Elliott, v. Carter, 2016 Va. LEXIS 151

Chancy M. Elliott, Administrator of the Estate of Caleb Mckinley Smith, Deceased v. Trevor Carter

Record No. 160224

SUPREME COURT OF VIRGINIA

October 27, 2016, Decided

PRIOR HISTORY: [*1] FROM THE CIRCUIT COURT OF RICHMOND COUNTY. Harry T. Taliaferro, III, Judge.

Elliott v. Carter, 2016 Va. LEXIS 49 (Va., Apr. 12, 2016)

DISPOSITION: Affirmed.

COUNSEL: David R. Simonsen, Jr. (Keith B. Marcus; ParisBlank, on briefs), for appellant.

W.F. Drewry Gallalee (Harold E. Johnson; Williams Mullen, on brief), for appellee.

JUDGES: OPINION BY JUSTICE S. BERNARD GOODWYN. JUSTICE McCULLOUGH, with whom JUSTICE MIMS joins, dissenting.

OPINION BY: S. BERNARD GOODWYN

OPINION

PRESENT: All the Justices.

OPINION BY JUSTICE S. BERNARD GOODWYN

In this appeal, we consider the evidence required to submit a question of gross negligence to a jury.

Background

This matter arises from a wrongful death suit brought by Chancy M. Elliott (Elliott) on behalf of the estate of Caleb McKinley Smith (Caleb), alleging gross negligence on the part of Trevor Carter (Carter), the peer leader of Caleb’s Boy Scout troop, after Caleb drowned on a Scout camping trip. The material facts are not in dispute.

On June 25, 2011, Caleb was a 13-year-old Boy Scout on an overnight camping trip with his troop along the Rappahannock River near Sharps, Virginia. Carter, then 16 years old, was the Senior Patrol Leader, the troop’s peer leader. Caleb had been taking lessons to learn how to swim–he had had one from Carter that morning–but he could [*2] not yet swim.

At about 11:00 a.m., Carter led Caleb and two other Boy Scouts into the river along a partially submerged sandbar. One of the other two Scouts could swim (Scott), and the other could not (Elijah).

When they were approximately 150 yards into the river, Carter and Scott decided to swim back to shore. Carter told Caleb and Elijah to walk back to shore the way they had come, along the sandbar. As Caleb and Elijah walked back to shore along the sandbar, they both fell into deeper water. Caleb yelled to Carter for help and Carter attempted to swim back and rescue him. Although Elijah was rescued, neither Carter nor three adult Scout leaders, who attempted to assist, were able to save Caleb.

Elliott filed a wrongful death action in the Circuit Court of Richmond County against Carter, four adult Scout leaders, the Boy Scouts of America, and the affiliated Heart of Virginia Council, Inc. (collectively, Defendants), alleging that they had failed to adequately supervise Caleb. The court granted the Defendants’ demurrer asserting charitable immunity.

Elliott amended her complaint to allege both gross and willful and wanton negligence by Carter and gross negligence by the four adult Scout [*3] leaders, and demanded a jury trial.* Defendants filed a motion for summary judgment arguing that, based upon undisputed material facts, there was no gross negligence because there was no complete lack of care alleged and the danger of drowning was open and obvious. Defendants relied upon Elliott’s responses to requests for admission and allegations in the amended complaint in establishing the undisputed material facts.

* Elliott non-suited the actions against the Boy Scouts of America and the Heart of Virginia Council, Inc.

Following a hearing and supplemental briefing, the court granted the motion for summary judgment as to all Defendants. It found that, while the undisputed material facts would be sufficient to submit the question regarding a claim of simple negligence to a jury, the facts did not support a claim for gross negligence, because in Virginia, “there is not gross negligence as a matter of law where there is even the slightest bit of care regardless of how insufficient or ineffective it may have been,” and there was evidence that Carter did try to save Caleb.

Elliott appeals the ruling of the circuit court only as to Carter. On appeal, she argues that the circuit court erred [*4] in granting summary judgment and in concluding that, as a matter of law, a jury could not find Carter’s actions constituted gross negligence.

Analysis

[HN1] “In an appeal from a circuit court’s decision to grant or deny summary judgment, this Court reviews the application of law to undisputed facts de novo.” St. Joe Co. v. Norfolk Redev’t & Hous. Auth., 283 Va. 403, 407, 722 S.E.2d 622, 625 (2012).

[HN2] Gross negligence is “a degree of negligence showing indifference to another and an utter disregard of prudence that amounts to a complete neglect of the safety of such other person.” Cowan v. Hospice Support Care, Inc., 268 Va. 482, 487, 603 S.E.2d 916, 918 (2004).

It is a heedless and palpable violation of legal duty respecting the rights of others which amounts to the absence of slight diligence, or the want of even scant care. Several acts of negligence which separately may not amount to gross negligence, when combined may have a cumulative effect showing a form of reckless or total disregard for another’s safety. Deliberate conduct is important evidence on the question of gross negligence.

Chapman v. City of Virginia Beach, 252 Va. 186, 190, 475 S.E.2d 798, 800-01 (1996) (citations and internal quotation marks omitted). [HN3] Gross negligence “requires a degree of negligence that would shock fair-minded persons, although demonstrating something less than willful recklessness.” Cowan, 268 Va. at 487, 603 S.E.2d at 918; see also Thomas v. Snow, 162 Va. 654, 661, 174 S.E. 837, 839 (1934) (“Ordinary and gross negligence differ in degree of inattention”; [*5] while “[g]ross negligence is a manifestly smaller amount of watchfulness and circumspection than the circumstances require of a person of ordinary prudence,” “it is something less than . . . willful, wanton, and reckless conduct.”).

[HN4] “Ordinarily, the question whether gross negligence has been established is a matter of fact to be decided by a jury. Nevertheless, when persons of reasonable minds could not differ upon the conclusion that such negligence has not been established, it is the court’s duty to so rule.” Frazier v. City of Norfolk, 234 Va. 388, 393, 362 S.E.2d 688, 691, 4 Va. Law Rep. 1220 (1987). Because “the standard for gross negligence [in Virginia] is one of indifference, not inadequacy,” a claim for gross negligence must fail as a matter of law when the evidence shows that the defendants exercised some degree of care. Kuykendall v. Young Life, 261 Fed. Appx. 480, 491 (4th Cir. 2008) (relying on Frazier, 234 Va. at 392, 362 S.E.2d at 690-91, Chapman, 252 Va. at 190, 475 S.E.2d at 801, and Cowan, 268 Va. at 486-87, 603 S.E.2d at 918 to interpret Virginia law); see, e.g., Colby v. Boyden, 241 Va. 125, 133, 400 S.E.2d 184, 189, 7 Va. Law Rep. 1368 (1991) (affirming the circuit court’s ruling that the plaintiff failed to establish a prima facie case of gross negligence when the evidence showed that the defendant “‘did exercise some degree of diligence and care’ and, therefore, as a matter of law, his acts could not show ‘utter disregard of prudence amounting to complete neglect of the safety of another'”).

Here, even viewing the evidence in the [*6] light most favorable to Elliott, the non-moving party, as required in considering a motion for summary judgment, Commercial Business Systems v. Bellsouth Services, 249 Va. 39, 41-42, 453 S.E.2d 261, 264 (1995), the undisputed material facts support the conclusion that Carter exercised some degree of care in supervising Caleb. Therefore, his conduct did not constitute gross negligence.

First, it is not alleged that Caleb had any difficulty walking out along the sandbar with Carter. Second, there is no allegation that Carter was aware of any hidden danger posed by the sandbar, the river or its current. Third, Carter instructed Caleb to walk back to shore along the same route he had taken out into the river, and there was no evidence that conditions changed such that doing so would have been different or more dangerous than initially walking out, which was done without difficulty. Finally, Carter tried to swim back and assist Caleb once Caleb slipped off the sandbar, which is indicative that Carter was close enough to attempt to render assistance when Caleb fell into the water, and that Carter did attempt to render such assistance. Thus, although Carter’s efforts may have been inadequate or ineffectual, they were not so insufficient as to constitute the indifference and utter disregard [*7] of prudence that would amount to a complete neglect for Caleb’s safety, which is required to establish gross negligence.

Because a claim of gross negligence must fail as a matter of law when there is evidence that the defendant exercised some degree of diligence and care, the circuit court did not err in finding that no reasonable jurist could find that Carter did nothing at all for Caleb’s care. As such, there was no question for the jury, and the circuit court properly granted Carter’s motion for summary judgment.

Accordingly, the judgment of the circuit court will be affirmed.

Affirmed.

DISSENT BY: McCULLOUGH

DISSENT

JUSTICE McCULLOUGH, with whom JUSTICE MIMS joins, dissenting.

Ordinarily, whether gross negligence has been established is a matter of fact to be decided by a jury. Frazier v. City of Norfolk, 234 Va. 388, 393, 362 S.E.2d 688, 691, 4 Va. Law Rep. 1220 (1987). Of course, when “persons of reasonable minds could not differ upon the conclusion that such negligence has not been established, it is the court’s duty to so rule.” Id. In my view, the facts presented in this tragic case were sufficient to present a jury question. Accordingly, I respectfully dissent.

Here, Caleb could not swim, a fact that was known to the defendants. He did not walk out on his own into the river. Rather, he was [*8] led, without a life jacket or other safety equipment, over a partially submerged sandbar far into the river. The complaint alleges that “the Rappahannock River . . . is a major river with a strong current.” Caleb was then abandoned on a sandbar in the middle of the river and told to walk back. A partially submerged sandbar in the middle of a river with a strong current is a very dangerous place to be, particularly for a non-swimmer without a life vest. Ever-shifting sandbars, obviously, are not stable structures. They can easily dissipate. A major river with strong currents like the Rappahannock presents a different situation than a tranquil pond. Carter then swam away too far to effectuate a rescue should Caleb slip and fall into the river. In my view, “reasonable persons could differ upon whether the cumulative effect of these circumstances constitutes a form of recklessness or a total disregard of all precautions, an absence of diligence, or lack of even slight care.” Chapman v. City of Virginia Beach, 252 Va. 186, 191, 475 S.E.2d 798, 801 (1996).

I would also find that the purported acts of slight care, separated in time and place from the gross negligence at issue, do not take the issue away from the jury. The only two acts of slight care the defendants identify [*9] are the fact that Caleb was given a swimming lesson before he drowned — but there is no indication that Caleb could swim — and that Carter, after swimming too far away to make any rescue effectual, tried to swim back to save Caleb after he had fallen into the river. Significantly, Carter led Caleb into danger in the first place. When the defendant has led the plaintiff into danger, an ineffectual and doomed to fail rescue attempt does not in my judgment take away from the jury the question of gross negligence. Accordingly, I would reverse and remand the case for a trial by jury.


Johnson et al., v. Spokane to Sandpoint, LLC, et al., 176 Wn. App. 453; 309 P.3d 528; 2013 Wash. App. LEXIS 1696

Johnson et al., v. Spokane to Sandpoint, LLC, et al., 176 Wn. App. 453; 309 P.3d 528; 2013 Wash. App. LEXIS 1696

Robin Johnson et al., Appellants, v. Spokane to Sandpoint, LLC, et al., Respondents.

No. 31042-6-III

COURT OF APPEALS OF WASHINGTON, DIVISION THREE

July 23, 2013, Filed

NOTICE: Order Granting Motion to Publish September 10, 2013.

SUBSEQUENT HISTORY: Reported at Johnson v. Spokane to Sandpoint, LLC, 175 Wn. App. 1054, 2013 Wash. App. LEXIS 1835 (2013)

Ordered published by Johnson v. Spokane to Sandpoint, LLC, 2013 Wash. App. LEXIS 2129 (Wash. Ct. App., Sept. 10, 2013)

PRIOR HISTORY: [***1]

Appeal from Spokane Superior Court. Docket No: 10-2-05387-0. Date filed: 07/09/2012. Judge signing: Honorable Gregory D Sypolt.

SUMMARY:

WASHINGTON OFFICIAL REPORTS SUMMARY Nature of Action: A participant in a long-distance relay race who was struck by a moving vehicle sought damages for personal injury from the race promoter.

Nature of Action: A participant in a long-distance relay race who was struck by a moving vehicle sought damages for personal injury from the race promoter.

Superior Court: The Superior Court for Spokane County, No. 10-2-05387-0, Gregory D. Sypolt, J., on July 9, 2012, entered a summary judgment in favor of the race promoter.

Court of Appeals: Holding that a preinjury release and waiver signed by the runner precluded her recovering for ordinary negligence, the court affirms the judgment.

HEADNOTES WASHINGTON OFFICIAL REPORTS HEADNOTES

[1] Negligence — Duty — Necessity. The threshold question in a negligence action is whether the defendant owed a duty of care to the plaintiff.

[2] Negligence — Duty — Question of Law or Fact — In General. For purposes of a negligence cause of action, the existence of a duty of care is a question of law.

[3] Torts — Limitation of Liability — Validity — In General. Subject to certain exceptions, parties may expressly agree in advance that one is under no obligation of care to the other and shall not be liable for ordinary negligence.

[4] Torts — Limitation of Liability — Purpose. The function of a contractual waiver of negligence liability is to deny an injured party the right to recover damages from the person negligently causing the injury.

[5] Torts — Limitation of Liability — Validity — Test. A contractual waiver of negligence liability is enforceable unless (1) it violates public policy, (2) the negligent act falls greatly below the legal standard for the protection of others, or (3) it is inconspicuous.

[6] Torts — Limitation of Liability — Validity — Public Policy — Factors. In determining whether an agreement exculpating a party from liability for its future conduct violates public policy, a court will consider whether (1) the agreement concerns an endeavor of a type generally thought suitable for public regulation; (2) the party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public; (3) such party holds itself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards; (4) because of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks the services; (5) in exercising a superior bargaining power, the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence; and (6) the person or property of members of the public seeking such services must be placed under the control of the furnisher of the services, subject to the risk of carelessness on the part of the furnisher, its employees, or its agents.

[7] Torts — Limitation of Liability — Validity — Public Policy — Public Interest — Recreational Activities. For purposes of determining the validity of a liability release clause under a public policy analysis, Washington courts do not favor finding a public interest in adult recreational activities.

[8] Torts — Limitation of Liability — Applicability — Gross Negligence. A preinjury waiver and release will not exculpate a defendant from liability for damages resulting from gross negligence. “Gross negligence” is negligence substantially and appreciably greater than ordinary negligence, i.e., care substantially or appreciably less than the quantum of care inhering in ordinary negligence, or a failure to exercise slight care. A plaintiff seeking to overcome an exculpatory clause by proving gross negligence must supply substantial evidence that the defendant’s act or omission represented care appreciably less than the care inherent in ordinary negligence. To meet this burden of proof on summary judgment, a plaintiff must offer something more substantial than mere argument that the defendant’s breach of care rises to the level of gross negligence.

[9] Negligence — Proof — Higher Standard — Summary Judgment — Prima Facie Case — Necessity. When the standard of proof in a negligence action is higher than ordinary negligence, in order to avoid an adverse summary judgment, a plaintiff must show that it can support its claim with prima facie proof supporting the higher level of proof.

[10] Torts — Limitation of Liability — Validity — Conspicuous Nature — Factors. The conspicuousness of a contractual liability waiver or release provision is determined by considering such factors as whether the provision is set apart or hidden within other provisions, whether the provision heading is clear, whether the waiver is set off in capital letters or in bold type, whether there is a signature line below the waiver provision, what the language says above the signature line, and whether it is clear that the signature is related to the waiver. Brown, J., delivered the opinion for a unanimous court.

COUNSEL: Martin A. Peltram, for appellants.

Thomas C. Stratton (of Rockey Stratton PS), for respondents.

JUDGES: Authored by Stephen M. Brown. Concurring: Laurel H. Siddoway, Kevin M. Korsmo.

OPINION BY: Stephen M. Brown

OPINION

[*455] [**530] ¶1 Brown, J. — Robin Johnson and Craig Johnson appeal the dismissal of their personal injury suit against Spokane to Sandpoint LLC after the trial court ruled the preinjury release and waiver Ms. Johnson signed precluded recovery. The Johnsons contend the release is unenforceable because it is ambiguous, offends public policy, and because Spokane to Sandpoint was grossly negligent. We disagree and affirm.

FACTS

¶2 Spokane to Sandpoint promotes a long-distance relay race from the Spokane area to Sandpoint, Idaho, involving teams running a 185-mile course over two days, day and [**531] night. The course is open, meaning it is not closed to public traffic.

¶3 When registering on line, the runners must electronically acknowledge a release of liability and waiver, which states:

I understand that by registering I have accepted and agreed to the waiver [***2] and release agreement(s) presented to me during registration and that these documents include a release of liability and waiver of legal rights and deprive me of the right to sue certain parties. By agreeing electronically, I have acknowledged that I have both read and understood any waiver and release agreement(s) presented to me as part of the registration process and accept the inherent dangers and risks which may or may not be readily foreseeable, including without limitation personal injury, property damage or death that arise from participation in the event.

[*456] Clerk’s Papers (CP) at 246. Ms. Johnson, an attorney, registered on line for the 2010 Spokane to Sandpoint race and acknowledged the above waiver, plus she agreed to “waive and release Spokane to Sandpointfrom any and all claims or liability of any kind arising out of my participation in this event, even though that liability may arise out negligence or carelessness on the part of persons on this waiver.” CP at 246. Ms. Johnson agreed she read the agreement carefully and understood the terms and she signed the agreement, “FREELY AND VOLUNTARILY, WITHOUT ANY INDUCEMENT, ASSURANCE OR GUARANTEE” and that her signature was [***3] “TO SERVE AS CONFIRMATION OF MY COMPLETE AND UNCONDITIONAL ACCEPTANCE OF THE TERMS, CONDITIONS, AND PROVISIONS OF THIS AGREEMENT.” CP at 248.

¶4 Spokane to Sandpoint provided a race handbook to Ms. Johnson, explaining all facets of the race, including crossing public highways and train tracks. The fourth leg of the race crossed U.S. Route 2 at its intersection with Colbert Road. At that location, U.S. Route 2 is a divided highway that runs north and south. It has two lanes in each direction, separated by a median strip. A sign was posted on Colbert Road telling the runners “caution crossing highway.” CP at 128. Signs were posted along the race route informing drivers that runners were running along the race route roads.

¶5 As Ms. Johnson was crossing U.S. Route 2, Madilyn Young was driving about 63 miles per hour southbound in the outside lane on U.S. Route 2, approaching the Colbert Road intersection. According to Ms. Young’s statement to the police, she saw Ms. Johnson crossing the northbound lanes of U.S. Route 2 and saw her continue into the southbound lanes without looking for cars. Ms. Young was unable to stop in time to avoid a collision. Ms. Johnson suffered severe injuries.

¶6 The Johnsons sued Spokane [***4] to Sandpoint, Ms. Young, and Ms. Young’s parents. The Johnsons dismissed their [*457] claims against Ms. Young and her parents following a settlement.

¶7 During Ms. Johnson’s deposition, counsel for Spokane to Sandpoint asked her if she understood that the release she signed “would … release the entities for any personal injury that might occur to you during the activity?” CP at 138. Ms. Johnson replied, “Yes, I understand that from a legal perspective completely.” CP at 139. When questioned about the on line registration process, counsel asked:

Q. Do you recall whether you clicked yes to the waiver language at all on the registration process?

A. On the registration process I assume I must have clicked because all that information is there and I did it. Nobody else did it for me.

CP at 156.

¶8 Spokane to Sandpoint requested summary judgment dismissal, arguing the preinjury waiver and release agreed to by Ms. Johnson was conspicuous and not against public policy and the Johnsons lacked the evidence of gross negligence necessary to overcome the release. The trial court agreed and dismissed the Johnsons’ complaint.

ANALYSIS

¶9 The issue is whether the trial court erred in summarily dismissing the [**532] Johnsons’ [***5] negligence complaint. The Johnsons contend the release and waiver signed by Ms. Johnson prior to her injury was invalid and unenforceable because it was ambiguous and against public policy, and because Spokane to Sandpoint was grossly negligent.

¶10 [HN1] We review summary judgment de novo and engage in the same inquiry as the trial court. Heath v. Uraga, 106 Wn. App. 506, 512, 24 P.3d 413 (2001). [HN2] Summary judgment is appropriate if, in view of all the evidence, reasonable persons could reach only one conclusion. Hansen v. Friend, 118 Wn.2d 476, 485, 824 P.2d 483 (1992). Where different [*458] competing inferences may be drawn from the evidence, the issue must be resolved by the trier of fact. Kuyper v. Dep’t of Wildlife, 79 Wn. App. 732, 739, 904 P.2d 793 (1995).

[1-3] ¶11 [HN3] To prevail on a negligence claim against Spokane to Sandpoint, the Johnsons must establish Spokane to Sandpoint owed them a duty. Chauvlier v. Booth Creek Ski Holdings, Inc., 109 Wn. App. 334, 339, 35 P.3d 383 (2001) (citing Tincani v. Inland Empire Zoological Soc’y, 124 Wn.2d 121, 128, 875 P.2d 621 (1994)). Whether such a duty exists is a question of law. Id. The parties may, subject to certain exceptions, expressly agree in advance that one [***6] party is under no obligation of care to the other, and shall not be held liable for ordinary negligence. Chauvlier, 109 Wn. App. at 339.

[4, 5] ¶12 [HN4] The function of a waiver provision is “to deny an injured party the right to recover damages from the person negligently causing the injury.” Scott v. Pac. W. Mountain Resort, 119 Wn.2d 484, 491, 834 P.2d 6 (1992). The general rule in Washington is that a waiver provision is enforceable unless (1) it violates public policy, (2) the negligent act falls greatly below the legal standard for protection of others, or (3) it is inconspicuous. Stokes v. Bally’s Pacwest, Inc., 113 Wn. App. 442, 445, 54 P.3d 161 (2002).

[6] ¶13 [HN5] In Washington, contracts releasing liability for negligence are valid unless a public interest is involved. Hewitt v. Miller, 11 Wn. App. 72, 521 P.2d 244 (1974). [HN6] Six factors are considered in determining whether exculpatory agreements violate public policy. The court considers whether (1) the agreement concerns an endeavor of a type generally thought suitable for public regulation; (2) the party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members [***7] of the public; (3) such party holds itself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established [*459] standards; (4) because of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks the services; (5) in exercising a superior bargaining power, the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence; and (6) the person or property of members of the public seeking such services must be placed under the control of the furnisher of the services, subject to the risk of carelessness on the part of the furnisher, its employees, or agents. Wagenblast v. Odessa Sch. Dist. 105-157-166J, 110 Wn.2d 845, 851-55, 758 P.2d 968 (1988) (citing Tunkl v. Regents of Univ. of Cal., 60 Cal. 2d 92, 98-101, 383 P.2d 441, 32 Cal. Rptr. 33 (1963)). The Johnsons fail to establish all six factors.

¶14 First, 185-mile relay races are not regulated; [***8] second, Spokane to Sandpoint is not performing an important public service such as a school; third, not all members of the public participate in relay races, unlike schools; fourth, Spokane to Sandpoint had no control over how Ms. Johnson ran or when she decided to cross U.S. Route 2; fifth, there was no inequality of bargaining since Ms. Johnson could have easily chosen not to participate and could have selected a different event; and sixth, while Spokane to Sandpoint set up the course, it did not control in what manner Ms. Johnson ran the race.

[7] ¶15 [HN7] Washington courts have not favored finding a public interest in adult recreational activities. As noted in Hewitt, 11 Wn. App. [**533] at 74, “[e]xtended discussion is not required to conclude that instruction in scuba diving does not involve a public duty.” Similarly, “[a]lthough a popular sport in Washington, mountaineering, like scuba diving, does not involve public interest.” Blide v. Rainier Mountaineering, Inc., 30 Wn. App. 571, 574, 636 P.2d 492 (1981). Washington courts have come to the same conclusion regarding [*460] tobogganing and demolition car racing. Broderson v. Rainer Nat’l Park Co., 187 Wash. 399, 406, 60 P.2d 234 (1936), overruled in part by [***9] Baker v. City of Seattle, 79 Wn.2d 198, 484 P.2d 405 (1971); Conradt v. Four Star Promotions, Inc., 45 Wn. App. 847, 853, 728 P.2d 617 (1986).

[8] ¶16 [HN8] A preinjury waiver and release will not exculpate a defendant from liability for damages resulting from gross negligence. Vodopest v. MacGregor, 128 Wn.2d 840, 853, 913 P.2d 779 (1996). “Gross negligence” is “negligence substantially and appreciably greater than ordinary negligence,” i.e., “care substantially or appreciably less than the quantum of care inhering in ordinary negligence.” Nist v. Tudor, 67 Wn.2d 322, 331, 407 P.2d 798 (1965); see 6 Washington Practice: Washington Pattern Jury Instructions: Civil 10.07 (6th ed. 2012) (“gross negligence” is “the failure to exercise slight care”). A plaintiff seeking to overcome an exculpatory clause by proving gross negligence must supply “substantial evidence” that the defendant’s act or omission represented care appreciably less than the care inherent in ordinary negligence. Boyce v. West, 71 Wn. App. 657, 665, 862 P.2d 592 (1993). To meet this burden of proof on summary judgment, the plaintiff must offer something more substantial than mere argument that the defendant’s breach of care rises [***10] to the level of gross negligence. CR 56(e); Boyce, 71 Wn. App. at 666.

¶17 Spokane to Sandpoint marked the roadways to warn both drivers and runners of danger and provided a handbook to each runner advising about crossing busy roadways and highways. Nothing in this record establishes any duty to do more.

¶18 Our case is somewhat like Conradt, where Mr. Conradt was hurt in an auto race. 45 Wn. App. at 848. He signed a release before being told of a change in the race direction. Id. Mr. Conradt argued the risk had been materially altered by that change after he signed the release. Id. at 850. He explained he could not corner as well and he had not understood the additional risk. Id. The race promoter [*461] requested summary judgment based on the release. Id. at 848. The trial court dismissed Mr. Conradt’s complaint, finding the release was valid and the promoter’s action did not amount to gross negligence. Id. at 852. The Conradt court affirmed, holding the promoter’s “conduct was not so substantially and appreciably substandard that it rendered the release invalid.” Id.

[9] ¶19 Similarly, the Johnsons fail to show Spokane to Sandpoint committed gross negligence by failing to exercise slight care. See Woody v. Stapp, 146 Wn. App. 16, 22, 189 P.3d 807 (2008) [***11] (When a standard of proof is higher than ordinary negligence, the nonmoving parties must show that they can support their claim with prima facie proof supporting the higher level of proof.). Spokane to Sandpoint’s conduct does not reach gross negligence under the circumstances presented here.

[10] ¶20 Finally, the Johnsons argue the release was ambiguous and not conspicuous. Several Washington courts have analyzed waiver provisions to determine whether the language was conspicuous. [HN9] Factors in deciding whether a waiver and release provision is conspicuous include whether the waiver is set apart or hidden within other provisions, whether the heading is clear, whether the waiver is set off in capital letters or in bold type, whether there is a signature line below the waiver provision, what the language says above the signature line, and whether it is clear that the signature is related to the waiver. See Baker, 79 Wn.2d at 202; McCorkle v. Hall, 56 Wn. App. 80, 83, 782 P.2d 574 (1989); Chauvlier, 109 Wn. App. at 342; Stokes, 113 Wn. App. at 448.

[**534] ¶21 The release executed by Ms. Johnson on line clearly sets apart the release language in either italicized letters or in all capital letters or both. The [***12] document was conspicuous with a header stating, “WAIVER AND RELEASE OF LIABILITY, ASSUMPTION OF RISK AND INDEMNITY AGREEMENT.” CP at 246. The waiver repeatedly warned Ms. Johnson that she was giving up her legal rights by [*462] signing the waiver, with this clearly indicated above the signature line. Although the Johnsons argue the waiver was ambiguous and, therefore, inconspicuous, Ms. Johnson (an attorney) acknowledged in her deposition that from a “legal perspective” she understood the release she signed “would … release the entities for any personal injury that might occur … during the activity.” CP at 138-39. Thus, no genuine issues of material fact remain regarding ambiguity or conspicuousness.

¶22 Given our analysis, we hold reasonable minds can reach but one conclusion; the preinjury release and waiver signed by Ms. Johnson precludes her from claiming an ordinary negligence duty by Spokane to Sandpoint, thus preventing her from seeking liability damages for her injuries. The trial court correctly concluded likewise in summarily dismissing the Johnsons’ complaint.

¶23 Affirmed. [***13]

Korsmo, C.J., and Siddoway, J., concur.


Boisson v. Arizona Board Of Regents, et. al., 236 Ariz. 619; 343 P.3d 931; 2015 Ariz. App. LEXIS 36; 708 Ariz. Adv. Rep. 7

Boisson v. Arizona Board Of Regents, et. al., 236 Ariz. 619; 343 P.3d 931; 2015 Ariz. App. LEXIS 36; 708 Ariz. Adv. Rep. 7

Elizabeth Boisson, individually and on behalf of all statutory beneficiaries, Plaintiff/Appellant, v. Arizona Board Of Regents, a public entity; State of Arizona, a public entity; Nanjing American University, L.L.C., an Arizona corporation doing business as, or under the trade name of Yangtze International Study Abroad, Defendants/Appellees.

No. 1 CA-CV 13-0588

Court of Appeals of Arizona, Division One

236 Ariz. 619; 343 P.3d 931; 2015 Ariz. App. LEXIS 36; 708 Ariz. Adv. Rep. 7

March 10, 2015, Filed

SUBSEQUENT HISTORY: Review denied by , , 2015 Ariz. LEXIS 348 (Ariz., Dec. 1, 2015)

PRIOR HISTORY: [***1] Appeal from the Superior Court in Maricopa County. No. CV2010-025607. The Honorable Douglas L. Rayes, Judge.

DISPOSITION: AFFIRMED.

COUNSEL: Knapp & Roberts, P.C., Scottsdale, By Craig A. Knapp, Dana R. Roberts, David L. Abney, Counsel for Plaintiffs/Appellants.

Garrey, Woner, Hoffmaster & Peshek, P.C., Scottsdale, By Shawna M. Woner, Stephanie Kwan, Counsel for Defendants/Appellees Arizona Board of Regents and State of Arizona.

Udall Law Firm, LLP, Tucson, By Peter Akmajian, Janet Linton, Counsel for Defendants/Appellees Nanjing American University, L.L.C., dba Yangtze International Study Abroad.

Judge Samuel A. Thumma delivered the decision of the Court, in which Presiding Judge Margaret H. Downie and Judge Andrew W. Gould joined.

JUDGES: THUMMA, Judge.

OPINION BY: THUMMA

OPINION

[*621] [**933] THUMMA, Judge:

P1 Elizabeth Boisson appeals from a judgment dismissing a wrongful death negligence claim arising out of the death of her son Morgan Boisson. The judgment was based on the ground that Defendants owed no duty to Morgan when, while studying abroad in China, he traveled to Tibet and died of altitude sickness. Finding no error, this court affirms.

FACTS1 AND PROCEDURAL HISTORY

1 The superior court struck supplemental filings relating to the summary judgment [***2] briefing and, on Elizabeth’s motion, struck portions of certain declarations filed by Defendants. Because the judgment is properly affirmed on other grounds, this court does not address these issues or the finding that there were no disputed issues of material fact. See Monroe v. Basis School, Inc., 234 Ariz. 155, 157 n.1 ¶ 3, 318 P.3d 871, 873 n.1 (App. 2014).

P2 Morgan was an undergraduate student at the University of Arizona, which is governed by the Arizona Board of Regents (ABOR). In the fall of 2009, Morgan and 16 other university students spent the semester studying in China at Nanjing American University (NAU). This study-abroad program, sometimes referred to as Yangtze International Study Abroad (YISA), was a collaborative effort between ABOR and NAU.

P3 While in China, the study-abroad program included school-sponsored trips to various cities in China with NAU faculty. At other times, the students organized their own trips. During a student-organized trip, 14 study abroad students — including Morgan — flew to Lhasa, Tibet. The students then drove to the Mount Everest base camp a few days later. While at base camp, which is approximately 18,000 feet above sea level, Morgan developed and then died of altitude sickness.

P4 As relevant here, Elizabeth filed a complaint [***3] against the State of Arizona, ABOR and NAU (collectively Defendants), asserting a wrongful death negligence claim pursuant to Arizona Revised Statutes (A.R.S.) sections 12-611 to -613 (2015).2 After discovery, motion practice and oral argument, the superior court granted Defendants’ motions for summary judgment on the ground that Defendants “owed no affirmative duty of care to Morgan while he was a participant on the subject trip to Tibet.” After entry of judgment, Elizabeth timely appealed. This court has jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, [*622] [**934] and A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).

2 Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated.

DISCUSSION

I. Duty In An Arizona Common Law Negligence Claim.3

3 Because the parties do not claim that any other law applies, this court applies Arizona law. See Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493, 501, 917 P.2d 222, 230 (1996).

P5 Although described in various ways, [HN1] a plaintiff alleging a claim for negligence under Arizona common law has the burden to show: (1) duty; (2) breach of that duty; (3) cause-in-fact; (4) legal (or proximate) causation and (5) resulting damages. See, e.g., Gipson v. Kasey, 214 Ariz. 141, 143 ¶ 9, 150 P.3d 228, 230 (2007); Ontiveros v. Borak, 136 Ariz. 500, 504, 667 P.2d 200, 204 (1983); Wisener v. State, 123 Ariz. 148, 149, 598 P.2d 511, 512 (1979). “The first element, whether a duty exists, is a matter of law for the court to decide.” Gipson, 214 Ariz. at 143 ¶ 9, 150 P.3d at 230 (citation omitted).

[HN2] The existence of a duty of care is [***4] a distinct issue from whether the standard of care has been met in a particular case. As a legal matter, the issue of duty involves generalizations about categories of cases. Duty is defined as an “obligation, recognized by law, which requires the defendant to conform to a particular standard of conduct in order to protect others against unreasonable risks of harm.” . . . .

Whether the defendant owes the plaintiff a duty of care is a threshold issue; absent some duty, an action for negligence cannot be maintained. Thus, a conclusion that no duty exists is equivalent to a rule that, for certain categories of cases, defendants may not be held accountable for damages they carelessly cause, no matter how unreasonable their conduct.

Gipson, 214 Ariz. at 143–44 ¶¶ 10–11, 150 P.3d at 230–31 (citations omitted).

P6 As noted by the Arizona Supreme Court, pre-2007 case law addressing duty “created ‘some confusion and lack of clarity . . . as to what extent, if any, foreseeability issues bear on the initial legal determination of duty.'” Gipson, 214 Ariz. at 144 ¶ 15, 150 P.3d at 231 (citation omitted). Gipson, however, expressly held “that [HN3] foreseeability is not a factor to be considered by courts when making determinations of duty, and we reject any contrary suggestion in [***5] prior opinions.” 214 Ariz. at 144 ¶ 15, 150 P.3d at 231. Accordingly, foreseeability is not a part of the duty inquiry and those portions of pre-Gipson cases relying on foreseeability when addressing the issue are no longer valid.

P7 Although a duty can arise in various ways, Elizabeth argues: (1) the student-school relationship imposes a duty on Defendants here and (2) public policy imposes such a duty. [HN4] Recognizing the concept of duty is context dependent, Gipson indicates that duty may arise from the relationship between the parties or, alternatively, from public policy considerations. Gipson, 214 Ariz. at 145 ¶ 18, ¶ 23, 150 P.3d at 232; accord Monroe v. Basis School, Inc., 234 Ariz. 155, 157, 159 ¶ 5, ¶ 12, 318 P.3d 871, 873, 875 (App. 2014); see also Randolph v. Ariz. Bd. of Regents, 19 Ariz. App. 121, 123, 505 P.2d 559, 561 (App. 1973) (“No better general statement can be made, than that the courts will find a duty where, in general, reasonable men would recognize it and agree that it exists.”).

A. Duty Based On The Student-School Relationship.

1. Context Of The Duty.

P8 [HN5] “The student-school relationship is one that can impose a duty within the context of the relationship.” Monroe, 234 Ariz. at 157 ¶ 5, 318 P.3d at 873. Arizona case law shows the duty most clearly applies in on-campus activities in the primary and secondary school context, where the relationship is custodial. Monroe, 234 Ariz. at 158 ¶ 9, 318 P.3d at 874. Arizona case law is less clear whether and to what extent the duty applies in off-campus [***6] activities in the primary and secondary school context. See Alhambra Sch. Dist. v. Superior Court, 165 Ariz. 38, 41–42, 796 P.2d 470, 473–74 (1990) (holding school district owed duty to high school student injured in elementary school-created crosswalk); Collette v. Tolleson Unified Sch. Dist., No. 214, 203 Ariz. 359, 54 P.3d 828 (App. 2002) (holding school owed no [*623] [**935] duty to third party who was injured by high school student who left campus in violation of school policy).

P9 In the college and university context, courts in other jurisdictions “are split on whether a college owes an affirmative duty to its students.” Restatement (Third) of Torts: Physical and Emotional Harm § 40 Reporters’ Notes cmt. l (2012) (Restatement) (citing cases). [HN6] Arizona case law, however, indicates a college or university does owe its students a duty of reasonable care for on-campus activities. See Jesik v. Maricopa Cnty. Cmty. Coll. Dist., 125 Ariz. 543, 611 P.2d 547 (1980); see also Delbridge v. Maricopa Cnty. Cmty. Coll. Dist., 182 Ariz. 55, 58–59, 893 P.2d 55, 58–59 (App. 1994) (holding college owed duty to student for injury incurred during college class, even though college did “not have a permanent campus”). It is undisputed that the Tibet trip was not an on-campus activity.

P10 The parties have cited, and the court has found, no Arizona case addressing whether a college or university owes its students a duty of reasonable care for off-campus activities. Section 40(b)(5) of the Restatement, applied by the Arizona Supreme Court in a different context, imposes a “duty of reasonable care with [***7] regard to risks that arise within the scope of the relationship” for “a school with its students.” Restatement § 40(a), (b)(5).4 As framed by the parties, Restatement § 40 provides that a college or university may owe a duty to its student “to risks that occur while the student is at school or otherwise engaged in school activities.” Restatement § 40 cmt. l (emphasis added). No Arizona case has recognized a duty by a university or a college in any context comparable to this case. In addition, Restatement § 40, in its final form, was promulgated in 2012, meaning there is comparatively little guidance in construing “otherwise engaged in school activities.” Restatement § 40 cmt. l. This lack of authority is significant given that Elizabeth has the burden to show the existence of a duty. Gipson, 214 Ariz. at 143 ¶ 9, 150 P.3d at 230.

4 In the common carrier context, Nunez v. Professional Transit Mgmt. of Tucson, Inc., applied Restatement § 40 Proposed Final Draft No. 1 (2007). 229 Ariz. 117, 121 ¶¶ 17–18 & n.2, , 271 P.3d 1104, 1108 & n.2 (2012); see also Monroe, 234 Ariz. at 157 ¶ 5, 318 P.3d at 873 (citing Restatement § 40 in primary school context).

P11 [HN7] Recognizing that the existence of duty is a legal, not a factual, matter, Gipson cautioned against “a fact-specific analysis of the relationship between the parties” in determining whether a duty of care exists. Gipson, 214 Ariz. at 145 ¶ 21, 150 P.3d at 232 (considering whether duty existed in a case not involving a categorical relationship). Accordingly, [***8] this court does not look at “the parties’ actions” alleged to determine “if a duty exists.” Id. at 145 ¶ 21, 150 P.3d at 232. Instead, this court looks to the legal factors identified elsewhere to determine whether the Tibet trip was an off-campus school activity for which Defendants owed Morgan a duty of reasonable care. See Barkhurst v. Kingsmen of Route 66, Inc., 234 Ariz. 470, 472–75 ¶¶ 10–18, 323 P.3d 753, 755–58 (App. 2014) (citing cases); Wickham v. Hopkins, 226 Ariz. 468, 471–73 ¶¶ 13–23, 250 P.3d 245, 248–50 (App. 2011) (citing cases); see also Monroe, 234 Ariz. at 157-59 ¶¶ 5-11, 318 P.3d at 873-75.

2. The Trip Was Not An Off-Campus School Activity For Which Defendants Owed Morgan A Duty.

P12 [HN8] In the college and university setting, duty is not governed by custody or in loco parentis concepts. Delbridge, 182 Ariz. at 59, 893 P.2d at 59; see also Randolph v. Ariz. Bd. of Regents, 19 Ariz. App. 121, 123, 505 P.2d 559, 561 (App. 1973) (“There comes a time when an individual must take it upon himself to be responsible for his own education and well-being. No person can be insulated against all the risks of living.”). Similarly, “[t]he scope of the duty imposed by the student-school relationship is not limitless.” Monroe, 234 Ariz. at 157 ¶ 6, 318 P.3d at 873. “[T]he duty is tied to expected activities within the relationship. Therefore, in the student-school relationship, the duty of care is bounded by geography and time, encompassing risks such as those that occur while the student is at school or otherwise under the school’s control.” Id. at [*624] [**936] 157–58 ¶ 6, 318 P.3d at 873–74 (citing cases and Restatement § 40(b)(5) cmts. f, l).

P13 In what are at best analogous [***9] contexts, Arizona cases have identified the following factors [HN9] in determining whether an off-campus activity is deemed a school activity: (1) the purpose of the activity, Collette, 203 Ariz. at 363 ¶ 16, 54 P.3d at 832; (2) whether the activity was part of the course curriculum, Delbridge, 182 Ariz. at 59, 893 P.2d at 59; (3) whether the school had supervisory authority and responsibility during the activity, id.; Monroe, 234 Ariz. at 161 ¶ 18, 318 P.3d at 877; and (4) whether the risk students were exposed to during the activity was independent of school involvement, Collette, 203 Ariz. at 365 ¶ 23, 54 P.3d at 834. Courts elsewhere also have looked at whether (5) the activity was voluntary or was a required school activity; (6) whether a school employee was present at or participated in the activity or was expected to do so and (7) whether the activity involved a dangerous project initiated at school but built off campus. See 5 James A. Rapp & Jonathan M. Astroth, Education Law § 12.09[6][c] (2014) (citing cases).

P14 Applying these factors, the Tibet trip was conceived by exchange students who wanted to see Mount Everest, not for any NAU-related purpose. After doing some research, a student made arrangements directly with Tibettours, a Tibet-based tour company, which then set the itinerary, arranged trip details and served as a guide during the trip. Fourteen [***10] of the 17 study abroad students then went on the trip and paid Tibettours directly, or through the coordinating students. The trip, details of the trip and the cost of the trip were not part of the study-abroad program or any course curriculum, and no academic credit was awarded for the trip. At the students’ request, NAU student liaison Zhang Fan helped the students communicate with Tibettours and arrange flights, and also provided a letter, required by the Chinese government to secure required permits, stating the students were NAU students. At the students’ request, the professors agreed to allow the students to make up classes they missed if they participated in the trip. Defendants had no supervisory authority over, or responsibility for, the trip, and no faculty or staff went on the trip. The risk of altitude sickness was present independent of any involvement by Defendants and the trip did not involve a potentially dangerous project initiated at school but built off campus. Accordingly, applying these factors, the Tibet trip was not an off-campus school activity for which Defendants owed Morgan a duty under Arizona law. See Monroe, 234 Ariz. at 159 ¶ 11, 318 P.3d at 875; Collette, 203 Ariz. at 363 ¶ 16, 54 P.3d at 832; Delbridge, 182 Ariz. at 59, 893 P.2d at 59; see also Rapp & Astroth, Education [***11] Law § 12.09[6][c] (citing cases).5

5 This does not mean that a university or college lacks a duty to protect its students for activities occurring off campus on property owned or controlled by the university or college, or for off-campus functions controlled or regulated by the university or college. See, e.g., Barkhurst, 234 Ariz. at 473–74 ¶¶ 12–14, 323 P.3d at 756–57 (discussing Estate of Hernandez v. Ariz. Bd. of Regents, 177 Ariz. 244, 866 P.2d 1330 (1994)); accord Monroe, 234 Ariz. at 157–58 ¶ 6 n.2, 318 P.3d at 873–74 n.2 (citing Delbridge, 182 Ariz. at 59, 893 P.2d at 59).

P15 Elizabeth argues that the Tibet trip was a school activity because: (1) Defendants “knew that study-abroad programs pose dangers,” and issued students cell phones to “safeguard . . . [them] during their study-abroad program;” (2) 14 of the 17 exchange students participated in the trip; (3) Defendants let students make up the classes they missed during the trip and (4) the trip would not have been possible without Fan’s assistance.

P16 Defendants’ purported knowledge that participating in the study-abroad program would involve “risks not found in study at” the University of Arizona in Tucson does not help answer whether the trip was a school activity. See Gipson, 214 Ariz. at 144 ¶ 15, 150 P.3d at 231 (rejecting foreseeability as factor in determining duty). Similarly, providing the students cell phones “with which they can contact faculty and staff to answer [***12] questions and solve problems day or night from any part of China” does not make the Tibet trip a school activity. And although many study-abroad students decided to go on the trip, some did not. Allowing [*625] [**937] classes to be made up at the students’ request similarly does not mean the trip was a school activity and the record suggests that students would have gone to Tibet even if it meant they could not make up classes they missed. Finally, it may be that the trip would not have been possible but for Fan’s assistance in response to the students’ request. That, however, does not mean Defendants owed Morgan a duty while on the trip. No authority cited holds the existence of a duty turns on whether a defendant made something possible. Indeed, such a rule would mean an almost unlimited number of individuals and entities could be found to have owed a duty here, including the airline that flew the students to Tibet, the manufacturer of that airplane and the provider of the airplane fuel. [HN10] Although a “but for” inquiry often is relevant in determining whether a plaintiff has shown causation after a duty and its breach are established, it does not address whether a duty exists. See id. at 145 ¶ 21, 150 P.3d at 232.

P17 Nor [***13] does Elizabeth’s reliance on 2007 and 2009 YISA brochures and an affiliation agreement between YISA and the University of Arizona alter the analysis. The substance of the 2009 brochure is not contained in the record. The description attributed to the brochure (“Additional Travel Opportunities,” noting “that students in past programs had visited Tibet”) does not make the trip here a school activity. Presuming the 2007 brochure applied to the Fall 2009 program, that document states: (1) “[i]ncluded in your program fee will be trips to important cities or sites in China;” (2) in addition, “students will have a week or more of time off to travel on their own” and (3) “[o]ur staff will help with all aspects of planning these trips throughout China.” That Defendants may have helped students plan “travel on their own” does not impose on Defendants a duty for the student-planned Tibet trip. Similarly, YISA agreeing to provide “student support services — translation assistance, travel planning, and emergency assistance” — does not impose upon Defendants a duty to protect students from harms in the student-planned Tibet trip.

P18 Elizabeth also argues on appeal that selected excerpts from ABOR’s internal [***14] code of conduct mean the Tibet trip was a school activity. Although Elizabeth cited this document in superior court to show that the exchange program was an ABOR-sponsored activity, she did not argue it established a duty. By not pressing that argument then, Elizabeth cannot do so now. See Fisher v. Edgerton, 236 Ariz. 71, 75 n.2 ¶ 9, 336 P.3d 167, 171 n.2 (App. 2014).6 Even absent waiver, Elizabeth has not shown how ABOR’s code of conduct — addressing “misconduct . . . subject to disciplinary action” and “the promotion and protection” of “an environment that encourages reasoned discourse, intellectual honesty, openness to constructive change and respect for the rights of all” at state universities — makes the Tibet trip a school activity imposing a duty on Defendants.

6 Similarly, Elizabeth alleged negligence per se in superior court based on ABOR’s internal code of conduct, but did not further develop that claim. See Fisher, 236 Ariz. at 75 n.2 ¶ 9, 336 P.3d at 171 n.2; see also Steinberger v. McVey, 234 Ariz. 125, 139 ¶ 56, 318 P.3d 419, 433 (App. 2014) (noting negligence per se claim “must be based on a statute enacted ‘for the protection and safety of the public'”) (citation omitted).

P19 Finally, Elizabeth relies on the opinions of Dr. William W. Hoffa, her “standard of care” expert, who took the position that study-abroad programs should categorically owe a duty to students [***15] throughout all aspects of the program. But the question of whether a duty exists is an issue of law for the court to decide, not experts. Badia v. City of Casa Grande, 195 Ariz. 349, 354 ¶ 17, 988 P.2d 134, 139 (App. 1999) ( [HN11] “The issue of whether a duty exists is a question of law for the court, unaffected by expert opinion.”); see also Monroe, 234 Ariz. at 157 ¶ 4, 318 P.3d at 873 (existence of duty “is a matter of law for the court to decide”) (citing Gipson, 214 Ariz. at 143 ¶ 9, 150 P.3d at 230). Moreover, as Elizabeth concedes, Dr. Hoffa’s testimony goes to the standard of care and other issues that are premised on the existence of a duty. See Gipson, 214 Ariz. at 143–44 ¶¶ 10–11, 150 P.3d at 230–31 (citations omitted). Accordingly, Dr. Hoffa’s opinions do not resolve the question of whether a duty exists.

[*626] [**938] P20 For these reasons, the superior court properly concluded that the Tibet trip was not an off-campus school activity for which Defendants owed Morgan a duty.

B. Duty Based On Public Policy.

P21 In discussing whether public policy should recognize a duty here, Elizabeth

cites no public policy authority, and we are aware of none, supporting a general duty of care against harm away from school premises, absent a school-supervised activity or a particular statute. To hold otherwise would imply that the student-school relationship extends to situations where the school lacks custody [***16] over the student and the student is not participating in a school-sponsored activity. We decline to define the scope of duty in such broad terms.

Monroe, 234 Ariz. at 161 ¶ 20, 318 P.3d at 877. For these reasons, Elizabeth has not shown that public policy considerations result in Defendants owing Morgan a duty for the Tibet trip.

II. Other Issues On Appeal.

P22 Having found Defendants did not owe Morgan a duty for the Tibet trip, this court affirms the judgment and need not address the other issues raised on appeal. ABOR’s request for taxable costs on appeal is granted contingent upon its compliance with Arizona Rule of Civil Appellate Procedure 21.

CONCLUSION

P23 The judgment in favor of Defendants is affirmed.


Laliberte v. White Water Mountain Resorts, 2004 Conn. Super. LEXIS 2194

Laliberte v. White Water Mountain Resorts, 2004 Conn. Super. LEXIS 2194

Alexandra Laliberte v. White Water Mountain Resorts

X07CV030083300S

Superior Court of Connecticut, Judicial District of Tolland, Complex Litigation Docket at Rockville

2004 Conn. Super. LEXIS 2194

August 2, 2004, Decided

August 2, 2004, Filed

Notice: [*1]  This decision is unreported and may be subject to further appellate review. Counsel is cautioned to make an independent determination of the status of this case.

Judges: Sferrazza, J.

Opinion By: Sferrazza

Opinion: Memorandum of Decision

The defendant, White Water Mountain Resorts, Inc., moves for summary judgment as to all counts in this action filed by the plaintiff Suzanne Bull, individually and as next friend of her daughter, Alexandra Laliberte. The plaintiffs’ complaint alleges that the defendant, a ski area operator, negligently failed to mark a snow-making device conspicuously so as to comply with General Statutes § 29-211.

The movant contends that judgment ought to enter in its favor because General Statutes § 29-212 exempts the defendant from liability and because the plaintiffs executed a valid waiver of liability. The plaintiffs argue that a genuine factual dispute exists which puts into doubt the applicability of § 29-212 and that the plaintiffs had no power to waive liability for any statutory obligation imposed by § 29-211.

Summary judgment shall be granted if the pleadings and documentary proof submitted demonstrate that [*2] no genuine dispute as to material fact exists and that the movant is entitled to judgment as a matter of law. Practice Book § 17-49.

It is undisputed that on January 13, 2003, Alexandra Laliberte sustained serious injury to her left leg while engaged in ski practice, as a member of the Glastonbury High School varsity ski team, while at the defendant’s ski area. The plaintiffs’ complaint avers that this injury was caused when Laliberte struck a snow-making machine which was inadequately identified and which was positioned upon a portion of a ski trail or slope.

On November 14, 2002, the plaintiffs knowingly and voluntarily signed an anticipatory release of liability absolving the defendant from any claims by the plaintiffs resulting from participation in the ski team practices or events at the defendant’s ski facility, even if such “injury is caused by the negligence” of the defendant. It is uncontroverted that, if this waiver is enforceable, it would exonerate the defendant from the liability on the plaintiffs’ claims.

I

The court first addresses the movant’s contention that § 29-212 exempts the defendant from liability. Section 29-212 must be examined in conjunction with [*3] § 29-211 because these related provisions “form a consistent, rational whole.” Jagger v. Mohawk Mountain Ski Area, 269 Conn. 672, 681, 849 A.2d 813 (2004). These statutes were enacted to delineate the respective responsibilities of the skier and the ski area operator. Id., 682. Section 29-212 enumerates a nonexhaustive list of risks inherent in the sport of skiing for which ski area operators bear no responsibility if injury ensues. Id. Section 29-211, on the other hand, imposes specified duties upon ski area operators. Id., 681.

Subsection 29-211(2) obligates the operator to mark conspicuously the location of snow- making devices that are placed on a trail or slope. A review of the pleadings and documents submitted discloses that a genuine factual dispute exists as to whether the particular device which Laliberte struck was sited on a ski trail or slope. Consequently, summary judgment is unavailable on this ground.

II

The enforceability of the preinjury release poses a more difficult question.

“The interpretation of an exculpatory contract is colored by two diametrically opposed legal principles: the first, that it is [*4] against public policy to contract away one’s liability for negligent acts in advance and the second, that the court will enforce agreements of the parties made with consideration.” Fischer v. Rivest, Superior Court, New Britain J.D. Complex Litigation, dn. X05-CV00-509627, 33 Conn. L. Rptr. 119 (August 15, 2002), Aurigemma, J.

As noted above, the plaintiffs concede that the release was signed by the plaintiffs knowingly and willingly. Also, the plaintiffs make no attack on the efficacy of the waiver because Ms. Laliberte was a minor at the time of its execution. Squarely presented, however, is the issue of whether a preinjury release is enforceable to relieve the defendant of civil liability for an alleged negligent violation of a statutorily created duty with respect to the operation of a recreational facility.

The statutes regarding skiing and ski area operations, General Statutes §§ 29-211 though 29-214 are silent as to whether waiver of the duties imposed on ski area operators are permitted or forbidden.

In Hyson v. White Water Mountain Resorts, 265 Conn. 636, 829 A.2d 827 (2003), our Supreme Court held that a preinjury waiver [*5] which omitted express reference to negligence was insufficient to absolve the ski area operator, the same defendant as in the present case, from liability for negligence. Id., 643.

The majority explicitly stated that its decision ventured no opinion regarding the viability of an anticipatory release should it include the missing language.

Id., 640 and 643, fn. 11. Despite this disclaimer, the Hyson case, supra, does provide some guidance bearing on the issue before this court because the majority reiterated the proposition that a preinjury release from liability for negligent acts “is scrutinized with particular care.” Id., 642.

The two dissenting justices in Hyson, supra, indicated that such preinjury releases are valid despite the absence of the use of a form of the word negligence expressly. Id., 649. Implicit in the dissenters’ position is that such waiver is possible as to violations of the duties imposed by § 29-211.

While a plausible argument can be made that this implication supports the movant ‘s contention, this Court is reluctant to harvest precedential value on this issue from that dissent [*6] because the precise claim of unenforceability raised in the present case was never raised in Hyson, supra.

In L’Heureux v. Hurley, 117 Conn. 347, 168 A. 8 (1933), the Supreme Court ruled that where a statute compels a landlord to illuminate a common stairwell, a tenant cannot waive that burden and could, indeed, sue the landlord for injury caused by that statutory violation. Id., 355-56. The Supreme Court determined that the statute created a public duty which the tenant had no power to extinguish. Id. Private parties cannot “suspend the law by waiver or express consent.” Id., 357. Of course, L’Heureux, supra, involved a tenancy and not recreational activity.

A similar case is Panaroni v. Johnson, 158 Conn. 92, 256 A.2d 246 (1969). There, another tenant was permitted to sue a landlord based on housing code violations despite a written lease containing a waiver clause. Id., 104. Again, Panaroni v. Johnson, supra, did not involve a recreational activity waiver.

A Connecticut case closer to the facts of the present one is Fedor v. Mauwehu Council, 21 Conn.Sup. 38, 143 A.2d 466 (1958). [*7] The trial court granted a demurrer to a special defense based on a written waiver signed by the injured boy’s father, which waiver purported to release a boy scout camp from liability.

The court stated that “parties may not stipulate for protection against liability for negligence in the performance of a duty imposed by law or where public interest requires performance.” Id., 39.

On the national level, some jurisdictions invalidate recreational activity releases if the negligent conduct contravenes public policy as embodied in statutorily imposed duties while other jurisdictions recognize the enforceability of such preinjury waivers. See 54 A.L.R.5th 513 (2004), §§ 5[a] and [b].

In McCarthy v. National Association for Stock Car Auto Racing, 48 N.J. 539, 226 A.2d 713 (1967), the New Jersey Supreme Court affirmed a trial court’s invalidation of a preinjury release in a case where the plaintiff was allegedly harmed by the defendants’ failure to comply with a state regulation governing the placement of fuel lines in racing cars. That Court stated that the “prescribed safety requirements may not be contracted away, for if they could be, [*8] the salient protective purposes of the legislation would largely be nullified.” Id. 54. That opinion recognized that such anticipatory releases are enforceable when they relate to strictly private affairs, however the Court remarked that the “situation becomes an entirely different one in the eye of the law when the legislation in question is . . . a police measure obviously intended for the protection of human life; in such event public policy does not permit an individual to waive the protection which the statute is designed to afford him.” Id.

The West Virginia Supreme Court reached a similar result in Murphy v. American River Runners, Inc., 186 W.Va. 310, 412 S.E.2d 504 (1991). West Virginia has a statutory scheme regarding the division of responsibility for harm resulting from the risks of whitewater rafting. That scheme immunizes commercial rafting operators from liability for risks inherent in that activity but “imposes in general terms certain statutory duties upon commercial whitewater outfitters.” Id., 317. A rafter suffered injuries when the outfitter ‘s employee attempted to use one raft to dislodge another which was hung up on some rocks. Id., 313-14. [*9] That Court concluded “when a statute imposes a standard of care, a clause in an agreement purporting to exempt a party from tort liability to a member of the protected class for failure to conform to that statutory standard is unenforceable.” Id., 318. The West Virginia Supreme Court also observed that that state’s skiing statutes were very similar to their whitewater rafting legislation. Id., 317.

These cases invalidating preinjury waivers where the basis of liability is a violation of a statute appear to be based either on a presumption that such releases are against public policy or on the legal inability of the releasor to waive a duty which protects the public or a class of persons of which the releasor is only one member. The court finds this reasoning persuasive.

Common-law negligence is a breach of a duty to exercise reasonable care with respect to another when confronting a particularized and individualized set of surrounding circumstances which may never arise again. A party is entitled to contract away the right to hold the releasee responsible for careless conduct peculiar to the releasor’s situation.

On the other hand, statutory negligence [*10] is based on deviation from a legislatively mandated course of conduct which governs a generalized set of circumstances. The statutory rule applies in every case in which those generic circumstances may exist and where the injured party falls within the class the statute was designed to protect. Coughlin v. Peters, 153 Conn. 99, 101, 214 A.2d 127 (1965). The doctrine of statutory negligence applies to create liability regardless of whether the defendant acted with reasonable prudence. Jacobs v. Swift & Co., 141 Conn. 276, 279, 105 A.2d 658 (1954).

If liability for breach of statutory duty may be waived preinjury, the operator of a recreational facility could design, construct, and run a facility in total disregard of the legislatively prescribed rules with impunity, as to civil damages, simply by restricting use of the facility to those patrons willing to sign a release. In other words, the operator could repeal the protection of the legislatively selected class member by member.

Given our Supreme Court’s reluctance to afford liberal recognition to preinjury waivers and the need to prevent the undermining of statutorily defined duties, the court holds [*11] as a matter of law, that the plaintiffs’ release in this case is unenforceable to defeat the claims of a violation of § 29-211.

The motion for summary judgment is, therefore, denied.

Sferrazza, J.


Morgan, v. Kent State University et al., 2016-Ohio-3303; 54 N.E.3d 1284; 2016 Ohio App. LEXIS 2160

Morgan, v. Kent State University et al., 2016-Ohio-3303; 54 N.E.3d 1284; 2016 Ohio App. LEXIS 2160

Aaron S. Morgan, Plaintiff-Appellant, v. Kent State University et al., Defendants-Appellees.

No. 15AP-685

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

2016-Ohio-3303; 54 N.E.3d 1284; 2016 Ohio App. LEXIS 2160

June 7, 2016, Rendered

COUNSEL: On brief: David B. Spalding, for appellant.

On brief: Michael DeWine, Attorney General, and Lee Ann Rabe, for appellee Kent State University.

JUDGES: DORRIAN, P.J. BROWN and SADLER, JJ., concur.

OPINION BY: DORRIAN

OPINION

[**1287] (REGULAR CALENDAR)

DECISION

DORRIAN, P.J.

[*P1] Plaintiff-appellant, Aaron S. Morgan, appeals the June 19, 2015 judgment of the Court of Claims of Ohio granting summary judgment in favor of defendant-appellee Kent State University (“KSU”). For the following reasons, we affirm the judgment of the Court of Claims.

I. Facts and Procedural History

[*P2] During the period of time relevant to the present matter, appellant was a student at KSU’s Stark campus. In the fall semester 2012, appellant enrolled in a beginning karate class taught by Edward C. Malecki, an employee of KSU. Appellant had no experience in martial arts before enrolling in the beginning karate class, but had a general idea of what karate entailed through movies and television.

[*P3] The course syllabus for beginning karate listed objectives for the students, including: “[d]emonstrat[ing] basic self defense techniques including release from various holds and counter attacks, joint [***2] locks and throws.” (Apr. 17, 2015 KSU Mot. for Summ. Jgmt., Ex. D.) Additionally, the syllabus listed a variety of fighting techniques, including punches and kicks, that the students were expected to perform. Students enrolled in the class were required to wear a mouth guard and padded gloves.

[*P4] As part of the class, students were required to spar with one another and with the instructor using only “light physical contact.” (Malecki Dep. at 52.) According to Malecki, there was no bodily or facial contact permitted either by the students or the instructor. During the sparring, students practiced guarding themselves using their hands in defensive postures in front of their body. It was not uncommon for students to make mistakes, such as dropping their guard by lowering their hands. When a student would drop his or her guard, the instructor would stop the sparring procedure until the student resumed guarding himself or herself.

[*P5] On October 24, 2012, while appellant was sparring with Malecki, he lost his balance and dropped his guard. When appellant dropped his guard, Malecki punched appellant in the face. According to appellant, Malecki’s palm struck him on the nose. Malecki was not wearing [***3] padded gloves when he struck appellant. Appellant’s nose immediately started bleeding. Malecki and a student employee helped to stop appellant’s bleeding and then filled out an incident report. Appellant later sought medical care and was told that he suffered a nasal fracture.

[*P6] On July 15, 2014, appellant filed a complaint in the Court of Claims asserting claims for negligence and negligent hiring against KSU. On March 31, 2015, appellant filed a motion for partial summary judgment and attorney fees and expenses pursuant to Civ.R. 37(C). On April 17, 2015, KSU filed a motion for summary judgment and a memorandum contra appellant’s motion for partial summary judgment. On April 28, 2015, appellant filed a supplemental brief in support of his motion for attorney fees and expenses. On April 28, 2015, appellant filed a reply brief in support of his motion for summary judgment.

[*P7] On June 19, 2015, the Court of Claims filed an entry granting KSU’s motion for summary judgment and denying appellant’s motion for attorney fees and expenses.

II. Assignments of Error

[*P8] Appellant appeals and assigns the following four assignments of error for our review:

[**1288] [I.] The trial court erred in holding that the broad and general [***4] language contained in the Waiver, which neither Kent State University nor Aaron Morgan intended to apply to academic or physical education classes, effectively released the Appellee from liability resulting from the Appellant being struck in the face by his instructor during a class the Appellant subsequently enrolled in through the University.

[II.] The trial court erred in holding that the Appellant’s claim against Kent State University is barred by the doctrine of primary assumption of risk.

[III.] The trial court erred in failing to grant Plaintiff-Appellant’s Motion for Partial Summary Judgment, as to the issue of liability.

[IV.] The trial court erred by its failure to rule on Plaintiff-Appellant’s Motion for Attorney Fees and Expenses pursuant to Civ.R. 37(C).

For ease of discussion, we consider appellant’s assignments of error out of order.

III. Discussion

A. Second Assignment of Error

[*P9] In his second assignment of error, appellant asserts the Court of Claims erred in holding that his claim for negligence was barred by the doctrine of primary assumption of the risk.

[*P10] [HN1] “[I]n order to establish actionable negligence, one seeking recovery must show the existence of a duty, the breach of the duty, and injury [***5] resulting proximately therefrom.” Strother v. Hutchinson, 67 Ohio St.2d 282, 285, 423 N.E.2d 467 (1981), citing Feldman v. Howard, 10 Ohio St.2d 189, 193, 226 N.E.2d 564 (1967). “Under the law of negligence, a defendant’s duty to a plaintiff depends on the relationship between the parties and the foreseeability of injury to someone in the plaintiff’s position.” Morgan v. Ohio Conference of the United Church of Christ, 10th Dist. No. 11AP-405, 2012-Ohio-453, ¶ 11, citing Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 645, 1992 Ohio 42, 597 N.E.2d 504 (1992).

[*P11] [HN2] “Ohio law recognizes three categories of assumption of the risk as defenses to a negligence claim: express, primary, and implied or secondary.” Schnetz v. Ohio Dept. of Rehab. & Corr., 195 Ohio App.3d 207, 2011-Ohio-3927, ¶ 21, 959 N.E.2d 554 (10th Dist.), citing Crace v. Kent State Univ., 185 Ohio App.3d 534, 2009-Ohio-6898, ¶ 10, 924 N.E.2d 906 (10th Dist.). Ohio courts have historically applied the doctrine of primary assumption of the risk to cases involving sporting events and recreational activities. Crace at ¶ 12, citing Ballinger v. Leaniz Roofing, Ltd., 10th Dist. No. 07AP-696, 2008-Ohio-1421, ¶ 8, citing Anderson v. Ceccardi, 6 Ohio St.3d 110, 114, 6 Ohio B. 170, 451 N.E.2d 780 (1983).

[*P12] [HN3] “Under the doctrine of primary assumption of the risk, a plaintiff who voluntarily engages in a recreational activity or sporting event assumes the inherent risks of that activity and cannot recover for injuries sustained in engaging in the activity unless the defendant acted recklessly or intentionally in causing the injuries.” Morgan at ¶ 13, citing Crace at ¶ 13, citing Santho v. Boy Scouts of Am., 168 Ohio App.3d 27, 2006-Ohio- 3656, ¶ 12, 857 N.E.2d 1255 (10th Dist.). See Marchetti v. Kalish, 53 Ohio St.3d 95, 559 N.E.2d 699 (1990), paragraph one of the syllabus. Underlying the doctrine is the rationale that certain risks are [***6] so inherent in some activities that they cannot be eliminated, and therefore a person participating in such activities tacitly consents to the risks involved. Crace at ¶ 13, citing Collier v. Northland Swim Club, 35 Ohio App.3d 35, 37, 518 N.E.2d 1226 (10th Dist. [**1289] 1987). “The test for applying the doctrine of primary assumption of the risk to recreational activities and sporting events requires that ‘(1) the danger is ordinary to the game, (2) it is common knowledge that the danger exists, and (3) the injury occurs as a result of the danger during the course of the game.'” Morgan at ¶ 13, quoting Santho at ¶ 12.

[*P13] “‘To be covered under the [primary-assumption-of-the-risk] doctrine, the risk must be one that is so inherent to the sport or activity that it cannot be eliminated.'” Horvath v. Ish, 134 Ohio St.3d 48, 2012-Ohio-5333, ¶ 19, 979 N.E.2d 1246, quoting Konesky v. Wood Cty. Agricultural Soc., 164 Ohio App.3d 839, 2005-Ohio-7009, ¶ 19, 844 N.E.2d 408 (6th Dist.), citing Westray v. Imperial Pools & Supplies, Inc., 133 Ohio App.3d 426, 432, 728 N.E.2d 431 (6th Dist.1999). “Where the risk at issue is not inherent, then a negligence standard applies.” Id.

[*P14] [HN4] The Supreme Court of Ohio has explained the applicability of the doctrine of primary assumption of the risk and the rationale underlying it as follows:

Acts that would give rise to tort liability for negligence on a city street or in a backyard are not negligent in the context of a game where such an act is foreseeable and within the rules. For instance, a golfer who hits practice balls in his backyard [***7] and inadvertently hits a neighbor who is gardening or mowing the lawn next door must be held to a different standard than a golfer whose drive hits another golfer on a golf course. A principal difference is the golfer’s duty to the one he hit. The neighbor, unlike the other golfer or spectator on the course, has not agreed to participate or watch and cannot be expected to foresee or accept the attendant risk of injury. Conversely, the spectator or participant must accept from a participant conduct associated with that sport. Thus a player who injures another player in the course of a sporting event by conduct that is a foreseeable, customary part of the sport cannot be held liable for negligence because no duty is owed to protect the victim from that conduct. Were we to find such a duty between co-participants in a sport, we might well stifle the rewards of athletic competition.

Thompson v. McNeill, 53 Ohio St.3d 102, 104, 559 N.E.2d 705 (1990), modified on other grounds by Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266. See also Crace at ¶ 14.

[*P15] [HN5] When considering a defense of primary assumption of the risk, “the injured plaintiff’s subjective consent to and appreciation for the inherent risks are immaterial to the analysis.” Crace at ¶ 16, citing Gentry v. Craycraft, 101 Ohio St.3d 141, 2004-Ohio- 379, ¶ 9, 802 N.E.2d 1116, citing Ramos v. Countryside, 137 Ill.App.3d 1028, 1031-32, 485 N.E.2d 418, 92 Ill. Dec. 607 (1985). Thus, even persons “‘entirely ignorant [***8] of the risks of a sport, still assume the risk * * * by participating in a sport or simply by attending the game. The law simply deems certain risks as accepted by plaintiff regardless of actual knowledge or consent.'” (Footnotes omitted.) Gentry at ¶ 12, quoting Susan M. Gilles, From Baseball Parks to the Public Arena: Assumption of the Risk in Tort Law and Constitutional Libel Law, 75 Temple L.Rev. 231, 236 (2002). In accordance with these principles, this court has stated that “‘primary assumption of [the] risk requires an examination of the activity itself and not plaintiff’s conduct. If the activity is one that is inherently dangerous and from which the risks cannot be eliminated, then a finding of primary assumption of [the] risk is appropriate.'” Morgan at ¶ 15, quoting Gehri v. Capital Racing [**1290] Club, Inc., 10th Dist. No. 96APE10-1307, 1997 Ohio App. LEXIS 2527 (June 12, 1997).

[*P16] [HN6] “The affirmative defense of primary assumption of the risk completely negates a negligence claim because the defendant owes no duty to protect the plaintiff against the inherent risks of the recreational activity in which the plaintiff engages.” Id. at ¶ 14, citing Crace at ¶ 15, citing Gentry at ¶ 11, citing Prosser & Keeton, The Law of Torts, Section 68, at 496 (5th Ed.1984). [***9] “‘Because a successful primary assumption of risk defense means that the duty element of negligence is not established as a matter of law, the defense prevents the plaintiff from even making a prima facie case.'” Wolfe v. Bison Baseball, Inc., 10th Dist. No. 09AP-905, 2010-Ohio-1390, ¶ 21, quoting Gallagher v. Cleveland Browns Football Co., 74 Ohio St.3d 427, 432, 1996 Ohio 320, 659 N.E.2d 1232 (1996). “Because of the great impact a ruling in favor of a defendant on primary assumption of risk grounds carries, a trial court must proceed with caution when contemplating whether primary assumption of risk completely bars a plaintiff’s recovery.” Gallagher at 432.

[*P17] In Crace, this court considered the applicability of the doctrine of primary assumption of the risk. In that case, Angela Crace, a student cheerleader at KSU, asserted a claim for negligence against KSU after she was severely injured during a cheerleading practice. On the day Crace was injured, the KSU cheerleading coach assigned members of the cheerleading squad, including Crace, to various positions in a maneuver known as a the “Big K.” The Big K was essentially a human pyramid that consisted of a base, a middle layer/base, and flyers; the pyramid was two and one-half people high. Spotters were positioned on the ground to catch the flyers when they dismounted the [***10] pyramid.

[*P18] Crace and several other members of the KSU cheerleading squad had successfully performed the Big K during the previous season. However, many other members of the team had neither performed nor seen the maneuver. On the day Crace was injured, the coach assigned Crace to the position of flyer. The first two attempts at the mount failed, resulting in Crace falling from about 15 feet in the air. However, the front spotter caught Crace when she fell. Before the third attempt, the coach substituted as the rear spotter a team member who had neither seen nor participated in the Big K. On the third attempt, the substitute rear spotter failed to catch Crace as she fell from approximately 15 feet in the air. As a result, Crace’s fall was unbroken, and she fell to the ground, resulting in immediate paraplegia.

[*P19] At issue in Crace was whether the doctrine of primary assumption of the risk applied to relieve KSU of liability based on the conduct of the cheerleading coach. Crace argued that the doctrine applied only to co-participants in a recreational activity. We disagreed, finding that [HN7] the doctrine of primary assumption of the risk applies to co-participants and non-participants alike. [***11] In so finding, we noted that the analysis of the doctrine focuses exclusively on the activity itself. Thus, if the activity is one that is inherently dangerous and from which risks cannot be eliminated, primary assumption of the risk is applicable. Id. at ¶ 16, citing Gehri. In so finding, we stated:

A holding to the contrary would likely shift the focus of the analysis away from the activity and its inherent risks. The analysis would then unnecessarily focus upon the extent of the defendant’s involvement and the defendant’s classification [**1291] as a participant, nonparticipant, coach, instructor, official, operator, owner, sponsor, provider, or otherwise. Injured participants would frame their allegations sufficiently to cast a liability net just beyond the reach of Marchetti and Thompson, with no regard for the inherent risks of the activity.

Id. at ¶ 25.

[*P20] We thus rejected Crace’s argument that primary assumption of the risk could not relieve a university of liability for negligence based on the conduct of one of its coaches in a cheerleading practice. Having so concluded, we next determined based on the evidence presented at trial that suffering an injury due to a fall is an inherent risk [***12] of cheerleading. Therefore, we found that the doctrine of primary assumption of the risk applied, and, as such, KSU owed no duty to protect Crace from the inherent risk of injury related to a fall while participating in cheerleading, absent a demonstration of recklessness or intentional misconduct.

[*P21] Here, appellant contends that the trial court erred in applying the doctrine of primary assumption of the risk because “the facts of this case manifestly establish that the injury sustained by [appellant] on October 24, 2012 was * * * not a ‘foreseeable’ consequence of participating in the subject Beginning Karate class.” (Emphasis omitted.) (Appellant’s Brief at 28-29.) Appellant cites the following circumstances in support of his contention: (1) all of the students in the class were “novices in martial arts”; (2) “the students were specifically assured by the instructor that there would be no bodily contact during the class and that facial contact was explicitly prohibited”; (3) “the instructor was required to wear padded, protective gloves as a further safeguard against injury”; and (4) “when a student dropped his or her guard, the instructor was required to stop the session until the [***13] student raised his or her guard.” (Appellant’s Brief at 28.)

[*P22] Appellant suggests the court consider that he had no experience in the martial arts. However, such a suggestion “shift[s] the focus of the analysis away from the activity and its inherent risks.” Crace at ¶ 25. Appellant further suggests the court consider the instructor’s actions. This essentially is a claim that the instructor was reckless. However, appellant’s complaint did not allege reckless or intentional conduct.

[*P23] Therefore, we decline to consider the same and limit our analysis to whether the doctrine of primary assumption of the risk applies to appellant’s claim for negligence. Thus, we consider whether karate is an inherently dangerous activity from which the risks cannot be eliminated. Morgan at ¶ 15; Crace at ¶ 16.

[*P24] The Court of Claims found that “[t]here is no question that the martial arts class was a sports or recreational activity with an inherent risk of injury.” (Jgmt. Entry at 5.) Furthermore, the Court of Claims found that “[p]hysical contact between participants during karate sparring is simply a foreseeable hazard of the activity.” (Jgmt. Entry at 5.) Other courts have found that participating in martial arts involves inherent risk. Levine v. Gross, 123 Ohio App.3d 326, 330, 704 N.E.2d 262 (9th Dist.1997) (finding that the plaintiff [***14] understood the “kind of risk posed by sparring and grappling in the course of a karate lesson”); Barakat v. Pordash, 164 Ohio App.3d 328, 2005-Ohio-6095, ¶ 12, 842 N.E.2d 120 (8th Dist.) (finding in the context of martial arts that “being injured in the course of a hold or maneuver is a risk that is a foreseeable and customary risk of the sport”).

[*P25] Karate is a recreational activity involving physical contact in the form of punches, kicks, and other techniques as [**1292] detailed in the course outline for the beginning karate course in which appellant was enrolled. Thus, by its very nature, karate, as a martial art, is an inherently dangerous activity from which the risk of harm cannot be eliminated. Indeed, the course outline notes that a “mouthguard; sparring gloves; athletic supporter w/cup” are required. (KSU Mot. for Summ. Jgmt., Ex. D.) As danger is inherent in karate, it is common knowledge that such danger exists, and appellant’s injury occurred during the course of participating in the inherently dangerous activity, we find that the doctrine of primary assumption of the risk applies in this case. Morgan at ¶ 13, citing Santho at ¶ 12. Under the doctrine of primary assumption of the risk, KSU owed no duty to protect appellant from the inherent risks of the activity. Id. at ¶ 27 [***15] . As a result, appellant is precluded from establishing a prima facie case of negligence, and the trial court did not err in granting KSU’s motion for summary judgment. Barakat at ¶ 13, citing Gentry (“Because an inherent risk was involved, recovery is dependent upon whether the defendant’s conduct was either reckless or intentional.”); Wolfe at ¶ 21.

[*P26] Accordingly, appellant’s second assignment of error is overruled.

B. First and Third Assignments of Error

[*P27] In his first assignment of error, appellant asserts that the Court of Claims erred by holding that the waiver signed by appellant released KSU from liability for the incident on October 24, 2012. In his third assignment of error, appellant asserts that the Court of Claims erred by failing to grant appellant’s motion for partial summary judgment on the issue of liability. Having overruled appellant’s second assignment of error, appellant’s first and third assignments of error are rendered moot.

C. Fourth Assignment of Error

[*P28] In his fourth assignment of error, appellant asserts that the Court of Claims erred by failing to rule on his motion for attorney fees and expenses pursuant to Civ.R. 37(C). We begin by noting that the Court of Claims in its June 19, 2015 judgment entry granting KSU’s motion for summary judgment did in fact rule on appellant’s March 31, 2015 motion for attorney fees and expenses. [***16] Specifically, the court stated: “The court finds that there was either a good reason for [KSU’s] failure to admit or the admissions sought were of no substantial importance. The court further finds that [appellant] has not suffered prejudice regarding the responses at issue. Accordingly, [appellant’s] motion for attorney fees and expenses is denied.” (Emphasis omitted.) (Jgmt. Entry, fn. 1.)

[*P29] Civ.R. 37(C) provides as follows:

Expenses on failure to admit. [HN8] If a party, after being served with a request for admission under Rule 36, fails to admit the genuineness of any documents or the truth of any matter as requested, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making that proof, including reasonable attorney’s fees. Unless the request had been held objectionable under Rule 36(A) or the court finds that there was good reason for the failure to admit or that the admission sought was of no substantial importance, the order shall be made.

[*P30] Thus, [HN9] “[a] party may deny a request for admissions, but, upon motion pursuant to Civ.R. 37(C), improper [**1293] denials [***17] may subject the responding party to sanctions.” Salem Med. Arts & Dev. Corp. v. Columbiana Cty. Bd. of Revision, 82 Ohio St.3d 193, 195, 1998 Ohio 248, 694 N.E.2d 1324 (1998). “Whether such denials are subject to Civ.R. 37(C) sanctions depends upon whether the proof at trial contradicts the denial.” Id. The party denying a later-proved matter has the burden of proving that: “(1) the request for admissions was objectionable under Civ.R. 36 (A); (2) there was a good reason for the failure to admit; or (3) the matter was of no substantial importance.” Itskin v. Restaurant Food Supply Co., 7 Ohio App.3d 127, 129, 7 Ohio B. 161, 454 N.E.2d 583 (10th Dist.1982), paragraph one of the syllabus.

[*P31] “The determination of whether to award expenses and the amount thereof, pursuant to Civ.R. 37(C), necessarily involves a matter of discretion and, thus, is a matter lying within the sound discretion of the trial court.” Id. “‘[A]buse of discretion’ connotes more than an error of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 5 Ohio B. 481, 450 N.E.2d 1140 (1983).

[*P32] Here, the Court of Claims found that there was either a good reason for the failure to admit or that the admissions were of no substantial importance. Appellant fails to demonstrate that the Court of Claims abused its discretion by denying the motion. Accordingly, we overrule appellant’s fourth assignment of error.

IV. Conclusion

[*P33] Having overruled appellant’s second and fourth assignments of error [***18] and rendered moot appellant’s first and third assignments of error, we affirm the judgment of the Court of Claims of Ohio.

Judgment affirmed.

BROWN and SADLER, JJ., concur.


Santho et al., v. Boy Scouts of America et al., 168 Ohio App. 3d 27; 2006-Ohio-3656; 857 N.E.2d 1255; 2006 Ohio App. LEXIS 3606

Santho et al., v. Boy Scouts of America et al., 168 Ohio App. 3d 27; 2006-Ohio-3656; 857 N.E.2d 1255; 2006 Ohio App. LEXIS 3606

Lynn T. Santho et al., Plaintiffs-Appellants, v. Boy Scouts of America et al., Defendants-Appellees.

No. 05AP-341

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

168 Ohio App. 3d 27; 2006-Ohio-3656; 857 N.E.2d 1255; 2006 Ohio App. LEXIS 3606

July 18, 2006, Rendered

COUNSEL: Kemp, Schaeffer, Rowe and Lardiere Co., L.P.A., Steven D. Rowe and Darren A. McNair, for appellants.

Vorys, Sater, Seymour and Pease LLP, and Theodore P. Mattis, for appellees Boy Scouts of America, Simon Kenton Council, and Prince of Peace Lutheran Church.

Reminger & Reminger, Paul Michael LaFayette and Michael V. Valentine, for appellee Central Ohio Ice Rink, Inc./Chiller Ice Rink.

Bale, Begin & Associates, Ltd., David G. Bale and Christopher R. Cave, for appellee Margaret Bennett.

JUDGES: TRAVIS, J. BROWN and SADLER, JJ., concur.

OPINION BY: TRAVIS

OPINION

[*31] [***1258] (REGULAR CALENDAR)

TRAVIS, J.

[**P1] Lynn and Rick Santho, on behalf of their son, Jamie Santho (“appellants”), appeal from summary judgment entered by the Franklin County Court of Common Pleas on July 8, 2004 in favor of Boy Scouts of America, Simon Kenton Council, Prince of Peace Lutheran Church, and the Chiller Ice Rink (“Chiller”), and a directed verdict entered by the same court on March 2, 2005 in favor of Margaret Bennett.

[**P2] Boy Scouts of America (“BSA”) issued a charter to the Simon Kenton Council (“SKC”), which in turn issued a charter to the Prince of Peace Lutheran Church (“POPLC”) for the purpose of sponsoring Troop 210. The pack committee, which was made up of parents and organized by POPLC, supervised all [*32] everyday operations and the planning of activities of Troop 210. Jamie Santho (“Jamie”), age nine, was a Cub Scout in Troop 210. His Cub Scout Master was Fred Bigney (“Bigney”). Margaret Bennett (“Bennett”) was a den leader in the troop.

[**P3] In addition to her role as a den leader, Bennett also had significant ice-skating experience. Prior to her employment with the Chiller, Bennett was employed by the Ice Skating Institute of America as program and educational coordinator. Following that, she taught ice-skating at Ohio State University. At the time of the incident giving rise to this action, Bennett was a salaried employee of the Chiller, an ice rink located in Dublin, Ohio, and run by Central Ohio Ice Rinks, Inc. At the Chiller, Bennett served as the Skating School Director. Her duties included organizing class schedules and training instructors. On occasion, she also taught hourly lessons for a fee.

[**P4] On November 13, 1994, Bennett organized a family fun skate at the Chiller for the members and parents of Troop 210. She filled out the “Agreement for Ice Rental” and provided information and fliers to the members at their Pack meeting.

[**P5] Jamie Santho, his father, and his siblings attended the fun skate. Jamie was an avid skater, participated in hockey leagues, and took hockey lessons at the Chiller. Jamie’s father was a volunteer hockey coach at the Chiller. On the night of the event, Jamie’s father permitted Jamie to skate without his hockey helmet. Shortly after arriving, Jamie was racing with his friend, Colin Innes, from board to board. When Jamie looked over his shoulder to see where Colin was, he crashed into the boards and suffered a skull fracture and concussion. Appellants allege that Bennett had organized the relay race against the rules of the Chiller.

[**P6] Appellants filed suit against BSA, POPLC, SKC, the Chiller, and Bennett in 1997. Appellants dismissed their suit pursuant to Civ.R. 41 and re-filed on October 1, 2002, seeking recovery for claims of negligence, reckless/intentional conduct, respondeat superior, and loss of consortium. The trial court granted summary judgment to all appellees on the claim for negligence, under the doctrine of primary assumption of the risk. The trial court also granted summary judgment to BSA, SKC and POPLC for the claim of recklessness on the grounds that Bennett was not an agent of the organizations, and therefore, no liability could be imputed. [***1259] The Chiller also was granted summary judgment on plaintiffs’ recklessness claim. The trial court denied Bennett summary judgment on the recklessness claim and the issue proceeded to trial.

[**P7] The matter was tried on February 28, March 1, and March 2, 2005. At the close of arguments on March 2, the trial court granted Bennett’s motion for a directed verdict.

[**P8] Appellants timely appealed and assert four assignments of error:

[*33] I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY GRANTING DEFENDANT MARGARET BENNETT A DIRECTED VERDICT AFTER THE CLOSE OF PLAINTIFFS’ CASE. PLAINTIFFS PRESENTED SUFFICIENT EVIDENCE TO PERMIT THE JURY TO CONSIDER THE ISSUE OF WHETHER DEFENDANT BENNETT’S CONDUCT WAS RECKLESS.

II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY GRANTING SUMMARY JUDGMENT ON PLAINTIFFS’ RECKLESSNESS CLAIMS AGAINST DEFENDANTS BOY SCOUTS OF AMERICA, SIMON KENTON COUNCIL, PRINCE OF PEACE LUTHERAN CHURCH AND CENTRAL OHIO ICE RINKS, INC./THE CHILLER BECAUSE IT ERRONEOUSLY HELD THAT MARGARET BENNETT WAS NOT AN AGENT OF ANY OF THE AFOREMENTIONED DEFENDANTS, BUT ASSUMING ARGUENDO SHE WAS, THE COURT ERRONEOUSLY HELD FURTHER THAT PRINCIPALS ARE NOT VICARIOUSLY LIABILE [sic] FOR THE RECKLESS ACTS OF ITS AGENTS.

III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY GRANTING SUMMARY JUDGMENT ON PLAINTIFF’S [sic] NEGLIGENCE CLAIMS AGAINST DEFENDANTS BENNETT, BOY SCOUTS OF AMERICA, SIMON KENTON COUNCIL, PRINCE OF PEACE LUTHERAN CHURCH, AND CENTRAL OHIO ICE RINKS, INC./THE CHILLER BECAUSE THE COURT ERRONEOUSLY RELIED ON GENTRY V. CRAYCRAFT (2004), 101 OHIO ST. 3D 141, 2004 OHIO 379, 802 N.E.2D 1116, AND MISAPPLIED THE DOCTRINE OF PRIMARY ASSUMPTION OF THE RISK TO THE FACTS IN THIS CASE.

IV. GENTRY V. CRAYCRAFT (2004) 101 OHIO ST.3D 141 [sic] IS UNCONSTITUTIONAL BECAUSE IT DEPRIVES CITIZENS OF THE STATE OF OHIO, AND IN THIS CASE PLAINTIFFS, RIGHTS UNDER ARTICLE I, SECTIONS 5 AND 16 OF THE OHIO CONSTITUTION.

[**P9] [HN1] Appellate review of motions for summary judgment is de novo. [HN2] The moving party bears the burden of proving that: (1) no genuine issues of material fact exist; (2) the moving party is entitled to summary judgment as a matter of law; and (3) reasonable minds can come to only one conclusion, which is adverse to the nonmoving party. Civ.R. 56. Where the evidence supports a motion for summary judgment, the nonmoving party must present specific facts beyond the pleadings to show that a genuine issue of material fact exists and therefore, the moving party is not entitled to judgment as a matter of law. Dresher v. Burt (1996), 75 Ohio St.3d 280, 1996 Ohio 107, 662 N.E.2d 264.

[**P10] [HN3] Appellate review of directed verdicts is also de novo. [HN4] Under Civ.R. 50(A)(1), a motion for directed verdict may be made upon the opening statement of the opponent, at the close of opponent’s evidence, or at the close of all evidence. If, after construing the evidence in a light most favorable to the nonmoving party, the trial court finds that reasonable minds can come to but one conclusion, which is adverse to the nonmoving party, the trial court may direct a verdict in favor of the moving party. Civ.R. 50(A)(4). When considering the evidence, the trial court may not evaluate the weight of the evidence or the credibility of the witnesses. Only the relevancy of the testimony may be [*34] considered. Gibbs v. Village of Girard (1913), 88 Ohio St. 34, 102 N.E. 299, 11 Ohio L. Rep. 39. A directed verdict presents a question of law, not one of fact. O’Day v. Webb (1972), 29 Ohio St.2d 215, 280 N.E.2d 896. Therefore, the sole determination [***1260] for the court is whether the evidence presented is sufficient to present the case to the jury. Ruta v. Breckenridge-Remy Co. (1982), 69 Ohio St.2d 66, 430 N.E.2d 935.

[**P11] Assignments of error one and three contest the trial court’s determination on summary judgment that the doctrine of primary assumption of the risk applied to the facts of this case and its subsequent grant of a directed verdict in Bennett’s favor on the sole remaining issue of recklessness, an exception to primary assumption of the risk. Due to the interrelated nature of these two issues, we consider them first.

[**P12] In their third assignment of error, appellants object to the trial court’s application of primary assumption of the risk to this case. [HN5] Under the doctrine of primary assumption of the risk, an individual injured in the course of a recreational activity is presumed to have assumed the ordinary risks of that activity unless it can be shown that another actor acted recklessly or intentionally in causing the injury. Marchetti v. Kalish (1990), 53 Ohio St.3d 95, 559 N.E.2d 699; Gentry v. Craycraft, 101 Ohio St.3d 141, 2004 Ohio 379, 802 N.E.2d 1116. The doctrine serves to remove liability for negligence under these circumstances. The trial court applied the three-part test for primary assumption of the risk in sporting events set forth in Gallagher v. Cleveland Browns Football Co., Inc. (1994), 93 Ohio App.3d 449, 638 N.E.2d 1082, reversed on other grounds, 74 Ohio St.3d 427, 1996 Ohio 320, 659 N.E.2d 1232. The test requires that: (1) the danger is ordinary to the game; (2) it is common knowledge that the danger exists; and (3) the injury occurs as a result of the danger during the course of the game.

[**P13] It is foreseeable that any time an individual, regardless of skill, steps onto ice, they risk falling or coming into contact with the barriers that set the perimeter of the skating surface. It is foreseeable that anytime an individual falls on ice, or strikes the perimeter boards, they risk injury. Therefore, every time Jamie Santho went onto the ice, either to play hockey or participate in any other activity, he assumed the risk of falling or running into the perimeter boards and injuring himself. There is no question that Jamie was participating in a recreational activity at the time he was injured. Falling is an ordinary danger of ice-skating. Colliding with the perimeter boards is an ordinary danger of ice rink skating. It was during the course of ice-skating and participating in the relay race that Jamie was injured. The appellant’s [HN6] age and ability to appreciate the danger involved is immaterial to the doctrine of primary assumption of the risk. Only the conduct of defendant is relevant to recovery. Gentry, supra.

[**P14] [*35] Appellants further argue that the trial court erred in applying the doctrine of primary assumption of the risk to the facts herein because Bennett was not a participant in the relay race. 1 They argue that case law has only applied the doctrine in circumstances where the [***1261] defendant is another participant. However, [HN7] a recreation provider ordinarily owes no duty to a participant or spectator of an active sport to eliminate the risks inherent in the sport. Gallagher, supra. Here, Bennett organized the fun skate for Pack 210, as she had on several previous occasions. That was her main project for the pack. Therefore, Bennett qualifies as a recreation provider. Bennett is relieved of liability under the doctrine of primary assumption of the risk even though she was a non-participant in the relay race. Based upon the case law and the facts of this case, we find that the trial court properly applied the doctrine of primary assumption of the risk and properly granted summary judgment in favor of defendants on appellants’ negligence claim. Appellants’ third assignment of error is not well-taken and is overruled.

1 The Santhos’ argue that negligent supervision should apply instead. [HN8] For a non-participant to be found liable in a recreational activity, it must be found that the non-participant either (1) allowed an activity to take place absent any management, or (2) allowed a participant with a known propensity for violence to engage in the activity. Rodriguez v. O.C.C.H.A. (2000), Mahoning App. No. 99 C.A. 30, 2000 Ohio App. LEXIS 4608; Kline v. OID Associates, Inc. (1992), 80 Ohio App.3d 393, 609 N.E.2d 564. Bennett managed the first race and the evidence indicates Richard Pretzloff supervised the second race. Furthermore, none of the participants exhibited violent behavior. Therefore, negligent supervision does not apply in this case.

[**P15] Under the first assignment of error, we must determine whether sufficient evidence was presented at trial to raise a jury question of whether Bennett acted recklessly when she organized the fun skate relay race. Appellants argue that the evidence presented on motion for summary judgment and the evidence presented at trial was substantially the same. Appellants state that if the trial court found a genuine issue of material fact on the issue of recklessness when ruling on the motion for summary judgment, that same evidence was sufficient to present a question for the jury on the same issue at trial. Appellants reason that the trial court could not be correct in both instances.

[**P16] [HN9] Motions for summary judgment and for directed verdict address the same issue, albeit at different times during the process of litigation. Whether in summary judgment proceedings or during trial, the ultimate issue under either Civ.R. 56 or 50 is whether the evidence is sufficient to present an issue for determination by the trier of fact. Summary judgment raises this question prior to trial; directed verdict raises the question during trial. A court does not consider the weight of the evidence or credibility of the witnesses in ruling on either a motion for summary judgment under Civ.R. 56, or in ruling on a motion for directed verdict under Civ.R. 50. Turner v. Turner (1993), 67 Ohio St.3d 337, [*36] 1993 Ohio 176, 617 N.E.2d 1123; Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 423 N.E.2d 467. 2 The question is whether there is sufficient evidence to create a genuine issue for a jury to decide.

2 Appellants point out that, at trial, during discussions of the court and counsel on the question of directing a verdict, the court commented on the credibility of the testimony of a witness and noted reactions of the faces of the jurors during testimony. However, when the comments are viewed in the context of the discussion between court and counsel, we are satisfied that the comments were not a factor in the determination to grant a directed verdict.

[**P17] Where a motion for summary judgment is denied because the evidence demonstrates that a jury issue exists, and that same evidence is later presented at trial, logically, it would appear that the same result should obtain and a motion for directed verdict should be overruled. 3 However, the result of the first assignment of error is not dictated by a pre-trial decision on summary judgment or by whether the same or additional [***1262] evidence was available at trial. Instead, the ultimate issue presented by the first assignment of error is whether the trial court was correct in granting a directed verdict at the close of appellants’ case. As discussed from the evidence presented at trial, we find that reasonable minds could come to but one conclusion upon the evidence and that conclusion is that Bennett did not act recklessly during the fun skate relay race.

3 Compare Dupler v. Mansfield Journal Co., Inc. (1980), 64 Ohio St. 2d 116, at 126, 413 N.E.2d 1187, fn. 8, Brown, J., Concurring. “The same quantum of evidence can require that a motion for summary judgment be denied under Civ.R. 56(C) because there exists ‘a genuine issue as to * * * (a) material fact,’ and that a motion for directed verdict under Civ.R. 50(A)(4) be granted because ‘reasonable minds could come to but one conclusion upon the evidence.’ ”

[**P18] Appellants’ claim that Bennett acted recklessly arises from the relay race itself and what appellants feel were the violation of a posted rule that prohibited racing. Based on the evidence presented in the proceedings for summary judgment, the trial court determined that genuine issues of material fact existed as to whether Bennett was reckless in organizing the relay race and in permitting Jamie to participate without a helmet. 4 The trial court determined that there was a genuine issue of whether Bennett acted recklessly based primarily upon two factors; the sign at the ice rink that prohibited racing and the lack of helmets for the participants.

4 While the evidence on whether Bennett organized the relay race was in conflict, we must construe that evidence in the light most favorable to appellants and therefore assume that Bennett did organize the race.

[**P19] [HN10] Ohio has adopted the definition of recklessness contained in the Restatement of the Law 2d, Torts (1965), Section 500 . Marchetti, 96, at fn. 2: [*37]

The actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable 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.

Furthermore, the Restatement notes that [HN11] simply violating a statute or rule is not enough to constitute a reckless disregard for safety. The violation of the rule must (1) be intentional; and (2) be recognized as resulting in a significantly higher risk that serious harm will occur. Id. at Section 500(e). A plaintiff cannot recover from any injuries that stemmed from “conduct that is a foreseeable, customary part” of the activity in which the plaintiff was injured. Thompson v. McNeill (1990), 53 Ohio St.3d 102, 104, 559 N.E.2d 705.

[**P20] Turning to the facts of this case, the question presented is whether Bennett was reckless in organizing the relay race in which Jamie was injured. More specifically, did Jaime’s injury stem from conduct-the relay race-that was a foreseeable part of the activity? We have already determined that Jamie assumed the risk of falling or coming into contact with the perimeter boards and injuring himself when he began skating and again when he voluntarily took part in the relay race. To be considered reckless, Bennett’s conduct in organizing the fun skate relay race had to create an unreasonable risk of physical harm to another; a risk substantially greater than that which is necessary to make that conduct negligent.

[**P21] From trial testimony and evidence, we know that there is a sign posted in the Chiller that prohibits racing. Warren Weber, the building supervisor at the time of Jamie’s accident, stated that the “no racing” rule applied to both public and private skating events. However, Weber also testified that the rule was relaxed during private parties. He further stated that even if the private party did not have [***1263] rink guards, “[w]e would never knowingly allow an unsafe condition. I think our employees knew what unsafe and safe were or were not and would not allow an unsafe condition to go on.” (Tr. at 79.) Weber said that if he saw individuals racing from board to board, he would take into account the ability of the skaters in determining whether the activity was safe enough to continue. Weber testified that, at the time of the fun skate, there were other people working at the Chiller, even though they were not working as rink guards for the fun skate. There was no evidence that anyone on duty at the time of the accident thought the activities were unsafe. Indeed, Richard Pretzloff, a Chiller employee and father of one of the Cub Scouts attending the fun skate was present during the relay races. Pretzloff testified that he allowed his own son to participate in the relay race.

[**P22] [*38] Additionally, it is undisputed that Bennett took certain precautions when she initiated the relay race. Bennett organized the activity and divided up the ice because the more skilled skaters were being disruptive and posed a threat of harm to parents and children who were not as proficient at ice-skating. Furthermore, only those of certain skill levels were allowed to participate in the races. Bennett set the rules and supervised the first race. According to her testimony, there was no evidence of dangerous activity. After the first race, she left the immediate area and left Mr. Pretzloff in charge of the second race. Even if events in the second race increased the risk of harm, there is no evidence that Bennett was aware of them, or that she allowed the races to continue despite some increased risk to the participants. In sum, we cannot say that Bennett’s conduct in organizing the relay race was in reckless disregard of the safety of another.

[**P23] Appellants further argue that Bennett was reckless in not requiring Jamie to wear a helmet. No evidence was submitted to support this claim. Jamie’s father testified that he allowed his son to participate in the recreational skate without a helmet. Other testimony presented at trial showed that no fun skate participants were wearing helmets and that helmets are typically worn only while playing hockey. Finally, there was evidence that requiring helmets is not an industry standard.

[**P24] We find that, as a matter of law, the evidence does not support a claim of recklessness regardless of how generously it may be viewed in favor of appellants. Therefore, the trial court did not err in granting a directed verdict for Bennett on the issue of recklessness. Appellants’ first assignment of error is not well-taken and is overruled.

[**P25] Under their second assignment of error, appellants contest the trial court’s determination on summary judgment that BSA, SKC, POPLC, and the Chiller were not vicariously liable for Bennett’s reckless acts because she was not an agent of those organizations. Because we have found as a matter of law that Bennett did not act recklessly, this argument has been rendered moot.

[**P26] Even if the evidence supported a finding that Bennett was reckless, under the facts of this case, BSA, SKC and POPLC were not vicariously liable because the evidence supports the trial court’s determination that Bennett was not an agent of those organizations. Appellants rely on Mayfield v. Boy Scouts of America (1994), 95 Ohio App.3d 655, 643 N.E.2d 565, a case involving injuries to a scout while on a camping trip under the direction of a Boy Scout volunteer. In Mayfield, the campout was at a facility controlled and operated by the Boy Scouts [***1264] and located on land owned by the Boy Scouts. The Boy Scouts required all volunteers who were in charge of campouts to purchase and wear official Boy Scout uniforms, accessories and supplies and to follow Boy Scouts [*39] policies, procedures, rules and regulations. Additionally, in Mayfield, there was evidence that the Boy Scouts retained a degree of direction and control over the volunteer who supervised the campout and Boy Scout insurance policies covered the acts of the volunteer. Finally, in that case, there was evidence that the plaintiffs relied upon the affirmative acts and representations of the Boy Scouts, which led the plaintiffs to believe that the volunteer was acting as an agent of the Boy Scouts.

[**P27] In contrast, there is no evidence to suggest that Bennett was acting as the agent of the BSA, SKC or POPLC. Bennett organized the family fun skate outside the framework of the BSA organization. The fun skate was held at a facility completely independent of the BSA. There is no evidence that the BSA, SKC or POPLC were aware of or had any control over the conduct of either Bennett or the fun skate. There is no evidence that Bennett acted as an agent of the Boy Scouts or any of the other organizations. We find Mayfield to be distinguishable on it facts.

[**P28] Appellants also argue that the Chiller is liable for Bennett’s actions under the doctrine of respondeat superior. Appellants contend that, because Bennett was an employee of the Chiller, the Chiller was liable for her actions committed during the course and scope of her employment with the Chiller. However, at the time of the accident, Bennett was not being paid by the Chiller. [HN12] Actions within the “course of employment” are, by definition:

Events that occur or circumstances that exist as a part of one’s employment; esp., the time during which an employee furthers an employer’s goals through employer-mandated directives.

Black’s Law Dictionary (7 Ed.1999) 356. Bennett’s employment duties as a director of ice-skating at the Chiller consisted of training instructors and scheduling. She also gave private skating lessons. However, all of these activities were directed by the Chiller, by whom she was paid. At the time of the fun skate, Bennett was not being paid by the Chiller. She was not acting as a rink guard. According to the evidence presented by the trial court, rink guards wore distinctive clothing that identified them in that capacity. There is no evidence that Bennett was acting as, or held herself out as a rink guard for the Chiller. Instead, the evidence supports only that Bennett was acting as a den mother of Pack 210 and organized the fun skate for Pack 210. She was there as a volunteer for Pack 210 and as a parent. Therefore, the trial court did not err in finding that there was insufficient evidence to show that Bennett was an agent of the Chiller and acting on behalf of the Chiller at the time Jamie was injured. 5 Appellants’ second assignment of error is not well-taken and is overruled.

5 Weber indicated that anywhere from four to ten people could have been working during the fun skate. The fun skate was not held as an after hours event. If it were, there would be some argument as to whether Bennett was an agent of the Chiller by virtue of being the only employee of the Chiller in the building, aside from Richard Pretzloff. However, this was not the case.

[**P29] [*40] In their fourth assignment of error, appellants contend that Gentry is a violation of Sections 5 and 16, Article I, Ohio Constitution. Appellants assert that, by relying on Gentry, the trial court violated their right [***1265] to trial by jury and a remedy by due course of law. Gentry is a decision of the Supreme Court of Ohio. [HN13] It is not within our authority to declare that a determination of a superior court is invalid.

[**P30] Furthermore, appellants failed to raise this issue at the trial court. Therefore, the issue has been waived for purposes of appeal. “It is a general rule that [HN14] an appellate court will not consider any error which counsel for a party complaining of the trial court’s judgment could have called but did not call to the trial court’s attention at a time when such error could have been avoided or corrected by the trial court.” State v. Childs (1968), 14 Ohio St.2d 56, 61, 236 N.E.2d 545 citing State v. Glaros (1960), 170 Ohio St. 471, 166 N.E.2d 379, paragraph one of syllabus. Appellants’ fourth assignment of error is overruled.

[**P31] Based upon the foregoing, appellants’ four assignments of error are overruled and the judgment of the Franklin County Court of Common Pleas is affirmed.

Judgment affirmed.

BROWN and SADLER, JJ., concur.


Kendall v. USA Cycling, Inc. et al., 2005 Cal. App. Unpub. LEXIS 5025

Kendall v. USA Cycling, Inc. et al., 2005 Cal. App. Unpub. LEXIS 5025

Judith Kendall, Plaintiff and Appellant, v. USA Cycling, Inc. et al., Defendants and Respondents.

B168004

COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION EIGHT

2005 Cal. App. Unpub. LEXIS 5025

June 8, 2005, Filed

NOTICE: [*1] NOT TO BE PUBLISHED IN OFFICIAL REPORTS. CALIFORNIA RULES OF COURT, RULE 977(a), PROHIBIT COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 977(B). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 977.

PRIOR HISTORY: APPEAL from judgments of the Superior Court of Los Angeles County, No. BC 259296. Jon M. Mayeda, Judge.

COUNSEL: Gelfand and Gelfand, Robert E. Fisher, Gary B. Gelfand, and Raymond J. Feinberg for Plaintiff and Appellant.

Manning & Marder, Kass, Ellrod, Ramirez, Anthony J. Ellrod and Sylvia Havens for Defendants and Respondents.

JUDGES: RUBIN, J.; COOPER, P.J., FLIER, J. concurred.

OPINION BY: RUBIN

OPINION

Judith Kendall appeals from the summary judgment and attorney’s fee award entered for USA Cycling, Inc. and Huntsman World Senior Games in her negligence lawsuit against them. We affirm.

FACTS AND PROCEDURAL HISTORY

In October 2000, Judith Kendall was 59 years old and living in California when she entered a bicycle road race in Utah. The race was part of the Huntsman World Senior Games (Huntsman), organized and sponsored by Huntsman and USA [*2] Cycling, Inc. To participate in the race, Kendall, who had in the previous ten years ridden in about 30 bicycle races, tours, and endurance events, signed two release and waiver forms. The Huntsman release stated:

Recitals [P] I, the undersigned, acknowledge and fully understand that by participating in the World Senior Games, Inc. I will be engaging in activities or competition that may involve serious risks including bodily injury, permanent disability and death . . . which might result not only from my own actions, inactions or negligence, but the actions, inactions or negligence of others . . .; and that there may be other risks not known or not reasonably foreseeable. [P] . . . [P] Assumption of Risks. Except as otherwise specifically agreed herein, I assume all of the risks described in the Recitals section above and accept personal responsibility for any and all damages of any kind resulting from any injury, permanent disability and/or death. [P] Release of Liability. I hereby release, waive all claims of liability against, discharge and hold harmless the World Senior Games, Inc., its affiliated organizations, [and] its sponsors, including [*3] but not limited to Huntsman Corporation . . . from any and all liability of the undersigned, my heirs and next of kin, for any claims, demands, causes of action, losses or damages, on account of bodily injury [or] death . . . caused or alleged to be caused in whole or in part by the negligence of the persons or entities hereby released, and/or by the negligence of other participants . . . in connection with my participation in the World Senior Games events or activities.”

The USA Cycling release stated:

“I acknowledge that cycling is an inherently dangerous sport and fully realize the dangers of participating in a bicycle race and FULLY ASSUME THE RISKS ASSOCIATED WITH SUCH PARTICIPATION INCLUDING, by way of example, and not limitation, the following: the dangers of collision with . . . other racers . . .; THE RELEASEES’ OWN NEGLIGENCE; . . . and the possibility of serious physical and/or mental trauma or injury associated with athletic cycling competition. [P] . . . I HEREBY WAIVE, RELEASE, DISCHARGE, HOLD HARMLESS, AND PROMISE TO INDEMNIFY AND NOT SUE organizations . . . and their respective agents, officials, and employees through or by which the events will be [*4] held, (the foregoing are also collectively deemed to be Releasees), FROM ANY and all rights and CLAIMS INCLUDING CLAIMS ARISING FROM THE RELEASEES’ OWN NEGLIGENCE, which I have or which may hereafter accrue to me and from any and all damages which may be sustained by me directly or indirectly in connection with, or arising out of, my participation in or association with the event . . . .”

The race began at the appointed time, with Kendall and her female competitors starting first, followed five minutes later by the senior male racers. During the race, a male racer overtook Kendall and, in passing her, their bike wheels tangled. Kendall vainly struggled to keep her balance, but fell and suffered severe injuries.

Kendall sued USA Cycling Inc. and Huntsman for negligence in starting the men’s race on the same road five minutes after the women’s race began. Huntsman and USA Cycling moved for summary judgment, arguing that even if they had been negligent, the waiver and releases were a complete defense barring Kendall’s complaint. The court agreed, and entered judgment for respondents.

Respondents moved under the attorney’s fee clause of the USA Cycling release to recover more [*5] than $ 32,000 in attorney’s fees. 1 Kendall opposed the motion, claiming respondents had not supported it with sufficient admissible evidence. She also opposed any fee award for Huntsman in particular because the Huntsman release did not have an attorney’s fee clause. In response, the court ordered respondents to support their motion with detailed billing statements. After respondents filed their billing statements, the court overruled Kendall’s evidentiary objections and awarded respondents slightly less than $ 32,000 in fees. Kendall appeals from the judgment and the fee award.

1 Respondents also sought and recovered their costs, but those costs are not at issue in this appeal.

DISCUSSION

Kendall contends the court erred when it enforced the releases. She attacks the releases on several grounds. None is persuasive.

1. Utah Law Did Not Apply

Kendall contends the court erred by not applying Utah law to reject the releases. Her contention raises the question of which state’s laws apply: [*6] Utah-where the injury occurred-or California-where Kendall lives and filed suit. Under governing choice of law principles which weigh Utah’s and California’s governmental interests in seeing their laws enforced, we first consider whether a material difference exists between the two states’ laws. If their laws do not differ, we need not address whether Utah law applies, and may instead look solely to California law. (Washington Mutual Bank v. Superior Court (2001) 24 Cal.4th 906, 919-920; Reich v. Purcell (1967) 67 Cal.2d 551, 555, 63 Cal. Rptr. 31; Tucci v. Club Mediterranee (2001) 89 Cal.App.4th 180, 189.)

Kendall asserts two material differences exist between Utah and California law that are important to her lawsuit against respondents. The central difference, according to her, is Utah prohibits bicycle road races. It follows, she argues, that Utah would not enforce the releases because they violate public policy by waiving liability for an unlawful activity. Kendall’s contention fails, however, because she mischaracterizes Utah law. Utah does not ban bicycle road races outright; instead, it merely requires that organizers of a [*7] road race get permission from state or local highway officials for the race. The pertinent Utah statute states, “(1) Bicycle racing on highways is prohibited . . . except as authorized in this section. [P] (2) Bicycle racing on a highway is permitted when a racing event is approved by state or local authorities on any highway under their respective jurisdictions. . . .” (Utah Code Annotated (1953) 41-6-87.9.) Kendall cites no evidence that respondents did not get permission for the race, and indeed all the evidence in the record which touches on the subject points the other way.

But, even if the absence of a permit in the record means the race was unpermitted, the result would not change. The permit’s purpose is traffic control, not micromanaging the particulars of how the race is conducted. In its entirety, the statute states,

“(1) Bicycle racing on highways is prohibited under Section 41-6-51, except as authorized in this section. [P] (2) Bicycle racing on a highway is permitted when a racing event is approved by state or local authorities on any highway under their respective jurisdictions. Approval of bicycle highway racing events may be granted only under conditions which [*8] assure reasonable safety for all race participants, spectators, and other highway users, and which prevent unreasonable interference with traffic flow which would seriously inconvenience other highway users. [P] (3) By agreement with the approving authority, participants in an approved bicycle highway racing event may be exempted from compliance with any traffic laws otherwise applicable, if traffic control is adequate to assure the safety of all highway users.”

Emphasizing the focus on traffic, the statute cross-references only one section in the Utah Administrative Code. That regulation, entitled “Permit Required for Special Road Use or Event: Special Road Use,” states in its entirety that the Utah Department of Transportation:

“. . . shall promote safe utilization of highways for parades, marathons, and bicycle races. Special Road Use permits shall be required for any use of state routes other than normal traffic movement. Permits may be obtained by fulfilling requirements of DOT [Department of Transportation] form ‘Special Road Use Permit’. Policy applies to all routes under jurisdiction of DOT. Permittee shall hold DOT harmless in event of litigation. A traffic control plan, [*9] in accordance with latest edition of the Manual on Uniform Traffic Control Devices and Barricading and Construction Standard Drawings, shall be provided to, and approved by Dept. District Traffic Engineer or Permittee shall restore the particular road segment to its original condition, free from litter, etc. All applications for permits shall be made a minimum of 15 days prior to the specified activity.” (UT ADC R920-4-1)

Outside of traffic effects, and the concomitant general safety concerns whenever bicycles and motor vehicles are in close proximity, nothing within the permitting scheme suggests Utah authorities concerned themselves with a race’s details beyond its being “reasonably safe” for all concerned. Nothing hints that the approval of Utah authorities depended on the number of riders, their gender, or their starting times. Thus, Kendall’s injuries were not within the scope of the permitting statute’s purpose. Consequently, there was no legal nexus between the statutory violation of an unpermitted race (assuming that occurred) and Kendall’s damages.

A second difference, according to Kendall, between Utah and California law is Utah views preinjury liability releases more [*10] skeptically than does California. In support, she cites Hawkins ex rel. Hawkins v. Peart (Utah 2001) 2001 UT 94, 37 P.3d 1062 (Hawkins). That decision refused to enforce a preinjury release signed by a parent for her child because Utah expressly prohibits parents from signing away their children’s rights. (Id. at pp. 1065-1066.) In its discussion, Hawkins noted courts must scrutinize preinjury releases to make sure they are fairly bargained. (Id. at p. 1066.) Hawkins does not, however, as Kendall states, prohibit preinjury releases.

But even if suspicion of preinjury releases existed in Utah law, the releases here would pass muster. Hawkins noted that Utah permits preinjury releases except when the activity affects the public interest. The Hawkins court explained, “It is generally held that those who are not engaged in public service may properly bargain against liability for harm caused by their ordinary negligence in performance of contractual duty . . . . Thus, most courts allow release of liability for prospective negligence, except where there is a strong public interest in the services provided.” (Hawkins, supra, 37 P.3d at p. 1065, [*11] fn. omitted; see also Russ v. Woodside Homes, Inc. (Utah App. 1995) 905 P.2d 901, 905 [preinjury releases lawful in Utah].) Kendall cites no authority, and we know of none, that a voluntary recreational activity such as a bike race implicates the public interest.

In sum, Kendall’s two examples of differences between Utah and California law are unavailing. Accordingly, the trial court did not err when it applied California law below. (Washington Mutual Bank v. Superior Court (2001) 24 Cal.4th 906, 919-920; Reich v. Purcell, supra, 67 Cal.2d at p. 555; Tucci v. Club Mediterranee, supra, 89 Cal.App.4th at p. 189.)

2. The Releases Are Enforceable

The elements of a valid release are well established. First, it must be clear and unambiguous. Second, it must not violate public policy-an element we can quickly pass over here because a release covering recreational sports is not against public policy or the public interest. (Lund v. Bally’s Aerobic Plus, Inc. (2000) 78 Cal.App.4th 733, 739 (Lund); Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1373 (Allan); Buchan v. United States Cycling Federation, Inc. (1991) 227 Cal. App. 3d 134, 277 Cal. Rptr. 887 [*12] [bicycle racing does not involve public interest].) And third, the injury at issue must be reasonably related to the release’s object and purpose. (Lund, at pp. 738-739; Paralift, Inc. v. Superior Court (1993) 23 Cal.App.4th 748, 757.) Kendall contends the USA Cycling and Huntsman releases are unenforceable because (1) they are ambiguous, and (2) did not cover the risk of her sharing the road with male racers.

a. Not Ambiguous

Kendall’s assertion that the USA Cycling release was ambiguous turns on its placement of two signature lines: a signature line for the entrant, and, if the entrant were a minor, a signature line for the minor’s parent or guardian. Kendall signed on the parent’s line, not, as one might suppose, the entrant’s line. She argues her signature’s placement makes the release ambiguous.

The test for ambiguity is whether Kendall’s placement of her signature is reasonably susceptible to more than one interpretation. (Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354, 360.) She offers no explanation to challenge the obvious inference that she simply misplaced her signature. She does not deny that she wanted to enter [*13] the race, and does not dispute that she needed to sign the form to be allowed in. Never does she claim she was signing on a minor’s behalf. In short, she offers no interpretation of her signature’s placement on the parental consent line other than her innocent mistake. As such, her signature is not susceptible to more than one interpretation.

Kendall notes that we must interpret the release by objective manifestations of her intent, not her subjective intent. Hence, according to her, it does not matter what she subjectively intended when she signed the release; what matters is the objective manifestation of her signature on the parental release line, which she argues compels us to find the release did not bind her (or at best was ambiguous) because she did not sign it as an entrant.

We conclude that the objective manifestation of Kendall’s intent cuts the other way. Although the face of the release shows she signed as a parent, she offers no explanation for her signature being there other than her desire to join the race. The objective manifestation of her intent, therefore, is she signed as an entrant-albeit on the wrong line. (Lopez v. Charles Schwab & Co., Inc. (2004) 118 Cal.App.4th 1224, 1233-1234 [*14] [“The test is ‘what the outward manifestations of consent would lead a reasonable person to believe.’ [Citation.]”].)

Kendall’s reliance on Roth v. Malson (1998) 67 Cal.App.4th 552 (Roth), does not change the result because the facts are distinguishable. Roth involved a real estate sale agreement with two signature lines: one to accept the agreement and one to make a counteroffer. The real estate buyer signed on the counteroffer line and returned the agreement to the seller. The seller rejected the ostensible “counteroffer” and sold the property to someone else. The buyer sued to enforce the agreement, claiming he had signed on the counteroffer line by mistake, and had intended to sign on the acceptance line. He argued his signature was subject to no reasonable interpretation other than an acceptance because he did not add any new conditions to the counteroffer, meaning the counteroffer was not truly a counter. The Roth court rejected that argument, noting that divining the buyer’s intent as an acceptance with no new conditions would have required a time consuming comparison of the offers and counteroffers exchanged between the parties, a comparison [*15] no one was obligated to make. The court therefore refused to enforce the agreement because it was plausible the buyer intended to counter, instead of accept, the seller’s offer. (Id. at pp. 558-559.) Here, in contrast, Kendall offers no plausible explanation for her signature on the parental release line-in a senior’s race no less-than that she intended her signature to show her acceptance of the release’s terms.

Kendall contends the Huntsman release is also ambiguous, and therefore cannot be enforced against her. In support, she notes language in the release suggests she was releasing herself as the release’s “undersigned” from any liability: “I hereby release, waive all claims of liability against, discharge and hold harmless the World Senior Games, Inc. [and others], . . . from any and all liability of the undersigned, my heirs and next of kin, for any claims, demands, causes of action, losses or damages . . . .” (Italics added.) We need not address possible drafting errors in the Huntsman release because the USA Cycling release covered all organizations involved in the race. The USA Cycling release stated it covered the “organizations . . . and their [*16] respective agents, officials, and employees through or by which the events will be held . . . .” Such language encompassed Huntsman, making Huntsman’s own release superfluous as to this point.

b. Injury Within Scope of Release

Kendall contends the releases did not apply to her because she did not know or reasonably foresee she would be sharing the road with male racers in what she believed was a women-only race. She argues respondents thus wrongfully increased the risk she had assumed in entering an all-female race. Kendall’s focus on whether she could have foreseen colliding with a male racer misses the mark because foreseeability is irrelevant when a tortfeasor relies on an express, written release. (Allan, supra, 51 Cal.App.4th at p. 1372.) For a written release, the focus instead is whether Kendall’s injuries related to the release’s object and purpose. (Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1357.) When a risk is expressly assumed, the assumption is a complete defense to a negligence claim. (Allan, at p. 1372.) Here, the release covered anyone participating in the Huntsman World Senior Games and included collisions [*17] with “other racers,” not just female racers. The release’s language thus covered Kendall’s accident.

In support of limiting an express waiver to foreseeable risks, Kendall cites Bennett v. United States Cycling Federation (1987) 193 Cal. App. 3d 1485, 239 Cal. Rptr. 55 (Bennett), a case involving a release in a bicycle race on closed roads where a car struck the plaintiff. Finding that the release applied only to obvious or foreseeable hazards, the Bennett court held it was a triable issue whether an automobile on the race course was a reasonably foreseeable risk within the scope of the release. (Id. at pp. 1490-1491.) Likening her collision with a male racer in what she thought was a female only race to a collision with a car on closed roads, Kendall argues she could not have reasonably foreseen respondents would permit male racers on the same course only five minutes after she started. We conclude that even if one accepts Bennett’s injection of foreseeability into an express written release (but see Madison v. Superior Court (1988) 203 Cal. App. 3d 589, 601, fn. 9, 250 Cal. Rptr. 299 [criticizing Bennett for confusing [*18] foreseeability with scope of release]), the result would not change here. Kendall received a race map and brochure when she submitted her race application. Those documents showed men and women would be using the same road course, and would be segregated by age, but not sex. That Kendall apparently chose not to read the documents (an inference we draw from her professed ignorance that men would be on the same course) does not make male racers unforeseeable or the scope of the release narrower. Moreover, the court here found the risk of being hit by another racer is inherent to bicycle racing. The Bennett court itself notes the foreseeability of such collisions. It stated: “There is little doubt that a subscriber of the bicycle release at issue here must be held to have waived any hazards relating to bicycle racing that are obvious or that might reasonably have been foreseen. . . . these hazards include ‘collisions with other riders . . . .’ ” (Bennett, supra, 193 Cal. App. 3d at 1490; see also Buchan v. United States Cycling Federation, Inc., supra, 227 Cal. App. 3d at pp. 148, 151-152 [collisions and falls are foreseeable risk in bike racing]. [*19] ) The trial court thus did not err in concluding Kendall’s accident was legally foreseeable.

3. Attorney’s Fees

The trial court awarded respondents $ 31,978.50 in attorney’s fees. We review the award for abuse of discretion. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095; Avikian v. WTC Financial Corp. (2002) 98 Cal.App.4th 1108, 1119.)

Respondents supported their motion for fees with billing statements and a declaration by a partner in their counsel’s firm. The billing statements showed the hours worked, the rates charged, and the work done (with privileged information redacted). The partner stated he was familiar with how his firm generated its bills and that the fees stated on the bills had been incurred. Kendall contends the bills and declaration were inadmissible hearsay. Courts have held otherwise. The trial court is best placed to assess the appropriateness of the work done and the fees incurred. A verified bill on which the items appear proper is sufficient to support a fee award. (Melnyk v. Robledo (1976) 64 Cal. App. 3d 618, 624, 134 Cal. Rptr. 602.) Indeed, given a trial court’s first-hand familiarity [*20] with the work done by counsel, billing statements themselves can be superfluous. (Steiny & Co. v. California Electric Supply Co. (2000) 79 Cal.App.4th 285, 293 [“there is no legal requirement that [billing ] statements be offered in evidence. An attorney’s testimony as to the number of hours worked is sufficient evidence to support an award of attorney fees, even in the absence of detailed time records.”].)

Kendall notes that only the USA Cycling release had an attorney’s fee provision. She contends that even if USA Cycling is entitled to its fees, the motion should have been denied as to Huntsman. In support, she cites Super 7 Motel Associates v. Wang (1993) 16 Cal.App.4th 541 (Super 7 Motel), for the proposition that a party in a multiple contract transaction involving several parties cannot recover its attorney’s fees unless its particular contract has a fee provision. (Id. at pp. 545-547.) Super 7 Motel is distinguishable, however, because its facts permitted allocation of the legal work and fees to the various parties. Super 7 Motel did not address fee awards when the legal work and fees cannot be allocated. Here, [*21] allocation appears difficult, if not impossible. Kendall filed one complaint against respondents, to which they replied with a shared answer and defeated with a shared motion for summary judgment. The evidence and legal arguments in support of respondents’ motion for summary judgment overlapped substantively and procedurally. The record does not show that respondents’ counsel would have spent any less time or that its arguments would have been any different if only USA Cycling had been a defendant. Because it is not fatal to a fee award if apportionment between issues and arguments is difficult, or even impossible, the court did not abuse its discretion in awarding fees for counsel’s work representing USA Cycling and Huntsman. (Liton Gen. Engineering Contractor, Inc. v. United Pacific Insurance (1993) 16 Cal.App.4th 577, 588 [no allocation of two parties’ liability required]; accord Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 129-130, 158 Cal. Rptr. 1 [“Attorney’s fees need not be apportioned when incurred for representation on an issue common to both a cause of action in which fees are proper and one in which they are not allowed.”); [*22] Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1111 [multiple causes of action may be so intertwined that it would be “impracticable, if not impossible, to separate the multitude of conjoined activities into compensable or noncompensable time units.”].)

DISPOSITION

The judgment and fee award are affirmed. Each side to bear its own costs on appeal.

RUBIN, J.

We concur:

COOPER, P.J.

FLIER, J.