Cassidy Almquist, Plaintiff, v. Synergo, LLC, an Oregon limited liability company, Synergo, an Oregon corporation; Association For Challenge Course Technology, a Delaware non-profit corporation, Defendants.
Case No. 3:15-cv-01281-SB
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON
2016 U.S. Dist. LEXIS 79261
May 20, 2016, Decided
May 20, 2016, Filed
SUBSEQUENT HISTORY: Adopted by, Motion denied by Almquist v. Synergo, LLC, 2016 U.S. Dist. LEXIS 79002 (D. Or., June 9, 2016)
CORE TERMS: website, personal jurisdiction, swing, purposeful, forum state, weigh, http, www, inspector, jurisdictional, purposefully, inspection, acctinfo, visited, org, exercise of jurisdiction, interactive, prong, resident, direction’ test, alternative forum, quotation, consumers, litigate, comport, accreditation, adhere–, prima facie, citation omitted, general jurisdiction
COUNSEL: [*1] For Cassidy Almquist, Plaintiff: James E. Horne, LEAD ATTORNEY, Gordon Thomas Honeywell, LLP, Seattle, WA; Mario Interiano, Norma Rodriguez, Scott E. Rodgers, LEAD ATTORNEYS, PRO HAC VICE, Rodriguez Interiano Hanson Rodgers PLLC, Kennewick, WA; Reuben Schutz, Salvador A. Mungia, LEAD ATTORNEYS, PRO HAC VICE, Gordon Thomas Honeywell LLP, Tacoma, WA.
For Synergo, LLC, an Oregon limited liability company, Synergo, an Oregon corporation, Defendants, ThirdParty Plaintiffs: Jennifer L. Crow, LEAD ATTORNEY, Scheer & Zehnder, Portland, OR; Mark P. Scheer, Robert P. Schulhof , Jr, Scheer & Zehnder LLP, Portland, OR.
For Association for Challenge Course Technology, a Delaware non-profit corporation, Defendant: Matthew C. Casey, Bullivant Houser Bailey, PC, Portland, OR.
JUDGES: STACIE F. BECKERMAN, United States Magistrate Judge.
OPINION BY: STACIE F. BECKERMAN
FINDINGS AND RECOMMENDATION
BECKERMAN, Magistrate Judge.
Cassidy Almquist (“Almquist”) filed an Amended Complaint against Synergo, LLC, an Oregon limited liability company, Synergo, an Oregon corporation (collectively “Synergo”), and the Association for Challenge Course Technology, a Delaware non-profit corporation (“ACCT”), alleging claims for negligence. Almquist’s [*2] action arises from an accident at the Bar-M-Ranch, in which she fell from a Giant Swing and was paralyzed. With respect to ACCT, Almquist alleges that ACCT was negligent (1) in promulgating standards for its certified inspectors, that allow them to certify challenge courses as safe when the inspector knows that untrained challenge course workers will operate the course, and (2) by failing to include in the inspection standards a provision directing an inspector to recommend that a course be closed until workers receive proper training. (Am. Compl. ¶¶ 16, 17 and 26.)
Synergo filed an Answer to Almquist’s Amended Complaint, and ACCT filed a Motion to Dismiss for Lack of Personal Jurisdiction, pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure. On April 5, 2016, this Court heard oral argument on ACCT’s request for dismissal. For the reasons set forth below, the district judge should deny ACCT’s Rule 12(b)(2) motion.
ACCT, a professional trade association for the challenge course industry, develops and publishes standards for installing, inspecting, and maintaining challenge courses. (Am. Compl. ¶¶ 24, 25.) ACCT trains and certifies professional challenge course inspectors. (Am. Compl. ¶ 25.) Synergo relied on ACCT’s standards [*3] in inspecting the Giant Swing at issue in this litigation. (Am. Compl. ¶ 28.)
Synergo is in the business of, among other things, inspecting challenge courses. (Am. Compl. ¶ 8.) Synergo is located in Tigard, Oregon, and is a dues-paying member of ACCT. Synergo is the only accredited Professional Vendor Member (“PVM”) of ACCT in Oregon.1 Synergo’s founder and manager, Erik Marter, served on the Board of Directors of ACCT, and is the only certified ACCT professional inspector in Oregon. http://www.teamsynergo.com/our-story/ ; and http://www.acctinfo.org/?PVMList%20 (lasted visited May 20, 2016). Synergo conducts inspections of challenge courses according to ACCT standards. (Am. Compl. ¶ 28.)
1 According to ACCT, “[a] PVM of ACCT is a company which has successfully completed the Professional Vendor Member Application, including the Accreditation, process. The process includes a stringent review which determines an applicant’s adherence to ACCT Accreditation Policies and Procedures and its good faith commitment to ACCT Standards. Successful completion of this process distinguishes a PVM from other vendors, identifying the PVM as having been found to be highly experienced and competent.” http://www.acctinfo.org/?PVMList (last visited May 20, 2016).
In February 2012, Cavalry Church Tri-Cities (“Cavalry”) [*4] constructed an “adventure course” on its Bar-M-Ranch property located in Richland, Oregon that included a Giant Swing. (Am. Compl. ¶ 6.) Calvary hired Synergo to inspect the Giant Swing after construction of the challenge course was complete. (Am. Compl. ¶ 11.) Synergo sent an employee to inspect the Giant Swing in June 2012. (Am. Compl.¶ 12.) During the inspection, Synergo discovered that the Cavalry and Bar-M-Ranch staffs were not trained to operate the swing. (Am. Compl. ¶ 16.) Synergo did not direct or recommend that Calvary close the Giant Swing until the operators of the swing were trained. (Am. Compl. ¶ 17.) If recommended by Synergo, Calvary would have closed the Giant Swing. (Am. Compl ¶ 19.)
During the week of July 15, 2013, Calvary hosted a summer camp at the Bar-M-Ranch. (Am. Compl. ¶ 20.) Almquist was a counselor at the summer camp. (Am. Compl. ¶ 22.) The camp director asked Almquist to demonstrate the use of the Giant Swing for the children attending the camp. (Am. Compl. ¶ 22.) Almquist agreed to do so and a camp employee, who was not trained to operate the Giant Swing, improperly connected her to the Giant Swing. Almquist fell 50 feet to the ground, paralyzing her from [*5] the waist down. (Am. Compl. ¶ 23.)
II. LEGAL STANDARD
“In opposing a defendant’s motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of establishing that jurisdiction is proper.” CollegeSource, Inc. v. AcademyOne, Inc., 653 F.3d 1066, 1073 (9th Cir. 2011) (citing Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008)). “Where, as here, the defendant’s motion is based on written materials rather than an evidentiary hearing, ‘the plaintiff need only make a prima facie showing of jurisdictional facts to withstand the motion to dismiss.'” Id. (quoting Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d 1124, 1127 (9th Cir. 2010)). “Although the plaintiff cannot simply rest on the bare allegations of its complaint, uncontroverted allegations in the complaint must be taken as true[,] [and] [c]onflicts between parties over statements contained in affidavits must be resolved in the plaintiff’s favor.” Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004) (internal citations and quotation marks omitted).
ACCT moves to dismiss Almquist’s Amended Complaint for lack of personal jurisdiction. ACCT argues that it lacks sufficient contacts with Oregon to permit the Court’s exercise of either general or specific jurisdiction. Almquist acknowledges that general jurisdiction is not present here, but contends that the extent and nature of ACCT’s contacts with Oregon permit the Court to exercise specific jurisdiction over ACCT. [*6]
A. Constitutional Personal Jurisdiction Standards
“Federal courts ordinarily follow state law in determining the bounds of their jurisdiction over [defendant].” Daimler AG v. Bauman, 134 S. Ct. 746, 753, 187 L. Ed. 2d 624 (2014). Oregon law authorizes personal jurisdiction over defendants to the full extent permitted by the United States Constitution. See Or. R. Civ. P. 4(L); Gray & Co. v. Firstenberg Mach. Co., Inc., 913 F.2d 758, 760 (9th Cir. 1990) (“Oregon’s long-arm statute confers jurisdiction to the extent permitted by due process.”). The Court must therefore inquire whether its exercise of jurisdiction over ACCT “comports with the limits imposed by federal due process.” Daimler, 134 S.Ct. at 753.
“Due process requires that defendants ‘have certain minimum contacts’ with the forum state ‘such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.'” Picot v. Weston, 780 F.3d 1206, 1211 (9th Cir. 2015) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 90 L. Ed. 95 (1945)). “The strength of contacts required depends on which of the two categories of personal jurisdiction a litigant invokes: specific jurisdiction or general jurisdiction.” Ranza v. Nike, Inc., 793 F.3d 1059, 1068 (9th Cir. 2015). Specific jurisdiction is sometimes referred to as “case-specific” or “case-linked” jurisdiction, meaning it depends on an affiliation between the forum state and the underlying controversy, whereas general jurisdiction is sometimes referred to as “all-purpose” jurisdiction, [*7] meaning the court may assert jurisdiction over a defendant based on a forum connection unrelated to the underlying lawsuit (e.g., domicile, place of incorporation, or principal place of business). Walden v. Fiore, 134 S. Ct. 1115, 1121 n.6, 188 L. Ed. 2d 12 (2014). Almquist argues that specific jurisdiction exists over ACCT.
The Ninth Circuit employs the following three-prong test to determine if a defendant has sufficient minimum contacts to be subject to specific jurisdiction:
(1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws;
(2) the claim must be one which arises out of or relates to the defendant’s forum-related activities; and
(3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e., it must be reasonable.
Picot, 780 F.3d at 1211 (quotations and citation omitted). Plaintiff bears the burden of satisfying the first two prongs. CollegeSource, 653 F.3d at 1076. The burden then shifts to the moving defendant to present “a ‘compelling case’ that the exercise of jurisdiction would not be reasonable.” Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476-78, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985)) [*8] .
“The exact form of [a court’s] jurisdictional inquiry depends on the nature of the claim at issue.” Picot, 780 F.3d at 1212. For claims sounding in contract, courts in this circuit “generally apply a ‘purposeful availment’ analysis and ask whether a defendant has ‘purposefully avail[ed] [himself] of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.'” Id. (quoting Schwarzenegger, 374 F.3d at 802). For claims sounding in tort, courts in this circuit “instead apply a ‘purposeful direction’ test and look to evidence that the defendant has directed his actions at the forum state, even if those actions took place elsewhere.” Id. Almquist asserts a tort claim against ACCT. Accordingly, ACCT’s motion to dismiss implicates only the purposeful direction test.
B. Specific Jurisdiction over ACCT
1. Purposeful Direction Test2
2 Almquist alleges a state negligence action against ACCT. As such, the “effects” test of Calder v. Jones, 465 U.S. 783, 788-89, 104 S. Ct. 1482, 79 L. Ed. 2d 804 (1984), is inapplicable to the Court’s purposeful direction analysis in this case. See Holland America Line Inc. v. Wartsila North America, Inc., 485 F.3d 450, 460 (9th Cir. 2007) (holding that “it is well established that the Calder test applies only to intentional torts, not to the breach of contract and negligence claims presented here” (citing Calder, 465 U.S. at 789)); Bancroft & Masters, Inc. v. Augusta Nat’l Inc., 223 F.3d 1082, 1088 (9th Cir. 2000) (emphasizing that Calder requires [*9] the defendant to individually and wrongfully target the plaintiff).
“A showing that a defendant purposefully directed his conduct toward a forum state . . . usually consists of evidence of the defendant’s actions outside the forum state that are directed at the forum, such as the distribution in the forum state of goods originating elsewhere.” Schwarzenegger, 374 F.3d at 803; see also World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297-98, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980) (“The forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State.”). Due process permits the exercise of personal jurisdiction over a defendant who “purposefully direct[s]” his activities at residents of a forum, even in the “absence of physical contacts” with the forum. Burger King, 471 U.S. at 476.
ACCT argues that it did not purposefully direct its activities toward Oregon.3 By Declaration, Todd Domeck, Vice Chairman of the Board of Directors with ACCT, informed the Court that ACCT is a Delaware non-profit corporation with its principal place of business in Illinois. (Todd Domeck Decl. ¶ 3, Oct. 4, 2015.) ACCT has no office or registered agent in Oregon, and no employees who reside in Oregon. [*10] (Domeck Decl. ¶¶ 4-6.) Domeck also states that “ACCT was not consulted during the construction of the ‘Giant Swing,'” nor did ACCT provide training for “any employees of the Bar-M-Ranch who were to be operators of the ‘Giant Swing.'” (Domeck Decl. ¶¶ 9-10.)
3 ACCT also argues that “there has been absolutely no evidence submitted that plaintiff, the camp, or the specific ride operator . . . ever had any interaction with ACCT . . . or that they in any way relied on any information promulgated by ACCT.” (Def.’s Reply 10.) With regard to ACCT’s claim that Almquist cannot show that ACCT directed activity toward the people involved in the accident, this argument is foreclosed by the Supreme Court’s decision in Walden. 134 S. Ct. at 1122 (“[O]ur “minimum contacts” analysis looks to the defendant’s contacts with the forum State itself, not the defendant’s contacts with persons who reside there.”) With regard to ACCT’s contention that Almquist has not shown reliance on the “information promulgated by ACCT,” that evidence is relevant to the merits of Almquist’s claim for negligence, and not to the jurisdictional question presently before the Court.
In light of those facts, the jurisdictional analysis here turns on the extent [*11] to which ACCT, as a non-profit trade association, acted by way of its website and its certification of Synergo to create a presence in Oregon. In aid of the Court’s analysis of ACCT’s purposeful direction in Oregon, the Court relies on the uncontroverted allegations of the Amended Complaint, the Micah Henderson Declaration, and the Internet websites of ACCT and Synergo.4 See Boschetto, 539 F.3d at 1015 (“plaintiff need only make a prima facie showing of jurisdictional facts” (quotations and citation omitted)).
4 ACCT argues that the websites are not authenticated and, thus, should not be considered by the Court. ACCT’s and Synergo’s websites were created and are maintained by Defendants in this case. Further, there is no challenge to the accuracy of the content presented on the websites. The parties dispute the sufficiency of ACCT’s contacts with Oregon, including contacts made through ACCT’s website. In the context of Almquist’s prima facie showing on a motion to dismiss for lack of personal jurisdiction, the Court may consider the information provided by ACCT and Synergo on their commercial websites. See, e.g., West Marine, Inc. v. Watercraft Superstore, Inc., No. C11-04459 HRL, 2012 U.S. Dist. LEXIS 18973, 2012 WL 479677, at *10 (Feb. 14, 2012) (“Courts have taken notice of defendants’ [*12] websites or characteristics thereof when determining personal jurisdiction.”); Coremetrics, Inc. v. Atomic Park.com, LLC, 370 F. Supp. 2d 1013, 1021 (N.D. Cal. 2005) (taking judicial notice of defendants’ website in personal jurisdiction analysis).
a. ACCT’s Website
The Ninth Circuit has established a sliding scale analysis to consider how interactive an Internet website is for the purpose of determining its jurisdictional effect. Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 419 (9th Cir. 1997) (“In sum, the common thread, well stated by the district court in Zippo, is that the ‘likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of the commercial activity that an entity conducts over the Internet.'”) (quoting Zippo Mfg. Co. v. Zippo Dot Com, 952 F. Supp. 1119, 1124 (W.D. Pa. 1997)); see also ALS Scan, Inc. v. Digital Service Consultants, Inc., 293 F.3d 707, 714 (4th Cir. 2002) (holding that a state may assert jurisdiction over a nonresident defendant “when that person (1) directs electronic activity into the State, (2) with the manifested intent of engaging in business or other interactions within the State, and (3) that activity creates, in a person within the State, a potential cause of action cognizable to the State’s courts”).
On its website, ACCT describes itself as “the world’s leading and largest American National Standards Institute (ANSI) Accredited Standards Developer focused specifically and solely on the [*13] challenge course industry.” http://www.acctinfo.org (last visited May 20, 2016). Through its website, ACCT represents that it “develops, refines, and publishes standards for installing, maintaining, and managing challenge courses; provides forums for education and professional development; and advocates for the challenge course and adventure industry.” Id. ACCT’s website is an interactive commercial website, and ACCT uses it to advertise and sell its services and merchandise. Specifically, individuals and businesses may purchase memberships and ACCT’s standards book, apply and register for inspector certification courses and exams, and access challenge course related employment listings.
As of November 2015, ACCT had 2,524 total members, with 136 of those members located in Oregon. (Micah Henderson Decl. ¶ 7, Jan. 7, 2016.) As such, slightly over 5% of ACCT’s worldwide members are located in Oregon. In addition, three of ACCT’s 129 certified inspectors (2.3%) are located in Oregon. (Henderson Decl. ¶ 9.) During the period from June 1, 2014 through November 24, 2015, seven of the 200 standards (3.5%) sold by ACCT were delivered within Oregon. (Henderson Decl. ¶ 10.) ACCT attributes less than one percent of [*14] its 2015 annual dues to members located in Oregon. (Henderson Decl. ¶ 8.) Finally, as of November 12, 2015, two of the 100 job postings (2%) on ACCT’s website were related to jobs in Oregon. (Henderson Decl. ¶ 11.) ACCT solicited and transacted these sales and services through its website.
Although the business ACCT conducts in Oregon is not overwhelming, the Court concludes that the nature and quality of ACCT’s contacts with Oregon via its website are sufficient to satisfy the purposeful direction test. See Tech Heads, Inc. v. Desktop Serv. Cntr., Inc., 105 F. Supp. 2d 1142, 1150-51 (D. Or. 2000) (finding personal jurisdiction proper where plaintiff presented evidence of a transaction involving an Oregon resident made through the defendant’s interactive website); see also Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 891-892 (6th Cir. 2002) (holding that quantity and specifically a “‘percentage of business’ analysis” is not the proper test for personal jurisdiction; rather the proper test is “whether the absolute amount of business conducted . . . [in the forum state] represents something more than ‘random, fortuitous, or attenuated contacts’ with the state”) (quoting Burger King, 471 U.S. at 475); Zippo Mfg. Co., 952 F. Supp. at 1126-1127 (recognizing that 3,000 subscriptions, or 2 percent of total subscriptions, was a sufficient basis for jurisdiction because the Supreme Court emphasizes the nature and [*15] quality of contacts with the forum rather than the quantity of contacts); cf. Millennium Enterprises, Inc. v. Millennium Music, LP, 33 F. Supp. 2d 907, 923 (D. Or. 1999) (declining to find personal jurisdiction based on an interactive website when there was no evidence of transactions with forum residents or evidence that the forum was targeted).
In any event, even if ACCT’s reach into Oregon via its website was not sufficient, standing alone, to confer personal jurisdiction, the Court finds that ACCT’s reach into Oregon went beyond mere solicitation of members and sales through its website. See Brayton Purcell, 606 F.3d at 1129 (“operating even a passive website in conjunction with something more — conduct directly targeting the forum — is sufficient to confer personal jurisdiction” (quotations and citation omitted)).
b. ACCT’s Contacts Directed at Synergo
The Court finds that ACCT directly targeted Oregon through the following actions: ACCT’s certification of Oregon-based Synergo as a PVM, advertising Oregon-based Synergo as a PVM (including recommending that consumers hire Synergo), and setting standards for the inspection of challenge courses, to which ACCT required Synergo to adhere. Specifically, ACCT established and promoted PVM designations for companies, including Synergo, that successfully complete [*16] the application and accreditation process, which can take up to 18 months to complete, and includes a site visit of one-to-three days in duration. http://www.acctinfo.org/page/PVMApplication (last visited May 20, 2016). ACCT describes the process as “a stringent review which determines an applicant’s adherence to ACCT Accreditation Policies and Procedures and its good faith commitment to ACCT Standards.” Id. After the stringent review process and onsite visit, ACCT endorses the PVMs as ” highly experienced and competent . ” http://www.acctinfo.org/?page=PVMList (last visited May 20, 2016). ACCT’s website directs consumers to PVMs, including providing a link to Synergo’s website. In turn, Synergo prominently displays its ACCT membership on its website, and advertises its ACCT-certified services, including inspection services in Oregon. http://www.teamsynergo.com (last visited May 20, 2016). Finally, ACCT has utilized Oregon-based Synergo personnel in the ranks of its leadership, including Synergo’s owner, Marter (ACCT’s Board of Directors), and Lindsay Wiseman James (ACCT’s Chair of the Public Relations/Marketing Committee). http://www.acctinfo.org/?92; http://www.acctinfo.org/?page=140&hhSearchTerms=%22 synergo%22 (last visited May 20, 2016).
The Court finds that ACCT’s close relationship with and promotion of Oregon-based Synergo establishes purposeful direction [*17] into Oregon, especially when considered in conjunction with the reach of ACCT’s interactive website to Oregon members and consumers. Accordingly, the first prong of the specific jurisdiction test (purposeful direction), is satisfied here.
2. Arising out of or Relating to the Forum Activities
The second prong of the specific personal jurisdiction test requires a plaintiff to demonstrate that the claims arise out of, or are related to, defendant’s forum-related activities. Ziegler v. Indian River County, 64 F.3d 470, 474 (9th Cir. 1995). Courts apply a “but for” test — that is, a showing that the claims would not have arisen but for ACCT’s contacts with Oregon. Doe v. Unocal Corp., 248 F.3d 915, 924 (9th Cir. 2001); Ballard v. Savage, 65 F.3d 1495, 1500 (9th Cir. 1995) (“We rely on a ‘but for’ test to determine whether a particular claim arises out of forum-related activities and thereby satisfies the second requirement for specific jurisdiction.”).
Almquist contends that ACCT “sent Synergo its standards book in Oregon and understood that, as a certified ACCT professional inspector, Synergo would adhere to ACCT standards when it inspected challenge courses.” (Pl.’s Opp. 7.) Almquist alleges that Synergo did adhere to ACCT standards and, as a result, she was injured. (Pl.’s Opp. 7-8.) Conversely, ACCT argues that Almquist’s negligence claim is barred by Oregon [*18] statutes and administrative rules that regulate the duties owed, and by whom, when operating an amusement ride in this state. (Def.’s Reply 5-6.) ACCT contends that, under Oregon law, it does not owe a duty to Almquist. As such, her negligence claim cannot arise from ACCT’s activities in the forum as a matter of law.
Whether Almquist may prevail on the merits of her negligence claim against ACCT is not before the Court at this time. For the purpose of the Court’s jurisdictional analysis, Almquist’s claims, as alleged, arise from ACCT’s contacts with Oregon. Almquist has alleged that “but for” ACCT promulgating deficient safety standards, she would not have fallen and sustained injuries in Oregon. Thus, the contacts ACCT had with Oregon–i.e., certifying Synergo and allegedly setting inadequate course inspection standards to which Synergo was required to adhere–are also the conduct that give rise to Almquist’s claims. Accordingly, the second prong of the specific personal jurisdiction test is satisfied here.
The third prong of the Ninth Circuit’s specific personal jurisdiction test “requires a finding that assertion of jurisdiction is reasonable,” meaning “the court must [*19] determine whether the assertion of personal jurisdiction would comport with traditional notions of ‘fair play and substantial justice.'” Unocal Corp., 248 F.3d at 925 (quoting Int’l Shoe Co., 326 U.S. at 326). To determine reasonableness, courts analyze seven fairness factors:
(1) the extent of a defendant’s purposeful interjection [into the forum]; (2) the burden on the defendant in defending in the forum; (3) the extent of conflict with the sovereignty of the defendant’s state; (4) the forum state’s interest in adjudicating the dispute; (5) the most efficient judicial resolution of the controversy; (6) the importance of the forum to the plaintiff’s interest in convenient and effective relief; and (7) the existence of an alternative forum.
Burger King, 471 U.S. at 476-77. No one factor is dispositive; a court must balance all seven. Core-Vent Corp. v. Nobel Industries AB, 11 F.3d 1482, 1486 (9th Cir. 1993).
ACCT argues that the exercise of jurisdiction would be unreasonable because it has not reached out to Oregon in any way, defending in Oregon would be a burden since it is based in Illinois, and Almquist cannot show that alternative forums are unavailable. (Mot. Dismiss 12-13.)
a. Purposeful Interjection
As discussed above, ACCT purposefully directed itself into Oregon by maintaining an interactive commercial website and by certifying and promoting [*20] Synergo. The Court finds the purposeful interjection factor weighs in favor of Almquist.
b. Burden on ACCT
Next, the court considers ACCT’s burden of litigating in Oregon. However, “unless the inconvenience is so great as to constitute a deprivation of due process, it will not overcome clear justifications for the exercise of jurisdiction.” Caruth v. Int’l Psychoanalytical Ass’n., 59 F.3d 126, 128-29 (9th Cir. 1995). This is a high standard to meet, as courts have consistently held that modern technological advances reduce the burden of litigating in remote jurisdictions. See, e.g., Panavision Intern., L.P. v. Toeppen, 141 F.3d 1316, 1323 (9th Cir. 1998); Autobidmaster, LLC. V. Alpine Auto Gallery, LLC, No. 3:14-cv-1083-AC, 2015 U.S. Dist. LEXIS 65202, 2015 WL 2381611, at * 11 (D. Or. May 19, 2015) (“modern technological advances greatly reduce the burden of litigating in remote jurisdictions”).
ACCT is located in Illinois and does not have offices in Oregon. As such, there is some burden on ACCT to litigate in Oregon. However, ACCT does not contend the burden is so significant as to violate Due Process. The Court finds this factor weighs only slightly in favor of ACCT.
c. Conflict with Illinois Law
The parties agree this factor is neutral.
d. Oregon’s Interest
Oregon has a significant interest in providing a forum for people who are tortiously injured while working in the state. See Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 776, 104 S. Ct. 1473, 79 L. Ed. 2d 790 (1984) (“It is beyond dispute that [*21] New Hampshire has a significant interest in redressing injuries that actually occur within the State.”) This interest extends to actions brought by nonresidents. Id.
Almquist was working in Oregon at the time of her injury. This factor weighs in favor of Almquist.
e. Efficient Judicial Resolution
The Court must also consider which forum can most efficiently resolve the dispute. To make this determination, the Court focuses on the location of the evidence and witnesses. Caruth, 59 F.3d at 129. The evidence and potential witnesses reside in Oregon, Washington, California, and Illinois. As such, one party must litigate in a foreign venue. While ACCT argues that its witnesses are located in “other states,” it does not contend that its burden is greater than Almquist’s were she forced to litigate elsewhere. In addition, this factor is “no longer weighed heavily given the modern advances in communication and transportation.” Harris Rutsky & Co. Ins. Services, Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 1133 (9th Cir. 2003).
Conversely, Almquist argues that almost all of the witnesses and evidence are located in Oregon or Washington. In addition, the accident occurred in Oregon, and the witnesses who ran the challenge course are likely residents of Oregon. Synergo is based in Oregon and performed its inspection [*22] of the Bar-M-Ranch in Oregon. The initial healthcare providers who treated Almquist are located in Oregon. Moreover, this action will go forward regardless of the outcome of the motion to dismiss because Synergo remains a defendant in this litigation. See Core-Vent Corp., 11 F.3d at 1489 (finding that efficiency factor tipped in plaintiff’s favor because the lawsuit would continue in the forum state with other parties); see also Washington State University Foundation v. Oswald, No. 3:99-cv-907-AS, 1999 U.S. Dist. LEXIS 21232, 2000 WL 251661, at *3 (D. Or. Jan. 3, 2000) (exercising personal jurisdiction where the forum state “appeare[d] to be the only jurisdiction in which the parties may totally resolve the action”).
This factor weighs in favor of Almquist.
f. Convenience and Effective Relief for Almquist
The Court next considers the importance of the forum to Almquist’s interests in convenient and effective relief. If Oregon is not a proper forum, Almquist will be forced to litigate its claim against ACCT in Illinois or Delaware, which presents inconvenience for Almquist in light of her medical condition and her claim against Synergo that will be litigated in this Court.
Traditionally, courts have not given a lot weight to this factor. See Ziegler, 64 F.3d at 476. However, the factor must be considered and it weighs in favor [*23] of Almquist.
g. Existence of an Alternative Forum
Finally, the Court must determine whether an adequate alternative forum exists. Almquist acknowledges that Illinois and Delaware are appropriate forums.5 This factor weighs in favor of ACCT.
5 At oral argument, counsel for Almquist informed the Court that the statute of limitations in both those forums likely foreclose the opportunity for Almquist to refile her negligence claim against ACCT in either Illinois or Delaware. The Court notes that savings statutes in both Illinois and Delaware may toll the statute of limitations, if this Court were to dismiss the claims against ACCT for lack of personal jurisdiction. See 10 Del. C. § 8118; 735 ILCS 5/13-217.
h. Balance of the Reasonableness Factors
Applying the seven-factor test, the Court concludes that exercising personal jurisdiction over ACCT is reasonable, and comports with fair play and substantial justice. The first, fourth, fifth, and sixth factors weigh in favor of Almquist, although the sixth factor is given little weight. The second and seventh factors weigh in favor of ACCT. The third factor is neutral. Although some factors weigh in favor of ACCT, it did not present a “compelling case” that exercising jurisdiction in [*24] this Court is unreasonable. See Boschetto, 539 F.3d at 1016 (“If the plaintiff establishes both prongs one and two, the defendant must come forward with a ‘compelling case’ that the exercise of jurisdiction would not be reasonable.”)
All of the requirements for specific jurisdiction are satisfied here. Accordingly, the district judge should deny ACCT’s Motion to Dismiss for Lack of Personal Jurisdiction.
For the reasons set forth above, the district judge should DENY ACCT’s Motion to Dismiss for Lack of Personal Jurisdiction (ECF No. 31).
V. SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, then the Findings and Recommendation will go under advisement on that date. If objections are filed, then a response is due fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
Dated this 20th day of May 2016.
/s/ Stacie F. Beckerman
STACIE F. BECKERMAN
United States Magistrate Judge
Robert Bishop, Executor of the Estate of Eric E. Bishop, Deceased, et al., Plaintiffs-Appellants, – vs – Nelson Ledges Quarry Park, Limited, et al., Defendants-Appellees.
CASE NO. 2004-P-0008
COURT OF APPEALS OF OHIO, ELEVENTH APPELLATE DISTRICT, PORTAGE COUNTY
2005-Ohio-2656; 2005 Ohio App. LEXIS 2504
May 27, 2005, Decided
COUNSEL: J. W. Fodor, Warren, OH (For Plaintiffs-Appellants).
James T. Millican, II, Weston, Hurd, Fallon, Paisley & Howley, Cleveland, OH (For Defendants-Appellees).
JUDGES: DIANE V. GRENDELL, J. DONALD R. FORD, P.J., concurs with a Concurring Opinion. CYNTHIA WESTCOTT RICE, J., concurs in part, dissents in part, with a Concurring/Dissenting Opinion.
OPINION BY: DIANE V. GRENDELL
DIANE V. GRENDELL, J.
[*P1] Plaintiff-appellant, Robert Bishop (“Bishop”), appeals from the judgment of the Portage County Common Pleas Court granting summary judgment in favor of defendants-appellees, Nelson Ledges Quarry Park, Ltd. (“Nelson Ledges”) and Evan Kelley (“Kelley”). We affirm the decision of the trial court.
[*P2] The appeal before this court arises from the tragic drowning death of Eric Bishop (“Eric”), which occurred at Nelson Ledges Quarry Park (“the park”) on July 31, 2000.
[*P3] The park is a campground, situated on approximately 110 acres, and includes a 30 acre swimming lake for its patrons. The park is owned by Nelson Ledges, an Ohio Limited Liability Corporation, owned by Joretta (“Joretta”) [**2] and Glenn (“Glenn”) Frohring. The park is operated by J&E Management, (“J&E”), a sole proprietorship owned and operated by Kelley, Joretta’s son and Glenn’s stepson.
[*P4] The relevant facts of the incident are as follows. On the afternoon of July 31, 2000, Eric and five of his friends came to Nelson Ledges to swim. Upon entry to the park, each vehicle is stopped at the gate. A fee of $ 5 is collected from each visitor and each visitor is required by a park employee to sign a sign-in sheet, containing a waiver of liability clause, before entry to the park is granted. If some of the visitors are children, their parent, or another responsible adult, is required to sign the form.
[*P5] The top portion of the sign-in sheet contains a waiver of liability statement in print which fits within the top approximately two-and-a-half to three inches of the sheet, including margin spaces, with rectangular spaces for the signatures of park patrons contained below. The sign-in sheet is kept with park employees. The waiver language at the top of the sign-in sheet, states as follows:
NELSON LEDGES QUARRY PARK LIABILITY WAIVER FORM
Persons under 18 years of age must have an adult/guardian [**3] sign for them
CUSTOMERS AND COMPANY AGREE: When you enter Nelson Ledges Quarry Park, LLC, you agree that it is at your sole risk; that you will abide by all the park rules; that you will retain care and control of your car: its parts and contents. Company is not responsible for your car, articles left in your car, loss of use; all liability for any loss including but not limited to, any loss arising from bodily injury, personal injury or drowning. (Emphasis added). We the company do not accept responsibility of any personal injury or loss caused due to the influence of alcohol or other mind altering substances, or food consumed from private vendors. NO ILLEGAL SUBSTANCES ARE PERMITTED IN THE CAMPGROUND. I/We hearby (sic) release Nelson Ledges Quarry Park LLC and J&E Management from any liability whatsoever arising from use of the park. No employee may modify any of the terms herein. 1
1 The language of the waiver is reproduced verbatim. No attempt is made herein to reproduce the type or font size as they actually appear on the sign-in sheet. This is a matter of argument in the respective briefs submitted to this court.
[*P6] [**4] It is undisputed that Eric, who was eighteen years of age, and his friends all signed the sheet prior to their admission to the park on the day of the incident. Once inside the park, Eric and his friends decided not to go to the designated beach area, but instead decided to go to another area, called the “stony outcropping” or alternatively, the “drive-down area”. There is a small island located in the water about 40 to 50 yards from the shore of the “drive down” area. Shortly after arriving, Eric and two of his friends decided to swim out to the island.
[*P7] Eric began to experience difficulty about 10 to 15 feet short of the island, and began thrashing about and calling for help. His friends, who had reached the island before Eric, at first thought that he was goofing around. When they realized he was serious, his friends dove into the water to try to save him. Despite his friends’ efforts to save him, Eric slipped under the water. People on the shore who witnessed the incident ran off to summon park personnel for help.
[*P8] Within a few minutes after arriving, park personnel, who were certified in lifesaving, located Eric about 10-15 feet away from the spot where [**5] he had initially gone under the water. Park personnel then took Eric back toward the island, so that they could try to resuscitate him, but they were unsuccessful. All of these events, from the time Eric began to experience trouble, to the time park personnel attempted to revive him, took place within the span of 17 to 20 minutes.
[*P9] On June 10, 2002, Bishop and his wife Janine, as co-executors of their son Eric’s estate, filed wrongful death action, pursuant to R.C. 2125.01 et. seq. against Nelson Ledges Quarry Park, LLC, Glenn and Joretta, and Kelley, alleging that all named defendants were negligent, and that their negligence was the direct and proximate cause of Eric’s death.
[*P10] On October 1, 2003, Nelson Ledges, Glenn and Joretta, and Kelley collectively moved for summary judgment.
[*P11] Bishop then filed a memorandum in opposition to summary judgment, attaching as support an affidavit from Tom Griffiths, Ed.D. (“Griffiths”), an aquatic safety expert, along with a report, incorporated by reference, in which Griffiths testified to “a high degree of aquatic certainty,” that “the conduct of allowing swimming in unrestricted areas, given the [**6] numerous instances highlighted in this report regarding the failure of the defendants to comply with even the most basic water safety requirements *** created a risk that was substantially greater than that which is necessary to make their conduct simply negligent.”
[*P12] On January 12, 2004, the trial court, after reviewing all of the pleadings, motions, and evidence filed, issued a four page order and judgment entry granting summary judgment in favor of all of the defendants. After setting forth the standards for summary judgment, the court made the following conclusions of law: 1) That defendants Glenn and Joretta Frohring are entitled to summary judgment, pursuant to R.C. 1705.48(A) and (B), since they are principals of a limited liability company 2. 2) That, even when reviewing all of the evidence in the light most favorable to the plaintiff, including the report of Tom Griffiths, defendants’ conduct did not rise to a level of reckless, willful or wanton conduct, but at most, suggested there may be a genuine issue of material fact as to negligence. 3) The waiver was valid, as a matter of law, thus, Eric waived all claims of negligence, and Bishop [**7] was barred from recovering on the wrongful death claim.
2 On appeal, Bishop’s counsel admitted at oral argument and in their brief that Glenn and Joretta Frohring would not be personally liable as principals of a limited liability company under R.C. 1705.48 (A). Therefore, this court, sua sponte, formally dismisses the Frohrings as parties to this appeal.
[*P13] Bishop timely appealed and raised the following assignments of error:
[*P14] “[1.] The trial court erred in failing to apply the standards for determination of motions for summary judgment.
[*P15] “[2.] The trial court erred in granting summary judgment in favor of appellee Nelson Ledges Quarry Park, Ltd. based on alleged lack of possession or control of leased premises.
[*P16] “[3.] The trial court erred in granting summary judgment for appellees on the ground that a valid release executed by Eric Bishop released appellees from liability.”
[*P17] As all of Bishop’s assignments of error question the propriety [**8] of the trial court’s grant of summary judgment, we will first address the applicable standards of review.
[*P18] [HN1] “Summary judgment is a procedural device to terminate litigation and to avoid formal trial when there is nothing to try. It must be awarded with caution.” Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-359, 1992 Ohio 95, 604 N.E.2d 138. Summary judgment is proper when three conditions are satisfied: 1) there is no genuine issue of material fact; 2) the moving party is entitled to judgment as a matter of law; and 3) reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion form summary judgment is made. See, Harless v. Willis Day Warehousing Co. (1976), 54 Ohio St.2d 64, 66, 375 N.E.2d 46; Civ.R. 56(C). [HN2] “If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ.R.56(E) to set forth specific facts showing that there is a genuine issue for trial, and if the nonmovant does not so respond, summary judgment, [**9] if appropriate, shall be entered against the nonmoving party.” Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996 Ohio 107, 662 N.E.2d 264. [HN3] In reviewing a motion for summary judgment, the court must construe the evidence in the light most favorable to the nonmoving party. Doe v. Shaffer, 90 Ohio St.3d 388, 390, 2000 Ohio 186, 738 N.E.2d 1243. Moreover, an appellate court conducts a de novo review of the trial court’s decision to grant summary judgment. Id. Thus, we, as an appellate court, owe no deference to the conclusions of the trial court.
[*P19] [HN4] In order to prevail in a wrongful death cause of action, the personal representative of the decedent must prove these elements: “1) a wrongful act, neglect or default of defendant which proximately caused the death and which would have entitled the decedent to maintain an action and recover damages if death had not ensued; 2) that a decedent was survived by a spouse, children, parents, or other next of kin; and 3) that the survivors suffered damages by reasons of the wrongful death.” McCormac, Wrongful Death in Ohio § 2.02. Bishop’s assignments of error challenge the court’s conclusions related to the first element, which may sound in either [**10] negligence or willful misconduct.
[*P20] For the purposes of judicial economy, Bishop’s assignments of error will be discussed out of order.
[*P21] In his third assignment of error, Bishop claims that the trial court improperly granted summary judgment, because there is a genuine issue of material fact with respect to the validity of the release executed by Eric on the day he drowned. We note at the outset, that Bishop does not argue that Eric did not sign the waiver form. However, Bishop does argue that if the exculpatory provisions in this waiver were strictly construed, the waiver would fail as a matter of law, because the intent to release the party was not expressed in clear and unequivocal terms. We disagree.
[*P22] [HN5] It is well-settled in Ohio that participants in recreational activities and the proprietor of a venue for such an activity are free to enter into contracts designed to relieve the proprietor from responsibility to the participant for the proprietor’s acts of negligence, but not for his willful or wanton misconduct. See, Bowen v. Kil-Kare, Inc. (1992), 63 Ohio St.3d 84, 585 N.E.2d 384 (auto racing); Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 1998 Ohio 389, 696 N.E.2d 201 [**11] (soccer); King v. United Skates of America (Nov. 10, 1994), 11th Dist. No. 93-L-199, 1994 Ohio App. LEXIS 5089 (roller skating); Cain v. Cleveland Parachute Training Ctr. (1983), 9 Ohio App.3d 27, 9 Ohio B. 28, 457 N.E.2d 1185 (skydiving); Schwartzentruber v. Wee-K Corp. (1997), 117 Ohio App. 3d 420, 690 N.E.2d 941 (horseback riding). Clauses limiting liability shall ordinarily be construed strictly against the drafting party. Glaspell v. Ohio Edison Co. (1987), 29 Ohio St.3d 44, 29 Ohio B. 393, 505 N.E.2d 264 at paragraph one of syllabus, ; Cain, 9 Ohio App.3d at 28. Moreover, [HN6] matters involving the interpretation of contract terms, when such terms are unambiguous, are questions of law. See, Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm, 73 Ohio St.3d 107, 108, 1995 Ohio 214, 652 N.E.2d 684.
[*P23] Reviewing the terms of the waiver language in the light most favorable to Bishop, we hold that there is no genuine issue of material fact related to the validity of the waiver that Eric signed. While inartfully drafted, the sheet Eric signed is clearly labeled at the top as a “Liability Waiver Form” in bold type. Moreover, the form states, in relevant part, that the company and [**12] customers agree that the company is not responsible for, “all liability for any loss, including, *** any loss arising from *** drowning.” (Emphasis added). Thus, any person signing the waiver sheet was on notice that the company was attempting to disclaim all liability for drowning, which is certainly a foreseeable risk of the activity. The term, “all liability” in this case is sufficient to encompass a loss from drowning due to any alleged negligence on the part of Nelson Ledges or Kelley. See, e.g. Schwartzentruber, 117 Ohio App.3d at 425 [HN7] (although “the better practice would certainly be to expressly state the word ‘negligence’ somewhere in the exculpatory provision *** the absence of that term does not automatically render the provision fatally flawed.”) For the reasons mentioned in Bowen, such a broad disclaimer of liability would not, as a matter of law, operate to relieve them from willful or wanton misconduct. Moreover, the obvious purpose of the writing on the document was to release Nelson Ledges and Kelley, d.b.a. J&E, from liability. This argument is not well-taken.
[*P24] Bishop additionally argues that the waiver cannot pass [**13] the test of clarity, since the exculpatory provisions appear in extremely small type. We disagree. Bishop, relying on the California case, Link v. NASCAR, Inc., (Cal.App.1984), 158 Cal. App. 3d 138, 205 Cal. Rptr. 513, argues that if an express release is not easily readable, then it is not enforceable. Bishop’s reliance on Link is misplaced.
[*P25] We first note that [HN8] the rules of law from other states are not controlling in Ohio, but may be used as persuasive authority, particularly when deciding a case of first impression. Certain facts of Link are similar to the instant case, in that the suit was brought for wrongful death as the result of injuries the deceased received after he had signed a waiver sheet which had places for multiple signatures. However, the purported releases that the deceased in Link signed were printed in five-and-one-half point type and could not easily be read by persons of ordinary vision. Furthermore, the court in Link found that the language was so lengthy and convoluted, it was almost incomprehensible to the average person. In deciding the case, the court in Link relied heavily on numerous provisions of the California Civil Code, which [**14] regulate the size of the type to be used in contract provisions, to support their argument. [HN9] Ohio has no such provisions. While we agree in broad principle that contract provisions, particularly those which purport to waive liability, should be printed in type large enough for a person of normal vision to read easily, the waiver in the case at bar satisfies these requirements. As we already mentioned, we find the terms of the waiver in this case were sufficiently clear to put the person signing it on notice. We agree with the trial court that Eric effectively waived all claims based on negligence by signing the waiver form. Thus, Bishop’s third assignment of error is without merit.
[*P26] Under Bishop’s first assignment of error, he argues that even if the court was correct in declaring that the waiver is valid as a matter of law, summary judgment should not have been granted, since the report of Bishop’s aquatic safety expert raised a genuine issue of material fact as to whether Kelley and Nelson Ledges engaged in willful and wanton misconduct. We disagree.
[*P27] We note at the outset, that since we have found Eric’s waiver of liability to be effective against negligence claims, [**15] Griffiths’ report may only be used to demonstrate willful and wanton misconduct. [HN10] Willful and wanton misconduct has been defined by the Ohio Supreme Court as the equivalent to reckless conduct. Thompson v. McNeill (1990), 53 Ohio St.3d 102, 104 n.1, 559 N.E.2d 705. An actor’s conduct is reckless when “he does an act or intentionally fails to do an act which it is his duty *** to do, knowing or having reason to know of facts which could lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.” Id. at 104-105 (citation omitted) (emphasis added). [HN11] “An act is negligent if it ‘falls below a standard established by the law for the protection of others against unreasonable risk of harm.” Id. at 103 (citation omitted). While the act must be intended by the actor to be reckless, “the actor does not intend to cause the harm which results from it.” Id. at 105 (citation omitted). Moreover, the risk itself must be “an unreasonable one under the circumstances.” Id. (emphasis sic).
[*P28] [**16] [HN12] An expert opinion may be incorporated by reference into a motion for summary judgment by means of a properly framed affidavit. See, e.g., Rogoff v. King (1993), 91 Ohio App.3d 438, 446, 632 N.E.2d 977. However, it is axiomatic that facts presented in affidavits supporting or opposing summary judgment must be of the type which would be admissible at trial. Civ.R. 56(E); Nu-Trend Homes, Inc. v. Law Offices of DeLibera, Lyons, & Bibbo, 10th Dist. No. 01AP-1137, 2003 Ohio 1633, at P71.
[*P29] Griffiths’ report makes reference to recommendations made by the Portage County Health Department (“the Department”), which is responsible for establishing licensing and health requirements for bathing beaches in the county. Kelley’s duty as operator of the park is predicated by regulations set by the Department. The referenced recommendations were suggested improvements made by the Department in 2001, almost an entire year after Eric’s accident, and a major portion of Griffiths’ report is devoted to Kelley’s response to these recommendations.
[*P30] This court has held that [HN13] “subsequent remedial measures are not admissible to prove negligence [**17] or culpable conduct in connection with the event at issue.” DiCesare v. Trumbull Cty. Bd. of Commrs. (Dec. 19, 1986), 11th Dist. Nos. 3620 & 3622, 1986 Ohio App. LEXIS 9404, at *6, citing Evid.R. 407. Thus, none of the evidence of subsequent measures in Griffiths’ report is admissible under Evid.R. 407 to prove negligence or culpable conduct in connection with Eric’s drowning.
[*P31] Griffiths’ report also bases its conclusion, in part, on Resolution 95-01, which was promulgated by the Department and in effect at the time of the accident. Specifically, Griffiths’ points to the provisions of Resolution 95-01 which called for “one or more qualified lifeguards for each 300 linear feet of occupied bathing beach” to be on duty and “when swimming outside of designated swimming and diving areas *** is permitted *** at least one rescue boat, or rescue board shall be provided and manned with a qualified lifeguard.”
[*P32] Kelley and Nelson Ledges do not dispute that there was only one lifeguard on the beach and no one patrolling in a kayak, at the time of the accident, even though there were staff working at the park [**18] that day who were certified lifeguards. The reason given for only one lifeguard on duty that day was that it was a slow day, as it had rained earlier that morning. The sole lifeguard on duty that day was stationed at the beach, watching over children who were swimming in the designated swimming area.
[*P33] However, the absence of a rescue boat on duty on the date of Eric’s drowning, as required by Resolution 95-01 does not create a genuine issue of material fact as to whether Kelley’s or Nelson Ledges’ conduct was willful and wanton. To hold otherwise would misconstrue the meaning of the term “standard established by law for the protection of others,” pursuant to Thompson.
[*P34] The threshold issue in determining willful and wanton misconduct is to determine what legal duty Kelley owed Eric as a visitor to the park. Since Eric paid an admission charge to Kelley for the purpose of swimming at the park, it is clear that Eric was a business invitee on the day of his drowning. [HN14] The Supreme Court of Ohio has defined a business invitee as “one rightfully on the premises of another for the purposes in which the possessor of the premises has a beneficial interest.” Scheibel v. Lipton (1951), 156 Ohio St. 308, 102 N.E.2d 453, [**19] at paragraph one of the syllabus; Monaco v. Red Fox Gun Club, Inc., 11th Dist. No. 2000-P-0064, 2001 Ohio App. LEXIS 6008, at *21, 2001 Ohio 4040.
[*P35] [HN15] Under common law, the duty owed by an owner of a premises to a business invitee is to “exercise ordinary care and to protect [the invitee] by maintaining the premises in a safe condition.” Id. at *21-*22. Thus, the next question then becomes, whether Resolution 95-01 imposes an additional legal duty on Kelley over and above the common-law duty of ordinary care.
[*P36] [HN16] Courts in Ohio uniformly recognize that the violation of legislative enactments which create a specific and mandatory duty for the protection of others constitutes negligence per se. Klyn v. Aruta (1986), 34 Ohio App.3d 152, 154, 517 N.E.2d 992; Tome v. Berea Pewter Mug, Inc. (1982), 4 Ohio App.3d 98, 103, 4 Ohio B. 181, 446 N.E.2d 848; Parker v. Copey’s Butcher Shop (Dec. 14, 1992), 2nd Dist. No. 2820, 1992 Ohio App. LEXIS 6496, at *6; Starost v. Bradley (Jan. 29, 1999), 2nd Dist. No. 17319, 1999 Ohio App. LEXIS 324, at *12 (“proof of negligence per se means that the Defendant possessed a duty imposed by statute [**20] and breached that duty”). Thus, in cases where a mandatory legal duty is imposed by statute, the “specific requirements of the statute or ordinance replace the rule of ordinary care.” Kehrer v. McKittrick (1964), 176 Ohio St. 192, 198 N.E.2d 669. (emphasis sic).
[*P37] [HN17] According to their express terms, Resolution 95-01 and the regulations created thereunder were adopted by the Portage County Department of Health for the licensing and health requirements of bathing beaches. The resolution purportedly derives its power to adopt regulations under the authority of R.C. 3707.01 and R.C. 3709.21, as well as under Ohio Administrative Code 3701-31-10.
[*P38] [HN18] R.C. 3707.01 charges boards of health of cities or general health districts with the obligation of “abating and removing all nuisances within its jurisdiction,” granting such boards the authority to “regulate the location, construction, and repair *** of yards, pens, and stables, and of water closets, privies, cesspools, sinks, plumbing and drains.”
[*P39] R.C. 3709.21 provides, in relevant part, that [HN19] “the board of health [**21] of a general health district may make such orders and regulations as are necessary for *** the public health, the prevention and restriction of disease, and the prevention, abatement, or suppression of nuisances.”
[*P40] [HN20] A plain reading of both statutes clearly indicates that neither expressly delegates to public health departments the authority to regulate public swimming areas. Moreover, even if we were to presume that public swimming areas fell under the ambit of the more general authority of R.C. 3709.21, the authority to regulate under this statute is limited only to public health matters, and not matters of public safety. Jackson v. City of Franklin (1991), 72 Ohio App.3d 431, 446, 594 N.E.2d 1018 (“R.C. 3709.21 does not authorize a board of health to regulate matters pertaining to public safety.”) Furthermore, as mentioned earlier, the regulation also purports to rely on [HN21] former Ohio Adm. Code 3701-31-10 3, regulating “other public bathing places,” which was repealed in January of 1996, over four years before the current incident occurred. See 1995-1996 Ohio Monthly Record 1-1110, eff. Jan. 1, 1996. Thus, any attempt [**22] by the Portage County Board of Health to promulgate and enforce safety regulations under either of the aforementioned statutes or the administrative code section, would be without legal effect.
3 [HN22] Ohio Adm. Code 3701-31-01 et. seq. is authorized by R.C. Chapter 3749.02, which was enacted in 1987. R.C. 3749.02 grants public health departments the right to regulate “the issuance of licenses, *** sanitation, safety, and operation of public swimming pools, public spas, and special use pools.” R.C. 3749.02 (emphasis added). We note, however, that according to R.C. 3749.01, “public swimming pools”, “spas,” and “special purpose pools” have specifically defined meanings. Although 3749.01(J) defines “public bathing areas” as “an impounding reservoir, basin, lake, pond, creek, river, or other similar natural body of water,” no other section within R.C. Chapter 3749 makes any mention of “public bathing areas.” Thus, we can only conclude that a public health department’s regulation of “public bathing areas” is not specifically authorized by this chapter. See also, 1994 Ohio Atty. Gen. Ops. No. 94-044. (“A public bathing beach *** is not subject to regulation under R.C. Chapter 3749, unless such beach constitutes a ‘public swimming pool,’ as defined in R.C. 3749.01(G), a ‘public spa,’ as defined in R.C. 3749.01(H), or a ‘special use pool,’ as defined in R.C. 3749.01(I).”
[*P41] [**23] Even if we were to assume that the administrative code section to which Resolution 95-01 cites was a valid means of enacting sufficiently specific safety regulations, [HN23] administrative code sections cannot, as a matter of law, be used to support a finding of negligence per se. Jaworowski v. Medical Radiation Consultants (1991), 71 Ohio App.3d 320, 329, 594 N.E.2d 9 (“The only ‘laws’ in Ohio which historically have been held to create specific and mandatory duties the violation of which constitutes negligence per se are legislative enactments, not administrative regulations.”) (citations omitted); see also, Whitener v. Firwood Investment Co. (Sep. 13, 1995), 2nd Dist. No. 14938, 1995 Ohio App. LEXIS 3986, at *22. Thus, we find that in the absence of valid and enforceable safety regulations, Kelley’s legal duty was one of ordinary care, i.e., an ordinary negligence standard of care.
[*P42] Since we have already determined that Eric validly waived all claims sounding in negligence, we see no conceivable means by which the requirements of Resolution 95-01 may be used, to find that Kelley’s conduct rose to the level of willful and wanton misconduct. See [**24] Roszman v. Sammett, (1971), 26 Ohio St.2d 94, 96-97, 269 N.E.2d 420 [HN24] (“The difference between negligence and willfulness is a difference in kind and not merely a difference in degree *** in order to establish wantonness, the conduct must be supported by evidence that shows a disposition to perversity, such as 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”) (emphasis added). Though the circumstances surrounding Eric’s death are, indeed, unfortunate, [HN25] “willful conduct implies design, set purpose, intention, or deliberation,” and “wanton conduct comprehends an entire absence of all care for the safety of others and a complete indifference to the consequences of the allegedly negligent act.” Rinehart v. Federal Nat’l Mortgage Assn. (1993), 91 Ohio App. 3d 222, 229, 632 N.E.2d 539 (citations omitted). Since there is nothing in the record supporting a finding that Kelley’s conduct was willful or wanton as a matter of law, Bishop’s first assignment of error is without merit.
[*P43] In his second assignment of error, Bishop alleges that Nelson Ledges maintained [**25] significant possession and control over the park as lessor and is therefore liable for Eric’s death. Since we determined in assignments of error one and three that Eric validly waived all claims sounding in negligence, and Kelley’s conduct as operator and lessee of the park did not rise to the level of willful and wanton misconduct, there is no liability to be imputed to Nelson Ledges. Bishop’s second assignment of error is without merit.
[*P44] For the foregoing reasons, we affirm the judgment of the Portage County Court of Common Pleas.
DONALD R. FORD, P.J., concurs with a Concurring Opinion.
CYNTHIA WESTCOTT RICE, J., concurs in part, dissents in part, with a Concurring/Dissenting Opinion.
CONCUR BY: DONALD R. FORD; CYNTHIA WESTCOTT RICE (In Part)
DONALD R. FORD, P.J., concurring.
[*P45] Although I concur with the majority, I believe that the following language cited in the opinion is subject to further qualification. The majority states that: “an expert opinion may be incorporated by reference into a motion for summary judgment by means of a properly framed affidavit. See e.g., Rogoff v. King (1993), 91 Ohio App.3d 438, 446, 632 N.E.2d 977. However, it is axiomatic that [**26] facts presented in affidavits supporting or opposing summary judgment must be of the type which would be admissible at trial. Civ.R. 56(E), Nu-Trend Homes, Inc. v. Law Offices of DeLibera, Lyons, and Bibbo, 10th Dist. No. 01AO-1137, 2003 Ohio 1633, at 71.”
[*P46] This writer notes that when there is no timely objection to submissions that otherwise could be excluded, the trial court might include such material in its analysis regarding a decision on a motion for summary judgment. Rodger v. McDonald’s Restaurants of Ohio, Inc. (1982), 8 Ohio App.3d 256, 8 Ohio B. 347, 456 N.E.2d 1262, at paragraph one of the syllabus; Chiles v. Cuyahoga Community College (Dec. 5, 1996), 8th Dist. No. 70658, 1996 Ohio App. LEXIS 5466, at *4; Christe v. GMS Mgt. Co., Inc. (1997), 124 Ohio App. 3d 84, 90, 705 N.E.2d 691; Sreshta v. Kaydan (May 6, 1999), 8th Dist. No. 74081, 1999 Ohio App. LEXIS 2066, at *6-*7; Jarrell v. Englefield (Mar. 17, 2000), 11th Dist. No. 98-P-0105, 2000 Ohio App. LEXIS 1076, at *2; Ryser v. Conrad (Mar. 31, 2000), 11th Dist. No. 98-T-0088, 2000 Ohio App. LEXIS 1428, at *8; Kanu v. George Dev., Inc., 6th Dist. Nos. L-02-1140 and L-02-1139, 2002 Ohio 6356, at P13. [**27] (Citations omitted.)
DISSENT BY: CYNTHIA WESTCOTT RICE (In Part)
CYNTHIA WESTCOTT RICE, J., concurring in part, dissenting in part.
[*P47] I concur with the majority’s resolution of appellant’s first and third assignments of error as they relate to the validity of the waiver Eric signed and its release of appellees from claims sounding in negligence. I dissent with respect to the resolution of appellant’s second assignment of error.
[*P48] As Judge Ford correctly notes in his concurring opinion, “when there is no timely objection to submissions that might otherwise be excluded, the trial court might include such material in its analysis regarding a decision on a motion for summary judgment.”
[*P49] Here, appellees failed to raise any objection to Griffith’s reference to recommendations made by the Portage County Health Department and the trial court could include such material in its analysis.
[*P50] Further, the majority concedes appellees were in violation of Resolution 95-01 at the time Eric drowned, yet summarily conclude that this evidence, “while likely sufficient to support a finding of negligence per se *** [is] insufficient as a matter of law, to find Kelly’s conduct [**28] rose to the level of willful and wanton misconduct.”
[*P51] The majority defines willful and wanton conduct as equivalent to reckless conduct and then states:
[*P52] “An actor’s conduct is reckless when ‘he does an act or intentionally fails to do an act which it is his duty *** to do knowing or having reason to know of facts which could lead a reasonable man 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.’ *** An act is negligent if it ‘falls below a standard established by law for the protection of others against unreasonable risk of harm.’ *** While the act must be intended by the actor to be reckless, ‘the actor must not intend to cause the harm which results from it.’ *** Moreover, the risk itself must be ‘an unreasonable one under the circumstances.‘” (Emphasis sic.) Supra, at 10.
[*P53] Here, Resolution 95-01 required a manned rescue boat to be on duty. Appellees concede no manned rescue boat was on duty and this decision was an intentional one. Thus, appellees concede they intentionally failed to do an act they were [**29] required by law to do. Appellant’s expert opined that appellees’ failure “to comply with even the most basic water safety requirements *** created a risk that was substantially greater than that which is necessary to make their conduct simple negligence.”
[*P54] Appellant’s expert’s opinion establishes a genuine issue of material fact exists as to whether appellees’ conduct was willful or wanton. For these reasons, I find appellant’s second assignment of error has merit.
Moser v. Ratinoff, 105 Cal. App. 4th 1211; 130 Cal. Rptr. 2d 198; 2003 Cal. App. LEXIS 138; 2003 Cal. Daily Op. Service 987; 2003 Daily Journal DAR 1320Posted: July 31, 2016
Christian Moser, Plaintiff and Appellant, v. Joanne Ratinoff, Defendant and Respondent.
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION FIVE
January 31, 2003, Decided
January 31, 2003, Filed
CALIFORNIA OFFICIAL REPORTS SUMMARY A participant in an organized, long-distance bicycle ride on public highways brought an action against a coparticipant, alleging that defendant was negligent in swerving into him and causing him to fall off his bicycle and sustain injuries. The trial court granted summary judgment for defendant on the basis of the primary assumption of the risk doctrine. (Superior Court of Los Angeles County, No. BC225431, Gregory C. O’Brien, Judge.)
A participant in an organized, long-distance bicycle ride on public highways brought an action against a coparticipant, alleging that defendant was negligent in swerving into him and causing him to fall off his bicycle and sustain injuries. The trial court granted summary judgment for defendant on the basis of the primary assumption of the risk doctrine. (Superior Court of Los Angeles County, No. BC225431, Gregory C. O’Brien, Judge.)
The Court of Appeal affirmed. It held that a waiver, signed by plaintiff prior to participating in the ride, that released the event holders, sponsors, and organizers and acknowledged the risks of the ride, including those caused by other participants, did not inure to the benefit of defendant. However, the court held, the primary assumption of the risk doctrine was applicable. Organized, long-distance bicycle rides are an activity to which the doctrine applies, since they are engaged in for enjoyment or thrill, require physical exertion and skill, and involve a challenge containing a risk of injury. Further, the risk that one cyclist will swerve into another is inherent in such rides. The court also held that the fact that defendant’s movements may have violated various Vehicle Code sections did not preclude application of the doctrine. (Opinion by Mosk, J., with Turner, P.J., and Grignon, J., concurring.)
CALIFORNIA OFFICIAL REPORTS HEADNOTES
Classified to California Digest of Official Reports
(1) Summary Judgment § 26–Appellate Review–Scope of Review. — –A grant of summary judgment is reviewed de novo. The appellate court makes an independent assessment of the correctness of the trial court’s ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law. Under Code Civ. Proc., § 437c, subd. (p)(2), a defendant moving for summary judgment meets its burden of showing that there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. Once the defendant has made such a showing, the burden shifts back to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action.
(2) Negligence § 98–Actions–Trial and Judgment–Questions of Law and Fact–Assumption of Risk–Summary Judgment. — –When a defendant moves for summary judgment on the basis of implied assumption of the risk, he or she has the burden of establishing the plaintiff’s primary assumption of the risk by demonstrating that the defendant owed no legal duty to the plaintiff to prevent the harm of which the plaintiff complains. Determining whether the primary assumption of risk doctrine applies is a legal question to be decided by the court.
(3) Negligence § 37–Exercise of Care by Particular Persons–Exercise of Care by Plaintiff–Assumption of Risk. — –A defense to a claim of negligence is that the plaintiff either expressly or impliedly assumed the risk.
(4) Negligence § 38–Exercise of Care by Particular Persons–Exercise of Care by Plaintiff–Assumption of Risk–Effect of Express Waiver. — –A participant in an organized, long-distance bicycle ride on public highways did not assume the risk of negligence by a coparticipant in the ride by signing, prior to taking part in the ride, a waiver that released the event holders, sponsors, and organizers and acknowledged the risks of the ride, including those caused by other participants. An express assumption of risk agreement does not inure to the benefit of those not parties to that agreement.
(5) Negligence § 37–Exercise of Care by Particular persons–Exercise of Care by Plaintiff–Assumption of Risk–Effect. — –The doctrine of primary assumption of the risk embodies a legal conclusion that there is no duty on the part of the defendant to protect the plaintiff from a particular risk. Where the doctrine applies, the plaintiff’s assumption of the risk acts as a complete bar to liability.
(6) Negligence § 37–Exercise of Care by Particular Persons-Exercise of Care by Plaintiff–Assumption of Risk–Competitive Sports. — –Under the doctrine of primary assumption of risk, a defendant owes no duty of care to protect a plaintiff against the risks inherent in a particular competitive sport voluntarily played by the plaintiff, absent some reckless or intentional misconduct, but does owe a duty not to increase the risk of harm above that inherent in the sport. Whether the doctrine applies depends on the nature of the sport or activity in question and on the parties’ general relationship to the activity. The overriding consideration in the application of the doctrine is to avoid imposing a duty that might chill vigorous participation in the implicated activity and thereby alter its fundamental nature.
(7) Negligence § 37–Exercise of Care by Particular Persons–Exercise of Care by Plaintiff–Assumption of Risk–Analytical Frameword. — –In assumption of the risk analysis, the question whether the defendant owed a legal duty to protect the plaintiff from a particular risk of harm does not turn on the reasonableness or unreasonableness of the plaintiff’s conduct, but rather on the nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport.
(8a) (8b) Negligence § 38–Exercise of Care by Particular Persons–Exercise of Care by Plaintiff–Assumption of Risk–Orgainzed Bicycle Ride. — –In an action by a participant in an organized, long-distance bicycle ride on public highways, in which plaintiff alleged that defendant, a coparticipant, was negligent in swerving into him and causing him to fall off his bicycle and sustain injuries, the trial court properly granted summary judgment for defendant on the basis of the primary assumption of the risk doctrine. Such organized, long-distance bicycle rides are an activity to which the doctrine applies, since they are engaged in for enjoyment or thrill, require physical exertion and skill, and involve a challenge containing a risk of injury. Further, the risk that one cyclist will swerve into another is inherent in such rides. Defendant’s movements may have been negligent, but they were not intentional, wanton, or reckless, nor were they totally outside the range of ordinary activity involved in the sport. Thus, the accident was within the risks assumed by plaintiff and defendant when they chose to participate.
[See 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 1090C.]
(9) Negligence § 37–Exercise of Care by Particular Persons–Exercise of Care by Plaintiff–Assumption of Risk–Risks Not Assumed. — –Even if an activity is one to which the primary assumption of the risk doctrine applies, there are certain risks that are deemed not assumed and certain injury-causing actions that are not considered assumed risks of the activity. An activity that is not inherent in the sport is not subject to the doctrine. Drinking alcoholic beverages, for example, is not an activity inherent in the sport of skiing. On the other hand, in various sports, going too fast, making sharp turns, not taking certain precautions, and proceeding beyond one’s abilities are actions held not to be totally outside the range of ordinary activities involved in those sports.
(10) Negligence § 40–Exercise of Care by Particular Persons–Exercise of Care by Plaintiff–Assumption of Risk–Violation of Safety Law–Vehicle Code Provisions Applicable to Bicycle Riding. — –In an action by a participant in an organized, long-distance bicycle ride on public highways, in which plaintiff alleged that defendant, a coparticipant, was negligent in swerving into him and causing him to fall off his bicycle and sustain injuries, the fact that defendant’s movements may have violated various Vehicle Code sections did not preclude application of the primary assumption of the risk doctrine. The doctrine is not displaced by a violation of a statute that does not evince legislative intent to eliminate the assumption of the risk defense.
COUNSEL: Law Offices of Michael L. Oran, Michael L. Oran, Kathy B. Seuthe; Law Offices of Garry S. Malin and Garry S. Malin for Plaintiff and Appellant.
Barry Bartholomew & Associates, Michael A. Nork and Kathryn Albarian for Defendant and Respondent.
JUDGES: (Opinion by Mosk, J., with Turner, P. J., and Grignon, J., concurring.)
OPINION BY: MOSK
[*1214] [**200] MOSK, J.
Plaintiff and appellant Christian Moser (Moser) and defendant and respondent Joanne Ratinoff (Ratinoff) participated in an organized, long-distance bicycle ride on public highways involving hundreds of participants. Moser signed an “Accident Waiver and Release of Liability” form for the benefit of the event holders, sponsors and organizers in which Moser expressly assumed the risk of various injuries, including those caused by other participants. During the ride, Ratinoff swerved into Moser, causing him to crash and sustain injuries. Moser sued Ratinoff for general negligence. Ratinoff filed a motion for summary judgment on the ground that a collision between bicycle riders was an inherent risk in the ride, and [*1215] therefore the action was barred by [***2] the primary assumption of risk doctrine enunciated in Knight v. Jewett (1992) 3 Cal.4th 296 [11 Cal. Rptr. 2d 2, 834 P.2d 696] (Knight). Moser opposed the motion on the grounds that the primary assumption of risk doctrine did not apply because the collision was not an inherent risk of the activity and because Ratinoff’s violation of provisions of the California Vehicle Code precluded application of the doctrine. The trial court granted summary judgment in Ratinoff’s favor. We hold that the primary assumption of risk doctrine applies to the organized bicycle ride, and that a violation of a statute does not displace that doctrine. Accordingly, we affirm the summary judgment.
FACTUAL AND PROCEDURAL BACKGROUND 1
1 We state the facts in accordance with the standard of review stated post.
Moser and Ratinoff collide during a bicycle ride
In February 1999, Moser registered to participate in the Death Valley Double Century bicycle ride, a 200-mile, noncompetitive bicycle ride on public [***3] highways. Hugh Murphy Productions organized the ride in which approximately 600 bicycle riders participated. 2 Before participating in the ride, Moser signed a document provided by the organizers entitled “Accident Waiver and Release of Liability” (the release), releasing the organizers and stating, “I acknowledge that this athletic event is an extreme test of a person’s physical and mental limits and carries with it the potential for death, serious injury and property loss. The risks include, but are not limited to those caused by . . . actions of other people including but not limited to participants. . . . I hereby assume all of the risks of participating &/or volunteering in this event.” The organizer required riders to wear helmets and to have bicycle lights.
2 One of the forms refers to the promoter as “Badwater Adventure Sports.”
The ride had no designated start time. On the day of the accident, Moser and his friend, David Warshawsky (Warshawsky), began the ride at 4:00 a.m. At a rest stop, [***4] Moser and Warshawsky encountered Ratinoff, another participant in the ride. The three cyclists left the rest stop together, with Warshawsky and Ratinoff riding side-by-side and Moser riding behind them. At some point, they began riding single file.
Moser was cycling close to the right-hand side of the road. Ratinoff said that she came from behind Moser’s left side and passed him or rode at his left side. Moser said Ratinoff came up from behind him and rode next to him on his left side. While she was riding on Moser’s left side, an Inyo County Sheriff’s Deputy pulled his car approximately four or five car lengths behind [*1216] them and stayed there for several minutes. Ratinoff turned to look at the [**201] police car, and she then told Moser, “I have to come over.” According to Ratinoff, a “split second” later, she moved to her right toward Moser.
As Ratinoff moved to her right, she made contact with Moser, who nevertheless was able to retain control of his bicycle. Within seconds, Ratinoff again collided with Moser, causing him to fall off his bike and to sustain injuries. At the time of the collision, Ratinoff and Moser were riding at an approximate speed of 15 to 20 miles per hour.
Moser [***5] sues Ratinoff, and Ratinoff files a motion for summary judgment
Moser commenced an action against Ratinoff and in his complaint alleged that Ratinoff “negligently, recklessly and carelessly operated, owned, controlled and maintained” her bicycle “so as to collide with” Moser’s bicycle. Ratinoff alleged assumption of risk as an affirmative defense.
Ratinoff filed a motion for summary judgment in which she contended that she was not liable to Moser because under the primary assumption of risk doctrine she did not breach a duty of care owed to him. Moser, in opposition to the motion, argued that the primary assumption of risk doctrine does not apply to noncompetitive bicycle riding and that Ratinoff violated Vehicle Code sections 21202, subdivision (a) (operating a bicycle as close “as practicable to the right-hand curb or edge of the roadway”), and 22107 (moving a vehicle to the left or right “with reasonable safety”), thereby giving rise to a presumption of negligence and rendering the primary assumption of risk doctrine inapplicable.
The trial court granted the summary judgment motion and entered judgment against Moser. The trial court denied Moser’s motion [***6] for new trial. Moser does not raise the denial of his new trial motion as a basis for his appeal.
STANDARD OF REVIEW
(1) [HN1] We review the grant of summary judgment de novo. (Szadolci v. Hollywood Park Operating Co. (1993) 14 Cal.App.4th 16, 19 [17 Cal. Rptr. 2d 356].) We make “an independent assessment of the correctness of the trial court’s ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law.” (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222 [38 Cal. Rptr. 2d 35].) A defendant moving for summary judgment meets its burden of showing that [*1217] there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) Once the defendant has made such a showing, the burden shifts back to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849, 853 [107 Cal. Rptr. 2d 841, 24 P.3d 493].) [***7] (2))
[HN2] “When a defendant moves for summary judgment on the basis of implied assumption of the risk, he or she has the burden of establishing the plaintiff’s primary assumption of the risk by demonstrating that the defendant owed no legal duty to the plaintiff to prevent the harm of which the plaintiff complains.” (Freeman v. Hale (1994) 30 Cal.App.4th 1388, 1395 [36 Cal. Rptr. 2d 418].) Determining whether the primary assumption of risk doctrine applies is a legal question to be decided by the court. (Knight, supra, 3 Cal.4th at p. 313; Record v. Reason (1999) 73 Cal.App.4th 472, 479 [86 Cal. Rptr. 2d 547].) [**202]
[HN3] A person is generally responsible “for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person.” (Civ. Code, § 1714.(3)) But a defense to a claim of negligence is that the plaintiff either expressly or impliedly assumed the risk. (Knight, supra, 3 Cal.4th at pp. 308, fn. 4, 309-321.)
I. Express assumption of risk
Before reaching the issue of implied assumption of risk, we must determine if Moser expressly assumed the risk of a collision based [***8] on the release he signed. [HN4] An express assumption of risk is a complete defense to a negligence claim. (Knight, supra, 3 Cal.4th at p. 308, fn. 4; Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1372 [59 Cal. Rptr. 2d 813]; Allabach v. Santa Clara County Fair Assn. (1996) 46 Cal.App.4th 1007, 1012 [54 Cal. Rptr. 2d 330].) Moser released the “event holders, sponsors and organizers,” and also acknowledged the risks of the ride, including those caused by other participants. The document does not purport to be a release of anyone other than the “event holders, sponsors and organizers.”
In Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715 [22 Cal. Rptr. 2d 781] (Westlye), the plaintiff, who was injured skiing, filed an action against the ski shop from which he rented allegedly defective ski [*1218] equipment and the distributors of the equipment. He had signed a written agreement with the ski shop in which he accepted the equipment for use “as is”; agreed that he understood that there ” ‘are no guarantee[s] for the user’s safety’ “; acknowledged that there is ” ‘an inherent risk of injury in the sport of skiing, and the use of any ski equipment, and expressly assume[d] the risks for any [***9] damages to any persons or property resulting from the use of this equipment’ “; and released the ski shop from any liability. (Id. at p. 1725.)
The distributors of the equipment contended that “as a matter of law an express assumption of risk is good as against the whole world” and therefore precluded any liability against the distributors. (Westlye, supra, 17 Cal.App.4th at p. 1729.) In holding that the plaintiff had not released the distributors of the equipment, the court said, “defendants fail to submit, and we have not discovered, any authority for [the distributors’] proposition. The doctrine of express assumption of the risk is founded on express agreement. [Citations.] ‘Although in the academic literature “express assumption of risk” often has been designated as a separate, contract-based species of assumption of risk . . ., cases involving express assumption of risk are concerned with instances in which, as the result of an express agreement, the defendant owes no duty to protect the plaintiff from an injury-causing risk.’ [Citations.] Such an agreement, if valid, ‘operates to relieve the defendant of a legal duty to the plaintiff with respect [***10] to the risks encompassed by the agreement. . . .’ [Citation.] That express assumption of risk is founded on an express agreement undercuts the distributor defendants’ claim that it is good as against the world. [P] . . . [P] We conclude the distributor defendants have failed to establish that they are entitled to the benefit of the written agreement between plaintiff and [the ski shop].” (Id. at pp. 1729-1730.)(4))
Westlye, supra, 17 Cal.App.4th 1715, states the existing law that [HN5] an express assumption of risk agreement does not inure to the benefit of those not parties to that agreement. Accordingly, [**203] Moser did not expressly assume the risk of negligence by a coparticipant in the ride. A person’s written acknowledgment of the risks inherent in an activity may, however, have an effect on determinations concerning implied assumption of risk. (See discussion post.)
II. Implied assumption of risk
The subject of implied assumption of risk has generated much judicial attention. Its modern history began when California eliminated contributory negligence and adopted a comparative negligence system in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [119 Cal. Rptr. 858, 532 P.2d 1226].. [***11] [*1219] Thereafter, the California Supreme Court–in two companion cases, Knight, supra, 3 Cal.4th 296, and Ford v. Gouin (1992) 3 Cal.4th 339 [11 Cal. Rptr. 2d 30, 834 P.2d 724] (Ford)–considered the “proper application of the ‘assumption of risk’ doctrine in light of [the] court’s adoption of comparative fault principles.” (Knight, supra, 3 Cal.4th at p. 300.) (5))
In Knight, supra, 3 Cal.4th 296, the Supreme Court, in a plurality opinion, set forth the doctrine of primary assumption of the risk. That doctrine, which is now established as “the controlling law” (Cheong v. Antablin (1997) 16 Cal.4th 1063, 1067 [68 Cal. Rptr. 2d 859, 946 P.2d 817] (Cheong)), “embodies a legal conclusion that [HN6] there is ‘no duty’ on the part of the defendant to protect the plaintiff from a particular risk. . . .” (Knight, supra, 3 Cal.4th at p. 308.) When the doctrine applies, the plaintiff’s assumption of the risk acts as a complete bar to liability. (Ibid.) 3
3 But see the Restatement Third of Torts, section 2 and comment i, pages 19, 25 (“Most courts have abandoned implied assumptions of risk as an absolute bar to a plaintiff’s recovery”).
[***12] (6) In Knight, supra, 3 Cal.4th 296, the court concluded that a defendant owes no duty of care to protect a plaintiff against the risks inherent in a particular competitive sport (in that case, an informal touch football game) voluntarily played by the plaintiff, absent some reckless or intentional misconduct, but does owe a duty not to increase the risk of harm above that inherent in the sport. The court said that “[i]n some situations . . . the careless conduct of others is treated as an ‘inherent risk’ of a sport, thus barring recovery by the plaintiff.” (Id. at p. 316.) In Ford, the court applied the rule to noncompetitive, non-team-sporting activities–in that case waterskiing. (Ford, supra, 3 Cal.4th 339.)
[HN7] Whether the primary assumption of risk doctrine applies–which issue is, as noted above, a question of law–“depends on the nature of the sport or activity in question and on the parties’ general relationship to the activity.” (Knight, supra, 3 Cal.4th at p. 313.) “The overriding consideration in the application of primary assumption of risk is to avoid imposing a duty which might chill vigorous participation in the implicated [***13] activity and thereby alter its fundamental nature.” (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 253 [38 Cal. Rptr. 2d 65].)
III. Activity subject to primary assumption of risk
(7) In Knight, supra, 3 Cal.4th at page 309, the court said that “whether the defendant owed a legal duty to protect the plaintiff from a [**204] particular risk [*1220] of harm does not turn on the reasonableness or unreasonableness of the plaintiff’s conduct, but rather on the nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport.” The court suggested that generally, the primary assumption of risk doctrine applies in a “sports setting.” (Id. at pp. 309-310, fn. 5.) (8a)) Thus, the issue in the instant case is whether an organized, noncompetitive, long-distance bicycle ride is one of those sports activities to which the primary assumption of risk doctrine applies.
The court in Staten v. Superior Court (1996) 45 Cal.App.4th 1628, 1635 [53 Cal. Rptr. 2d 657], stated, “Knight may require a court to determine a question of duty in sports settings while factually uninformed of how the sport is [***14] played and the precise nature of its inherent risks.” To make a decision concerning duty we must know the nature of a particular sport, and even if we do have such knowledge, we still may have no idea how imposing liability will affect or “chill” the sport–which is a major factor in making a determination of duty. (See American Golf Corp. v. Superior Court (2000) 79 Cal.App.4th 30, 37 [93 Cal. Rptr. 2d 683] [court said “expert opinion may inform the court on these questions”].) Nevertheless, under the current state of the law established by Knight, we must somehow make such a determination.
As guidance, there are cases in which courts have determined whether or not the primary assumption of risk applies to a particular activity. There are a number of cases involving sports activities in which the court found a primary assumption of risk. (Cheong, supra, 16 Cal.4th 1063 [snow skiing]; Ford, supra, 3 Cal.4th 339 [waterskiing]; Knight, supra, 3 Cal.4th 296 [touch football]; Sanchez v. Hillerich & Bradsby (2002) 104 Cal.App.4th 703 [128 Cal. Rptr. 2d 529] [collegiate baseball]; Distefano v. Forester (2001) 85 Cal.App.4th 1249 [102 Cal. Rptr. 2d 813] [***15] (Distefano) [off-roading]; Calhoon v. Lewis (2000) 81 Cal.App.4th 108 [96 Cal. Rptr. 2d 394] [skateboarding]; American Golf Corp. v. Superior Court, supra, 79 Cal.App.4th 30 [golf]; Lupash v. City of Seal Beach (1999) 75 Cal.App.4th 1428 [89 Cal. Rptr. 2d 920] [lifeguard training]; Record v. Reason, supra, 73 Cal.App.4th 472 [tubing behind a motorboat]; Lilley v. Elk Grove Unified School Dist. (1998) 68 Cal.App.4th 939 [80 Cal. Rptr. 2d 638] [wrestling]; Aaris v. Las Virgenes Unified School Dist. (1998) 64 Cal.App.4th 1112 [75 Cal. Rptr. 2d 801] [gymnastics stunt during cheerleading]; Balthazor v. Little League Baseball, Inc. (1998) 62 Cal.App.4th 47 [72 Cal. Rptr. 2d 337] [little league baseball]; Domenghini v. Evans (1998) 61 Cal.App.4th 118 [70 Cal. Rptr. 2d 917] [cattle roundup]; Mosca v. Lichtenwalter (1997) 58 Cal.App.4th 551 [68 Cal. Rptr. 2d 58] [sport fishing]; Staten v. Superior Court, supra, 45 Cal.App.4th 1628 [ice skating]; [*1221] Fortier v. Los Rios Community College Dist. (1996) 45 Cal.App.4th 430 [52 Cal. Rptr. 2d 812] [football practice drill]; Bushnell v. Japanese-American Religious & Cultural Center (1996) 43 Cal.App.4th 525 [50 Cal. Rptr. 2d 671] [***16] [judo]; Regents of University of California v. Superior Court (1996) 41 Cal.App.4th 1040 [48 Cal. Rptr. 2d 922] [rock climbing]; Ferrari v. Grand Canyon Dories, supra, 32 Cal.App.4th 248 [river rafting]; O’Donoghue v. Bear Mountain Ski Resort (1994) 30 Cal.App.4th 188 [35 Cal. Rptr. 2d 467] [snow skiing]; Stimson v. Carlson (1992) 11 Cal.App.4th 1201 [14 Cal. Rptr. 2d 670] [sailing].) In some other recreational activities, [**205] courts have held that there was no primary assumption of risk. (Shannon v. Rhodes (2001) 92 Cal.App.4th 792 [112 Cal. Rptr. 2d 217] [boating passenger]; Bush v. Parents Without Partners (1993) 17 Cal.App.4th 322 [21 Cal. Rptr. 2d 178] [recreational dancing].)
We have found no case that considers primary assumption of risk in connection with organized, noncompetitive, recreational bicycle riding. Nevertheless, this sport appears to fall within those activities to which these cases apply the assumption of risk doctrine. As the court in Record v. Reason, supra, 73 Cal.App.4th at page 482, said upon “[c]ompiling all of the distinguishing factors” from the cases, [HN8] an activity is a “sport” to which the primary assumption of risk doctrine applies if that [***17] activity “is done for enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury.” That delineation is a useful one and covers the bicycle ride here.
It is true that bicycle riding is a means of transportation–as is automobile driving. Normal automobile driving, which obviously is not an activity covered by the assumption of risk doctrine, requires skill, can be done for enjoyment, and entails risks of injury. But [HN9] organized, long-distance bicycle rides on public highways with large numbers of riders involve physical exertion and athletic risks not generally associated with automobile driving or individual bicycle riding on public streets or on bicycle lanes or paths. 4 Bicycle rides of the nature engaged in by the parties here are activities done for enjoyment and a physical challenge. Moser acknowledged in the release he signed that the activity is “an athletic event that is an extreme test of a person’s physical and mental limits and carries with it the potential for death, serious injury and property loss.” In view of these considerations, the organized, long-distance, group bicycle ride qualifies [***18] as a “sport” for purposes of the application of the primary assumption of risk doctrine.
4 We express no opinion as to such other forms of recreational bicycle riding.
IV. Inherent risk
(9) [HN10] Even if the activity is one to which the primary assumption of risk applies, there are certain risks that are deemed not assumed, and certain [*1222] injury-causing actions that are not considered assumed risks of the activity. The primary assumption of risk rule “does not grant unbridled legal immunity to all defendants participating in sporting activity. The Supreme Court has stated that ‘. . . it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.’ ([Knight, supra,] 3 Cal.4th at pp. 315-316, italics added.) Thus, even though ‘defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself,’ they may not increase the likelihood [***19] of injury above that which is inherent. (Id. at p. 315.)” (Campbell v. Derylo (1999) 75 Cal.App.4th 823, 827 [89 Cal. Rptr. 2d 519].) Conduct is not inherent in the sport if that conduct is “totally outside the range of ordinary activity involved in the sport . . . [and] if the prohibition of that conduct would neither deter vigorous participation in the sport nor otherwise fundamentally alter the nature of the sport.” (Freeman v. Hale, supra, 30 Cal.App.4th at p. 1394.) A participant injured in a sporting activity by another participant may recover from that coparticipant for intentional infliction of injury or tortious behavior “so [**206] reckless as to be totally outside the range of the ordinary activity involved in the sport” but not for mere negligence. (Knight, supra, 3 Cal.4th at pp. 320-321.)
[HN11] Certain activities have been held not to be inherent in a sport and thus not subject to the primary assumption of risk doctrine. For example, drinking alcoholic beverages is not an activity inherent in the sport of skiing. (Freeman v. Hale, supra, 30 Cal.App.4th at p. 1388.) On the other hand, in various sports, going too fast, [***20] making sharp turns, not taking certain precautions, or proceeding beyond one’s abilities are actions held not to be totally outside the range of ordinary activities involved in those sports. (See Cheong, supra, 16 Cal.4th 1063; Distefano, supra, 85 Cal. App. 4th 1249; Record v. Reason, supra, 73 Cal.App.4th 472.)(8b))
The analogies derived from the risks in other sports suggest that one cyclist riding alongside another cyclist and swerving into the latter is a risk that is inherent in a long-distance, recreational group bicycle ride. 5 The release Moser signed warns of the risk of accidents caused by the participants, thus indicating that such accidents are an inherent risk of the activity. If liability attached to entanglements and collisions among 600 bicycle riders, the recreational sport of an organized bicycle ride likely would be adversely affected.
5 Compare Mark v. Moser (Ind. Ct.App. 2001) 746 N.E.2d 410 (inherent risk in a competitive cycling race is that a competitor may attempt to cut in front of a coparticipant to advance position).
[***21] Ratinoff’s movements toward the right side of the road that caused her to collide with Moser may have been negligent, but they were not intentional, [*1223] wanton or reckless or conduct “totally outside the range of ordinary activity involved in the sport.” (Knight, supra, 3 Cal.4th at pp. 320-321.) Therefore, the accident at issue in this case is within the assumed risks of the organized bicycle ride in which Moser and Ratinoff were engaged. 6
6 There are traffic-related risks that might not be considered inherent in the activity involved here, such as those involving automobile negligence. (See Story v. Howes (N.Y. App. Div. 1973) 41 A.D.2d 925 [344 N.Y.S.2d 10] [“mere riding of a bicycle does not mean the assumption of risk by the rider that he may be hit by a car”]; Bell v. Chawkins (Tenn. Ct.App. 1970) 62 Tenn. App. 213 [460 S.W.2d 850] [bicyclist did not assume risk dog would bite her].)
V. Effect of statute
Moser asserts that the primary [***22] assumption of risk doctrine does not bar a claim when, as here, Ratinoff has violated statutes.
A. Pleading requirement
Moser’s failure to allege in his complaint that defendant’s conduct violated any statutory duties owed to plaintiff would, under Distefano, supra, 85 Cal. App. 4th at page 1266, procedurally bar plaintiff from raising the effect of a statutory violation in opposing a motion for summary judgment. Although this holding in Distefano appears inconsistent with long-standing authority that a plaintiff’s allegations of negligence include statutory violations that constitute negligence per se (Brooks v. E. J. Willig Truck Transp. Co. (1953) 40 Cal.2d 669, 680 [255 P.2d 802]; Karl v. C. A. Reed Lumber Co. (1969) 275 Cal. App. 2d 358, 361-362 [79 Cal. Rptr. 852]), we need not determine this procedural issue because of our conclusion that the statutory violations do not, under present [**207] law, preclude the assumption of risk doctrine.
B. Statutory violations do not displace the Knight rule
(10) Moser contends that defendant’s violations of various Vehicle Code sections constitute negligence per se, and thus preclude the application [***23] of the primary assumption of risk doctrine. The California Supreme Court has addressed this issue in two cases–Ford, supra, 3 Cal.4th 339, and Cheong, supra, 16 Cal.4th 1063–and has produced a number of opinions, leading one court to say “there appears to be no clear consensus on the high court about this issue.” (Campbell v. Derylo, supra, 75 Cal.App.4th at p. 829, fn. 3.) Nevertheless, a majority of the present California Supreme Court have expressed the view that a violation of a statute such as involved here does not displace the primary assumption of risk doctrine.
[*1224] The lead opinion in Ford, supra, 3 Cal. 4th 339, which case involved a waterskiing accident, dealt with whether Harbors and Navigation Code section 658, subdivision (d), 7 coupled with the negligence per se doctrine (as codified in Evid. Code, § 669), 8 established a rebuttable presumption that the defendant breached his duty of care to the plaintiff. That opinion concluded that the violation of Harbors and Navigation Code section 658 was inapplicable because the plaintiff [***24] did not fall within the statute’s protected class. (Id. 3 Cal.4th at p. 350.) Three of the justices found that the plaintiff was within the class of persons Harbors and Navigation Code section 658 was intended to protect, and therefore, under Evidence Code section 669, the defendant violated a legal duty of care to the plaintiff. (Id. at pp. 364-369 (conc. & dis. opn. of George, J.); id. at p. 369 (dis. opn. of Mosk, J.).) 9 Three other justices who had disagreed with the Knight plurality opinion and would have “adhere[d] to the traditional consent approach” to assumption of risk (id. at p. 351, fn. 1 (conc. opn. of Kennard, J.)), stated that the statute is not “the type of safety enactment that would preclude defendant . . . from asserting assumption of risk as a defense barring plaintiff . . . from recovering damages in his negligence action.” (Id. at p. 363 (conc. opn. of Kennard, J.).)
7 Harbors and Navigation Code section 658 provides that no person shall operate a vessel so as to cause, among other things, water skis to collide with any object or person.
8 Evidence Code section 669, subdivision (a), provides: “The failure of a person to exercise due care is presumed if: [P] (1) He violated a statute, ordinance, or regulation of a public entity; [P] (2) The violation proximately caused death or injury to person or property; [P] (3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and [P] (4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.” (See also Vesely v. Sager (1971) 5 Cal.3d 153, 164-165 [95 Cal. Rptr. 623, 486 P.2d 151].)
9 “Justice Arabian’s [lead] opinion in Ford implicitly assumed, and the opinions of Justice George, joined by Chief Justice Lucas, and Justice Mosk expressly concluded, that if the four elements of section 669(a) were satisfied, that statute creates tort liability between coparticipants in an active sport despite the Knight doctrine of primary assumption of risk.” (Cheong, supra, 16 Cal.4th at p. 1071.)
[***26] In Cheong, supra, 16 Cal.4th 1063, two friends were skiing together and collided, resulting [**208] in litigation. The trial court granted summary judgment in the defendant’s favor on the ground that a collision is an inherent risk of downhill skiing. On appeal, the plaintiff argued that the defendant’s violation of a county ordinance delineating the duties of skiers resulted in liability under Evidence Code section 669 and foreclosed the application of the primary assumption of risk doctrine. The ordinance expressly provided that a skier assumes the “inherent risks” of skiing, including the risk of collision with other skiers. (Id. at pp. 1069-1070.) The majority held that the ordinance did not create any duty other than that available under common law. The court said that “a number of the justices who have signed this [*1225] majority opinion” in Cheong questioned the conclusion of four justices in Ford that if the elements of Evidence Code section 669 were satisfied, a “statute creates tort liability between coparticipants in an active sport despite the Knight doctrine of primary assumption of risk.” (Id. at p. 1071.) [***27] The court added that the point need not be resolved because the elements of Evidence Code section 669 had not been met–the plaintiff had “not demonstrated that he is one of the class of persons the ordinance was intended to protect.” (Ibid.) The court therefore affirmed the grant of summary judgment.
A concurring opinion, joined by two justices, expressed the view that “[t]he Knight standard of primary assumption of risk still applies even if the violation of an ordinance or statute, combined with Evidence Code section 669, creates a presumption of negligence.” (Cheong, supra, 16 Cal.4th at p. 1079 (conc. opn. of Chin, J., 10 joined by Baxter, J. and Brown, J.).) A fourth justice stated that statutory obligation along with Evidence Code section 669 did not impose a duty of care when Knight eliminated a sports participant’s duty of care. (Id. at p. 1074 (conc. opn. of Kennard, J.).) Three justices took a contrary view, with one stating that the violation of a statute displaces the “no-duty rule of Knight” (id. at p. 1073 & fn. 1 (conc. opn. of [***28] Mosk, J.)) and the others stating that Evidence Code section 669 “may transform an appropriate statute into a legal duty of due care upon the defendant.” (Id. at p. 1077 (conc. opn. of Werdegar, J., joined by George, C. J.).)
10 Justice Chin also authored the majority opinion.
The Supreme Court has not conclusively determined whether or not a violation of law can displace the primary assumption of risk doctrine. Nevertheless, four justices presently sitting on the California Supreme Court 11 –a majority–expressed the view that Evidence Code section 669 does not itself override Knight, but rather that one must ascertain whether the violated statute was intended to do so. Only two justices now on the court 12 have concluded that the violation of a safety statute or ordinance designed to protect persons in the position of a plaintiff precludes the application of the implied assumption of risk doctrine.
11 Justices Baxter, Kennard, Chin and Brown.
12 Chief Justice George and Justice Werdegar.
The appellate court in Distefano, supra, 85 Cal.App.4th 1249, addressed this question. In that case, two men, one on a motorcycle and another in a dune buggy, were “off-roading.” After [**209] coming up opposite sides of a blind hill, they collided. Plaintiff contended that the Knight rule did not bar his action because defendant owed him statutory duties under Vehicle Code sections 38305 (proscribing driving off-road vehicles at an unreasonable or [*1226] imprudent speed) and 38316 (proscribing driving off-road vehicles with a willful and wanton disregard for the safety of other persons or property). (Id at p. 1265.)
Although the court held that a claim based on a violation of a statute was barred for procedural reasons, the court proceeded to address the merits of the contention that the Vehicle Code, along with Evidence Code section 669, imposed a tort duty that rendered the primary assumption of risk doctrine unavailable. (Distefano, supra, 85 Cal.App.4th at pp. 1266-1267.) [***30] The court stated that Vehicle Code sections 38305 and 38316, which provisions were enacted before the Supreme Court’s decision in Knight, did not evince any legislative intent to supersede or modify an assumption of risk doctrine later declared by Knight. (Distefano, at p. 1273.) The court therefore concluded that the statutory provisions “do not abrogate the Knight primary assumption of the risk doctrine, and thus do not impose on participants in the sport of off-roading a higher or different duty in tort than is established under Knight.” (Id. at p. 1274.)
Because a majority of the current Supreme Court justices have expressed the view that [HN12] a violation of a statute that indicates no legislative intent to eliminate the assumption of risk defense does not displace the primary assumption of risk doctrine, and because there are no cases inconsistent with that view, we adopt the Distefano court’s conclusion. (Distefano, supra, 85 Cal.App.4th 1249.) Although the facts show that Ratinoff violated provisions of the Vehicle Code designed to protect persons using public roads, based on our conclusion [***31] as to the present state of the law, such violations do not nullify Moser’s assumption of the risk.
Under the present state of the law, as applied here, the result is reasonable. By knowingly participating in a sporting event in which what occurred is an evident risk, Moser is not entitled to a recovery from Ratinoff.
The judgment is affirmed. Respondent shall recover costs on appeal.
Turner, P. J., and Grignon, J., concurred.
Appellant’s petition for review by the Supreme Court was denied April 23, 2003.
Linda Schlumbrecht-Muniz, M.D., Plaintiff, v. Steamboat Ski & Resort Corporation, a Delaware Corporation d/b/a STEAMBOAT, Defendant.
Civil Action No. 14-cv-00191-MSK-NYW
United States District Court for the District of Colorado
2015 U.S. Dist. LEXIS 30484
February 23, 2015, Decided
February 23, 2015, Filed
SUBSEQUENT HISTORY: Rejected by, Motion denied by Schlumbrecht-Muniz v. Steamboat Ski & Resort Corp., 2015 U.S. Dist. LEXIS 30447 (D. Colo., Mar. 11, 2015)
Summary judgment granted, in part, summary judgment denied, in part by Schlumbrecht-Muniz v. Steamboat Ski & Resort Corp., 2015 U.S. Dist. LEXIS 125899 (D. Colo., Sept. 21, 2015)
CORE TERMS: snowmobile, skiing, inherent dangers, ski, skier, parked, collision, recommendation, slope, trail, snow, ski areas, respondeat superior, terrain, Ski Safety Act, ski resort, sport, lamp, avalanche, man-made, feet, ski run, negligence per se, inherent risks, right to appeal, statutory definition, de novo review, deceleration, enlargement, exhaustive
COUNSEL: [*1] For Linda Schlumbrecht-Muniz, M.D., Plaintiff: Mark P. Martens, Martens & Associates, P.C., Denver, CO.
For Steamboat Ski and Resort Corporation, a Delaware Corporation doing business as Steamboat, Defendant: Kimberly A. Viergever, Peter W. Rietz, LEAD ATTORNEYS, Brian Alan Birenbach, Rietz Law Firm, LLC, Dillon, CO.
JUDGES: Nina Y. Wang, United States Magistrate Judge.
OPINION BY: Nina Y. Wang
RECOMMENDATION REGARDING DEFENDANT’S MOTION TO DISMISS
Magistrate Judge Wang
This matter comes before the court on Defendant Steamboat Ski & Resort Corporation’s (“Steamboat”) Motion to Dismiss [#14], filed on April 7, 2014. Steamboat seeks to dismiss the lawsuit filed by Plaintiff Dr. Linda Schlumbrecht-Muniz (“Plaintiff” or “Dr. Muniz”) on January 23, 2014. The Motion was referred to this Magistrate Judge pursuant to the Order of Reference dated February 6, 2014 [#9] and memorandum dated May 6, 2014 [#24]. After carefully considering the Motion and related briefing, the entire case file, and the applicable case law, I respectfully RECOMMEND that Defendant’s Motion to Dismiss be GRANTED.
BACKGROUND AND PROCEDURAL HISTORY
Dr. Muniz filed this lawsuit asserting claims of negligence, negligence per se, and respondeat superior [*2] against Steamboat and seeking damages for injuries incurred while skiing at Steamboat Ski Resort. The court has diversity jurisdiction pursuant to 28 U.S.C. § 1332.
The following is a statement of Dr. Muniz’ allegations as pled. On January 24, 2012, Dr. Muniz was skiing on a marked and open ski run known as “Bashor Bowl.” [#7 at ¶ 7]. Earlier in the day, a Steamboat employee had parked a snowmobile at the bottom of Bashor Bowl. The vehicle was not visible for 100 feet. [Id. at ¶ 9]. Dr. Muniz collided with the snowmobile and sustained personal injuries for which she now seeks compensatory damages.
Dr. Muniz filed her original Complaint on January 23, 2014, naming Steamboat and IRCE, Inc. a/k/a Intrawest Resorts, Inc (“IRCE). [#1]. She amended her Complaint on February 3, 2014 to dismiss IRCE as a defendant. [#7]. Steamboat waived service on February 5, 2014 [#10], filed the pending Motion to Dismiss on April 7, 2014 [#14], and filed a Motion to Stay Discovery on April 25, 2014. [#16]. Plaintiff filed a Response to the Motion to Dismiss on April 28, 2014 [#17], and filed a Response to the Motion to Stay on May 5, 2014 [#19], stating she did not object to the request. Steamboat filed a Reply in support [*3] of its Motion to Dismiss on May 12, 2014. [#26]. On October 28, 2014, the court denied Steamboat’s Motion to Stay. [#36].
Steamboat filed a Motion for Summary Judgment on January 5, 2015. [#41]. Dr. Muniz filed her Response on January 26, 2015 [#45], and Steamboat filed its Reply on February 9, 2015. [#47]. This action was reassigned to this Magistrate Judge the same day. [#46].
STANDARD OF REVIEW
Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a court to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive such a motion, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). In deciding a motion under Rule 12(b)(6), the court views factual allegations in the light most favorable to the plaintiff. Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)).
However, a plaintiff may not rely on mere labels or conclusions to carry its burden, “and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). As the Tenth Circuit explained in Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007), “the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable [*4] likelihood of mustering factual support for these claims.” The ultimate duty of the court is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
Steamboat argues that Dr. Muniz fails to state a claim upon which relief could be granted because, pursuant to the Colorado Ski Safety Act (“Ski Safety Act” or “Act”), C.R.S. § 33-44-101 to 114, it is immune from any claim for damages resulting from “the inherent dangers and risks of skiing,” and Plaintiff’s collision with a parked snowmobile qualifies as such. Steamboat further argues that Dr. Muniz failed to plead a violation of any section of the Act, and that her respondeat superior claim must fail as derivative of the other two Claims.
The Ski Safety Act sets forth safety standards for the operation of ski areas and for the skiers using them, and defines the rights and liabilities existing between the skier and the ski area operator. See Colo. Rev. Stat. § 33-44-102. See also Doering ex el Barrett v. Copper Mountain, 259 F.3d 1202, 1212 (10th Cir. 2001).1 “Notwithstanding any judicial decision or any other law or statute to the contrary, … no skier may make any claim against or recover from any ski area operator for injury [*5] resulting from any of the inherent dangers and risks of skiing.” Colo. Rev. Stat. § 33-44-112. The definition of “inherent dangers and risks of skiing” specifically excludes “the negligence of a ski operator as set forth in section 33-44-104(2),” which provides that “a ski operator’s violation of any requirement under the Ski Safety Act that results in injury to any person constitutes negligence.” Colo. Rev. Stat. §§ 33-44-104(2), -112. Accordingly, Steamboat may be liable under one of two theories: a skier may recover if her injury resulted from an occurrence not considered an inherent danger or risk of skiing; or a skier may recover if the ski operator violated a provision of the Act and that violation resulted in injury. See Kumar v. Copper Mountain, Inc., 431 Fed. Appx. 736, 737, 738 (10th Cir. 2011). A claim arising under the first instance would fall outside of the Act and be governed by common-law negligence principles. Id. (citing Graven v. Vail Assocs., 909 P.2d 514, 520 (1995), partially abrogated on other grounds by Colo. Rev. Stat. § 33-44-112). Dr. Muniz asserts claims under both theories of liability.
1 No one contests that Steamboat is a “ski area operator” and Plaintiff is a “skier” as defined in the Act.
The Ski Safety Act defines “inherent dangers and risks of skiing” to mean:
those dangers or conditions that are part of the sport of skiing, including changing weather conditions; snow [*6] conditions as they exist or may change, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, extreme terrain, and trees, or other natural objects, and collisions with such natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, or other man-made structures and their components; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including but not limited to roads, freestyle terrain, jumps, and catwalks or other terrain modifications; collisions with other skiers; and the failure of skiers to ski within their own abilities.
Colo. Rev. Stat. § 33-44-103(3.5). Steamboat argues that the list presented in this section is not exhaustive, and should be read to include collisions with snowmobiles.
In Graven v. Vail Associates, Inc., the Colorado Supreme Court reserved the issue of whether the list in section 33-44-103(3.5) is exclusive, though indicated that “[t]he word ‘include’ [ ] ordinarily signifies extension or enlargement and is not definitionally equivalent to the word ‘mean.'” [*7] Graven, 909 P.2d at 519 n. 4. See also Colo. Common Cause v. Meyer, 758 P.2d 153, 163-64 (Colo. 1988) (en banc) (“The word ‘includes’ has been found by the overwhelming majority of jurisdictions to be a term of extension or enlargement when used in a statutory definition. The use of ‘includes’ in the statutory definition of ‘political committee,’ therefore, connotes that something else is encompassed by the definition beyond what was previously covered by the immediately preceding language.”) (citations omitted).
More recently, the Colorado Court of Appeals held in Fleury v. Intrawest Winter Park Operations Corp., that the list of inherent dangers contained in section 33-44-103(3.5) is not exhaustive. 2014 COA 13, — P.3d –, 2014 WL 554237 (Colo. App. 2014). In Fleury, the court considered whether an avalanche that had caused the death of appellant’s husband qualified as an “inherent danger or risk of skiing” even though that specific hazard is not listed in section 33-44-103(3.5). By giving effect to the plain meaning of the words and reviewing the legislative intent surrounding the Act, the court concluded that an avalanche fits into the definition of inherent danger or risk. 2014 COA 13, [WL] at *2-3. First, the court reasoned that section 33-44-103(3.5) uses the word “including,” which indicates the list “is illustrative and not, as [appellant] argues, confined to the identified dangers.” 2014 COA 13, [WL] at *2 (“Because the General [*8] Assembly typically uses “include” as a word of extension or enlargement, listing examples in a statutory definition does not restrict the term’s meaning.”). (citations omitted). Next, the court considered the Colorado General Assembly’s decision in 2004 to alter the definition of inherent dangers and risks of skiing. The revision changed “dangers or conditions which are an integral part of the sport of skiing” to “dangers or conditions that are part of the sport of skiing,” thereby broadening the types of inherent risks covered by the Act and decreasing the liability of ski area operators. 2014 COA 13, [WL] at *4 (citing Ch. 341, sec. 1, § 33-44-103(3.5), 2004 Colo. Sess. Laws. 1393). Finally, the court determined that an avalanche, “a large mass of snow, ice, earth, rock, or other material in swift motion down a mountainside or over a precipice” fits one or more of the statutory examples of inherent dangers or risks of skiing. 2014 COA 13, [WL] at 3 (citing Kumar, 431 Fed. Appx. at 738) (resolving that cornice falls “within the section relating to snow conditions as they exist or change, or the provision covering variations in steepness or terrain.”). In concluding, the Fleury court stated, “the inclusion of an avalanche as an inherent danger or risk of skiing is consistent with [*9] the General Assembly’s intent, as evidenced by the evolution of the Act.” Id. Justice Navarro concurred in the ruling and Justice J. Jones filed a dissent.2 One month following that decision, a court in this District noted in passing that “the Act’s list of ‘inherent dangers,’ [ ] is nonexclusive.” Bazarewski v. Vail Corp., 23 F. Supp. 3d 1327, 1331 (D. Colo. 2014) (determining that resort was immune under the Act for damages resulting from injuries caused by impact of rubber tube against rubber deceleration mats because deceleration mats are an inherent part of the snow tubing activity) (emphasis in original).
2 On December 8, 2014, the Supreme Court of Colorado granted a Petition for Writ of Certiorari as to whether, for the purposes of the Ski Safety Act, “the term inherent dangers and risk of skiing, as defined in section 33-44-103(3.5), C.R.S. (2014) encompasses avalanches that occur within the bounds of a ski resort, in areas open to skiers at the time in question.” Fleury v. IntraWest Winter Park Operations Corp., No. 14SC224, 2014 Colo. LEXIS 1074, 2014 WL 6883934 (Colo. December 8, 2014).
This court finds the reasoning of Fleury persuasive and that the list in section 33-44-103(3.5) is not exhaustive. I am also persuaded that the presence of a parked snow mobile at the end of a ski run is an inherent risk of the sport of skiing. While Steamboat cites Fleury for that court’s description of the “common understanding of [*10] a ‘danger,'” and analogizes the presence of a snowmobile to cornices, avalanches, and rubber deceleration mats for tubing [#14 at 5], I find that a parked snowmobile is not analogous to those examples because a snowmobile is not part of the on-course terrain of the sport. However, the other provisions of the Act are more instructive. For instance, as Steamboat notes, section 33-44-109(4) of the Ski Safety Act provides, in pertinent part: “Each skier shall stay clear of snow-grooming equipment, all vehicles, lift towers, signs, and any other equipment on the ski slopes and trails.” Colo. Rev. Stat. § 33-44-109(4). This section demonstrates the General Assembly’s intent to hold the skier, rather than the ski operator, responsible for avoiding vehicles on the ski slopes and trails. And section 33-44-108(3) mandates that snowmobiles operating on ski slopes and trails be equipped with certain visibility-related accessories. These provisions indicate that the General Assembly expects that snowmobiles are present in ski areas — both on the slopes and trails — and pose a risk to skiers.
Similarly, this court has previously held that plaintiff’s collision with a snowmobile while skiing was included as a “risk of skiing/riding.” Robinette v. Aspen Skiing Co., LLC, 2009 U.S. Dist. LEXIS 34873, 2009 WL 1108093, *2 (D. Colo. 2009), aff’d 363 Fed. Appx. 547 (10th Cir. 2010). In Robinette, Chief Judge [*11] Krieger held that “the specific risk of colliding with a snowmobile being operated by a ski resort employee is necessarily within the ‘risks of skiing/riding,'” and cited section 33-44-108(3) for support that skier-snowmobile collisions are a known potential risk. 2009 U.S. Dist. LEXIS 34873, [WL] at *3. While the court was interpreting a particular ski resort release rather than the statute, the analysis remains the same. The fact that the snowmobile was parked near the end of the ski run, rather than moving, also does not alter conclusion.
Accordingly, I find that Plaintiff has failed to state a claim for negligence that is plausible on its face, and I recommend granting Steamboat’s Motion to Dismiss as to this claim.
B. Negligence Per Se
Steamboat argues that Plaintiff’s Second Claim should be dismissed pursuant to Fed. R. Civ. P. 8(a)(2) for failure to specify the provision of the Act that Steamboat allegedly violated. Steamboat further argues that if Plaintiff intended to claim a violation of section 33-44-107(7), that general provision is inapplicable because section 33-44-108(3) of the Act pertains specifically to snowmobiles.
Plaintiff clarifies in her Response that the negligence per se claim is for violation of section 33-44-108(3), which requires snowmobiles operated “on the ski slopes or trails of a ski area” to [*12] be equipped with “[o]ne lighted headlamp, one lighted red tail lamp, a brake system maintained in operable condition, and a fluorescent flag at least forty square inches mounted at least six feet above the bottom of the tracks.” Colo. Rev. Stat. § 33-44-108(3). Plaintiff also posits that because the snowmobile was parked, Steamboat is in violation of section 33-44-107(7), which requires that man-made structures be visible from at least 100 feet away. See Colo. Rev. Stat. § 33-44-107(7)). Plaintiff offers that a question exists as to whether a parked snowmobile is governed under section 33-44-108(3), requiring it to have an illuminated head lamp or trail lamp, or under section 33-44-107(7), requiring that it be visible from 100 feet.
Neither approach leads Plaintiff to her desired result. Steamboat correctly asserts that if the snowmobile is characterized as a man-made object, Plaintiff’s impact with it was an inherent danger and risk pursuant to section 33-44-103(3.5), and Steamboat is immune to liability for the resulting injuries. See Bayer v. Crested Butte Mountain Resort, Inc., 960 P.2d 70, 74 (Colo. 1998) (holding that inherent risks of skiing include “collisions with natural and man-made objects.”). If Plaintiff intends for her Claim to proceed under the theory that Steamboat violated section 33-44-108(3) by failing to equip the snowmobile with the proper lighting, she did not plead that the parked vehicle lacked the [*13] required items, and mentions only in passing in her Response that the vehicle “did not have an illuminated head lamp or trail lamp because it was not operating.” [#17 at 10]. Indeed, there is no section of the Act that requires any marking of the stationary snowmobile.
C. Respondeat Superior
Steamboat argues that Dr. Muniz’s Third Claim should be dismissed as derivative of her other Claims. An employer may be held liable under the doctrine of respondeat superior if damage results from the employee’s actions that were taken on behalf of the employer. Raleigh v. Performance Plumbing and Heating, 130 P.3d 1011, 1019 (Colo. 2006) (citing Grease Monkey Int’l, Inc. v. Montoya, 904 P.2d 468, 473 (Colo. 1995)). Plaintiff has alleged that the Steamboat employee was acting within the scope of her employment when she parked the snowmobile at the base of Bashor Bowl. See id. (“Under the theory of respondeat superior, the question of whether an employee is acting within the scope of the employment is a question of fact”) (citation omitted). Because I have found that a collision with a snowmobile located on a ski slope is an inherent danger or risk of skiing, Dr. Muniz’s claim for respondeat superior must also fail.
For the foregoing reasons, I respectfully RECOMMEND that Defendant Steamboat’s Motion to Dismiss (Doc. #14) be GRANTED. [*14] 3
3 Within fourteen days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge’s proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the District Court on notice of the basis for the objection will not preserve the objection for de novo review. “[A] party’s objections to the magistrate judge’s report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. One Parcel of Real Property Known As 2121 East 30th Street, Tulsa, Oklahoma, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the District Judge of the Magistrate Judge’s proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (District Court’s decision to review a Magistrate Judge’s recommendation de novo despite the lack of an objection does not preclude application of the “firm waiver rule”); International Surplus Lines Insurance Co. v. Wyoming Coal Refining Systems, Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of [*15] the Magistrate Judge’s order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal the Magistrate Judge’s ruling). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).
DATED: February 23, 2015
BY THE COURT:
/s/ Nina Y. Wang
United States Magistrate Judge
Jean Knarr & Lester Knarr v. Chapman School Of Seamanship
CIVIL ACTION NO. 99-952
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
2000 U.S. Dist. LEXIS 5351
April 14, 2000, Decided
April 14, 2000, Filed
COUNSEL: For JEAN KNARR, LESTER KNARR, PLAINTIFFS: DAVID S. KATZ, DAVID S. KATZ, ESQ., P.C., NORRISTOWN, PA USA.
For CHAMPMAN SCHOOL OF SEAMANSHIP, DEFENDANT: ANDREW P. MOORE, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN, DOYLESTOWN, PA USA.
JUDGES: JACOB P. HART, UNITED STATES MAGISTRATE JUDGE.
OPINION BY: JACOB P. HART
MEMORANDUM AND ORDER
JACOB P. HART
UNITED STATES MAGISTRATE JUDGE
April 14, 2000
The Defendant in this personal injury action has filed a motion for summary judgment. It argues that the Plaintiffs have failed to present any expert testimony to support their contention that the Defendant violated Coast Guard regulations and Florida state laws and codes that would constitute negligence per se pursuant to Florida law. Without the ability to prove negligence per se, Defendant argues that Plaintiffs’ claims are all barred by the release Mrs. Knarr signed.
[HN1] Summary judgment is warranted where the pleadings and discovery, as well as any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. Pr. 56. [HN2] The moving [*2] party has the burden of demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). [HN3] When ruling on a summary judgment motion, the court must construe the evidence and any reasonable inferences drawn from it in favor of the non-moving party. Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987).
Construing the evidence in favor of the Plaintiffs, as we are required to do at this stage of the proceedings, reveals the following. Plaintiff, Jean Knarr, was a student at the Chapman School of Seamanship, (“Chapman”). In March of 1997, Mrs. Knarr slipped and fell on one of the wet, wooden ladder steps, while disembarking from a ship, owned and operated by Chapman. To stop her fall, she attempted to reach for a railing on the right side of the ladder. Unfortunately, there was no railing on the right side of the ladder. As a result of the fall, Mrs. Knarr fractured her right foot, ankle, and leg, and suffered other bruises and lacerations.
Before the accident took place, Mrs. Knarr signed an agreement to indemnify Chapman for any suit or claim arising [*3] from the use of Chapman’s equipment.
I, the undersigned, for myself … and all those claiming by, through or under me, for and in consideration of being allowed to use the equipment, motors and vessels … owned by … the Chapman School of Seamanship, Inc. … hereby forever release and indemnify said Chapman School of Seamanship, Inc. from any … bodily injury … suit or claim arising out of the use of any equipment, motors or vessels, whether or not such … bodily injury … is based upon the sole negligence of Chapman School of Seamanship … .
(Chapman Application/Registration Form).
In denying an earlier motion for summary judgment, the Honorable Marvin Katz concluded that although the indemnification agreement protected the Defendant from liability arising from mere negligence, it could not protect itself from claims arising from negligence per se.
[HN4] While, under Florida law, contracts indemnifying a party against its own negligence will be enforced if the language of the contract is clear and unequivocal, see Charles Poe Masonry v. Spring Lock Scaffolding Rental Equip. Co., 374 So. 2d 487, 489 (Fla. 1979)(citation omitted), a party [*4] cannot indemnify itself against negligence per se. See John’s Pass Seafood Co. v. Weber, 369 So. 2d 616, 618 (Fl. 2d Dist. Ct. App. 1979)(holding such indemnification is against public policy).
(Order, 9/9/99). Judge Katz found that there were unresolved issues of fact regarding Chapman’s conduct and whether such conduct constituted negligence per se.
Chapman has now filed a second motion for summary judgment, arguing that the Plaintiffs have failed to present any expert testimony supporting their contention that certain conditions on the ship constituted statutory violations, establishing negligence per se. In response, the Plaintiffs present the court with a report and a letter from the engineering firm of Goedken, Liss. Specifically, Harold A. Schwartz, P.E., states that Chapman violated Coast Guard Regulations, Florida laws and codes, and the rules of the State Boating Law Administrators for safe boating certification.
In the report, however, Mr. Schwartz fails to identify any specific statute, regulation, or rule, that Chapman violated. In a follow-up letter, Mr. Schwartz refers to a standard adopted by the American National Standards Institute [*5] (“ANSI”), applying to ladders. He opines that the ladder in question fails to comply with the ANSI standard in three respects. First, the top rung is not level with the landing platform. Second, the side rails failed to extend the required 3 feet 6 inches above the top of the landing platform. Finally, the ladder did not have sufficient step across distance (the distance from the centerline of the rungs to the nearest edge of the structure). (Letter of Schwartz, 12/9/99).
The court is left to answer the questions of whether a violation of these ANSI standards is sufficient to constitute negligence per se under Florida law, and if not, are these standards embodied in any governing statutes, a violation of which would constitute negligence per se.
We answer the first question in the negative. [HN5] According to ANSI, it is the “coordinator of the United States private sector voluntary standardization system.” <<UNDERLINE>http://web.ansi.org/public/about.html, 4/11/00> As such, the ANSI standards do not have the force of law, absent adoption by statute, ordinance, or regulation. See Jackson v. H.L. Bouton Co., 630 So. 2d 1173, 1174-75 (Dist. Ct.App.Fl. 1994)(violation [*6] of ANSI standard is “merely evidence of negligence.”); Evans v. Dugger, 908 F.2d 801, 807 (11th Cir. 1990)(ANSI standards regarding handicapped access adopted by Florida regulation); Nicosia v. Otis Elevator Co., 548 So. 2d 854, 855 (Dist. Ct.App.Fl. 1989)(Florida adopted ANSI standard for elevator safety by statute).
However, our own search of Coast Guard regulations reveals that the Coast Guard has adopted the specific ANSI standard regarding the step off space (minimum of 7 inches) for escape ladders on small passenger vessels. 46 C.F.R. § 177.500(k). Therefore, we must determine whether a violation of this Coast Guard regulation constitutes negligence per se pursuant to Florida law.
[HN6] According to the Supreme Court of Florida, negligence per se is established if there is “a violation of any … statute which establishes a duty to take precautions to protect a particular class of persons from a particular injury or type of injury.” DeJesus v. Seaboard Coast Line Railroad Co., 281 So. 2d 198, 201 (Fla. 1973). Although we have been unable to find any case arising out of the state courts in Florida which concludes that a violation [*7] of a Coast Guard regulation amounts to negligence per se, [HN7] the Fifth Circuit and the United States Supreme Court have concluded that such a violation does constitute negligence per se. Reyes v. Vantage Steamship Co., Inc., 609 F.2d 140, 143 (5th Cir. 1980)(“the failure to follow any Coast Guard regulation which is a cause of an injury establishes negligence per se.”); Kernan v. American Dredging Co., 355 U.S. 426, 2 L. Ed. 2d 382, 78 S. Ct. 394 (1958). [HN8] Similarly, Florida state courts have concluded that violations of other legal pronouncements, other than statutes, amount to negligence per se. See First Overseas Investment Corp. v. Cotton, 491 So. 2d 293, 295 (Dist.Ct.App.Fl. 1986)(violation of Florida Department of Health and Rehabilitative Service Rule constitutes negligence per se); Underwriters at La Concorde v. Airtech Services, Inc., 493 So. 2d 428, 430 (Fla. 1986)(Boyd, J. concurring)(acknowledging expansion of negligence per se concept to include violations of administrative regulations); H.K. Corporation v. Miller, 405 So. 2d 218 (Dist.Ct.App.Fl. 1981)(violation of state administrative [*8] regulation constituted negligence per se); Florida Freight Terminals, Inc. v. Cabanas, 354 So. 2d 1222, 1225 (Dist.Ct.App.Fl. 1978)(violation of FAA regulation constitutes negligence per se). But see Murray v. Briggs, 569 So. 2d 476, 480 (Dist.Ct.App.Fl. 1990)(violation of Interstate Commerce Commission regulation not negligence per se); Jupiter Inlet Corp. v. Brocard, 546 So. 2d 1 (Dist.Ct.App.Fl. 1989)(violation of OSHA regulation does not constitute negligence per se). 1 Therefore, we conclude that a violation of a Coast Guard regulation will constitute negligence per se if the plaintiff is a member of the particular class of persons that the regulation sought to protect and she suffered an injury that the regulation was designed to prevent.
1 In Jones v. Spentonbush-Red Star Co., 155 F.3d 587 (2nd Cir. 1998), the Second Circuit distinguished violations of OSHA and Coast Guard regulations. The court explained that OSHA, itself, states that it should not be construed “to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees.” Jones, at 595 (citing 29 U.S.C. § 653(b)(4)). Relying on this language, the court explained that imposing negligence per se for an OSHA violation would “enlarge or diminish or affect … the liability of a maritime employer.” Jones, at 595.
[*9] As indicated above, the only ANSI standard relevant to the issues in this case that has actually been adopted by the Coast Guard, is the one dealing with the minimum distance that must be observed between the rungs of the ladder and the nearest permanent object in back of the ladder (here the side of the cabin). 46 C.F.R. § 177.500(k) requires that this distance be at least 7 inches.
The first question we must answer about this regulation is whether the plaintiff is a member of the particular class of persons that the regulation sought to protect. We have little trouble concluding that she is. The regulation appears at Subchapter T of the Coast Guard regulations. This subchapter specifically covers “Small Passenger Vessels (Under 100 Tons).” There is no dispute here that defendant’s boat is such a vessel. The general provisions of subchapter T state that the provisions of the subchapter apply, inter alia, if the vessel carries less than 150 passengers, but more than 6, so long as at least one of the six passengers is “for hire.” Since she was a student of defendant, using defendant’s boat for instruction, clearly Mrs. Knarr was a passenger “for hire.” Finally, the specific ladder [*10] regulation in question appears under the heading “Escape Requirements.” One could hardly imagine a set of ship regulations more specifically written for the benefit of passengers for hire than ones dealing with escape, as evidenced by certain events that occurred 88 years ago today in the North Atlantic. Cf. The Titanic, 233 U.S. 718, 34 S. Ct. 754, 58 L. Ed. 1171 (1914).
The next question — whether plaintiff suffered an injury that the regulation was designed to prevent — is a bit more difficult to answer. We nevertheless conclude that there are present here at least some genuine issues of material fact that prevent the court from ruling, as a matter of law, that Mrs. Knarr’s injuries could not have been avoided had the ladder complied with this regulation.
Defendant urges us to give a literal reading to plaintiffs’ complaint, and to find from such a reading that Mrs. Knarr has not alleged any fact from which a jury could conclude that the distance between the cabin wall and the ladder step could have proximately caused her fall. We decline to do so. In addition to the well known principle of federal pleading that [HN9] the facts alleged in a complaint need only put the defendant on notice of the [*11] plaintiff’s theories of recovery and need not state each element of proof with specificity, see Fed.R.Civ.P. 8(a)(2), we have here at least two specific allegations that could relate to the ladder’s set back distance.
In paragraph 10 a. of the complaint, Mrs. Knarr alleges that “the step upon which she was standing was in an unsafe condition.” In the next subparagraph, 10 b., she claims that “there were slippery substances on the steps which were not visible to the plaintiff.” While neither of these allegations specifically attributes negligence to the ladder set-back distance, we think it would be improper, at this point, to preclude plaintiff’s expert from testifying that the setback distance was related to the general “unsafe condition” allegation, or to the plaintiff’s alleged inability to see the condition of the ladder steps themselves.
Our conclusion would be different, of course, if the record contained either some specific information on the ladder’s actual set-back distance, or on the precise features of the ladder that allegedly caused the accident. At this point, however, we have neither. It thus appears that the case will turn on a resolution of disputed facts, some [*12] of which will, no doubt, be the subject of expert opinions. Accordingly, summary judgment is inappropriate at this time.
An appropriate order follows.
AND NOW, this 14 day of April, 2000, upon consideration of the Defendant’s Motion for Summary Judgment, the Plaintiffs’ response, thereto, including the attached reports of his expert engineer, and for the reasons stated in the accompanying Memorandum, IT IS HEREBY ORDERED that the Motion is DENIED.
BY THE COURT:
JACOB P. HART
UNITED STATES MAGISTRATE JUDGE
Beth Stolting, et al., Plaintiffs vs. Jolly Roger Amusement Park, Inc. d/b/a Splash Mountain Water Park et al, Defendants
CIVIL ACTION NO. MJG-00-299
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
2001 U.S. Dist. LEXIS 26572
August 24, 2001, Decided
August 24, 2001, Filed
SUBSEQUENT HISTORY: Motion granted by Stolting v. Jolly Roger Amusement Park, Inc., 2001 U.S. Dist. LEXIS 26573 (D. Md., Aug. 24, 2001)
Affirmed by Stolting v. Jolly Roger Amusement Park, Inc., 37 Fed. Appx. 80, 2002 U.S. App. LEXIS 11925 (4th Cir. Md., 2002)
CORE TERMS: slide, pool, exit, patrons, ride, riding, water slides, warning, bottom, summary judgment, amusement park, feet, legs, intelligence, splash, depth, posted, notice, bent, risk of injury, moving party, reasonable jury, appreciated, disclaimer, non-moving, shallow, warned, owed, dangerousness, negligently
COUNSEL: [*1] For Beth Stolting, Plaintiff: Paul D Bekman, LEAD ATTORNEY, Salsbury Clements Bekman Marder and Adkins LLC, Baltimore, MD; Andrew M. Moskowitz, William D. Sanders, Alpert Butler and Sanders, P.C., West Orange, NJ.
For Rohan Cassells, Plaintiff: Andrew M. Moskowitz, LEAD ATTORNEY, Alpert Butler and Sanders, P.C., West Orange, NJ.
For Jollyroger Amusement Park, Inc., doing business as Splash Mountain Water Park, Defendant: J Paul Mullen, LEAD ATTORNEY, Phoenix, MD; Kathleen M Bustraan, Ward and Bustraan LLC, Towson, MD.
JUDGES: Marvin J. Garbis, United States District Judge.
OPINION BY: Marvin J. Garbis
MEMORANDUM AND ORDER RE: SUMMARY JUDGMENT
The Court has before it Defendants’ Motion for Summary Judgment and the materials submitted by the parties relating thereto. The Court finds that a hearing is unnecessary.
A. Plaintiff’s Injury on the Shotgun Slide
On June 2, 1999, Plaintiffs Beth Stolting (hereinafter “Stolting”) and Rohan Cassells 1 (hereinafter “Cassells”), went to the Jolly Roger Amusement Park/Splash Mountain Park (hereinafter the “Park”) in Ocean City, Maryland. Stolting had been to water parks on “fifteen to twenty ” separate occasions and had been on water slides “hundreds of times,” [*2] but had never visited the Park. Stolting Dep. 29.
1 Now her husband and a plaintiff in the case.
At the entrance of the amusement park, a prominent disclaimer was posted. The sign read as follows:
The attractions contained within the Splash Mountain Waterpark are of a participatory nature and, as such, carry with them an inherent risk of injury. All guests agree, as a condition of admission, to use these facilities at their own risk.
Stolting read the sign upon entering the amusement park. She went on several water slides before arriving at the “Shotgun” 2 water slide (hereinafter “slide” or “ride”), which is the slide at issue in the instant case. Stolting Dep. 37. There were no posted instructions on how to ride the slide or any signs warning of the possible dangers posed by the slide. However, there were signs containing height restrictions, signs banning the use of inner tubes, and depth markers displaying the depth of the entry pool 3. Prior to riding the slide, Stolting watched others go down it. As Stolting prepared to go down the slide, she imitated the body positioning of those people who had previously been on the slide. With her knees bent at a “forty degree angle,” Stolting [*3] descended down the slide, hitting the bottom of the exit pool with her feet. Stolting Dep. 39- 40. Stolting does not remember how she landed or the positioning of her legs as she hit the water. Stolting Dep. 40- 41. However, she does allege that she felt her feet “hit the bottom of the pool . . . immediately” upon entering the exit pool. Stolting Dep. 44.
2 Also known as “the Cannonball Slide.”
3 The pool of water at the bottom of the slide is also referred to as the “entry” or “splash” pool.
At that point, Stolting lost her breath. She went to the side of the exit pool and was helped out of the pool and into a chair by lifeguards. At that time, Stolting complained of pain in her back, feet, and legs. The lifeguards gave Stolting ice and suggested that she should go to a hospital.
After resting for ten minutes, Stolting asked Cassells to take her to the Atlantic General Hospital in Ocean City, Maryland. 4 Stolting told the attending physician at the hospital that she was experiencing back and heal pain. The doctor took x-rays of Stolting’s heals, and then “told [her that] if [she] could walk out on crutches that [she] could leave.” 5 [*4] Stolting Dep. 50. Stolting was not given any medication.
4 Stolting never requested an ambulance.
5 No diagnosis was given.
During the next few days, she continued to rest and take Advil. Approximately one week later, Stolting was still experiencing pain and so, she decided to see Dr. Fischer (hereinafter “Fischer”). Fischer diagnosed Stolting with three fractured vertebrae. Stolting was told to remain on Advil and to continue bed rest. Fischer stated that it would take at least six months for her back to heal.
B. Prior Injuries on the Shotgun Slide
In recent years, several other patrons have complained of injuries allegedly sustained while riding the Shotgun slide. In 1997, Myron Custer (hereinafter “Custer”) reported a bruised heel from contacting the bottom of the exit pool of the Shotgun slide. Custer accused the Park of maintaining an unsafe ride.
In 1998, Michael Agnello Jr.(hereinafter “Agnello”), reported receiving injuries from riding the slide. Agnello Affi. After contacting the bottom of the exit pool, Michael complained of bruised legs and walking with a limp for a few days. The Park responded to complaints by stating that a licensed inspector from the Department of Labor Safety [*5] Inspection had investigated the slide and concluded that the slide met all of Maryland’s standards of safety.
C. Procedural Posture
In the Amended Complaint, Plaintiffs sue Defendants, Jolly Roger Amusement Park, Inc., Splash Mountain Water Park, and Bayshore Development Corporation. Plaintiffs allege that the Defendants’ negligence caused Stolting’s injuries. The Defendants deny negligence and assert an affirmative defense of the assumption of risk doctrine. By the instant motion, Defendants seek summary judgment on all claims.
II LEGAL STANDARD
In order for the Court to grant a motion for summary judgment, the evidence submitted to the Court must “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). A genuine issue of material fact is one which might affect the outcome of the lawsuit under governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
The burden of proof weighs heavily on the moving party to establish that there is a lack of evidence in support of the non-moving party’s claim. Celotex Corp. v. Catrett, 477 U.S. 317, 324-25, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The moving party [*6] must demonstrate to the Court that, viewing all of the evidence in the light most favorable to the non-moving party, a reasonable jury could not find in favor of the non-moving party. Anderson, 477 U.S. at 248. If the moving party has carried its burden of proof, then the non-moving party must produce more than a “mere scintilla of evidence in support of an essential element” in order to prevent the court from granting summary judgment. Id. at 251.
A. Negligence claim
The Plaintiffs’ claim is based on three purported acts of negligence:
1) After being put on notice that patrons had been injured on the Shotgun slide, Defendants negligently failed to post signs warning of the dangerousness of the ride;
2) Defendants negligently failed to post instructions on how patrons should position their bodies when riding the slide; and,
3) Defendants negligently provided too shallow an exit pool at the bottom of the slide.
Under Maryland 6 law, Plaintiffs must establish four elements in order to prevail on a negligence claim: 1) that a duty was owed to the Plaintiffs by the Defendants; 2) a breach of that duty owed by the Defendants; 3) a causal relationship between the breach of that duty [*7] and the harm suffered; and 4) that damages were sustained. Yousef v. Trustbank Sav., F.S.B., 81 Md.App. 527, 536-36, 568 A.2d 1134 (1990).
6 This case is a diversity action. Since Stolting’s cause of action took place in Maryland, that state’s substantive law applies. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938).
1) Failure to Warn of Dangerousness
The Plaintiffs contend that the Park was on notice of the dangerousness of the Shotgun slide and should have posted signs warning of the dangers because other patrons had been injured on the slide. In support of their claim, Plaintiffs rely on prior injuries received by Custer and Agnello while they were on the Shotgun slide. The Plaintiffs maintain that notice of such injuries imposed a duty on the Park to post warning signs next to the ride.
The Plaintiffs argue that, as patrons of the Park, they were owed the highest standard of care. Tennant v. Shoppers Food Warehouse MD Corp., 115 Md.App. 381, 388, 693 A.2d 370 (1997), (citing Casper v. Chas F. Smith & Son, Inc., 71 Md.App. 445, 457, 526 A.2d 87 (1987), aff’d, 316 Md. 573, 578, 560 A.2d 1130 (1989)). According to Casper, however, reasonable or ordinary care is the highest standard of care owed to a business invitee. 71 Md. App. at 457. “The general [*8] rule is that the operator of a place of amusement owes to business invitees a non-delegable duty to use ordinary care and caution to keep the premises in a reasonably safe condition.” Hawkins v. Southern Maryland Agricultural Fair Ass’n, 237 Md. 90, 94 (1964), 205 A.2d 286. An amusement park is not an insurer of the safety of persons using devices at the place of amusement, but only a proprietor bound to use ordinary care for the safety and protection of its patrons. See Carlin v. Krout, 142 Md. 140, 147, 120 A. 232 (1923). Hence, the Park’s duty towards its patrons is only to provide “ordinary and diligent care” in keeping the Shotgun slide in a “reasonabl[y] safe condition.” Id. at 146.
At issue is whether the Park breached this duty to provide “ordinary and diligent care” by not posting signs warning of the dangerousness of the Shotgun slide. The Plaintiffs contend that reports of injuries sustained from former patrons who used the ride put the Park on notice that the slide was dangerous. The Plaintiffs base their claim particularly on the testimony of Custer, who was allegedly injured from riding the Shotgun slide in 1997.
When Custer reported his injuries to the Park, he insisted that the slide [*9] was dangerous because the angle of slope was too steep. Custer’s claim is unsubstantiated. Indeed, a licensed inspector from Maryland investigated the ride and found that the Shotgun slide met the safety standards set out by Maryland law. In any event, Custer is by no means qualified to provide admissible opinion testimony that the angle of the slide was “too steep.” Moreover, his opinion is not based on any scientific principles and is no more than his grossly unqualified ipse dixit.
Although the Plaintiffs correctly state that “Maryland has gone almost as far as any state in holding that meager evidence of negligence is sufficient to submit the case to a jury,” the opinion offered by Custer is not enough to take the issue to a jury. State v. Thurston, 128 Md. App. 656, 662, 739 A.2d 940 (1999). The Plaintiffs have not presented evidence sufficient to establish that the Defendants had reason to believe the slide was so dangerous as to require a special warning next to it.
The Park did all it need have done by having the slide evaluated and vouched for by a licensed professional. Moreover, even if the Park were on notice of a dangerous condition posed by the Shotgun slide, the Park adequately warned [*10] patrons of the dangers of water slides by posting a disclaimer at the entrance of the amusement park. Stolting admitted in her deposition that she saw the disclaimer and that although she did not remember what it said, she read it. Stolting Dep. 90. The sign posted at the entrance of the Park expressly warned patrons that all rides within the Water park “carr[ied] with them an inherent risk of injury.” There is no evidence adequate to establish that a pertinent standard of care required additional warnings. Defs.’ Reply to Pls.’ Mot. for Summ. J. at 4.
2) No Posted Instructions
The Plaintiffs argue that the Park had an obligation to post instructions on how to ride the Shotgun slide. They offered Hanst’s purported “expert” opinion in support of this contention that patrons should have been told to keep their knees bent when riding down the slide 7. For the reasons stated in its Memorandum and Order re: Motion In Limine, issued this date, Hanst’s “expert” opinion has been held inadmissible.
7 Plaintiffs claim that riding with straight legs as opposed to bent knees caused the accident.
Moreover, even if Hanst’s opinion were considered, and there has been a duty to warn Plaintiff to keep her [*11] legs bent, the “negligent” failure to give the advice would be irrelevant. Stolting cannot establish causation. Stolting testified that her legs were bent at a “forty-degree angle” as she slid down the slide. Stolting Dep. 39-40. Thus, even if Plaintiffs had established a duty to instruct a breach of that duty, Plaintiffs cannot establish that the failure to instruct was a proximate cause of her injuries.
3) Depth of the Exit Pool
The Plaintiffs argue that the Defendants were negligent because the exit pool at the bottom of the Shotgun slide was too shallow. Plaintiffs base this claim on the opinion of Hanst who asserted that the exit pool should have been eight to ten feet. 8 As held in the Memorandum and Order re: Motion in Limine issued this date, Hanst’s expert opinion is inadmissible.
8 The exit pool is four to five feet deep. Hanst opined that it should have been four to five feet deeper than it was.
Additionally, both Olsen, the engineer, and the inspector from the Department of Inspection and Safety verified that the slide met the safety standards enforced by the state of Maryland. Even Hanst verified in his deposition that there was nothing in the inspector’s or the engineer’s [*12] reports with which he disagreed. In fact, Hanst’s own investigation of the slide, which consisted of riding the slide himself and watching others on the slide, did not produce any findings contradictory to those of the Defendants. Neither Hanst nor any of the people he watched on the slide were injured after making contact with the bottom of the exit pool.
There is no evidence sufficient to prove to a reasonable fact finder that Defendants negligently provided too shallow an exit pool. No reasonable jury could find that the Park was negligent by virtue of having an exit pool with a depth of “only” between four and five feet. 9
9 Indeed, a reasonable jury might even find that an eight to ten foot deep exit pool, as suggested by Hanst, could create a danger of drowning.
B, Assumption of Risk
The Court notes that even if Plaintiffs were able to establish that some negligence by Defendants caused the accident at issue, Defendants would still be entitled to summary judgment.
In Maryland, assumption of risk is an affirmative defense to a claim of negligence. ADM P’ship v. Martin, 348 Md. 84, 91, 702 A.2d 730 (1997). To establish an assumption of risk defense, the Defendants have the burden of demonstrating [*13] that the Plaintiffs: 1) had knowledge of the risk of danger; 2) appreciated the risk; and 3) voluntarily confronted the risk of danger. Id. at 90-91. An objective standard must be used in deciding “whether a plaintiff had knowledge and appreciation of the risk, . . . and a plaintiff . . . [cannot] say that he did not comprehend a risk which must have been obvious to him.” Id. (quoting Gibson v. Beaver, 245 Md. 418, 421, 226 A.2d 273 (1967)). Overall, the question of whether the plaintiff assumed the risk is usually a question for the jury, however, when it is clear that by using an objective test, “a person of normal intelligence in the position of the plaintiff must have understood the danger, the issue is for the court.” Schroyer v. McNeal, 323 Md. 275, 283-84, 592 A.2d 1119 (1991).
1) Knowledge of the Risk of Danger
Stolting’s experience riding water slides establishes that Stolting had knowledge of the risks she faced when she chose to ride the Shotgun slide. “Those who participate or sit as spectators at sports and amusements may be taken to assume the known risks of being hurt by roller coasters, flying baseballs, [or] hockey pucks . . . .” Prosser and Keeton on the Law of Torts, § 68, at 485-86 (5th ed. 1984). [*14] Moreover, Stolting in fact read the sign warning of the danger.
2) Appreciation of the Risk
If any person of normal intelligence in [one’s same] position would have understood the danger one faced, then one has appreciated the risk. Leakas v. Columbia Country Club, 831 F.Supp. 1231, 1236 (D. Md. 1993). The Court determined in Leakas that a “twenty-six year old, experienced swimmer,” had the “knowledge and appreciation of the risk of diving into shallow water because any person of normal intelligence in Leakas’ position must have understood the danger.” Leakas, 831 F.Supp. at 1236. Moreover in Casper, the court held that a stream covered over by a sheet of ice was an “open and obvious danger,” which every child could understand and appreciate. Casper v. Chas F. Smith & Son, Inc., 71 Md.App. 445, 458, 526 A.2d 87 (1987), aff’d, 316 Md. 573, 578, 560 A.2d 1130 (1989).
In the case at Bar, Stolting’s age, education and experience on water slides clearly establishes that she was able to appreciate the risk.
Plaintiffs, relying on Maryland State Fair and Agricultural Society, Inc., argue that even though Stolting might have had knowledge of a risk based on her experience, she did not appreciate the risk posed by the Shotgun [*15] slide. Md. State Fair and Agric. Soc’y, Inc. v. Lee, 29 Md.App. 374, 380-81, 348 A.2d 44 (1964) (holding that racetrack owners’ negligence in leaving track sandy created a hidden and unforeseeable danger, which caused plaintiff’s injuries). The facts of Maryland State Fair and Agricultural Society, Inc., however, are distinguishable from those in the instant case.
In Maryland State Fair and Agricultural Society, Inc., the Court held that the dangers posed by the negligent conditions (in particular a sandy track) would not necessarily have been comprehended by “any person of normal intelligence in [the plaintiff’s] position.” 29 Md.App. at 381. In the instant case, there is no danger that a person of ordinary intelligence could not have fully appreciated. There is no evidence of any hidden or unforeseeable dangerous condition that caused Stolting’s injuries. In fact, the evidence establishes that the risk posed by the water slide was an open and obvious risk of which Plaintiff (and all other park patrons) was expressly warned. The risk could be, and should have been, appreciated by Stolting and any other reasonable person.
3) Voluntarily Confronted the Risk of Danger
Finally, the Defendants argue that [*16] in addition to knowing and appreciating the risk, Stolting voluntarily confronted the risk. The Defendants rely on the decision in Leakas in which the Court determined that Leakas assumed the risk when he chose to dive into a pool “of unknown depth.” 831 F.Supp. at 1237. Like the plaintiff in Leakas, Stolting “voluntarily encounter[ed] the danger.” Id. After reading the disclaimer at the front of the Park, watching other patrons maneuver themselves down the slide, and relying on her prior experiences on water slides, Stolting chose to ride the Shotgun slide. Of her own free will, Stolting voluntarily made the decision to go on the ride and take her chances even though, as she was specifically warned, the rides in the Park “carry with them an inherent risk of injury.”
The court concludes that any reasonable jury would have to find that Stolting assumed the risk of injury on the Shotgun slide by having knowledge of the risk, appreciating the risk, and voluntarily confronting the risk of danger. Hence, Stolting’s negligence claim, even if viable, would be barred by the assumption of risk doctrine.
For the foregoing reasons:
1. [*17] Defendants’ Motion for Summary Judgment is GRANTED.
2. Judgment shall be entered by separate ORDER.
SO ORDERED this 24th day of August, 2001.
/s/ Marvin J. Garbis
Marvin J. Garbis
United States District Judge
By separate Order issued this date, the Court has granted summary judgment to the Defendants.
1. Judgment shall be, and hereby is, entered in favor of Defendants JOLLY ROGER AMUSEMENT PARK, INC. d/b/a SPLASH MOUNTAIN WATER PARK and Bayshore Development Corporation against Plaintiffs Beth Stolting and Rohan Cassells dismissing all claims with prejudice with costs.
2. Any and all prior rulings disposing of any claims against any parties are incorporated by reference herein.
3. This Order shall be deemed to be a final judgment within the meaning of Rule 58 of the Federal Rules of Civil Procedure
SO ORDERED this 24th day of August, 2001.
/s/ Marvin J. Garbis
Marvin J. Garbis
United States District Judge
Gillette v. All Pro Sports, LLC., 2013 Fla. App. LEXIS 19432; 38 Fla. L. Weekly D 2573
Carol Ann Gillette, Appellant, v. All Pro Sports, LLC., D/B/A Family Fun Town, Appellee.
Case No. 5D12-1527
COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT
2013 Fla. App. LEXIS 19432; 38 Fla. L. Weekly D 2573
December 6, 2013, Opinion Filed
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
PRIOR HISTORY: [*1]
Appeal from the Circuit Court for Volusia County, Terence R. Perkins, Judge.
COUNSEL: D. Paul McCaskill of David & Philpot, P.A., and J. Michael Matthews of J. Michael Matthews, P.A. Maitland, for Appellant.
Bruce R. Bogan of Hilyard, Bogan & Palmer, PA, Orlando, for Appellee.
JUDGES: TORPY, C.J., LAWSON and WALLIS, JJ., concur.
Appellant challenges a summary final judgment in favor of Appellee on her complaint for injuries she received in a Go-Kart accident at a facility operated by Appellee. Appellant contends that Appellee’s employee negligently increased the Go-Kart speed during a race, causing her to lose control of the Go-Kart and crash into the railing. The lower court held that a waiver and release form signed by Appellant precluded her negligence action. We reverse.
The sole issue on appeal is whether the waiver and release signed by Appellant effectively precludes an action based on Appellee’s purported negligence. The document provides in material part as follows:
WAIVER AND RELEASE FROM LIABILITY FOR GO CARTS AND TRACK
In consideration for being permitted to drive Go Karts at Family Fun Town, 401 S. Volusia Avenue, Orange City, Florida, I acknowledge and agree as follows:
1. I HAVE READ [*2] THE RULES FOR OPERATING THE Go Karts, and accept full responsibility for obeying the rules and all other posted rules and warning signs;
2. I understand that the course of [sic] which the Go Karts operate has curves, which require a degree of skill and responsibility to navigate safely. I have the necessary skill and will exercise the responsibility necessary to operate the Go Karts and navigate the course safely;
3. The Go Karts are controlled by individual drivers, who are capable of making mistakes and intentionally causing harm to others. I could be potentially injured, disabled, or killed, whether by my own actions (or inactions) or the actions or inactions of another driver. I freely and knowingly assume this risk. I take full responsibility for any claims or personal injury, death, or damage to personal property arising out of my use of the G [sic] Karts and/or the Go Kart track, whether to me or to other people. On behalf of myself, my heirs, my assigns and my next of kin, I waive all claims for damages, injuries and death sustained to me or property that I may have against Family Fun Town, and its members, managers, agents, employees, successors, and assigns (each a “Released [*3] Party”).
4. I have been provided the opportunity to inspect the Go Karts and the track prior to signing this Waiver AND Release, and the conditions of each is completely satisfactory to me. If they were not, I would not sign this document or operate or ride in the Go Karts and the track are [sic] completely satisfactory to me.
5. I understand that the terms of this release are contractual and not a mere recital, and that I have signed this document of my own free act.
I have read this waiver and release in its entirety. I understand that I am assuming all the risk inherent in operating and/or riding the Go Karts on the track. I understand that it is a release of all claims that I may have against any released part [sic]. I understand that this is the entire agreement between me and any released party and that it cannot be modified or changed in any way by the representation or statements by any released party or by me. I voluntarily sign my name as evidence of my acceptance of all the provisions in this waiver and release and my agreement to be bound by them.
Clauses that purport to deny an injured party the right to recover damages from another who negligently causes injury are strictly [*4] construed against the party seeking to be relieved of liability. UCF Athletics Ass’n v. Plancher, 121 So. 3d 1097, 1101 (Fla. 5th DCA 2013) (citing Cain v. Banka, 932 So. 2d 575 (Fla. 5th DCA 2006); Sunny Isles Marina, Inc. v. Adulami, 706 So. 2d 920 (Fla. 3d DCA 1998)). To be effective, the wording of such clauses must be so clear and understandable that an ordinary and knowledgeable person will know what he or she is contracting away. Raveson v. Walt Disney World Co., 793 So. 2d 1171, 1173 (Fla. 5th DCA 2001) (citing Lantz v. Iron Horse Saloon, Inc., 717 So. 2d 590, 591 (Fla. 5th DCA 1998)).
Here, the release does not expressly state that it includes Appellee’s negligence and, when the document is considered in its totality, it is not clear that negligence of the sort here was intended to be within the scope of the release.
REVERSED AND REMANDED.
TORPY, C.J., LAWSON and WALLIS, JJ., concur.