If they feel that they can be there or they’re there, then it’s their judgment to make that call. * * * It’s not my judgment to make that call. * * * It’s their judgment to be on the mat and provide an additional level of safety, yes.” (Elizabeth Rossetti Depo, at 52.)

[*P22] In Dresher, 75 Ohio St.3d at 292, the Supreme Court of Ohio explicitly stated that [HN8] when a court receives a properly presented motion for summary judgment, a non-moving party may not rely upon the mere allegations of its complaint, but, instead, must demonstrate that a material issue of fact exists by directing the court’s attention to evidentiary materials of the type listed in Civ.R. 56(C). Id. Here, Lindsay has failed to cite to facts that support her contention. For example, Lindsay argues that there was a great probability that harm would result from lack of care. She claims that the spotters’ failure to move in when Lindsay’s team began the stunt is a perverse act and conscious disregard of their duty to provide safety. These types of statements add nothing [**14] to the analysis required by a court in addressing a motion for summary judgment.

[*P23] There is no evidence in the record that supports these assertions. Cheerleading carries inherent risks to those participants engaging in stunts of the kind performed at the Winter Championship. (Barbara Wolfe Depo., at 36; see Crace at ¶ 34, 35.) There was no evidence that in 2003 there were standards for spotters or even how many spotters were needed. (Elizabeth Rossetti Depo., at 17, 60.) The only evidence put forth was testimony that two of the spotters were not standing on the mat. Ms. Rossetti watched the video during her deposition, and testified that one spotter was moving in. (Elizabeth Rossetti Depo., at 90.) There was no testimony that the spotters had a duty to move closer when the team began the stunt apart from Lindsay’s observation that at every competition she attended the spotters would walk up. (Lindsay Wolfe Depo., at 66-67.) Lindsay claims that when the cheerleaders were practicing or learning stunts that the coaches stood on the mat and spotted for them. While for summary judgment purposes this statement is taken as true, it is somewhat of a red herring. Ms. Rossetti testified that, [**15] at camp, the spotters can be close by, but, in a competition, they cannot always be on top of them because they will interfere with something else going on. (Elizabeth Rossetti Depo., at 91.) Lindsay also testified that the coaches spotted them during practices. She then stated: “Once we were comfortable with, you know, and they were comfortable with us doing it, yes, they would like stand on the edge of the mat and watch.” (Lindsay Wolfe Depo., at 66.) Taken at face value, by the time a team is ready to perform the routine in competition, the coaches, who formerly spotted, would stand at the edge of the mat. Thus, the evidence suggests the spotters were properly positioned. Even if, as Lindsay testified, the spotters should have moved closer in preparation for the stunt, at least one of them did. These facts do not demonstrate a disposition to perversity on the part of the spotters or a failure to exercise any care whatsoever. Therefore, an issue as to whether the spotters’ conduct was wanton does not exist.

[*P24] Similarly, evidence regarding reckless misconduct is lacking. As stated above, in order to show reckless misconduct, one must act or intentionally fail to act when it is his duty [**16] to the other to do so, knowing or having reason to know of facts which would lead a reasonable person to realize, not only that his conduct creates an unreasonable risk of harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent. Thompson, 53 Ohio St.3d at 104-05.

[*P25] The [**17] unrefuted evidence is that in 2003 AmeriCheer was under no duty to provide spotters at its competitions, but did provide them to create an additional layer of safety. There was testimony that the spotters were, themselves, trained cheerleaders from AmeriCheer’s summer camp. There was no evidence that AmeriCheer inadequately trained its spotters. According to Lindsay, the spotters were in a location where coaches would stand after they were comfortable with how the cheerleaders were performing the routine. Lindsay testified that she had no opportunity to catch the flyer as she was falling. Lindsay’s mother believed that if the spotters had been doing their job the accident probably would not have been as severe or have happened. She also acknowledged that it was possible that the spotter could have been right there and not have been able to stop the accident.

[*P26] There is no evidence that the spotters themselves recognized any facts that would lead them to believe that their conduct could or did create an unreasonable risk of harm to another. There was no evidence at all from the spotters at the event. At best, their actions could be considered negligent. Therefore, Lindsay has failed to [**18] establish a genuine issue of material fact with regard to recklessness.

[*P27] The first assignment of error is overruled. The second assignment of error is also overruled since all parties relied on the deposition testimony of Ms. Rossetti and, as discussed above, it was not error for the trial court to rely on the excerpts. Since our review is de novo and we considered all the evidence that was in the record, there was no error.

[*P28] It is unfortunate that Lindsay was seriously injured at the competition, and we realize that, because of the accident, she has suffered a great deal. But there was no evidence of recklessness or wantonness that renders AmeriCheer liable for damages.

[*P29] Accordingly, appellant’s assignments of error are overruled and the judgment of the Franklin County Court of Common Pleas is affirmed.

Judgment affirmed.

BROWN, P.J., and DORRIAN, J., concur.

Insurance company release fails, even in the state where the company is located

Posted: April 4, 2012 | Author: Recreation Law | Filed under: Insurance, Release (pre-injury contract not to sue) | Tags: healthinsurance, Insurance, Insurance policy, Law, Montana, New York, Sports Underwriters, Waiver | Leave a comment

Sport Underwriters.com release has some good points, but overall it has major flaws.

I received this release, which was provided with a quote for insurance. The quote was great. The quote required the insured to have a Waiver and Release System:

Waiver & Release System:

The insured must maintain a system to regularly secure signed Waiver and Release forms from participants. For minor participants, these waiver/release forms should be signed by a parent or guardian. Unintentional error on your part in securing Waiver and Release forms will not void your coverage in the event of a claim by a participant; however, your failure to maintain an adequate system to regularly secure Waiver and Release forms will void your coverage in the event of a claim. All waivers & medical release forms must be approved by underwriters; if you do not have one, we will provide for you.

Overall, that is a good thing. It is also not so different from what most insurance companies want to achieve. However, very few make it such a mandatory issue.

However, I am curious if their system allows for states to not have a system if they are prohibited by law or where releases have no legal value. (See: States that do not Support the Use of a Release.) Montana not only does not allow the use of a release, if an outfitter is found using one, their state license will be yanked, and they will be prohibited from engaging in any business.

Let’s look at the release itself:

This release came from a Sport Underwriters.com. The release also says it is a division of Sport and Special Event Insurance Agency USA which can be found here. That agency is located in New York, which does not allow the use of a release for commercial activities. (See New York Law Restricting the Use of Releases)

The release in its first paragraph states it covers “traveling to and from activity sites in which I am about to engage.”Some states consider transportation to be defined as a “public policy” which is not covered by a release. Some states allow a release to cover transportation if it is incidental to the activity; however, this release does not go deep enough into the issue, in my opinion, to make it effective to stop a suit over a car or bus accident.

The release also states in bold letters that the signor “…will wear approved protective gear as decreed by the governing body of the sport…” Very few outdoor recreation programs have a governing body that decrees safety gear. Some state or federal regulations may require some gear such as PFDs on whitewater for commercial operators, but very little in the rest of the industry.

The release, midway down the page, has a page for the signor to fill in the name of the company or person the release protecting. This is just plain confusing. What if that is skipped, is the release invalid? What if they spell the name wrong or put the wrong name down?

Then the release starts using the term releasees. Releasees is the term applied to the name in the blank. The language is quite broad, but the people being released are, by nature of the way the release is written, very narrowly defined. I generally, in any document being used with the general consumer, avoid using a legal term. It just becomes confusing for the consumer to understand, if they read the document and can make judges and juries mad. Use the name of the company so that everyone knows no matter how confusing, at least who is being protected.

The release also says you are indemnifying the releasee. I’ve not read a single decision that allows indemnification to work in a release. There is a major difference between indemnifying against losses and stopping them to begin with, unless the indemnification language is written very specifically for a specific reason.

The release has two areas for signatures. One area is for adults to sign, and one area is for parents to sign. Consequently, either you are going to have a parent sign twice or signature line that is blank. There is no place for the minor to sign the agreement.

The parental signage line is preceded by a clause.

FOR PARTICIPANTS OF MINORITY AGE: This is to certify that I, as a Parent, Guardian, Temporary Guardian with legal responsibility for this participant, do consent and agree not only to his/her release of all Releasees, but also to release and indemnify the Releasees from any and all liability incident o his/her involvement in these programs for myself, my heirs, assigns and next of kin.

First, the paragraph is directed to the participants in the first line then refers to the parent guardian. I’ve never heard of a Temporary Guardian. My concern with this is, volunteer youth leaders (church groups, Scout groups, etc.) probably believe they are temporary guardians and sign the form. The outfitter will probably accept the form, not knowing that the signature of the adult has no legal value.

Then the telltale clause that makes me think the release was not written by an attorney: “…agree not only to his/her release of all Releasees, but also to release and indemnify the Releasees…” This language says you are releasing the outfitter and releasing and indemnifying the outfitter. In effect, whoever wrote this stuttered.

Then hint two: “…for myself, my heirs, assigns and next of kin.” The person signing is signing away their right to sue, their heirs, which may include their child’s right to sue, and the adults next of kin. If the child is a minor, they have not signed away the child’s right to sue or the right to sue of the child’s heirs or next of kin.

None of the language above conforms to the required language in Colorado or Florida or the language that other statutes and court cases suggest. As far as a release against the claims of a minor this release fails miserably.

Finally, there is no jurisdiction and venue clause. See Four releases signed and all of them thrown out because they lacked one simple sentence!

My Legal Stutter

An attorney has to write your release. Your release must meet your state laws. Your release must meet the requirements of your program.

Free releases cost you a fortune. The amount of time you will spend defending a release given to you by an insurance company or created by someone who does not understand the legal ramifications is not worth it. No trial will cost you less than ten days, and if you are making less than $1500 in profit in ten days, you need to get another job. J

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Every time someone comes to your business or every time they sign up again they should sign a release. This time it got rid of a major problem.

Posted: March 19, 2012 | Author: Recreation Law | Filed under: New Jersey, Release (pre-injury contract not to sue), Ski Area | Tags: Adhesion Contract, Exculpatory Agreement, Federal Rules of Civil Procedure, Injury, Mountain Creek, Plaintiff, Pre-injury Release, Release, ski area, skiing, Summary judgment, Unconscionability | Leave a comment

Dearnley v. Mountain Creek, 2012 N.J. Super. Unpub. LEXIS 527

Releases work for future injuries and for injuries that may have all ready occurred.

This is a case where as part of the employment at a ski area, the family of the employee was able to get season passes. A requirement for the season pass was to sign a release.

In this case, the plaintiff was injured skiing on a season pass issued to the family member of an employee. The plaintiff sued the ski resort for his injuries. After the lawsuit had commenced but before trial, the plaintiff got another season pass and signed another release. The second release language was sufficient to stop the lawsuit.

The release was called a post injury release now because it stopped a lawsuit after the injury. Normally, I discuss pre-injury releases. Pre-Injury releases are releases that are signed in case someone is injured in a negligent manner.

Summary of the case

After it was discovered the plaintiff had signed a second release, the defense moved to amend their answer and filed a motion for summary judgment. The trial court granted the motion to amend and add the defense of release and accord and satisfaction. The plaintiff appealed.

“Release” is an affirmative defense. An affirmative defense is one that must be plead immediately in the answer of the defendant or the defense is waived. Release as a defense means that the parties have executed an agreement that releases the defendant from any claims.

“Accord and Satisfaction” are also an affirmative defense. Accord and Satisfaction means the party have come to an agreement, an accord and resolved their differences to the satisfaction of all parties.

The plaintiff argued that the post injury release was unconscionable. The contract should not be enforced because of:

“….inadequacies, such as age, literacy, lack of sophistication, hidden or unduly complex contract terms, bargaining tactics, and the particular setting existing during the contract formation process.”

An unconscionable contract or a contract of adhesion is one that the terms were offered on a take or leave it basis the terms are unjust to the point the court cannot allow the contract to stand. The contract must be so bad as to shock the conscience of the court. However, the contract cannot just be bad to one party.

Here, there are several factors that would not make the contract unconscionable. The contract is not for a necessary service. The services could be received from the same party in other ways. (Instead of signing a release and getting a season pass, the plaintiff could have purchased daily lift tickets and not signed a release.) The services were available from other providers.

The court found there were no coercion, duress, fraud or “sharp practices” by the defendant. The agreement did not change the duty of care nor did it “incentivize negligence.” Each of the contracting parties gained or gave away something of value.

So Now What?

Here the defendant was lucky. The plaintiff unknowingly signed a release to get his season pass that had the language necessary to stop a claim that had already occurred. There are two important points to bring up from this case.

1 Make sure your release has language to top future claims and past claims.

2. Every single time have every single-person sign a release. Get a new season pass, you sign the release again. Go rafting again, you sign the release. Buy another widget sign the release.

You just never know when a release from the future may stop a claim from the past.

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Dearnley v. Mountain Creek, 2012 N.J. Super. Unpub. LEXIS 527

Posted: March 19, 2012 | Author: Recreation Law | Filed under: Legal Case, Release (pre-injury contract not to sue), Ski Area | Tags: Adhesion Contract, Appeal, Defendant, Exculpatory Agreement, Law Division, Mountain Creek, New Jersey Superior Court, Pre-injury Release, Release, ski area, skiing, Summary judgment, Unpub | Leave a comment

Dearnley v. Mountain Creek, 2012 N.J. Super. Unpub. LEXIS 527

Derek Dearnley and Vicky Dearnley, his wife, Plaintiffs-Appellants, v. Mountain Creek, its agents, servants and employees, Defendant-Respondent.

Docket no. A-5517-10T1

Superior Court of New Jersey, Appellate Division

2012 N.J. Super. Unpub. LEXIS 527

February 29, 2012, Argued

March 12, 2012, Decided

Notice: not for publication without the approval of the appellate division.

Please consult new jersey rule 1:36-3 for citation of unpublished opinions.

Prior History: [*1]

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-540-09.

CORE TERMS: season, summary judgment, ski area, unconscionability, unconscionable, affirmative defenses, resort, Law Division, contract of adhesion, exculpatory provisions, releasor’s, surgery, ski, pass holder, bold, tort liability, de novo, contracting party’s, public policy, sliding scale, unenforceable, snowboarding, exculpatory, non-moving, favorable, equitable, adhesion, binding, bargain, quod

COUNSEL: Evan D. Baker argued the cause for appellants (Law Offices of Rosemarie Arnold, attorneys; Mr. Baker, of counsel and on the brief).

Samuel J. McNulty argued the cause for respondent (Hueston McNulty, P.C., attorneys; Mr. McNulty, of counsel and on the brief; John F. Gaffney and Stephen H. Shaw on the brief).

JUDGES: Before Judges Harris and Koblitz.

OPINION

PER CURIAM

Plaintiffs Derek Dearnley and Vicky Dearnley appeal from the June 16, 2011, summary judgment dismissal of their six-count complaint. Plaintiffs sought tort remedies for injuries suffered by Mr. Dearnley while snowboarding at defendant Mountain Creek Resort, Inc.’s ski area in Vernon. We affirm.

I.¹

1 This appeal arises from the motion court’s grant of summary judgment in defendant’s favor. Accordingly, we present the evidence in the light most favorable to plaintiffs. See Durand v. The Nutley Sun, N.J. , (2012) (slip op. at 3 n.1) (citing G.D. v. Kenny, 205 N.J. 275, 304 (2011) (citations omitted); R. 4:46-2(c)).

Between 1998 and 2010, Mrs. Dearnley was employed by defendant in its retail department. As part of her compensation benefits, [*2] she and her family members were entitled to apply for, and obtain, a free season pass to use defendant’s facilities at its Vernon ski resort. On November 25, 2008, because her husband desired to take advantage of this benefit for the 2008-2009 winter season, Mrs. Dearnley applied for, and obtained, the pass. She signed, on his behalf, a document entitled, “Season Pass Contract, Student Ski & Ride Voucher Program, Rules and Conditions of Sale, Release of Liability and Indemnity Agreement” (the 2008 agreement). The 2008 agreement contained exculpatory provisions purporting to release tort claims before they occurred. For example, the pass holder “fully release[d] Mountain Creek FROM ANY AND ALL LIABILITY for personal injury, death or property damage arising out of or resulting from [the pass holder’s] participation in this sport, MOUNTAIN CREEK’S NEGLIGENCE, conditions on or about the premises and facilities or the operations of the ski area” (capitalization in the original). The outcome of this appeal, however, does not turn on this language.

On January 4, 2009, Mr. Dearnley was snowboarding at the Mountain Creek ski area when he suffered an accident that he attributes to defendant’s [*3] negligence and breach of its duties under N.J.S.A. 5:13-1 to -11 (the Ski Act). As a result of the accident, Mr. Dearnley incurred serious injuries, which required immediate emergency surgery to stabilize his back by the implantation of metal rods and screws. According to his answers to interrogatories, Mr. Dearnley ultimately spent approximately six weeks in the hospital, had to endure three surgeries, and underwent weeks of physical therapy and rehabilitation.

On October 13, 2009, plaintiffs filed their personal injury and per quod complaint against defendant in the Law Division, Sussex Vicinage. Defendant’s answer listed ten affirmative defenses, but did not assert that the 2008 agreement’s exculpatory provisions barred the action.

Two months later, on December 21, 2009, while his wife was still employed by defendant, Mr. Dearnley applied for a season pass for the 2009-2010 winter season. He was presented with, and signed, a two-page document entitled, “Mountain Creek Resort, Inc. 2009-’10 Season Pass Wavier” (the 2009 agreement). In bold, capitalized print at the top of the first page, the 2009 agreement stated, “RELEASE, WARNINGS AND DISCLAIMERS ON SKIING.”

At the top of the second [*4] page, to which Mr. Dearnley affixed his signature, the following appeared in bold typeface:

I FURTHER RELEASE AND GIVE UP ANY AND ALL CLAIMS AND RIGHTS THAT I MAY NOW HAVE AGAINST MOUNTAIN CREEK RESORT, INC. THIS RELEASES ALL CLAIMS, INCLUDING THOSE OF WHICH I AM NOT AWARE AND THOSE NOT MENTIONED IN THIS RELEASE. THIS RELEASE APPLIES TO CLAIMS RESULTING FROM ANYTHING WHICH HAS HAPPENED UP TO NOW.

The 2009 agreement also stated in bold typeface: “I AM AWARE THAT THIS CONTRACT IS LEGALLY BINDING AND THAT I AM RELEASING LEGAL RIGHTS BY SIGNING IT.”

During discovery, the 2008 and 2009 agreements were exchanged between the parties’ attorneys. Upon the realization of what Mr. Dearnley had signed, plaintiffs filed a motion “for an Order barring the affirmative defenses related to two adhesion contracts.” Defendant filed a cross-motion seeking (1) summary judgment, (2) permission to file an amended answer, and (3) denial of plaintiffs’ motion.

On April 29, 2011, Judge Edward V. Gannon heard oral argument. The judge granted defendant’s motion to amend its answer to permit the pleading of (1) release and (2) accord and satisfaction as affirmative defenses. The judge noted that the 2009 agreement [*5] was executed after both the filing of plaintiffs’ complaint and defendant’s answer, and therefore could not have been contemplated by the first exchange of pleadings. Reciprocally, he denied plaintiff’s motion to bar the affirmative defenses. Finally, he reserved decision on what he called “a matter of first impression with regard to this particular type of release.”

On June 16, 2011, Judge Gannon entered an order granting summary judgment dismissing plaintiffs’ complaint with prejudice. He explained his decision in a thorough ten-page statement of reasons, taking pains to carefully explicate the two agreements and then analyze them under the lens of applicable law. This appeal ensued.

II.

Orders granting summary judgment pursuant to Rule 4:46-2 are reviewed de novo, and we apply the same legal standard employed by the Law Division. Canter v. Lakewood of Voorhees, 420 N.J. Super. 508, 515 (App. Div. 2011). In performing our appellate function we consider, as did the motion court, “‘whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in [*6] favor of the non-moving party.'” Advance Hous., Inc. v. Twp. of Teaneck, 422 N.J. Super. 317, 327 (App. Div. 2011) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)), certif. granted, N.J. (Jan. 24, 2012).

Similarly, when the legal conclusions of a motion court’s Rule 4:46-2 summary judgment decision are reviewed on appeal, “‘[a] trial court’s interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference[,]’ and, hence, an ‘issue of law is subject to de novo plenary appellate review.'” Estate of Hanges v. Metro. Prop. Cas. Ins. Co., 202 N.J. 369, 382-83 (2010) (quoting City of Atl. City v. Trupos, 201 N.J. 447, 463 (2010)).

Judge Gannon dismissed plaintiffs’ claims based upon the release contained in the 2009 agreement, which was personally executed by Mr. Dearnley months after his injuries and surgeries, months after he hired a lawyer, and months after he filed suit. From our review of the undisputed factual record, we are satisfied that this case does not present any novel or first impression issues. Rather, it revolves around an ordinary release —- not exculpatory —- clause and is governed [*7] by familiar principles of contract interpretation. As Judge Gannon stated,

Invalidating the agreed upon waiver would signal judicial mistrust of our citizen’s ability to intelligently enter contracts, in which benefits derive from the assumptions of burdens. In this case, Mr. Dearnley surrendered his right to maintain this suit in exchange for the benefits afforded to season pass holders. A contracting party’s assumption of a substantial burden is no basis for interfering with our citizens’ right to freely contract.

We affirm substantially for the reasons expressed by Judge Gannon, and add only the following brief comments.

Plaintiffs condemn the 2009 agreement as a contract of adhesion, fraught with unconscionabilty, and contrary to public policy. We emphasize that our review is limited to the 2009 agreement, not the 2008 agreement. We are not concerned with defendant’s efforts to exculpate itself from tort liability before an invitee becomes injured at its ski area. Instead, we parse Mr. Dearnley’s release of a claim after it allegedly accrued.

We begin our analysis of the enforceability of the release contained in the 2009 agreement with recognition of the deep-seated principle that [*8] contracts will be enforced as written. Vasquez v. Glassboro Serv. Ass’n, Inc., 83 N.J. 86, 98-100 (1980). Ordinarily, courts will not rewrite contracts to favor a party, for the purpose of giving that party a better bargain. Relief is not available merely because enforcement of the contract causes oppression, improvidence, or unprofitability, or because it produces hardship to one of the parties. Brunswick Hills Racquet Club, Inc. v. Route 18 Shopping Ctr. Assocs., 182 N.J. 210, 223 (2005). A court cannot “‘abrogate the terms of a contract unless there is a settled equitable principle, such as fraud, mistake, or accident, allowing for such intervention.'” Id. at 223-24 (quoting Dunkin’ Donuts of America, Inc. v. Middletown Donut Corp., 100 N.J. 166, 183-84 (1985)).

Rational personal and economic behavior in the modern post-industrial world is only possible if agreements between parties are respected. The reasonable expectations created by mutual assent ought to receive the protection of the law and courts should not be encouraged to fashion a better arrangement for a party because of a gaffe to which the other party is not privy. In other words, avoidance of a contract is a very stern [*9] remedy that requires clear evidence demonstrating that the consequences of the mistake are so grave that enforcement of the contract would be unconscionable. That formidable threshold has not been surmounted here.

Notwithstanding the foregoing, a contract provision that is procedurally and substantively unconscionable can be set aside. See Muhammad v. Cnty. Bank of Rehoboth Beach, 189 N.J. 1, 15 (2006), cert. denied, 549 U.S. 1338, 127 S. Ct. 2032, 167 L. Ed. 2d 763 (2007). “[P]rocedural unconscionability . . . ‘can include a variety of inadequacies, such as age, literacy, lack of sophistication, hidden or unduly complex contract terms, bargaining tactics, and the particular setting existing during the contract formation process[.]'” Ibid. (quoting Sitogum Holdings, Inc. v. Ropes, 352 N.J. Super. 555, 564-66 (Ch. Div. 2002). A contract of adhesion, presented by the drafting party to the other party on a take-it-or-leave-it basis, as here, typically involves “some characteristics of procedural unconscionability[.]” Id. at 16. The determination “that a contract is one of adhesion, however, ‘is the beginning, not the end, of the inquiry’ into whether a contract, or any specific term therein, [*10] should be deemed unenforceable based on policy considerations.” Id. at 28 (citing Rudbart v. N. Jersey Dist. Water Supply Comm., 127 N.J. 344 (1992)).

Substantive unconscionability essentially refers to the inclusion within a contract of “harsh or unfair one-sided terms.” Id. at 15 (citing Sitogum, supra, 352 N.J. Super. at 564-66). It is also described as “‘the exchange of obligations so one-sided as to shock the court’s conscience.'” B & S Ltd., Inc. v. Elephant & Castle Intern., Inc., 388 N.J. Super. 160, 176 (Ch. Div. 2006)(quoting Sitogum, supra, 352 N.J. Super. at 565).

Generally, courts must undertake “a careful fact sensitive examination into [claims of] substantive unconscionability.” Id. at 16 (footnote omitted). “When making the determination that a contract of adhesion is unconscionable and unenforceable, we consider, using a sliding scale analysis, the way in which the contract was formed and, further, whether enforcement of the contract implicates matters of public interest.” Stelluti v. Casapenn Enters., LLC, 203 N.J. 286, 301 (2010).

The release provisions of the 2009 agreement are not the analytical equivalent of its exculpatory provisions. “The law does not favor exculpatory [*11] agreements because they encourage a lack of care.” Gershon v. Regency Diving Ctr., Inc., 368 N.J. Super. 237, 247 (App. Div. 2004). For that reason, courts closely scrutinize attempts to contract in advance to release tort liability. “‘[C]ourts have not hesitated to strike limited liability clauses that are unconscionable or in violation of public policy.'” Hojnowski v. Vans Skate Park, 187 N.J. 323, 333 (2004) (quoting Lucier v. Williams, 366 N.J. Super. 485, 491 (App. Div. 2004)).

The subject release does not call forth any of the foregoing concerns. Mr. Dearnley’s 2009 agreement with defendant neither eroded defendant’s duty of care nor did it incentivize negligence. Each of the contracting parties gained or gave away something of value. There was no coercion, duress, fraud, or sharp practices afoot. Public policy is not offended by requiring a non-incapacitated adult to honor the type of promise given here. See Raroha v. Earle Fin. Corp., 47 N.J. 229, 234 (1966) (holding that in the absence of fraud, misrepresentation or overreaching by the releasee, in the absence of a showing that the releasor was suffering from an incapacity affecting his ability to understand the meaning of [*12] the release and in the absence of any other equitable ground, it is the law of this State that the release is binding and that the releasor will be held to the terms of the bargain he willingly and knowingly entered).

Judge Gannon properly calibrated the “sliding scale” of our unconscionabilty jurisprudence and correctly determined that the 2009 agreement’s release was enforceable. Mr. Dearnley’s releasor’s remorse is an insufficient basis to return this matter to the Law Division for trial.²

2 Mrs. Dearnley’s claims are entirely derivative of her husband’s and consequently her per quod action must fall in the wake of Mr. Dearnley’s release. See Ryan v. Renny, 203 N.J. 37, 62 n.1 (2011) (noting that “the viability of [that claim] is subject to the survival of [her husband]’s claim” (quoting Sciarrotta v. Global Spectrum, 194 N.J. 345, 350 n.3 (2008)).)

Affirmed.

Why accident reports can come back to haunt you.

Posted: March 12, 2012 | Author: Recreation Law | Filed under: New Hampshire, Release (pre-injury contract not to sue) | Tags: Alpine Slide, Attitasha Ski Area, Court, Expert Witness, Federal Supplement, Medicaid, Motion in Limine, New Hampshire Department of Safety, Ski Resort | 4 Comments

Herbst v. L.B.O. Holding, Inc., 2011 DNH 72; 783 F. Supp. 2d 262; 2011 U.S. Dist. LEXIS 46977; 85 Fed. R. Evid. Serv. (Callaghan) 285

Accident reports can be admitted, if the accident is substantially similar, which proves to the jury that you don’t mind injuring people.

In this case, the plaintiff as an adult, was using a ski area alpine slide when his sled left the track causing him injury. He sued for his injuries. The ski area,

Image via Wikipedia

Attitash Bear Peak Resort, in Bartlett, New Hampshire had filed a motion in limine with the court which gave rise to this decision.

A motion in limine is a motion where one party asks the court to exclude testimony or statements being proffered by the other party. Here the Ski area was attempting to have prior reports from accidents on the alpine slide kept out of the trial. The ski area and the plaintiff were also attempting to restrict or prohibit other testimony and exhibits also.

One of the first issues was the background and history of the plaintiff. The plaintiff was trying to prevent the defendant from brining in the issue that the plaintiff had been convicted of mail fraud. An issue like this is based on whether the felony conviction is a conviction for dishonesty or fraud. Here it was a felony conviction for dishonesty. A felony normally cannot be brought in, absent special circumstances if the conviction is greater than ten (10) years old. Although the plaintiff’s conviction was greater than ten years old, because of the type of conviction, the judge thought it was relevant and allowed the conviction to be used at trial.

The next issue was the amount of medical bills incurred by the plaintiff. The plaintiffs’ medical bills were paid by Medicaid. As such, those bills when paid were discounted substantially. The plaintiff wanted to claim the medical bills were the amount prior to the Medicaid discount. Here the judge found that the full value of the medical bills was to be admitted not the discounted amount paid by Medicaid.

The value of the medical bills is always an important point. The jury usually bases its damages as a function of the medical bills.

The defendant wanted to exclude expert testimony of the plaintiff’s expert witness about warning signs or the inadequacy thereof. The plaintiff’s expert had only mentioned the signs in one sentence of his report and included photographs of the signs in his report. An expert witness report must contain a complete statement of the opinions he or she will express and the basis or the reasons for those opinions. The defense argued the one sentence was not enough to be a complete statement of the opinion. However, the court found it to be enough and will allow the testimony of the expert about the inadequacy of the signage into the trial.

The final argument was the plaintiff wanted to admit into evidence the accident reports of the 22 similar prior accidents. Six of the reports came from the New Hampshire Department of Safety, and 15 were from Attitash itself. One of the reports was based on an observation of the plaintiff’s expert witness when he was at the site investigating the scene.

So?

For an accident report to be admitted into trial the report must be substantially similar to the accident at issue.

Evidence of prior accidents is admissible . . . only if the proponent of the evidence shows that the accidents occurred under circumstances substantially similar to those at issue in the case at bar

The court found that four of the reports would be admitted of the six filed with the state and the 15 kept by the defendant. Those six were substantially similar to the accident that injured the plaintiff. Here, that similarity was the sled leaving the track on a curve.

The court found the following four reports significant and similar.

· the accident on July 12, 2005 (where the rider “came through [the] dip, came to next set of banks, came out of track”);

· the accident on July 23, 2005 (where the “sled came off track” near a bank);

· the accident on August 3, 2005 (where the rider “hit the curve, jumped the track”); and

· the accident on July 16, 2006 (where the rider “came from a right turn into a left turn and his cart flew off”).

The court also agreed to allow the report of the plaintiff’s expert witness of the accident he observed.

The issue then becomes what does this prove?

I believe it proves that it proves to the jury that the defendant has a dangerous track. The jury will see four reports from injuries substantially similar to the one the plaintiff is complaining about. How else could you look at these reports, except as proof that the track was dangerous AND that the defendant had done nothing to correct the problems or make the track safe.

Here were accidents for five years prior to the plaintiff’s accident and one, the expert witness one, occurring after the injury that showed there was a problem.

No matter, how much your employees and expert witness argue that the track is not dangerous, the jury is going to be looking at reports, written documents, prepared by you the defendant, saying the exact opposite.

So Now What?

Do you not create accident reports. No, you must keep records of problems, until they are fixed or used in litigation. However the reason for the reports is critical. If you are keeping them to track accidents, you are doing it for the wrong reason. You use them to do two things and two things only.

· Provide information in case there is a need such as state or federal investigation or litigation.

· To solve problems.

1. Any accident report must be solely that, the basic facts, who, what, where, when; never ever, ever a why.

Accident reports should never have speculation or opinion in them.

2. You must do something with the information you gather on accident reports. You cannot just collect them. If you notice a trend or locations fix it.

If you can’t fix it, put up a sign, put it in the waiver, instruct the people about it and tell them they will get hurt if they don’t pay attention.

Below is the accident report used by a major ski area. If you look, the information collected is done so to gather information and prevent litigation.

Nothing more than the absolute essentials is captured. These are 5 X 7 cards. The information on the form is 100% from the injured party. No information is put on the card by the patrollers unless it is direct information acquired by the patroller such as the release number setting on the skis, etc.

If there are witnesses then there are 5 X 7 cards for them to complete. There was also a form if a ski school student was injured. If the accident was a life changing incident, major trauma then there were more forms. But for 99% of the accidents, the entire report fit in a patroller’s pocket.

If the injured party cannot fill out the card, then the patroller asks the questions and writes down what the injured party says.

No opinion, no estimates, no guesses, just the facts. (Remember Dragnet the TV show from the 60s.)

Then, once you have the information it must be used. Where are the problems, can we fix the problems, should we warn people about the problems? What can we do to prevent injuries, and if we can’t can we warn people they don’t get injured?

If not, those reports will show up in trial, and probably not to help you.

For an article about bad accident reports see Be Afraid, be very afraid of pre-printed forms for your recreation business.

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Herbst v. L.B.O. Holding, Inc., 2011 DNH 72; 783 F. Supp. 2d 262; 2011 U.S. Dist. LEXIS 46977; 85 Fed. R. Evid. Serv. (Callaghan) 285

Posted: March 12, 2012 | Author: Recreation Law | Filed under: Legal Case, New Hampshire, Release (pre-injury contract not to sue) | Tags: Alpine Slide, Attitash, Attitash Ski Area, Federal Supplement, Motion in Limine, New Hampshire, United States, United States district court | Leave a comment

Herbst v. L.B.O. Holding, Inc., 2011 DNH 72; 783 F. Supp. 2d 262; 2011 U.S. Dist. LEXIS 46977; 85 Fed. R. Evid. Serv. (Callaghan) 285

Edward Herbst v. L.B.O. Holding, Inc., d/b/a Attitash Bear Peak Resort

Civil No. 09-cv-233-JL

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

2011 DNH 72; 783 F. Supp. 2d 262; 2011 U.S. Dist. LEXIS 46977; 85 Fed. R. Evid. Serv. (Callaghan) 285

May 2, 2011, Decided

May 2, 2011, Filed

COUNSEL: [**1] For Edward Herbst, Dina Herbst, Plaintiffs: R. Peter Taylor, McNeill Taylor & Gallo PA, Dover, NH.

For L.B.O. Holding, Inc., Defendant: Thomas B.S. Quarles, Jr., Devine Millimet & Branch PA (Manchester), Manchester, NH.

JUDGES: Joseph N. Laplante, United States District Judge.

OPINION BY: Joseph N. Laplante

OPINION

[*264] MEMORANDUM ORDER

This case arises from injuries, including a broken ankle, that plaintiff Edward Herbst suffered after falling off an alpine slide at Attitash Bear Peak Resort, a ski area in Bartlett, New Hampshire that offers the slide as a summer recreational activity. Herbst brought suit against the resort’s owner, L.B.O. Holding, Inc. (“Attitash”), asserting claims for strict products liability and negligence. Specifically, he alleges that the slide is unreasonably dangerous to its riders, that Attitash was negligent in operating it, and that Attitash failed to adequately instruct and warn Herbst on its proper use. Attitash denies those allegations and asserts that Herbst’s [*265] own negligence caused the accident. This court has subject-matter jurisdiction under 28 U.S.C. § 1332(a)(1) (diversity).

Both parties have moved in limine to admit or exclude various types of evidence at the upcoming jury trial, currently [**2] scheduled for May 2011. See L.R. 16.2(b)(3). Specifically, Attitash has moved to admit evidence of Herbst’s prior conviction for mail fraud, to exclude evidence of the face amount of Herbst’s medical bills, and to preclude Herbst’s expert witness from testifying about the adequacy of the slide’s warnings. Herbst, in turn, has moved to admit evidence of prior and subsequent accidents on Attitash’s alpine slide. Following oral argument, this court rules on the limine motions as set forth below.

I.Attitash’s motion to admit prior conviction¹

1 Document no. 19.

Attitash has moved to admit evidence that Herbst was convicted of felony mail fraud, see 18 U.S.C. § 1341, in a New York federal court on July 30, 1999, when he was 46 years old. See United States v. Herbst, No. 98-cr-771-001 (S.D.N.Y. July 27, 1999). Specifically, Herbst pled guilty to using the mails in connection with bribing an employee of the New York City Department of Finance to reduce or eliminate his overdue property taxes and interest. He served a three-month prison sentence, ending on or before January 1, 2000, and then remained on supervised release for a period of three years.

As a general rule, [HN1] “evidence that any witness [**3] has been convicted of a crime shall be admitted” for impeachment purposes “if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.” Fed. R. Evid. 609(a)(2). Herbst concedes that his mail fraud conviction involved dishonesty or false statement and therefore falls within that rule. See, e.g., United States v. Orlando-Figueroa, 229 F.3d 33, 46 (1st Cir. 2000).

But evidence of such a conviction “is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is later, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.” Fed. R. Evid. 609(b).²

2 Rule 609(b) also requires “sufficient advance written notice to provide the adverse party with a fair opportunity to contest the use” of the prior conviction, which Herbst concedes he has received.

More than ten years have passed since Herbst was released from the confinement imposed [**4] for his mail fraud conviction. Attitash argues that Herbst is to blame for that fact, because he waited nearly three years after his 2006 accident to bring this action, and then requested a trial continuance in 2010. But Attitash has not shown that Herbst acted improperly in either regard, or that he “manipulated either the calendar or the scheduling process in order to postpone the trial and allow the clock to run on [his] conviction.”³ United States v. Nguyen, 542 F.3d 275, 280 (1st Cir. 2008) (rejecting a similar argument that “had [the] trial started a few months earlier–as did the trial of [certain] codefendants–the ten-year window would have [*266] remained open”). So there is no reason not to apply Rule 609(b) here. Id. at 281.

3 Indeed, personal injury actions are routinely brought near the end of the limitations period, so as to allow the nature of the injury to become fully understood.

[HN2] “Given the tenor of Rule 609(b), common sense suggests that felony convictions more than ten years old should be admitted only sparingly and in especially compelling circumstances,” based on a “particularized showing” that their probative value substantially outweighs their prejudicial effect. Id. at 278 [**5] (citing 4 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 609.06[1] (2d ed. 2007)). Factors to consider in making that determination “may include (i) the impeachment value of the particular convictions, (ii) their immediacy or remoteness . . .; (iii) the degree of potential prejudice that they portend; (iv) the importance of the defendant’s testimony; and (v) the salience of the credibility issue in the circumstances of the particular case.” United States v. Brito, 427 F.3d 53, 64 (1st Cir. 2005).

Here, Herbst’s mail fraud conviction has a direct bearing on his credibility and veracity, and thus a high degree of impeachment value. He demonstrated a willingness to defraud others to improve his own financial situation. Because Herbst is the primary, and in some respects only, witness to his accident and the ride(s) leading up to it (which allegedly affected his state of mind, making him feel the need to slide faster), and because Attitash contends that Herbst himself was at fault for the accident, his testimony is likely to be of great importance at trial, and his credibility is likely to be a particularly salient issue for the jury.

“Of course, [HN3] the mere fact that [**6] [a witness’s] credibility is in issue . . . cannot, by itself, justify admission of evidence of convictions over ten years old,” because that “would make the ten year limit in Rule 609(b) meaningless.” United States v. Brown, 603 F.2d 1022, 1028 (1st Cir. 1979). But the case for admitting evidence of Herbst’s mail fraud conviction is especially compelling here, given the fraudulent nature of his crime, the likely importance of his testimony and credibility with regard to events that only he (and, in some respects, his daughter) witnessed, and that his conviction, which occurred when he was 46 years old, is barely older than ten years.⁴

4 In fact, as noted supra, had this action been filed earlier, or trial not been continued, impeachment would have been permitted under Rule 609(a).

While the admission of a prior felony conviction always carries some risk of prejudice, that risk is much lower here than it would be, for example, in a criminal case brought against Herbst. See, e.g., Orlando-Figueroa, 229 F.3d at 46 (noting that “Rule 609 is primarily concerned with potential unfairness to a [criminal] defendant when his prior convictions are offered” and concluding that, even under the particular [**7] circumstances of that criminal case, the court could have admitted evidence of a witness’s mail fraud conviction under Rule 609(b), over the defendant’s objection).

The risk of prejudice is further reduced because Herbst suffered objectively verifiable injuries in the accident (including a broken ankle) and is not the only person who has done so in recent years. See Part IV, infra. Given that evidence, the jury is unlikely to regard the accident itself, or Herbst’s decision to bring this lawsuit, as fraudulent, or to reject his claims merely because he has a criminal history. Rather, it is likely to consider Herbst’s conviction for the limited, and proper, purpose of determining whether to believe his specific testimony regarding his conduct on the slide, the reasons for it (including his state of mind), and the pain and suffering it caused him.

[*267] Having considered the specific facts and circumstances of this case, the court concludes that the probative value of Herbst’s mail fraud conviction substantially outweighs its prejudicial effect, and that it is in the interests of justice to admit it into evidence. Attitash’s motion to admit that evidence is therefore granted. To further reduce [**8] any risk of prejudice, Herbst may request a limiting instruction to the jury, both when the evidence is admitted and in the final jury charge. See, e.g., United States v. Tracy, 36 F.3d 187, 194 (1st Cir. 1994).

II.Attitash’s motion to exclude medical bills⁵

5 Document no. 20.

Attitash has moved to preclude Herbst from introducing evidence of the face amounts of his medical bills, arguing that the reasonable value of medical services is the amount actually paid for them (here, by Medicaid), not the higher amount billed. [HN4] This court has repeatedly refused, however, “‘to exclude evidence of the billed cost of medical services’ in favor of ‘the amounts actually paid’ in satisfaction of those costs by the plaintiff’s health insurers.” Reed v. Nat’l Council of Boy Scouts of Am., Inc., 706 F. Supp. 2d 180, 190 (D.N.H. 2010) (quoting Aumand v. Dartmouth Hitchcock Med. Ctr., 611 F. Supp. 2d 78, 91 (D.N.H. 2009)); see also Bartlett v. Mut. Pharm. Co., 2010 U.S. Dist. LEXIS 142906, 2010 WL 3156555, at * 2; Williamson v. Odyssey House, Inc., 2000 DNH 238, 2000 WL 1745101, at *1 (DiClerico, D.J.).

As explained more fully in those decisions, Medicaid write-offs fall within the scope of New Hampshire’s collateral source [**9] rule, which “provides that ‘if a plaintiff is compensated in whole or part for his damages by some source independent of the tort-feasor, he is still permitted to make full recovery against the tort-feasor.'” Reed, 706 F. Supp. 2d at 190 (quoting Moulton v. Groveton Papers Co., 114 N.H. 505, 509, 323 A.2d 906 (1974)). Accordingly, this court has not only permitted plaintiffs to present evidence of the amounts billed, but has prohibited defendants from presenting evidence of the amounts actually paid, deeming such evidence unfairly prejudicial. See, e.g., Bartlett, 2010 U.S. Dist. LEXIS 142906, 2010 WL 3156555, at *2 (citing Fed. R. Evid. 403).

Attitash notes that a number of New Hampshire Superior Court judges have reached the opposite conclusion. But this court considered much, if not all, of that case law in Reed, which noted that there is Superior Court precedent in both directions and announced that “unless and until this state’s version of the collateral source rule is changed by the New Hampshire legislature or New Hampshire Supreme Court, this court will continue to apply it to billed amounts ‘written off’ by a plaintiff’s providers, in accordance with existing law here and in the vast majority of other jurisdictions.” [**10] 706 F. Supp. 2d at 190, 194.⁶

6 This is not to say, however, that the court finds the contrary Superior Court decisions wholly unpersuasive, at least as a policy matter, particularly in the context of private health insurance (as opposed to Medicaid or other public health insurance). But it is this state’s legislature–or, with respect to common-law rules, its Supreme Court–which decides such matters, not this court.

Attitash’s motion in limine is therefore denied. It is important to note, however, that Attitash may still challenge whether the billed amounts reflect the reasonable value of Herbst’s medical services, provided it does not use evidence of the Medicaid write-offs to do so, and otherwise complies with the rules of evidence. See [*268] Bartlett, 2010 U.S. Dist. LEXIS 142906, 2010 WL 3156555, at *2 (citing Reed, 706 F. Supp. 2d at 194).

III.Attitash’s motion to exclude expert testimony on warnings⁷

7 Document no. 34. The court discussed this issue with the parties at oral argument (before Attitash’s motion had been filed) and then gave both parties an opportunity to brief it before trial.

Attitash has also moved to preclude Herbst’s expert witness, engineer John Mroszczyk, from testifying that the slide’s warnings were [**11] inadequate, arguing that no such opinion was disclosed in his expert report. See [HN5] Fed. R. Civ. P. 26(a)(2)(B) (expert “report must contain . . . a complete statement of all opinions the witness will express and the basis and reasons for them“) and 37(c)(1) (where “a party fails to provide information . . . as required by Rule 26(a),” it “is not allowed to use that information . . . at a trial, unless the failure was substantially justified or is harmless“). The only warning-related opinion expressly set forth in Mroszczyk’s report was that the slide had “a number of instruction and warning signs at the slide loading area” (photos of which he attached to the report), but “no speed limit signs posted along the slide.”

Herbst concedes “that it would certainly have been preferable to ensure that Mroszczyk clearly expressed his opinion” about the warnings in his expert report, see document no. 33, at 4, but nevertheless argues that it is a reasonable inference from the report that he considers the warnings inadequate, and that he should therefore be allowed to offer that opinion at trial. See, e.g., Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 762 (7th Cir. 2010) (expert report need [**12] not “replicate every word that the expert might say on the stand,” as long as it sufficiently “convey[s] the substance of the expert’s opinion . . . so that the opponent will be ready to rebut, to cross-examine, and to offer a competing expert, if necessary”) (quotation omitted).

Herbst has submitted an affidavit from Mroszczyk clarifying that he “do[es] not believe that any warning in a sign regarding the particular problems” that Herbst encountered on the alpine slide “would be adequate to make this ride safe,” i.e., he “do[es] not believe that this condition in the slide could be made safe by warnings.” Document no. 33-1, at 2. This court agrees that such an opinion can be reasonably inferred from his report, which, after noting the existing signs and the lack of speed limits, states that riders have no ability to gauge their speed anyway and that, even “at a reasonable speed,” they could still “leave the track.” The strong implication is that no warning would be adequate.

The problem with that opinion, at least for Herbst, is that it means that Attitash’s alleged failure to warn did not cause his accident and injuries, because, according to Mroszczyk, no warning would have been adequate [**13] to protect Herbst from the particular problems he encountered. See, e.g., Trull v. Volkswagen of Am., Inc., 145 N.H. 259, 264, 761 A.2d 477 (2000) (“failure to warn must be [a] proximate cause of plaintiff’s injuries”); LeBlanc v. Am. Honda Motor Co., 141 N.H. 579, 586, 688 A.2d 556 (1997) (“[t]he issue in [a] failure to warn claim . . . is whether the danger . . . was or could have been made reasonable by the issuance of adequate warnings”). In other words, the opinion supports Herbst’s unreasonable dangerousness theory, but at the expense of his failure-to-warn theory.

Nevertheless, if Herbst wishes to offer Mroszczyk’s opinion at trial that the slide’s warnings were inadequate because no warning regarding the particular problems [*269] that Herbst encountered would have made the ride safe, this court will allow him to do so. While not expressly disclosed in Mroszczyk’s report, that opinion can be reasonably inferred from the substance of the report, and Attitash has received sufficient notice to “be ready to rebut [it], to cross-examine, and to offer a competing expert, if necessary.” Metavante, 619 F.3d at 762. Attitash’s motion to exclude such testimony is denied.⁸

8 Mroszczyk should be careful, however, not to venture [**14] beyond the limited opinion set forth above, or to suggest (contrary to that opinion) that some other warning by Attitash would have been adequate to prevent Herbst’s accident.

IV.Herbst’s motion to admit evidence of other accidents⁹

9 Document no. 15.

Herbst, in turn, has moved to admit evidence of various other accidents on Attitash’s alpine slide, including 21 that occurred between 2004 and 2006 (either prior to or just after his accident), and also one that his expert witness, Mroszczyk, happened to observe in 2010 while conducting a site visit for purposes of inspecting the slide and preparing his expert report in this case.¹⁰ Attitash objects that those accidents were not substantially similar to Herbst’s accident and that, in any event, evidence of other accidents–particularly the one Mroszczyk witnessed in 2010–would be unfairly prejudicial, would confuse the jury, and would unduly delay the trial. See Fed. R. Evid. 403.

10 Herbst initially sought to admit evidence of even more accidents, including some involving collisions between two riders. At oral argument and in his subsequent briefing, however, he narrowed his request to those accidents that he considers most similar to his [**15] own.

[HN6] “Evidence of prior accidents is admissible . . . only if the proponent of the evidence shows that the accidents occurred under circumstances substantially similar to those at issue in the case at bar.” Moulton v. Rival Co., 116 F.3d 22, 26-27 (1st Cir. 1997) (quoting McKinnon v. Skil Corp., 638 F.2d 270, 277 (1st Cir. 1981)). Both parties agree that the same requirement applies to subsequent accidents, as other courts have held. See, e.g., Reddin v. Robinson Prop. Group, LP, 239 F.3d 756, 760 (5th Cir. 2001). “At bottom, the ‘substantially similar’ requirement is a more particularized approach to the requirement that evidence be probative.” Trull v. Volkswagen of Am., Inc., 187 F.3d 88, 98 n.9 (1st Cir. 1999).

“‘Substantial similarity’ is a function of the theory of the case.” Moulton, 116 F.3d at 27. Here, Herbst’s theory (supported by expert testimony) is that Attitash’s alpine slide causes riders to move side-to-side within the slide and sometimes to lose control, particularly through curves; and that if a rider reaches the end of a curve embankment in that state, there is a risk of falling off the slide, as allegedly happened in his accident. According to Herbst’s expert, many [**16] curves in the slide pose that risk. In light of that theory, this court construes “substantially similar” to mean, for purposes of this case, that the rider in the other accident must have lost control around a curve and fallen off the slide.

A.2004-2006 accidents

Herbst has made evidentiary proffers regarding each of the accidents at issue. For the 21 accidents occurring between 2004 and 2006, he has submitted accident reports (6 from the New Hampshire Department of Safety and 15 from Attitash itself). The reports, however, provide very little detail. Most of them [*270] indicate that the rider fell off the slide, but not how or where it happened. Mroszczyk believes that each accident “probably” involved loss of control and ejection around a curve, because riders ordinarily would not fall off the slide on a straightaway. But at least two of the accidents were described as occurring on a straightaway, and some had other causes (e.g., a squirrel in the track). So that assumption seems flawed.

This court has closely reviewed each of the accident reports and finds that Herbst has met his burden of showing substantial similarity only as to four accidents:

· the accident on July 12, 2005 (where the [**17] rider “came through [the] dip, came to next set of banks, came out of track”);

· the accident on July 23, 2005 (where the “sled came off track” near a bank);

· the accident on August 3, 2005 (where the rider “hit the curve, jumped the track”); and

· the accident on July 16, 2006 (where the rider “came from a right turn into a left turn and his cart flew off”).

All of the other accidents involved materially different circumstances, or at least were not sufficiently described for this court to deem them substantially similar. See, e.g., Downey v. Bob’s Disc. Furniture Holdings, Inc., 633 F.3d 1, 9 (1st Cir. 2011) (affirming the exclusion of such evidence where plaintiffs proffered only a “bare bones” printout containing a “cryptic description” of prior incidents, with “no details,” and “conducted no investigation into the underlying facts”).¹¹

11 Herbst argues that Attitash admitted, in an interrogatory, that all 15 of the accident reports it produced involved “accidents similar to the plaintiff’s: where an operator left the track and was injured.” But, [HN7] for purposes of discovery, “a flexible treatment of relevance is required and the making of discovery . . . is not a concession or determination [**18] of relevance for purposes of trial,” or admissibility. Fed. R. Civ. P. 26(b)(1), advisory committee notes (1970). Attitash’s interrogatory answer was not an admission of substantial similarity within the meaning of Moulton.

Attitash argues that evidence of even the substantially similar accidents should be excluded as unfairly prejudicial, confusing to the jury, and likely to unduly delay the trial. See Fed. R. Evid. 403. But this court sees little to no risk in any of those respects. Because the accident reports provide so little detail, and appear to be the only available evidence of what happened, the use of such evidence will necessarily be limited in scope. Its main purpose is simply to show that riders occasionally lose control and fall off the track around a curve, as Herbst did, and that Attitash had notice of that risk. That is a proper and probative purpose, which outweighs any of the countervailing concerns listed in Rule 403.

This court therefore grants Herbst’s request to admit evidence of the four accidents noted above, but denies his request to admit evidence of the other accidents between 2004 and 2006. If Herbst believes that this court has overlooked any accident(s) [**19] with circumstances comparably similar to those four accidents, or has additional evidence of substantial similarity beyond that proffered to date, he may raise that issue and/or make a further evidentiary proffer at trial, outside the presence of the jury.

B.2010 accident

For the accident in 2010, Herbst has submitted an affidavit from Mroszczyk explaining what he observed. According to Mroszczyk, that accident, like Herbst’s, involved a rider’s loss of control, side-to-side movement within the slide, and then [*271] ejection from the slide around a curve (albeit a different curve, more than 100 feet down the slide from where Herbst fell). Mroszczyk claims that sequence of events “is precisely what I believe occurred to Mr. Herbst.” Based on that proffer, this court finds that Herbst has sufficiently shown that the 2010 accident was substantially similar to his own, clearing that hurdle for admissibility.¹²

12 Attitash argues that the 2010 accident resulted from the rider going airborne over a slide feature called “the dip” (not from being ejected around a curve), but that strikes the court as implausible, given the considerable distance between the dip and the place where the rider landed. Attitash [**20] has not proffered any evidence to support that version of events. In any event, if Attitash wishes to challenge Mroszczyk’s testimony regarding how that accident happened, it may do so at trial. An adjuster from Attitash’s insurance company also witnessed the accident and could be called as a witness.

Attitash argues that evidence of the 2010 accident should nevertheless be excluded as unfairly prejudicial, confusing to the jury, and likely to unduly delay the trial. See Fed. R. Evid. 403. It is true that such evidence may pose some risk of prejudice and juror confusion, since the accident happened, incidentally, on the day when Herbst’s expert was inspecting the slide, which might suggest to the jury that accidents happen on the alpine slide with greater frequency than they actually do. Attitash, though, has the ability to present evidence of how often accidents actually happen.¹³ The jury should not have any trouble understanding or accepting that the timing was just a coincidence.

13 The standard for defendants to introduce evidence of prior accidents is more lenient than for plaintiffs. See Trull, 187 F.3d at 98 n.9.

Conversely, evidence of the 2010 accident has very high probative [**21] value. Mroszczyk’s direct observation of an accident substantially similar to the one that Herbst suffered has the ability to inform, and even corroborate, his expert opinions about what happened to Herbst, and the reason(s) for it. That firsthand experience could make his testimony much more persuasive and helpful to the jury, whereas preventing him from discussing the accident could leave the jury with an incomplete, and potentially inaccurate, understanding of the basis for and reliability of his opinions.

On balance, this court concludes that the probative value of the 2010 accident outweighs the risk of prejudice and juror confusion, and therefore grants Herbst’s motion to admit evidence of that accident. As to Attitash’s argument that such evidence will cause undue delay, this court doubts that will happen, but will keep that concern in mind during trial and will be open to any proposals that Attitash may have (short of outright exclusion) for reasonably limiting the amount of such evidence, and the manner in which it is presented, so as to avoid undue delay and reduce the risk of prejudice.

V.Conclusion

For the reasons set forth above, Attitash’s motion to admit evidence of Herbst’s [**22] prior conviction¹⁴ is GRANTED, Attitash’s motion to exclude evidence of Herbst’s medical bills¹⁵ is DENIED, Attitash’s motion to preclude Mroszczyk from testifying about the slide’s warnings¹⁶ is DENIED, and Herbst’s motion to admit evidence of [*272] prior and subsequent accidents¹⁷ is GRANTED in part and DENIED in part.

14 Document no. 19.

15 Document no. 20.

16 Document no. 34.

17 Document no. 15.

SO ORDERED.

/s/ Joseph N. Laplante

Joseph N. Laplante

United States District Judge

Dated: May 2, 2011

Alaska statute on Parents right to sign away minors right to sue

Posted: February 17, 2012 | Author: Recreation Law | Filed under: Minors, Youth, Children, Release (pre-injury contract not to sue) | Tags: Adventure travel, Alaska, Department of Health, JimMoss, Minor, Parental Rights, Rock climbing, Waiver | Leave a comment

TITLE 9. CODE OF CIVIL PROCEDURE

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CHAPTER 65. ACTIONS, IMMUNITIES, DEFENSES, AND DUTIES

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Alaska Stat. § 09.65.292 (2012)

Sec. 09.65.292. Parental waiver of child’s negligence claim against provider of sports or recreational activity

(a) Except as provided in (b) of this section, a parent may, on behalf of the parent’s child, release or waive the child’s prospective claim for negligence against the provider of a sports or recreational activity in which the child participates to the extent that the activities to which the waiver applies are clearly and conspicuously set out in the written waiver and to the extent the waiver is otherwise valid. The release or waiver must be in writing and shall be signed by the child’s parent.

(b) A parent may not release or waive a child’s prospective claim against a provider of a sports or recreational activity for reckless or intentional misconduct.

(1) “child” means a minor who is not emancipated;

(2) “parent” means

(A) the child’s natural or adoptive parent;

(B) the child’s guardian or other person appointed by the court to act on behalf of the child;

(D) a person who has a valid power of attorney concerning the child; or

(E) for a child not living with the child’s natural or adoptive parent, the child’s grandparent, aunt, uncle, sister, or brother who has reached the age of majority and with whom the child lives;

(3) “provider” has the meaning given in AS 09.65.290;

(4) “sports or recreational activity” has the meaning given in AS 09.65.290.

HISTORY: (§ 2 ch 67 SLA 2004)

NOTES: CROSS REFERENCES. –For findings and legislative intent statement applicable to the enactment of this section, see § 1, ch. 67, SLA 2004, in the 2004 Temporary and Special Acts.

EDITOR’S NOTES. –Section 3, ch. 67, SLA 2004 provides that this section applies “to acts or omissions that occur on or after September 14, 2004.”

USER NOTE: For more generally applicable notes, see notes under the first section of this article, chapter or title.

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Tough fight on a case, release used to stop all but one claim for a CO ski accident

Posted: February 6, 2012 | Author: Recreation Law | Filed under: Colorado, Release (pre-injury contract not to sue), Skiing / Snow Boarding | Tags: Adventure travel, AEE, Alpine skiing, BOEC, Breckenridge Outdoor Education Center, Breckenridge Ski Area, Camp Fire USA, Colorado, Lawsuit, Marketing, PSIA, Standards, Summary judgment | Leave a comment

Squires v. Goodwin, 2011 U.S. Dist. LEXIS 129234

But for an outrageous expert opinion, the release would have ended this lawsuit.

This case is a lawsuit against Breckenridge Outdoor Education Center (BOEC) and two of its employees by a disabled skier. Also sued was the manufacturer of the bi-ski, a device that allows people with no mobility to experience skiing. BOEC is a non-profit that provides tons of great services for people, most of whom are disabled. In this case, the plaintiff was a “legally blind, cognitively delayed, and physically limited by cerebral palsy” minor.

The plaintiff went to BOEC with a group people from Kansas, the Adventure Fitness Program at Camp Fire USA. Before going on the trip the plaintiff’s mother signed the necessary documents, including a release and reviewed the marketing and other information provided to her. Upon arrival, the plaintiff was taken to Breckenridge Ski Area with two BOEC employees. She was skiing in a bi-ski with the two defendant skiers. One was a lookout or later termed blocker in the case and one held tethers, which controlled the bi-ski.

On the second run, the three were skiing down a blue or intermediate ski run. A third party not part of the suit lost control and skied between the defendant employee and the bi-ski into the tethers. This separated the BOEC employee from the bi-ski. The bi-ski proceeded down the ski slope, out of control hitting a tree. The injuries to the plaintiff were not described.

The plaintiff through her mother sued the bi-ski manufacture, BOEC and the two BOEC employees. The plaintiff claimed four counts of negligence per se because of violations of the Colorado Skier Safety Act against the defendant employee who was holding the tethers. (To see a definition of Negligence Per Se under Colorado law see I nstructional Colorado decision Negligence, Negligence Per Se and Premises Liability.) The plaintiff argued another claim sounding in “negligence, willful and wanton, reckless, and/or gross negligence” against BOEC. The remaining claims were against the manufacturer of the bi-ski which was dismissed in another action not the subject of this opinion.

This motion was a motion for Summary Judgment filed by BOEC to eliminate the fifth claim, the negligence, willful and wanton, reckless, and/or gross negligence of BOEC.

Validity of a Release for a minor signed by a parent under the CO Statute

The court first looked at the requirements for a release signed by a parent to be upheld under Colo . Rev. Stat. § 13-22-107, generally that the parent’s signature must be voluntary and informed. Prior to this decision, the only case that has taken a look at this issue was Wycoff v. Grace Community Church of the Assemblies of God, 251 P.3d 1260, 1277 (Colo. App. 2010) which I reviewed in Releases are legal documents and need to be written by an attorney that understands the law and the risks of your program/business/activity and your guests/members/clientele.

In Wycoff, the release signed by the mother for the child was not upheld. The Wycoff release only had one sentence referring to releasing any claims. Here, the BOEC release had a minimum of six paragraphs informing the plaintiff’s mother that she was waiving her daughter and her legal rights.

Colorado law does not require the specific use of the word negligence in a release. However, all Supreme Court decisions to date had some language referencing waiving personal injury claims based on the activity the release covered.

The court concluded that the plaintiff’s mother signed a document that was clearly identified as a release, and thus she signed it voluntarily.

The court then looked at the release to see if it informed the plaintiff’s mother of the risks of the activity. The release had one full page that explained in detail the degree of risk involved in the BOEC programs. On top of that, the plaintiff’s mother had called and talked to the staff at BOEC as well as the staff of Adventure Fitness Program at Camp Fire USA that was taking her daughter on the trip.

After all of this, the plaintiff’s mother the court concluded was informed of the risks of the trip and the activity.

Validity of the Release

The court started by reviewing the Colorado requirements on how a release will be reviewed under Colorado law. This is fairly standard in all legal decisions.

Exculpatory agreements are construed strictly against the party seeking to limit its liability.” Hamill v. Cheley Colorado Camps, Inc., P. 3d , 2011 Colo. App. LEXIS 495, 2011 WL 1168006, (Colo. App. March 31, 2011) (Reviewed here in Release stops suit for falling off horse at Colorado summer Camp.)

The determination of the sufficiency and validity of an exculpatory agreement is a question of law for the court to determine. B & B Livery, Inc. v. Riehl, 960 P.2d 134, 136 (Colo. 1998)

Although an exculpatory agreement that attempts to insulate a party from liability for his own simple negligence” is disfavored, “it is not necessarily void as against public policy . . . as long as one party is not at such obvious disadvantage in bargaining power that the effect of the contract is to put him at the mercy of the other’s negligence. Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004)

To be effective, the release must meet four criteria: (i) there must not have been an obvious disparity in bargaining power between the releasor and releasee; (ii) the agreement must set forth the parties’ intentions in clear and unambiguous language; (iii) the circumstances and the nature of the service must indicate that the agreement was fairly entered into; and (iv) the agreement may not violate public policy. Robinette, 2009 U.S. Dist. LEXIS 34873, 2009 WL 1108093

BOEC bears the burden of proving each of these elements

The court then went through each of the four steps to make sure this release met the requirements.

(i) there must not have been an obvious disparity in bargaining power between the releasor and releasee;

(ii) the agreement must set forth the parties’ intentions in clear and unambiguous language;

(iii) the circumstances and the nature of the service must indicate that the agreement was fairly entered into; and

(iv) the agreement may not violate public policy

Other courts had found that recreation services are not essential services and there is no unfair bargaining advantage in these types of services. Those recreational services in Colorado where courts had made this decision included mountain biking, bicycle rental, skydiving, handicapped downhill ski racing, and rental of ski equipment.

The issue of whether the party’s intentions are clear and unambiguous requires a review of the document. To do that the court looked at the requirements for a contract in general. (A release is a contract, an agreement between two parties with consideration flowing between the parties.) “Interpretation of a written contract and the determination of whether a provision in the contract is ambiguous are questions of law.“

In determining whether a provision in a contract is ambiguous, the instrument’s language must be examined and construed in harmony with the plain and generally accepted meanings of the words used, and reference must be made to all the agreement’s provisions.

The meaning and effect of a contract is to be determined from a review of the entire instrument, not merely from isolated clauses or phrases.

Here, the release was written in simple and clear terms that were free from legal jargon, not inordinately long and/or complicated. Finally, the fact that the plaintiff’s mother indicated she understood the release satisfied this requirement.

The third requirement requires that the contract be fairly entered into. That means that one party is not so obviously disadvantaged that they are at the mercy of the other party. Because recreational activities are not essential services, and those services can be found through other parties who offer them this requirement is always met in the recreational setting. Essential services are those necessary for life. Examples are public transportation, utilities or food.

The last requirement is that the release does not violate public policy. This means that the release does not waive a duty of BOEC’s which cannot be waived. Again, recreational services do not make up a public policy or violate a public policy. In fact, under Colorado law, the public policy is to support recreational activities and thus have parent’s sign releases.

The expressed public policy in Colorado is “to encourage the affordability and availability of youth activities in this state by permitting a parent of a child to release a prospective negligence claim of the child against certain persons and entities involved in providing the opportunity to participate in the activities. Colo. Rev. Stat. § 13-22-107(1)(a)(VI)

Was there a Material Misrepresentation or Fraud in the Inducement in the relationship between the plaintiff and her mother and the defendant BOEC.

Marketing makes promises that Risk Management must pay for.

A release is voidable if it was secured based on a material misrepresentation or fraud in the inducement. Here, the plaintiff argued that BOEC claimed it met the highest standards of the Association of Experiential Education (AEE), which it did not. The plaintiff claimed that BOEC claimed that it was accredited by AEE when it was not, and it met the standards of AEE for adaptive ski programs when there was not any standard for that program.

BOEC stated that at the time of the accident, BOEC did not have any written ski lesson policies and procedures for the adaptive ski program. BOEC also admitted that at the time of the accident the accreditation was for other programs of BOEC, and that AEE did not accredit adaptive ski programs.

Based on these two representations, the plaintiff then argued that BOEC misrepresented itself to the plaintiff.

To establish fraud, a plaintiff has to prove that

(1) a fraudulent misrepresentation of material fact was made by the defendant;

(2) at the time the representation was made, the defendant knew the representation was false or was aware that he did not know whether the representation was true or false;

(3) the plaintiff relied on the misrepresentation;

(4) the plaintiff had the right to rely on, or was justified in relying on, the misrepresentation; and

(5) the reliance resulted in damages.

Here, the plaintiff could not prove that it relied on the misrepresentations of the BOEC and that the reliance was justified. The court did not find that BOEC had not misrepresented itself or its credentials. The court found the plaintiff had not proven reliance the final step needed to prove fraud.

The court also found that BOEC had not misrepresented the facts to the extent needed to be an intentional fraudulent misrepresentation.

At the time, BOEC followed the adaptive ski standards of the Professional Ski Instructors of America, (PSIA). BOEC was accredited by AEE for its other programs. The letter which had the critical information in it about standards, and accreditation was a letter used for all BOEC programs.

Was the conduct of the parties Willful and Wanton rising to the level of Gross Negligence?

This is always an issue when a release is signed because if the actions of the defendant rise to this level than the release cannot be used to stop claims for gross negligence or intentional acts.

“Gross negligence is willful and wanton conduct; that is, action committed recklessly, with conscious disregard for the safety of others.”

The court then reviewed the opinion of the plaintiff’s expert witness. His report labeled the BOEC program as inherently unsafe and went on from there. (See Come on! Expert’s will say anything sometimes.)

Based on the expert witness report, the court did not dismiss the last claim of the plaintiffs for gross negligence. The opinion of the expert raised enough facts to create an issue that could not be decided by the court.

All but this final claim was dismissed by the court.

A well-written release in this case almost won the day; it definitely took a lot of fight out of the plaintiff’s case. The only issue the release could not beat was an outrageous opinion by the plaintiff’s expert witness.

So Now What?

1. Don’t make the court look for a clause to support your release. Put in the release the magic word negligence and that the signor is giving up their legal rights for any injury or claims based on your negligence. Here, the court was able to find six paragraphs that did the same thing. You can eliminate a few paragraphs if you are up front and honest. You are giving up your right to sue me for any claim or loss based on my negligence.

2. Identify your document as a release. The court based its decision upholding the release based on the language in the release, and because it was labeled a release.

3. If you communicate with a client in advance of the activity about the risks or the release, make a note of it. This again was important to the court in proving the mother was not misled and knew what she was signing.

4. Besides specifically informing the signor of the fact they are giving up their right to sue, your release needs to point out the risks of your activity. Here, the court points out the page long list of risks as important in upholding the release. Too many releases do not include the risks.

5. Make it easy for your guests to contact you and ask questions about your release, your activity and the risks. Again, the court pointed this out as a specific issue that was important in the court finding for the defendant in this case.

6. The burden on proving that the release meets the requirements needed in a specific state is on the defendant. Consequently, it behooves the defendant recreation provider to place those requirements in the release so the plaintiff, upon signing, helps prove the document is valid.

7. Marketing sinks more ships in the outdoor recreation industry than injuries. Make sure your marketing matches who you are and what you do, and that you are not misrepresenting who you are and what you can do. In this case, BOEC escaped a disaster with its marketing of standards and accreditation that either did not exist, or that it did not have.

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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Author: Outdoor Recreation Insurance, Risk Management and Law