Code of the District of Columbia: Chapter 39. Consumer Protection Procedures

Code of the District of Columbia

Chapter 39. Consumer Protection Procedures.

§ 28–3901. Definitions and purposes.    1

§ 28–3902. Department of Consumer and Regulatory Affairs as consumer protection agency.    4

§ 28–3903. Powers of the consumer protection agency.    5

§ 28–3904. Unfair or deceptive trade practices.    10

§ 28–3905. Complaint procedures.    14

§ 28–3906. Consumer education and information.    22

§ 28–3907. Advisory Committee on Consumer Protection.    23

§ 28–3908. Severability.    24

§ [28-3909.01]. Attorney General Authority.    24

§ 28–3910. Investigatory powers of Attorney General [for the District of Columbia].    25

§ 28–3911. District of Columbia Consumer Protection Fund. [Repealed]    26

§ 28–3912. Submissions to the Council.    27

§ 28–3913. Rules.    27

§ 28–3901. Definitions and purposes.

(a) As used in this chapter, the term —

(1) “person” means an individual, firm, corporation, partnership, cooperative, association, or any other organization, legal entity, or group of individuals however organized;

(2) “consumer” means:

(A) When used as a noun, a person who, other than for purposes of resale, does or would purchase, lease (as lessee), or receive consumer goods or services, including as a co-obligor or surety, or does or would otherwise provide the economic demand for a trade practice;

(B) When used as an adjective, describes anything, without exception, that:

(i) A person does or would purchase, lease (as lessee), or receive and normally use for personal, household, or family purposes; or

(ii) A person described in § 28-3905(k)(1)(B) or (C) purchases or receives in order to test or evaluate qualities pertaining to use for personal, household, or family purposes.

(3) “merchant” means a person, whether organized or operating for profit or for a nonprofit purpose, who in the ordinary course of business does or would sell, lease (to), or transfer, either directly or indirectly, consumer goods or services, or a person who in the ordinary course of business does or would supply the goods or services which are or would be the subject matter of a trade practice;

(4) “complainant” means one or more consumers who took part in a trade practice, or one or more persons acting on behalf of (not the legal representative or other counsel of) such consumers, or the successors or assigns of such consumers or persons, once such consumers or persons complain to the Department about the trade practice;

(5) “respondent” means one or more merchants alleged by a complainant to have taken part in or carried out a trade practice, or the successors or assigns of such merchants, and includes other persons who may be deemed legally responsible for the trade practice;

(6) “trade practice” means any act which does or would create, alter, repair, furnish, make available, provide information about, or, directly or indirectly, solicit or offer for or effectuate, a sale, lease or transfer, of consumer goods or services;

(7) “goods and services” means any and all parts of the economic output of society, at any stage or related or necessary point in the economic process, and includes consumer credit, franchises, business opportunities, real estate transactions, and consumer services of all types;

(8) “Department” means the Department of Consumer and Regulatory Affairs;

(9) “Director” means the Director of the Department of Consumer and Regulatory Affairs;

(10) “Chief of the Office of Compliance” means the senior administrative officer of the Department’s Office of Compliance who is delegated the responsibility of carrying out certain duties specified under section 28-3905;

(11) “Office of Adjudication” means the Department’s Office of Adjudication which is responsible for carrying out certain duties specified under section 28-3905;

(12) “Office of Consumer Protection” means the Department’s Office of Consumer Protection which is responsible for carrying out the statutory requirements set forth in § 28-3906; and

(13) “Committee” means the Advisory Committee on Consumer Protection which is responsible for carrying out the statutory requirements set forth in section 28-3907.

(14) “nonprofit organization” means a person who:

(A) Is not an individual; and

(B) Is neither organized nor operating, in whole or in significant part, for profit.

(15) “public interest organization” means a nonprofit organization that is organized and operating, in whole or in part, for the purpose of promoting interests or rights of consumers.

(b) The purposes of this chapter are to:

(1) assure that a just mechanism exists to remedy all improper trade practices and deter the continuing use of such practices;

(2) promote, through effective enforcement, fair business practices throughout the community; and

(3) educate consumers to demand high standards and seek proper redress of grievances.

(c) This chapter shall be construed and applied liberally to promote its purpose. This chapter establishes an enforceable right to truthful information from merchants about consumer goods and services that are or would be purchased, leased, or received in the District of Columbia.

(d) In construing the term “unfair or deceptive trade practice” due consideration and weight shall be given to the interpretation by the Federal Trade Commission and the federal courts of the term “unfair or deceptive act or practice,” as employed in section 5(a) of An Act To create a Federal Trade Commission, to define its powers and duties, and for other purposes, approved September 26, 1914 (38 Stat. 719; 15 U.S.C. § 45(a)).

(July 22, 1976, D.C. Law 1-76, § 2, 23 DCR 1185; enacted, Sept. 6, 1980, D.C. Law 3-85, § 3(a), (d), 27 DCR 2900; Mar. 8, 1991, D.C. Law 8-234, § 2(b), 38 DCR 296; Feb. 5, 1994, D.C. Law 10-68, § 27(b), 40 DCR 6311; Apr. 9, 1997, D.C. Law 11-255, § 27(u), 44 DCR 1271; Oct. 19, 2000, D.C. Law 13-172, § 1402(b), 47 DCR 6308; Oct. 20, 2005, D.C. Law 16-33, § 2032(b), 52 DCR 7503; June 12, 2007, D.C. Law 17-4, § 2(a), 54 DCR 4085; Apr. 23, 2013, D.C. Law 19-282, § 2(b)(1), 60 DCR 2132; July 17, 2018, D.C. Law 22-140, § 2(b), 65 DCR 5970.)

Prior Codifications

1981 Ed., § 28-3901.

1973 Ed., T. 28, Appx., § 2.

Section References

This section is referenced in § 1-350.10, § 28-3301, and § 28-3905.

Effect of Amendments

D.C. Law 13-172 in subsec. (b)(1) inserted “and deter the continuing use of such practices” following “practices” in subsec. (b)(1) and added subsec. (c) providing for liberal construction of the chapter.

D.C. Law 16-33 rewrote subsec. (a)(12), which had read:

“(12) ‘Office of Consumer Education and Information’ means the Department’s Office of Consumer Education and Information which is responsible for carrying out the statutory requirements set forth in section 28-3906; and”

D.C. Law 17-4 rewrote subsec. (a)(3), which had read as follows: “(3) ‘merchant’ means a person who does or would sell, lease (to), or transfer, either directly or indirectly, consumer goods or services, or a person who does or would supply the goods or services which are or would be the subject matter of a trade practice;”.

The 2013 amendment by D.C. Law 19-282 rewrote (a)(2); added (a)(14) and (a)(15); and added the last sentence in (c).

Cross References

Automobile Consumer Protection Act, see § 50-501 et seq.

Employer-paid personnel services, operation requirements, see § 32-406.

Employment agencies and counseling services, operation requirements, see §§ 32-404 and 32-405.

Job listing services, operation requirements, see § 32-407.

Emergency Legislation

For temporary (90-day) amendment of section, see § 1402(b) of the Fiscal Year 2001 Budget Support Emergency Act of 2000 (D.C. Act 13-376, July 24, 2000, 47 DCR 6574).

For temporary (90 day) amendment of section, see § 1402(b) of the Fiscal Year 2001 Budget Support Congressional Review Emergency Act of 2000 (D.C. Act 13-438, October 20, 2000, 47 DCR 8740).

For temporary (90 day) amendment of section, see § 2032(b) of Fiscal Year 2006 Budget Support Emergency Act of 2005 (D.C. Act 16-168, July 26, 2005, 52 DCR 7667).

Short Title

Short title of subtitle D of title II of Law 16-33: Section 2031 of D.C. Law 16-33 provided that subtitle D of title II of the act may be cited as the Department of Consumer and Regulatory Affairs Consumer Protection Revitalization Act of 2005.

Delegation of Authority

Delegation of authority pursuant to Law 1-76, see Mayor’s Order 86-132, August 12, 1986.

§ 28–3902. Department of Consumer and Regulatory Affairs as consumer protection agency.

(a) The Department of Consumer and Regulatory Affairs shall be the principal consumer protection agency of the District of Columbia government and shall carry out the purposes of this chapter.

(b) Repealed.

(c) The Director of the Department of Consumer and Regulatory Affairs shall exercise the powers set forth in section 28-3905 through the Office of Compliance, and shall appoint a Chief of the Office of Compliance from among active members of the unified District of Columbia Bar. The Chief of the Office of Compliance may carry out investigative, conciliatory, and other duties assigned by the Director.

(d) Repealed.

(e) The Mayor shall appoint one or more attorneys qualified to serve as administrative law judges or attorney examiners to conduct adjudicatory proceedings. Any administrative law judge or attorney examiner appointed pursuant to this subsection may hear cases pursuant to § 2-1801.03.

(f) Repealed.

(g) Repealed.

(h) Repealed.

(i) Notwithstanding any other provision of District law, enforcement of this chapter by the Department of Consumer and Regulatory Affairs is suspended until October 1, 2002. This subsection shall not prevent the Department of Consumer and Regulatory Affairs from cooperating with, and making appropriate referrals to, another law enforcement agency.

(July 22, 1976, D.C. Law 1-76, § 3, 23 DCR 1185; enacted, Sept. 6, 1980, D.C. Law 3-85, § 3(a), (d), 27 DCR 2900; Mar. 5, 1981, D.C. Law 3-159, § 2(a), 27 DCR 5147; Oct. 5, 1985, D.C. Law 6-42, § 422, 32 DCR 4450; Mar. 8, 1991, D.C. Law 8-234, § 2(c), 38 DCR 296; Mar. 8, 1991, D.C. Law 8-237, § 4, 38 DCR 314; Feb. 5, 1994, D.C. Law 10-68, § 27(a), (c), 40 DCR 6311; Sept. 26, 1995, D.C. Law 11-52, § 812, 42 DCR 3684; Apr. 9, 1997, D.C. Law 11-255, § 27(v), 44 DCR 1271; Apr. 29, 1998, D.C. Law 12-86, § 1301(a), 45 DCR 1172; Mar. 26, 1999, D.C. Law 12-175, § 1403, 45 DCR 7193; Apr. 20, 1999, D.C. Law 12-264, § 27(b), 46 DCR 2118; Oct. 19, 2000, D.C. Law 13-172, § 1402(c), 47 DCR 6308.)

Prior Codifications

1981 Ed., § 28-3902.

1973 Ed., T. 28, Appx., § 3.

Effect of Amendments

D.C. Law 13-172 in subsec. (i) substituted 2002 for 2000 and added a new sentence at the end thereof providing cooperating with and making referrals to another law enforcement agency.

Cross References

Prescription drug price posting, enforcement, cease and desist orders, see § 48-804.03.

Prescription drug price posting, informational posters provided to pharmacies, see § 48-801.02.

Emergency Legislation

For temporary amendment of section, see § 811 of the Omnibus Budget Support Congressional Review Emergency Act of 1995 (D.C. Act 11-124, July 27, 1995, 42 DCR 4160).

For temporary amendment of section, see § 503 of the Health Insurance Portability and Accountability Federal Law Conformity Emergency Amendment Act of 1998 (D.C. Act 12-339, May 4, 1998, 45 DCR 2947) and § 503 of the Health Insurance Portability and Accountability Federal Law Conformity, Motor Vehicle Insurance, Regulatory Reform, and Consumer Law Congressional Review Emergency Amendment Act of 1998 (D.C. Act 12-429, August 6, 1998, 45 DCR 5890).

For temporary amendment of section, see § 1003 of the Fiscal Year 1999 Budget Support Emergency Act of 1998 (D.C. Act 12-401, July 13, 1998, 45 DCR 4794) and § 1003 of the Fiscal Year 1999 Budget Support Congressional Review Emergency Act of 1998 (D.C. Act 12-564, January 12, 1999, 46 DCR 669).

For temporary (90-day) amendment of section, see § 1003 of the Fiscal Year 1999 Budget Support Congressional Review Emergency Act of 1999 (D.C. Act 13-41, March 31, 1999, 46 DCR 3446).

For temporary (90-day) amendment of section, see § 1402(c) of the Fiscal Year 2001 Budget Support Emergency Act of 2000 (D.C. Act 13-376, July 24, 2000, 47 DCR 6574).

For temporary (90 day) amendment of section, see § 1402(c) of the Fiscal Year 2001 Budget Support Congressional Review Emergency Act of 2000 (D.C. Act 13-438, October 20, 2000, 47 DCR 8740).

Temporary Legislation

For temporary (225 day) amendment of section, see § 503 of Health Insurance Portability and Accountability Federal Law Conformity, Motor Vehicle Insurance, Regulatory Reform, and Consumer Law Temporary Amendment Act of 1998 (D.C. Law 12-154, September 18, 1998, law notification 45 DCR 6951).

§ 28–3903. Powers of the consumer protection agency.

*NOTE: This section includes amendments by temporary legislation that will expire on February 4, 2022. To view the text of this section after the expiration of all emergency and temporary legislation, click this link: Permanent Version.*

(a) The Department, in its discretion, may:

(1) receive and investigate any consumer complaint and initiate its own investigation of deceptive, unfair, or unlawful trade practices against consumers where the:

(i) amount in controversy totals $250 or more; or

(ii) case, or cases, indicates a pattern or practice of abuse on the part of a business or industry;

(2) issue summonses and subpoenas to compel the production of documents, papers, books, records, and other evidence, hold hearings, compel the attendance of witnesses, administer oaths, and take the testimony of any person under oath, concerning any trade practice;

(3) issue cease and desist orders with respect to trade practices determined to be in violation of District law by the Department;

(4) report to appropriate governmental agencies any information concerning violation of any law;

(5) present the interest of consumers before administrative and regulatory agencies and legislative bodies;

(6) assist, advise, and cooperate with private, local and federal agencies and officials to protect and promote the interest of the District of Columbia consumer public;

(7) assist, develop, and conduct programs of consumer education and information through public hearings, meetings, publications, or other materials prepared for distribution to the consumer public of the District of Columbia;

(8) undertake activities to encourage local business and industry to maintain high standards of honesty, fair business practices, and public responsibility in the production, promotion, and sale of consumer goods and services and in the extension of credit;

(9) exercise and perform such other functions and duties consistent with the purposes or provisions of this chapter which may be deemed necessary or appropriate to protect and promote the welfare of District of Columbia consumers;

(10) [repealed];

(11) implead and interplead persons who are properly parties to a case before the Department under section 28-3905;

(12) negotiate, agree to, and sign consent decrees;

(13) determine whether a person has executed a trade practice in violation of any law of the District of Columbia, and provide full remedy for such violation by:

(A) damages in contract, and orders for restitution, rescission, reformation, repair, and replacement,

(B) stipulations, conditions, and directives, both temporary and permanent, of all kinds,

(C) enforcement of orders and decrees, collection of civil penalties, and other activities, in the courts,

(D) and other lawful methods;

(14) maintain both confidential and public records, and publicize its own actions, in accordance with section 28-3905;

(15) [repealed];

(16) appoint private attorneys from the District of Columbia bar, who shall take action in the name of the Department, and shall promulgate regulations implementing this provision, in order to assist in the enforcement of any consumer complaint; and

(17) impose civil fines, pursuant to Chapter 18 of Title 2, as alternative sanctions for any violation of the provisions of this chapter or of any rules issued under the authority of this chapter. Any violation of this chapter, or of any rule issued under the authority of this chapter, shall be a Class 2 infraction pursuant to 16 DCMR § 3200.1(b), unless the violation is classified otherwise pursuant to rules issued by the Department; except, that notwithstanding any other provision of District law or regulation, during a period of time for which the Mayor has declared a public health emergency pursuant to § 7-2304.01, a violation of this chapter or of any rule issued under the authority of this chapter shall be a Class 1 infraction within the meaning of 16 DCMR § 3200.1(a).

(b) The Department shall:

(1) perform the functions of the Mayor, Department of Consumer Affairs, Board of Consumer Goods Repairs Services or Department of Economic Development in:

(A) the District of Columbia Consumer Credit Protection Act of 1971 (Title 28, Chapters 36, 37, 38, et al.),

(B) the District of Columbia Consumer Retail Credit Regulation (16 DCMR Ch. 1),

(C) the District of Columbia Consumer Goods Repair Regulation (16 DCMR Ch. 6); and

(D) the District of Columbia Consumer LayAway Plan Act (section 28-3818);

(2) render annual reports to the Council and the Mayor as to the number of complaints filed and the nature, status, and disposition thereof, and about the other activities of the Department undertaken during the previous year.

(c) The Department may not:

(1) order damages for personal injury of a tortious nature;

(2) apply the provisions of section 28-3905 to:

(A) landlord-tenant relations;

(B) persons subject to regulation by the Public Service Commission of the District of Columbia;

(C) professional services of clergymen, lawyers, and Christian Science practitioners engaging in their respective professional endeavors;

(D) a television or radio broadcasting station or publisher or printer of a newspaper, magazine, or other form of printed advertising, which broadcasts, publishes, or prints an advertisement which violates District law, except insofar as such station, publisher or printer engages in a trade practice which violates District law in selling or offering for sale its own goods or services, or has knowledge of the advertising being in violation of District law; or

(E) an action of an agency of government.

(July 22, 1976, D.C. Law 1-76, § 4, 23 DCR 1185; June 11, 1977, D.C. Law 2-8, § 4(a), 24 DCR 726; Oct. 4, 1978, D.C. Law 2-115, § 3, 25 DCR 1997; enacted, Sept. 6, 1980, D.C. Law 3-85, § 3(a), (d), 27 DCR 2900; Mar. 8, 1991, D.C. Law 8-234, § 2(d), 38 DCR 296; Feb. 5, 1994, D.C. Law 10-68, § 27(a), (d), 40 DCR 6311; Apr. 9, 1997, D.C. Law 11-255, § 27(w), 44 DCR 1271; Apr. 29, 1998, D.C. Law 12-86, § 1301(b), 45 DCR 1172; Oct. 20, 2005, D.C. Law 16-33, § 2032(c), 52 DCR 7503; Mar. 2, 2007, D.C. Law 16-191,§ 100, 53 DCR 6794; Aug. 16, 2008, D.C. Law 17-219, § 2024, 55 DCR 7598; Feb. 26, 2015, D.C. Law 20-155, § 2012(a), 61 DCR 9990; Oct. 22, 2015, D.C. Law 21-36, § 7029, 62 DCR 10905; June 24, 2021, D.C. Law 24-9, § 305, 68 DCR 004824.)

Prior Codifications

1981 Ed., § 28-3903.

1973 Ed., T. 28, Appx., § 4.

Section References

This section is referenced in § 28-3905, § 28-3906, and § 28-4002.

Effect of Amendments

D.C. Law 16-33 repealed subsecs. (a)(10) and (a)(15), which had read:

“(10) publish rules and regulations governing the Department’s procedures, developed by the Director in accordance with the District of Columbia Administrative Procedure Act ( sections 2-501 et seq.);”

“(15) issue rules that interpret, define, state general policy, or prescribe requirements to prevent unfair, deceptive, and unlawful trade practices as set forth in section 28-3904;”

D.C. Law 16-191, in subsecs. (a)(13)(D) and (14), validated previously made technical corrections.

D.C. Law 17-219, in subsec. (a)(1)(i), substituted “$250” for “$2,500”.

The 2015 amendment by D.C. Law 20-155 added (a)(17) and made related changes.

The 2015 amendment by D.C. Law 21-36 substituted “Chapter 18 of Title 2″ for ” Section 28-3905″ in (a)(17).

Cross References

Hearing aid dealers and consumers, office of consumer protection, powers and duties, see § 28-4002.

Prescription drug price posting, enforcement, cease and desist orders, see § 48-804.03.

Prescription drug price posting, informational posters provided to pharmacies, see § 48-801.02.

Emergency Legislation

For temporary (90 days) amendment of this section, see § 305 of Coronavirus Support Congressional Review Emergency Amendment Act of 2021 (D.C. Act 24-96, June 7, 2021, 68 DCR 006025).

For temporary (90 days) amendment of this section, see § 305 of Coronavirus Support Emergency Amendment Act of 2021 (D.C. Act 24-30, Mar. 17, 2021, 68 DCR 003101).

For temporary (90 days) amendment of this section, see § 305 of Coronavirus Support Second Congressional Review Emergency Amendment Act of 2020 (D.C. Act 23-405, Aug. 19, 2020, 67 DCR 10235).

For temporary (90 days) amendment of this section, see § 305 of Coronavirus Support Congressional Review Emergency Amendment Act of 2020 (D.C. Act 23-328, June 8, 2020, 67 DCR 7598).

For temporary (90 days) amendment of this section, see § 305 of Coronavirus Support Emergency Amendment Act of 2020 (D.C. Act 23-326, May 27, 2020, 67 DCR 7045).

For temporary amendment of section, see § 2 of the Omnibus Regulatory Reform Amendment Act of 1998 Emergency Repealer Act of 1998 (D.C. Act 12-297, March 4, 1998, 45 DCR 1773), and see § 2 of the Omnibus Regulatory Reform Congressional Review Emergency Repealer Act of 1998 (D.C. Act 12-387, July 13, 1998, 45 DCR 4792).

For temporary amendment of section, see § 2 of the Omnibus Regulatory Reform and Alcoholic Beverage Control DC Arena Clarifying Emergency Amendment Act of 1999 (D.C. Act 13-1, January 29, 1999, 46 DCR 2284).

For temporary (90 day) amendment of section, see § 2032(c) of Fiscal Year 2006 Budget Support Emergency Act of 2005 (D.C. Act 16-168, July 26, 2005, 52 DCR 7667).

For temporary (90 days) amendment of this section, see § 2012(a) of the Fiscal Year 2015 Budget Support Emergency Act of 2014 (D.C. Act 20-377, July 14, 2014, 61 DCR 7598, 20 STAT 3696).

For temporary (90 days) amendment of this section, see § 2012(a) of the Fiscal Year 2015 Budget Support Congressional Review Emergency Act of 2014 (D.C. Act 20-449, October 10, 2014, 61 DCR 10915, 20 STAT 4188).

For temporary (90 days) amendment of this section, see § 2012(a) of the Fiscal Year 2015 Budget Support Second Congressional Review Emergency Act of 2014 (D.C. Act 20-566, January 9, 2015, 62 DCR 884, 21 STAT 541).

For temporary (90 days) amendment of this section, see § 2(c- 1) of the Fiscal Year 2015 Budget Support Clarification Congressional Review Emergency Amendment Act of 2014 (D.C. Act 20-587, January 13, 2015, 62 DCR 1294, 21 STAT 758).

For temporary (90 days) amendment of this section, see § 7016(c) of the Fiscal Year 2016 Budget Support Emergency Act of 2015 (D.C. Act 21-127, July 27, 2015, 62 DCR 10201).

Temporary Legislation

For temporary (225 days) amendment of this section, see § 305 of Coronavirus Support Temporary Amendment Act of 2021 (D.C. Law 24-9, June 24, 2021, 68 DCR 004824).

For temporary (225 days) amendment of this section, see § 305 of Coronavirus Support Temporary Amendment Act of 2020 (D.C. Law 23-130, Oct. 9, 2020, 67 DCR 8622).

For temporary (225 day) amendment of section, see § 2 of the Cooperative Association Amendment Act of 1998 (D.C. Law 12-117, April 13, 1999, law notification 46 DCR 3839).

For temporary (225 day) amendment of section, see § 2 of the Omnibus Regulatory Reform Temporary Amendment Act of 1999 (D.C. Law 13-3, May 28, 1999, law notification 46 DCR 5303).

For temporary (225 days) amendment of this section, see § 2(c) of the Fiscal Year 2015 Budget Support Clarification Temporary Amendment Act of 2014 (D.C. Law 20-179, March 7, 2015, 62 DCR 424).

Short Title

Short title: Section 2023 of D.C. Law 17-219 provided that subtitle J of title II of the act may be cited as the “Consumer Protection Act of 2008”.

§ 28–3904. Unfair or deceptive trade practices.

*NOTE: This section includes amendments by temporary legislation that will expire on February 4, 2022. To view the text of this section after the expiration of all emergency and temporary legislation, click this link: Permanent Version.*

It shall be a violation of this chapter for any person to engage in an unfair or deceptive trade practice, whether or not any consumer is in fact misled, deceived, or damaged thereby, including to:

(a) represent that goods or services have a source, sponsorship, approval, certification, accessories, characteristics, ingredients, uses, benefits, or quantities that they do not have;

(b) represent that the person has a sponsorship, approval, status, affiliation, certification, or connection that the person does not have;

(c) represent that goods are original or new if in fact they are deteriorated, altered, reconditioned, reclaimed, or second hand, or have been used;

(d) represent that goods or services are of particular standard, quality, grade, style, or model, if in fact they are of another;

(e) misrepresent as to a material fact which has a tendency to mislead;

(e-1) [r]epresent that a transaction confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law;

(f) fail to state a material fact if such failure tends to mislead;

(f-1) [u]se innuendo or ambiguity as to a material fact, which has a tendency to mislead;

(g) disparage the goods, services, or business of another by false or misleading representations of material facts;

(h) advertise or offer goods or services without the intent to sell them or without the intent to sell them as advertised or offered;

(i) advertise or offer goods or services without supplying reasonably expected public demand, unless the advertisement or offer discloses a limitation of quantity or other qualifying condition which has no tendency to mislead;

(j) make false or misleading representations of fact concerning the reasons for, existence of, or amounts of price reductions, or the price in comparison to price of competitors or one’s own price at a past or future time;

(k) falsely state that services, replacements, or repairs are needed;

(l) falsely state the reasons for offering or supplying goods or services at sale or discount prices;

(m) harass or threaten a consumer with any act other than legal process, either by telephone, cards, letters, or any form of electronic or social media;

(n) cease work on, or return after ceasing work on, an electrical or mechanical apparatus, appliance, chattel or other goods, or merchandise, in other than the condition contracted for, or to impose a separate charge to reassemble or restore such an object to such a condition without notification of such charge prior to beginning work on or receiving such object;

(o) replace parts or components in an electrical or mechanical apparatus, appliance, chattel or other goods, or merchandise when such parts or components are not defective, unless requested by the consumer;

(p) falsely state or represent that repairs, alterations, modifications, or servicing have been made and receiving remuneration therefor when they have not been made;

(q) fail to supply to a consumer a copy of a sales or service contract, lease, promissory note, trust agreement, or other evidence of indebtedness which the consumer may execute;

(r) make or enforce unconscionable terms or provisions of sales or leases; in applying this subsection, consideration shall be given to the following, and other factors:

(1) knowledge by the person at the time credit sales are consummated that there was no reasonable probability of payment in full of the obligation by the consumer;

(2) knowledge by the person at the time of the sale or lease of the inability of the consumer to receive substantial benefits from the property or services sold or leased;

(3) gross disparity between the price of the property or services sold or leased and the value of the property or services measured by the price at which similar property or services are readily obtainable in transactions by like buyers or lessees;

(4) that the person contracted for or received separate charges for insurance with respect to credit sales with the effect of making the sales, considered as a whole, unconscionable; and

(5) that the person has knowingly taken advantage of the inability of the consumer reasonably to protect his interests by reasons of age, physical or mental infirmities, ignorance, illiteracy, or inability to understand the language of the agreement, or similar factors;

(s) pass off goods or services as those of another;

(t) use deceptive representations or designations of geographic origin in connection with goods or services;

(u) represent that the subject of a transaction has been supplied in accordance with a previous representation when it has not;

(v) misrepresent the authority of a salesman, representative or agent to negotiate the final terms of a transaction;

(w) offer for sale or distribute any consumer product which is not in conformity with an applicable consumer product safety standard or has been ruled a banned hazardous product under the federal Consumer Product Safety Act (15 U.S.C. § 2051-83), without holding a certificate issued in accordance with section 14(a) of that Act to the effect that such consumer product conforms to all applicable consumer product safety rules (unless the certificate holder knows that such consumer product does not conform), or without relying in good faith on the representation of the manufacturer or a distributor of such product that the product is not subject to a consumer product safety rule issued under that Act;

(x) sell consumer goods in a condition or manner not consistent with that warranted by operation of sections 28:2-312 through 318 of the District of Columbia Official Code, or by operation or requirement of federal law;

(y) violate any provision of the District of Columbia Consumer LayAway Plan Act (section 28-3818);

(z) violate any provision of the Rental Housing Locator Consumer Protection Act of 1979 (section 28-3819) or, if a rental housing locator, to refuse or fail to honor any obligation under a rental housing locator contract;

(z-1) violate any provision of Chapter 46 of this title;

(aa) violate any provision of sections 32-404, 32-405, 32-406, and 32-407;

(bb) refuse to provide the repairs, refunds, or replacement motor vehicles or fails to provide the disclosures of defects or damages required by the Automobile Consumer Protection Act of 1984;

(cc) violate any provision of the Real Property Credit Line Deed of Trust Act of 1987;

(dd) violate any provision of title 16 of the District of Columbia Municipal Regulations;

(ee) violate any provision of the Public Insurance Adjuster Act of 2002 [Chapter 16A of Title 31];

(ff) violate any provision of Chapter 33 of this title;

(gg) violate any provision of the Home Equity Protection Act of 2007 [Chapter 24A of Title 42];

(hh) fail to make a disclosure as required by § 26-1113(a-1);

(ii) violate any provision of Chapter 53 of this title;

(jj) violate any agreement entered into pursuant to section 28-3909(c)(6);

(kk) violate any provision of subchapter 2 of Chapter 38 of this title;

(ll) violate any provision of 17 DCMR § 3013;

(mm) violate any provision of 17 DCMR § 3117; or

(nn) Not Funded.

(July 22, 1976, D.C. Law 1-76, § 5, 23 DCR 1185; Oct. 4, 1978, D.C. Law 2-115, § 3, 25 DCR 1997; June 21, 1980, D.C. Law 3-71, § 3(a), 27 DCR 1891; enacted, Sept. 6, 1980, D.C. Law 3-85, § 3(a), (d), 27 DCR 2900; Mar. 13, 1985, D.C. Law 5-136, § 16, 31 DCR 5727; Mar. 14, 1985, D.C. Law 5-162, § 9(a), 32 DCR 160; Jan. 28, 1988, D.C. Law 7-67, § 5, 34 DCR 7441; Mar. 8, 1991, D.C. Law 8-234, § 2(e), 38 DCR 296; Mar. 8, 1991, D.C. Law 8-236, § 9, 38 DCR 306; Feb. 5, 1994, D.C. Law 10-68, § 27(e), 40 DCR 6311; July 25, 1995, D.C. Law 11-30, § 7(h), 42 DCR 1547; Apr. 9, 1997, D.C. Law 11-255, § 27(x), 44 DCR 1271; Mar. 27, 2003, D.C. Law 14-256, § 11(b), 50 DCR 238; Mar. 13, 2004, D.C. Law 15-105, § 63, 51 DCR 881; Nov. 24, 2007, D.C. Law 17-42, § 3(b), 54 DCR 9988; Jan. 29, 2008, D.C. Law 17-87, § 7, 54 DCR 11913; Jan. 29, 2008, D.C. Law 17-90, § 3, 54 DCR 11925; Mar. 25, 2009, D.C. Law 17-353, § 222, 56 DCR 1117; Apr. 23, 2013, D.C. Law 19-282, § 2(b)(2), 60 DCR 2132; Feb. 26, 2015, D.C. Law 20-155, § 2012(b), 61 DCR 9990; Apr. 22, 2017, D.C. Law 21-280, § 6(b), 64 DCR 168; July 17, 2018, D.C. Law 22-140, § 2(c), 65 DCR 5970; June 17, 2020, D.C. Law 23-98, § 2(b)(1), 67 DCR 3923; Mar. 16, 2021, D.C. Law 23-187, § 2(b), 68 DCR 001031; June 24, 2021, D.C. Law 24-9, § 302(b), 68 DCR 004824.)

Prior Codifications

1981 Ed., § 28-3904.

1973 Ed., T. 28, Appx., § 5.

Section References

This section is referenced in § 16-4431, § 28-3905, § 28-3909, § 28-4006, and § 38-1312.

Effect of Amendments

D.C. Law 14-256 added subsec. (ee).

D.C. Law 15-105, in subsec. (ee), validated a previously made technical correction.

D.C. Law 17-42, in subsec. (cc), deleted “or” from the end; in subsec. (dd), substituted a semicolon for a period; in subsec. (ee), substituted “; or” for a period; and added subsec. (ff).

D.C. Law 17-87, in subsec. (ee), deleted “or” from the end; in subsec. (ff), substituted “; or” for a period; and added subsec. (gg).

D.C. Law 17-90, in subsec. (ff), deleted “or” from the end; in subsec. (gg), substituted “; or” for a period; and added subsec. (hh).

D.C. Law 17-353 validated previously made technical corrections in pars. (ff), (gg), and (hh).

The 2013 amendment by D.C. Law 19-282 added (e-1) and (f-1).

The 2015 amendment by D.C. Law 20-155 rewrote (m).

Cross References

Automobile Consumer Protection Act, limitations of actions, see § 50-507.

Automobile Consumer Protection Act, rules and regulations for implementation, see § 50-508.

Education licensure commission, criminal sanctions, fines and penalties, see § 38-1312.

Employment Services Licensing and Regulation Act, penalties for violations, see § 32-414.

Hearing aid dealers and consumers, grounds for revocation and suspension, see § 28-4006.

Applicability

Applicability of D.C. Law 23-187: § 3 of D.C. Law 23-187 provided that the change made to this section by § 2(b) of D.C. Law 23-187 is subject to the inclusion of the law’s fiscal effect in an approved budget and financial plan. Therefore that amendment has not been implemented.

Emergency Legislation

For temporary (90 days) amendment of this section, see § 302(b) of Coronavirus Support Congressional Review Emergency Amendment Act of 2021 (D.C. Act 24-96, June 7, 2021, 68 DCR 006025).

For temporary (90 days) amendment of this section, see § 302(b) of Coronavirus Support Emergency Amendment Act of 2021 (D.C. Act 24-30, Mar. 17, 2021, 68 DCR 003101).

For temporary (90 days) amendment of this section, see § 302(b) of Coronavirus Support Second Congressional Review Emergency Amendment Act of 2020 (D.C. Act 23-405, Aug. 19, 2020, 67 DCR 10235).

For temporary (90 days) amendment of this section, see § 302(b) of Coronavirus Support Congressional Review Emergency Amendment Act of 2020 (D.C. Act 23-328, June 8, 2020, 67 DCR 7598).

For temporary (90 days) amendment of this section, see § 302(b) of Coronavirus Support Emergency Amendment Act of 2020 (D.C. Act 23-326, May 27, 2020, 67 DCR 7045).

For temporary (90 days) amendment of this section, see § 2012(b) of the Fiscal Year 2015 Budget Support Emergency Act of 2014 (D.C. Act 20-377, July 14, 2014, 61 DCR 7598, 20 STAT 3696).

For temporary (90 days) amendment of this section, see § 2012(b) of the Fiscal Year 2015 Budget Support Congressional Review Emergency Act of 2014 (D.C. Act 20-449, October 10, 2014, 61 DCR 10915, 20 STAT 4188).

For temporary (90 days) amendment of this section, see § 2012(b) of the Fiscal Year 2015 Budget Support Second Congressional Review Emergency Act of 2014 (D.C. Act 20-566, January 9, 2015, 62 DCR 884, 21 STAT 541).

Temporary Legislation

For temporary (225 days) amendment of this section, see § 302(b) of Coronavirus Support Temporary Amendment Act of 2021 (D.C. Law 24-9, June 24, 2021, 68 DCR 004824).

For temporary (225 days) amendment of this section, see § 302(b) of Coronavirus Support Temporary Amendment Act of 2020 (D.C. Law 23-130, Oct. 9, 2020, 67 DCR 8622).

References in Text

The Public Insurance Adjuster Licensure Act of 2002, referred to in subsec. (ee), is D.C. Law 14-256.

The “Automobile Consumer Protection Act of 1984”, referred to in paragraph (bb) of this section, is D.C. Law 5-162, codified as Chapter 5 of Title 50.

The “Real Property Credit Line Deed of Trust Act of 1987,” referred to in subsection (cc) of this section, is codified as Chapter 23 of Title 42.

Effective Dates

Section 4 of D.C. Law 17-42 provided: “This act shall take effect following the certification by the Chief Financial Officer, through a revised quarterly revenue estimate for fiscal year 2008, that local funds exceed the annual revenue estimates incorporated in the fiscal year 2008 budget and financial plan in an amount sufficient to account for its fiscal effect. The Chief Financial Officer shall set aside revenue to account for the cost of fully implementing this act.”

Editor’s Notes

Application of D.C. Law 14-256 including the amendments to this section: See section 12 of D.C. Law 14-256, codified as § 31-1631.12.

§ 28–3905. Complaint procedures.

(a) A case is begun by filing with the Department a complaint plainly describing a trade practice and stating the complainant’s (and, if different, the consumer’s) name and address, the name and address (if known) of the respondent, and such other information as the Director may require. The complaint must be in or reduced by the Director to writing. The filing of a complaint with the Department shall toll the periods for limitation of time for bringing an action as set out in section 12-301 until the complaint has been resolved through an administrative order, consent decree, or dismissal in accordance with this section or until an opportunity to arbitrate has been provided in Chapter 5 of Title 50.

(b)(1) Except as provided in paragraph (2) of this subsection, the Director shall investigate each such complaint and determine:

(A) What trade practice actually occurred; and

(B) Whether the trade practice which occurred violates any statute, regulation, rule of common law, or other law of the District of Columbia.

(2) The Director may, in his or her discretion, decline to prosecute certain cases as necessary to manage the Department’s caseload and control program costs.

(b-1) In carrying out an investigation and determination pursuant to subsection (b) of this section, the Director shall consult the respondent and such other available sources of information, and make such other efforts, as are appropriate and necessary to carry out such duties.

(c) If at any time the Director finds that the trade practice complained of may, in whole or in part, be a violation of law other than a law of the District of Columbia or a law within the jurisdiction of the Department, the Director may in writing so inform the complainant, respondent and officials of the District, the United States, or other jurisdiction, who would properly enforce such law.

(d) The Director shall determine that there are, or are not, reasonable grounds to believe that a trade practice, in violation of a law of the District of Columbia within the jurisdiction of the Department, has occurred in any part or all of the case. The Director may find that there are not such reasonable grounds for any of the following reasons:

(1) any violation of law which may have occurred is of a law not of the District of Columbia or not within the jurisdiction of the Department, or occurred more than three years prior to the filing of the complaint;

(2) in case paragraph (1) of this subsection does not apply, no trade practice occurred in violation of any law of the District;

(3) the respondent cannot be identified or located, or would not be subject to the personal jurisdiction of a District of Columbia court;

(4) the complainant, to the Director’s knowledge, no longer seeks redress in the case;

(5) the complainant and respondent, to the Director’s knowledge, have themselves reached an agreement which settles the case; or

(6) the complainant can no longer be located.

(d-1) The Director may dismiss any part or all of a case to which one or more of the reasons stated in subsection (d) of this section apply. The Director shall inform all parties in writing of the determination, and, if any part or all of the case is dismissed, shall specify which of the reasons in this subsection applies to which part of the case, and such other detail as is necessary to explain the dismissal.

(e) The Director may attempt to settle, in accordance with subsection (h) of this section, each case for which reasonable grounds are found in accordance with subsection (d-1) of this section. After the Director’s determination as to whether the complaint is within the Department’s jurisdiction, in accordance with subsection (d-1) of this section, the Director shall:

(1) effect a consent decree;

(2) dismiss the case in accordance with subsection (h)(2) of this section;

(3) through the Chief of the Office of Compliance present to the Office of Adjudication, with copies to all parties, a brief and plain statement of each trade practice that occurred in violation of District law, the law the trade practice violates, and the relief sought from the Office of Adjudication for violation; or

(4) notify all parties of another action taken, with the reasons therefor stated in detail and supported by fact. Reasons may include:

(A) any reason listed in subsections (d)(1) through (d)(6) of this section; and

(B) that the presentation of a charge to the Office of Adjudication would not serve the purposes of this chapter.

(5) Repealed.

(f) When the case is transmitted to the Office of Adjudication, the Chief of the Office of Compliance shall sign, and serve the respondent, the Department’s summons to answer or appear before the Office of Adjudication. Not less than 15 nor more than 90 days after such transmittal, the case shall be heard. The case shall proceed under section 10 of the District of Columbia Administrative Procedure Act (section 2-509). The Office of Adjudication may, without delaying its hearing or decision, attempt to settle the case pursuant to subsection (h) of this section, and has discretion to permit any stipulation or consent decree the parties agree to. The Director shall be a party on behalf of the complainant. Applications to intervene shall be decided as may be proper or required by law or rule. Reasonable discovery shall be freely allowed. Any finding or decision may be modified or set aside, in whole or part, before a notice of appeal is filed in the case, or the time to so file has run out.

(g) If, after hearing the evidence, the Office of Adjudication decides a trade practice occurred in which the respondent violated a law of the District of Columbia within the jurisdiction of the Department, such Office of Adjudication shall issue an order which:

(1) shall require the respondent to cease and desist from such conduct;

(2) shall, if such Office of Adjudication also decides that the consumer has been injured by the trade practice, order redress through contract damages, restitution for money, time, property or other value received from the consumer by the respondent, or through rescission, reformation, repair, replacement, or other just method;

(3) shall state the number of trade practices the respondent performed in violation of law;

(4) shall, absent good cause found by the Office of Adjudication, require the respondent to pay the Department its costs for investigation, negotiation, and hearing;

(5) may include such other findings, stipulations, conditions, directives, and remedies including punitive damages, treble damages, or reasonable attorney’s fees, as are reasonable and necessary to identify, correct, or prevent the conduct which violated District law; and

(6) may be based, in whole or part, upon a violation of a law establishing or regulating a type of business, occupational or professional license or permit, and may refer the case for further proceedings to an appropriate board or commission, but may not suspend or revoke a license or permit if there is a board or commission which oversees the specific type of license or permit.

(h)(1) At any time after reasonable grounds are found in accordance with subsection (d) of this section, the respondent, the Department (represented by (i) the Director prior to transmittal to the Office of Adjudication and after an order issued pursuant to subsection (f) of this section has been appealed, and (ii) the Office of Adjudication after transmittal to the Office of Adjudication and prior to such appeal), and the complainant, may agree to settle all or part of the case by a written consent decree which may:

(A) include any provision described in subsection (g)(2) through (6) of this section;

(B) not contain an assertion that the respondent has violated a law;

(C) contain an assurance that the respondent will refrain from a trade practice;

(D) bar the Department from further action in the case, or a part thereof; or

(E) contain such other provisions or considerations as the parties agree to.

(2) The representative of the Department shall administer the settlement proceedings, and may utilize the good offices of the Advisory Committee on Consumer Protection. All settlement proceedings shall be informal and include all interested parties and such representatives as the parties may choose to represent them. Such proceedings shall be private, and nothing said or done, except a consent decree, shall be made public by the Department, any party, or the Advisory Committee, unless the parties agree thereto in writing. The representative of the Department may call settlement conferences. For persistent and unreasonable failure by the complainant to attend such conferences or to take part in other settlement proceedings, the Director, prior to transmittal to the Office of Adjudication, may dismiss the case.

(3) A consent decree described in paragraph (1) of this subsection may be modified by agreement of the Department, complainant and respondent.

(i)(1) An aggrieved party may appeal to the District of Columbia Court of Appeals after:

(A) the Office of Adjudication decides a case pursuant to subsection (f) of this section;

(B) all parts of a case have been dismissed by operation of subsection (d) or (e) of this section; or

(C) the Director dismisses an entire case in accordance with subsection (h)(2) of this section.

(1A) Such appeals shall be conducted in accordance with the procedures and standards of section 11 of the District of Columbia Administrative Procedure Act (section 2-510), and take into account the procedural duties placed upon the Department in this section and all actions taken by the Department in the case.

(2) An aggrieved party may appeal any ruling of the Office of Adjudication under subsection (j) of this section to the Superior Court of the District of Columbia.

(3)(A) Any person found to have executed a trade practice in violation of a law of the District within the jurisdiction of the Department may be liable for a civil penalty not exceeding $1,000 for each failure to adhere to a provision of an order described in subsection (f), (g), or (j) of this section, or a consent decree described in subsection (h) of this section.

(B) The Department, the complainant, or the respondent may sue in the Superior Court of the District of Columbia for a remedy, enforcement, or assessment or collection of a civil penalty, when any violation, or failure to adhere to a provision of a consent decree described in subsection (h) of this section, or an order described in subsection (f), (g), or (j) of this section, has occurred. The Department shall sue in that Court for assessment of a civil penalty when an order described in subsection (g) of this section has been issued and become final. A failure by the Department or any person to file suit or prosecute under this subparagraph in regard to any provision or violation of a provision of any consent decree or order, shall not constitute a waiver of such provision or any right under such provision. The Court shall levy the appropriate civil penalties, and may order, if supported by evidence, temporary, preliminary, or permanent injunctions, damages, treble damages, reasonable attorney’s fees, consumer redress, or other remedy. The Court may set aside the final order if the Court determines that the Department of Consumer and Regulatory Affairs lacked jurisdiction over the respondent or that the complaint was frivolous. If, after considering an application to set aside an order of the Department of Consumer and Regulatory Affairs, the Court determines that the application was frivolous or that the Department of Consumer and Regulatory Affairs lacked jurisdiction, the Court shall award reasonable attorney’s fees.

(C) Application to the Court to enforce an order shall be made at no cost to the District of Columbia or the complainant.

(4) The Attorney General for the District of Columbia shall represent the Department in all proceedings described in this subsection.

(j) If, at any time before notice of appeal from a decision made according to subsection (f) of this section is filed or the time to so file has run out, the Director believes that legal action is necessary to preserve the subject matter of the case, to prevent further injury to any party, or to enable the Department ultimately to order a full and fair remedy in the case, the Chief of the Office of Compliance shall present the matter to the Office of Adjudication, which may issue a cease and desist order to take effect immediately, or grant such other relief as will assure a just adjudication of the case, in accordance with such beliefs of the Director which are substantiated by evidence. The Office of Adjudication’s ruling may be appealed to court within 7 days of notice thereof on the Director, respondent, and complainant.

(k)(1)(A) A consumer may bring an action seeking relief from the use of a trade practice in violation of a law of the District.

(B) An individual may, on behalf of that individual, or on behalf of both the individual and the general public, bring an action seeking relief from the use of a trade practice in violation of a law of the District when that trade practice involves consumer goods or services that the individual purchased or received in order to test or evaluate qualities pertaining to use for personal, household, or family purposes.

(C) A nonprofit organization may, on behalf of itself or any of its members, or on any such behalf and on behalf of the general public, bring an action seeking relief from the use of a trade practice in violation of a law of the District, including a violation involving consumer goods or services that the organization purchased or received in order to test or evaluate qualities pertaining to use for personal, household, or family purposes.

(D)(i) Subject to sub-subparagraph (ii) of this subparagraph, a public interest organization may, on behalf of the interests of a consumer or a class of consumers, bring an action seeking relief from the use by any person of a trade practice in violation of a law of the District if the consumer or class could bring an action under subparagraph (A) of this paragraph for relief from such use by such person of such trade practice.

(ii) An action brought under sub-subparagraph (i) of this subparagraph shall be dismissed if the court determines that the public interest organization does not have sufficient nexus to the interests involved of the consumer or class to adequately represent those interests.

(2) Any claim under this chapter shall be brought in the Superior Court of the District of Columbia and may recover or obtain the following remedies:

(A)(i) Treble damages, or $1,500 per violation, whichever is greater, payable to the consumer;

(ii) Notwithstanding sub-subparagraph (i) of this subparagraph, for a violation of § 28-3904(kk) a consumer may recover or obtain actual damages. Actual damages shall not include dignitary damages, including pain and suffering.

(B) Reasonable attorney’s fees;

(C) Punitive damages;

(D) An injunction against the use of the unlawful trade practice;

(E) In representative actions, additional relief as may be necessary to restore to the consumer money or property, real or personal, which may have been acquired by means of the unlawful trade practice; or

(F) Any other relief which the court determines proper.

(3) Any written decision made pursuant to subsection (f) of this section is admissible as prima facie evidence of the facts stated therein.

(4) If a merchant files in any court a suit seeking to collect a debt arising out of a trade practice from which has also arisen a complaint filed with the Department by the defendant in the suit either before or after the suit was filed, the court shall dismiss the suit without prejudice, or remand it to the Department.

(5) An action brought by a person under this subsection against a nonprofit organization shall not be based on membership in such organization, membership services, training or credentialing activities, sale of publications of the nonprofit organization, medical or legal malpractice, or any other transaction, interaction, or dispute not arising from the purchase or sale of consumer goods or services in the ordinary course of business.

(6) The right of action established by this subsection shall apply to trade practices arising from landlord-tenant relations.

(l) The Director and Office of Adjudication may use any power granted to the Department in section 28-3903, as each reasonably deems will aid in carrying out the functions assigned to each in this section. Each, while holding the primary responsibility of the Department for decision in a certain case, may join such case with others then before the Department. No case may be disposed of in a manner not expressly authorized in this section. Every complaint case filed with the Department and within its jurisdiction shall be decided in accordance with the procedures and sanctions of this section, notwithstanding that a given trade practice, at issue in the case, may be governed in whole or in part by another law which has different enforcement procedures and sanctions.

(m)(1) Whenever requested, the Department will make available to the complainant and respondent an explanation, and any other information helpful in understanding, the provisions of any consent decree to which the Department agrees, and any order or decision which the Department makes.

(2) The Director shall maintain a public index for all the cases on which the Department has made a final action or a consent decree, organized by:

(A) name of complainant;

(B) name of respondent;

(C) industry of the merchant involved;

(D) nature of the violation of District law alleged or found to exist (for example, subsection of section 28-3904 involved, or section of a licensing law involved);

(E) final disposition.

(n) There shall be established a Consumer Protection Education Fund (“Fund”). All monies awarded to or paid to the Department by operation of this section, including final judgements, consent decrees, or settlements reduced to final judgements, shall be paid into the Fund in order to further the purpose of this chapter as enumerated in § 28-3901.

(o) Every complaint case that is before the Department in accordance with this section shall proceed in confidence, except for hearings and meetings before the Office of Adjudication, until the Department makes a final action or a consent decree.

(p) The Director may file a complaint in accordance with subsection (a) of this section, on behalf of one or more consumers or as complainant, based on evidence and information gathered by the Department in carrying out this chapter. Persons not parties to but directly or indirectly intended as beneficiaries of an order described in subsection (f), (g), or (j) of this section, or a consent decree described in subsection (h) of this section, arising out of a complaint filed by the Director, may enforce such order or decree in the manner provided in subsection (i)(3)(B) of this section.

(q) At any hearing pursuant to subsection (f) or (j) of this section, a witness has the right to be advised by counsel present at such hearing. In any process under this section, the complainant and respondent may have legal or other counsel for representation and advice.

(r) All cases for which complaints were filed before March 5, 1981, may be presented to and heard by the Office of Adjudication notwithstanding the time limits previously provided in section 28-3905(d), 28-3905(e), and 28-3905(f) for the investigation and transmittal of cases to the Office of Adjudication, and for the hearing of cases by the Office of Adjudication.

(July 22, 1976, D.C. Law 1-76, § 6, 23 DCR 1185; June 11, 1977, D.C. Law 2-8, § 4(b), 24 DCR 726; enacted, Sept. 6, 1980, D.C. Law 3-85, § 3(a), (d), 27 DCR 2900; Mar. 5, 1981, D.C. Law 3-159, §§ 2(b), (c), 3, 27 DCR 5147; Mar. 8, 1991, D.C. Law 8-234, § 2(f), 38 DCR 296; Feb. 5, 1994, D.C. Law 10-68, § 27(f), 40 DCR 6311; Apr. 9, 1997, D.C. Law 11-255, § 27(y), 44 DCR 1271; Apr. 29, 1998, D.C. Law 12-86, § 1301(c), 45 DCR 1172; Oct. 19, 2000, D.C. Law 13-172, § 1402(d), 47 DCR 6308; Oct. 20, 2005, D.C. Law 16-33, § 2032(d), 52 DCR 7503; June 12, 2007, D.C. Law 17-4,§ 2(b), 54 DCR 4085; Apr. 23, 2013, D.C. Law 19-282, § 2(b)(3), 60 DCR 2132; Feb. 26, 2015, D.C. Law 20-155, § 2012(c), 61 DCR 9990; Feb. 22, 2019, D.C. Law 22-206, § 2(a), 65 DCR 12363; June 17, 2020, D.C. Law 23-98, § 2(b)(2), 67 DCR 3923.)

Prior Codifications

1981 Ed., § 28-3905.

1973 Ed., T. 28, Appx., § 6.

Section References

This section is referenced in § 28-3818, § 28-3901, § 28-3902, § 28-3903, § 28-3906, and § 28-4002.

Effect of Amendments

D.C. Law 13-172 added the introductory sentence to subsec. (k)(2) pertaining to the penalties being cumulative and additional and rewrote subsec. (k)(1).

D.C. Law 16-33 rewrote subsec. (b), which had read:

“(b) The Director shall investigate each such complaint and determine:

“(1) what trade practice actually occurred, and

“(2) whether the trade practice which occurred violates any statute, regulation, rule of common law, or other law, of the District of Columbia.”

D.C. Law 17-4 added subsec. (k)(5).

The 2013 amendment by D.C. Law 19-282 rewrote (k)(1) and (k)(2).

The 2015 amendment by D.C. Law 20-155 rewrote (i)(3)(A).

Cross References

Hearing aid dealers and consumers, office of consumer protection, powers and duties, see § 28-4002.

Emergency Legislation

For temporary (90-day) amendment of section, see § 1402(d) of the Fiscal Year 2001 Budget Support Emergency Act of 2000 (D.C. Act 13-376, July 24, 2000, 47 DCR 6574).

For temporary (90 day) amendment of section, see § 1402(d) of the Fiscal Year 2001 Budget Support Congressional Review Emergency Act of 2000 (D.C. Act 13-438, October 20, 2000, 47 DCR 8740).

For temporary (90 day) amendment of section, see § 2032(d) of Fiscal Year 2006 Budget Support Emergency Act of 2005 (D.C. Act 16-168, July 26, 2005, 52 DCR 7667).

For temporary (90 days) amendment of this section, see § 2012(c) of the Fiscal Year 2015 Budget Support Emergency Act of 2014 (D.C. Act 20-377, July 14, 2014, 61 DCR 7598, 20 STAT 3696).

For temporary (90 days) amendment of this section, see § 2012(c) of the Fiscal Year 2015 Budget Support Congressional Review Emergency Act of 2014 (D.C. Act 20-449, October 10, 2014, 61 DCR 10915, 20 STAT 4188).

For temporary (90 days) amendment of this section, see § 2012(c) of the Fiscal Year 2015 Budget Support Second Congressional Review Emergency Act of 2014 (D.C. Act 20-566, January 9, 2015, 62 DCR 884, 21 STAT 541).

§ 28–3906. Consumer education and information.

(a) The Office of Consumer Protection is established within the Department. The Office of Consumer Protection shall:

(1) Inform the public and the business community of existing laws, regulations, and guidelines concerning consumer rights and standards of fair treatment;

(2) Coordinate consumer education programs with, and use consumer education programs to help carry out, the consumer protection programs of the Department, including enforcement options through the Department and the Office of the Attorney General and before the courts;

(2A) Develop a consumer education program to educate consumers about the appropriateness of video and computer games for certain age groups, which may include information on video and computer game rating systems and the manner in which parental controls can enhance the ability of parents to regulate their children’s access to video and computer games;

(3) Handle publicity for the Department concerning cases under § 28-3905 when the Director requests;

(4) Aid the Director in the formulation of consumer protection plans and recommend legislation and regulations related to consumer education;

(5) Cooperate with consumer-related agencies, groups, and individuals in the District of Columbia metropolitan area to improve consumer education efforts; and

(6) Perform the functions of the Department under § 28-3903(7) and (8) [§ 28-3903(a)(7) and (8)].

(b) The Chief of the Office of Consumer Protection shall be appointed by the Director.

(c) In fiscal year 2006, the Office of Consumer Protection shall focus on investigation and mediation in the areas of auto repair and home improvement.

(July 22, 1976, D.C. Law 1-76, § 7, 23 DCR 1185; enacted, Sept. 6, 1980, D.C. Law 3-85, § 3(a), (d), 27 DCR 2900; Mar. 8, 1991, D.C. Law 8-234,§ 2(g), 38 DCR 296; Oct. 20, 2005, D.C. Law 16-33, § 2032(e), 52 DCR 7503; Mar. 6, 2007, D.C. Law 16-218, § 2, 53 DCR 10209.)

Prior Codifications

1981 Ed., § 28-3906.

1973 Ed., T. 28, Appx., § 7.

Section References

This section is referenced in § 28-3901.

Effect of Amendments

D.C. Law 16-33, rewrote section, which had read:

“(a) The Office of Consumer Education and Information shall:

“(1) inform the public and the business community of existing laws, regulations and guidelines concerning consumer rights and standards of fair treatment;

“(2) coordinate consumer education programs with, and use consumer education programs to help carry out, the consumer protection programs of the Office;

“(3) handle publicity for the Office Department concerning cases under section 28-3905, when the Director requests;

“(4) aid the Director in the formulation of consumer protection plans and recommend legislation and regulations related to consumer education;

“(5) cooperate with consumer-related agencies, groups and individuals in the D.C. area to improve consumer education efforts.

“(b) The Chief of the Office of Consumer Education and Information shall be appointed by the Director.”

D.C. Law 16-218, in subsec. (a), added par. (2A).

Emergency Legislation

For temporary (90 day) amendment of section, see § 2032(e) of Fiscal Year 2006 Budget Support Emergency Act of 2005 (D.C. Act 16-168, July 26, 2005, 52 DCR 7667).

Editor’s Notes

The bracketed language has been inserted in (a)(3) to correct an error in D.C. Law 8-234.

§ 28–3907. Advisory Committee on Consumer Protection.

(a) There shall be an Advisory Committee on Consumer Protection consisting of 11 members appointed by the Mayor for three-year terms. The nongovernmental members, immediately prior to the effective date of this chapter, of the Advisory Committee on Consumer Affairs established in Organization Order No. 40 (C.O. 73-225; October 3, 1973), shall carry out their terms. No District Government employees shall be members. Four members shall be District merchants. Seven members shall be persons with demonstrated and current records of activity on behalf of consumers.

(b) The Committee shall:

(1) recommend priorities in, and, at the Committee’s discretion, carry out investigations and research, which concern broad, developing, or frequently encountered consumer problems;

(2) assist the Director as the Director may request;

(3) monitor the performance and organization of the Office, by quantitative and qualitative methods, and make recommendations and criticisms, based thereon; and

(4) cooperate with consumer-related agencies, groups, and individuals in the District and in the metropolitan area to improve city-wide and area-wide consumer protection and education efforts.

(c) The Committee shall elect one of its members as Chairperson and another as Vice-Chairperson, each to serve at the pleasure of the Committee, and such other officers and subcommittees as it determines.

(d) The Office shall provide staff support for the Advisory Committee. Appropriate expenses incurred by the Committee as a whole, or by individual members, may be paid when authorized by the Director.

(e) The Committee shall meet on call by the Chairperson as frequently as required to perform its duties, but no less than once each month, and it shall submit an annual report to the Mayor, Council, and the public.

(f) The Committee shall hold public hearings as deemed necessary.

(July 22, 1976, D.C. Law 1-76, § 8, 23 DCR 1185; Sept. 6, 1980, D.C. Law 3-85, § 3(a), (d), 27 DCR 2900; Apr. 9, 1997, D.C. Law 11-255, § 27(z), 44 DCR 1271.)

Prior Codifications

1981 Ed., § 28-3907.

1973 Ed., T. 28, Appx., § 8.

Section References

This section is referenced in § 28-3901.

§ 28–3908. Severability.

If any provision of this chapter, or the application thereof to any person or circumstance, is held invalid, the remainder of this chapter, and the application of such provision to other persons not similarly situated or to other circumstances, shall not be affected.

(July 22, 1976, D.C. Law 1-76, § 9, 23 DCR 1185; enacted, Sept. 6, 1980, D.C. Law 3-85, § 3(a), (d), 27 DCR 2900.)

Prior Codifications

1981 Ed., § 28-3908.

1973 Ed., T. 28, Appx., § 9.

§ [28-3909.01]. Attorney General Authority.

*NOTE: This section was created by temporary legislation that will expire on February 4, 2022.*

Notwithstanding any District law, the Attorney General for the District of Columbia may use the enforcement authority set forth at [§ 28-3909] against any merchant, including a utility provider, that violates any provisions of this act (D.C. Law 24-9).

(June 24, 2021, D.C. Law 24-9, § 307(g), 68 DCR 004824.)

Emergency Legislation

For temporary (90 days) creation of this section, see § 307(g) of Coronavirus Support Congressional Review Emergency Amendment Act of 2021 (D.C. Act 24-96, June 7, 2021, 68 DCR 006025).

For temporary (90 days) creation of this section, see § 307(g) of Coronavirus Support Emergency Amendment Act of 2021 (D.C. Act 24-30, Mar. 17, 2021, 68 DCR 003101).

For temporary (90 days) creation of this section, see § 307(g) of Coronavirus Support Congressional Review Emergency Amendment Act of 2020 (D.C. Act 23-328, June 8, 2020, 67 DCR 7598).

For temporary (90 days) creation of this section, see § 307(g) of Coronavirus Support Emergency Amendment Act of 2020 (D.C. Act 23-326, May 27, 2020, 67 DCR 7045).

Temporary Legislation

For temporary (225 days) creation of this section, see § 307(g) of Coronavirus Support Temporary Amendment Act of 2021 (D.C. Law 24-9, June 24, 2021, 68 DCR 004824).

§ 28–3910. Investigatory powers of Attorney General [for the District of Columbia].

(a) In the course of an investigation to determine whether to seek relief under section 28-3909, the Attorney General for the District of Columbia may subpoena witnesses, administer oaths, examine an individual under oath, and compel production of records, books, papers, contracts, and other documents. Information obtained under this section is not admissible in a later criminal proceeding against the person who provides the evidence.

(b) A subpoena issued pursuant to subsection (a) of this section shall be issued in accordance with [§  1-301.89c].

(Oct. 19, 2000, D.C. Law 13-172, § 1402(f), 47 DCR 6308; Oct. 22, 2015, D.C. Law 21-36, § 1036, 62 DCR 10905; July 17, 2018, D.C. Law 22-140, § 2(e), 65 DCR 5970.)

Effect of Amendments

The 2015 amendment by D.C. Law 21-36 designated the existing text as (a); and added (b).

Emergency Legislation

For temporary (90 days) amendment of this section, see § 2(b) of At-Risk Tenant Protection Clarifying Congressional Review Emergency Amendment Act of 2018 (D.C. Act 22-486, Oct. 22, 2018, 65 DCR12042).

For temporary (90 days) amendment of this section, see § 2(b) of At-Risk Tenant Protection Clarifying Emergency Amendment Act of 2018 (D.C. Act 22-402, July 16, 2018, 65 DCR 7518).

For temporary (90 days) amendment of this section, see § 2(b) of At-Risk Tenant Protection Clarifying Emergency Amendment Act of 2017 (D.C. Act 22-164, Oct. 23, 2017, 64 DCR 10790).

For temporary (90 days) amendment of this section, see § 2(b) of At-Risk Tenant Protection Clarifying Congressional Review Emergency Amendment Act of 2017 (D.C. Act 22-23, Mar. 27, 2017, 64 DCR 3065).

For temporary (90 days) amendment of this section, see § 2(b) of At-Risk Tenant Protection Clarifying Emergency Amendment Act of 2016 (D.C. Act 21-576, Dec. 19, 2016, 63 DCR 15695).

For temporary (90-day) addition of section, see § 1402(f) of the Fiscal Year 2001 Budget Support Emergency Act of 2000 (D.C. Act 13-376, July 24, 2000, 47 DCR 6574).

For temporary (90 day) addition of section, see § 1402(f) of the Fiscal Year 2001 Budget Support Congressional Review Emergency Act of 2000 (D.C. Act 13-438, October 20, 2000, 47 DCR 8740).

For temporary (90 days) amendment of this section, see § 1036 of the Fiscal Year 2016 Budget Support Emergency Act of 2015 (D.C. Act 21-127, July 27, 2015, 62 DCR 10201).

Temporary Legislation

For temporary (225 days) amendment of this section, see § 2(b) of At-Risk Tenant Protection Clarifying Temporary Amendment Act of 2018 (D.C. Law 22-172, Oct. 30, 2018, 65 DCR 9540).

For temporary (225 days) amendment of this section, see § 2(b) of At-Risk Tenant Protection Clarifying Temporary Amendment Act of 2017 (D.C. Law 22-45, Jan. 25, 2018, 64 DCR 12399).

For temporary (225 days) amendment of this section, see § 2(b) of At-Risk Tenant Protection Clarifying Temporary Amendment Act of 2016 (D.C. Law 21-271, Apr. 15, 2017, 64 DCR 944).

§ 28–3911. District of Columbia Consumer Protection Fund. [Repealed]

Repealed.

(Oct. 19, 2000, D.C. Law 13-172, § 1402(f), 47 DCR 6308; Mar. 8, 2007, D.C. Law 16-237, § 2(d), 54 DCR 393; Sept. 18, 2007, D.C. Law 17-20, § 3023, 54 DCR 7052; Jan. 23, 2008, D.C. Law 17-68, § 2, 54 DCR 11648; Mar. 3, 2010, D.C. Law 18-111, § 3002, 57 DCR 181; Sept. 14, 2011, D.C. Law 19-21, § 9003(a), 58 DCR 6226.)

Emergency Legislation

For temporary (90-day) addition of section, see § 1402(f) of the Fiscal Year 2001 Budget Support Emergency Act of 2000 (D.C. Act 13-376, July 24, 2000, 47 DCR 6574).

For temporary (90 day) addition of section, see § 1402(f) of the Fiscal Year 2001 Budget Support Congressional Review Emergency Act of 2000 (D.C. Act 13-438, October 20, 2000, 47 DCR 8740).

For temporary (90 day) addition of section, see § 2(b) of Residential Water Lead Level Test Emergency Act of 2004 (D.C. Act 15-436, May 25, 2004, 51 DCR 5953).

For temporary (90 day) amendment of section, see § 2 of District of Columbia Consumer Protection Fund Emergency Amendment Act of 2007 (D.C. Act 17-64, June 28, 2007, 54 DCR 7046).

For temporary (90 day) amendment of section, see § 3023 of Fiscal Year 2008 Budget Support Emergency Act of 2007 (D.C. Act 17-74, July 25, 2007, 54 DCR 7549).

For temporary (90 day) amendment of section, see § 2 of District of Columbia Consumer Protection Fund Congressional Review Emergency Act of 2007 (D.C. Act 17-138, October 17, 2007, 54 DCR 10729).

For temporary (90 day) amendment of section, see § 3002 of Fiscal Year 2010 Budget Support Second Emergency Act of 2009 (D.C. Act 18-207, October 15, 2009, 56 DCR 8234).

For temporary (90 day) amendment of section, see § 3002 of Fiscal Year Budget Support Congressional Review Emergency Amendment Act of 2009 (D.C. Act 18-260, January 4, 2010, 57 DCR 345).

Temporary Legislation

For temporary (225 day) amendment of section, see § 2 of the District of Columbia Consumer Protection Fund Temporary Amendment Act of 2007 (D.C. Law 17-34, October 18, 2007, law notification 54 DCR 10704).

Short Title

Short title: Section 3001 of D.C. Law 18-111 provided that subtitle A of title III of the act may be cited as the “Consumer Protection Funds Act of 2009”.

Editor’s Notes

Section 9052(b) of D.C. Law 19-21 purported to amended this section which was repealed by section 9003(a) of Law 19-21.

§ 28–3912. Submissions to the Council.

The Department shall, in coordination with the Office of the Attorney General, submit 2 plans to the Council:

(1) A detailed plan for fiscal year 2006 on the steps that the Department shall take in providing consumer protection education in the District, including the dissemination of information regarding legal options through the Department and before the Office of the Attorney General and the Courts, to be submitted by September 1, 2005; and

(2) A plan to fully implement this subchapter in fiscal year 2007, including any recommended amendments to this subchapter, to be submitted by February 1, 2006, in anticipation of the fiscal year 2007 budget.

(Oct. 20, 2005, D.C. Law 16-33, § 2032(f), 52 DCR 7503.)

Emergency Legislation

For temporary (90 day) addition, see § 2032(f) of Fiscal Year 2006 Budget Support Emergency Act of 2005 (D.C. Act 16-168, July 26, 2005, 52 DCR 7667).

§ 28–3913. Rules.

The Mayor may issue rules necessary to carry out this chapter. Rules proposed pursuant to this section shall be submitted to the Council for a 45-day period of review, excluding Saturdays, Sundays, legal holidays, and days of Council recess. If the Council does not approve or disapprove the proposed rules, in whole or in part, by resolution, within this 45-day review period, the proposed rules shall be deemed disapproved.

(Oct. 20, 2005, D.C. Law 16-33, § 2032(f), 52 DCR 7503.)

Emergency Legislation

For temporary (90 day) addition, see § 2032(f) of Fiscal Year 2006 Budget Support Emergency Act of 2005 (D.C. Act 16-168, July 26, 2005, 52 DCR 7667).


Hamric v. Wilderness Expeditions, Inc.,

Hamric v. Wilderness Expeditions, Inc.

ALICIA HAMRIC, individually, as representative of the Estate of Robert Gerald Hamric, and as next friend of Ava Hamric, a minor, Plaintiff – Appellant,

v.

WILDERNESS EXPEDITIONS, INC., Defendant-Appellee.

No. 20-1250

United States Court of Appeals, Tenth Circuit

July 26, 2021

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:19-CV-01442-NYW)

William J. Dunleavy, Law Offices of William J. Dunleavy, Allen, Texas (Stephen A. Justino, Boesen Law, Denver, Colorado, on the briefs), for Plaintiff – Appellant.

Malcolm S. Mead (Peter C. Middleton and Jacob R. Woods with him on the brief), Hall & Evans, Denver, Colorado, for Defendant – Appellee.

Before TYMKOVICH, Chief Judge, HOLMES, and McHUGH, Circuit Judges.

McHUGH, CIRCUIT JUDGE

Gerald Hamric, a Texas resident, joined a church group on an outdoor recreation trip to Colorado. The church group employed the services of Wilderness Expeditions, Inc. (“WEI”) to arrange outdoor activities. Before the outdoor adventure commenced, WEI required each participant, including Mr. Hamric, to complete a “Registration Form” and a “Medical Form.” On the first day, WEI led the church group on a rappelling course. In attempting to complete a section of the course that required participants to rappel down an overhang, Mr. Hamric became inverted. Attempts to rescue Mr. Hamric proved unsuccessful, and he died.

Alicia Hamric, Mr. Hamric’s wife, sued WEI for negligence. WEI moved for summary judgment, asserting the Registration Form and the Medical Form contained a release of its liability for negligence. Ms. Hamric resisted WEI’s motion for summary judgment in four ways. First, Ms. Hamric moved for additional time to conduct discovery under Federal Rule of Civil Procedure 56(d). Second, Ms. Hamric moved for leave to amend her complaint to seek exemplary damages based on willful and wanton conduct. Third, Ms. Hamric filed a motion for leave to disclose an expert out of time. Fourth, Ms. Hamric argued Texas law controlled the validity of the purported liability release in the Registration Form and the Medical Form, and additionally that the release was not conspicuous as required by Texas law.

In a single order, a magistrate judge addressed each of the pending motions. The magistrate judge first declined to grant leave to amend the complaint due to Ms. Hamric’s failure to (1) sustain her burden under Federal Rule of Civil Procedure 16(b) because the deadline for amendments had passed; and (2) make out a prima facie case of willful and wanton conduct as required by Colorado law to plead a claim seeking exemplary damages. Next, the magistrate judge concluded WEI was entitled to summary judgment, holding the liability release was valid under both Colorado law and Texas law. Finally, the magistrate judge denied as moot Ms. Hamric’s motions for additional discovery and to disclose an expert out of time.

We affirm the magistrate judge’s rulings. As to Ms. Hamric’s motion for leave to amend, a party seeking to amend a pleading after the deadline in a scheduling order for amendment must satisfy the standard set out by Federal Rule of Civil Procedure 16(b). But Ms. Hamric concedes she has never sought to satisfy the Rule 16(b) standard. Turning to the discovery motions, where this case hinges on the validity of the liability release and all facts necessary to this primarily legal issue appear in the record, we reject Ms. Hamric’s contentions that further discovery or leave to belatedly disclose an expert were warranted. Finally, while the magistrate judge’s summary judgment analysis was not free of error, we apply de novo review to that ruling. And, under de novo review, we conclude (1) relying on contract law to resolve the choice-of-law issue, as argued for by the parties, Colorado law, rather than Texas law, controls whether the Registration Form and the Medical Form contain a valid liability release; and (2) the forms contain a valid release for negligence by WEI, barring Ms. Hamric’s action.

I. BACKGROUND

A. The Rappelling Excursion, Mr. Hamric’s Death, and the Liability Release

Members of the Keller Church of Christ in Keller, Texas, scheduled an outdoor excursion to Colorado, contracting with WEI for adventure planning and guide services. WEI is incorporated in Colorado and has its headquarters in Salida, Colorado. Jamie Garner served as the coordinator for the church group and the point-of-contact between the church members and WEI. The experience WEI provided included guides taking participants rappelling. WEI required all participants, before going on the outdoor excursion, to complete and initial a “Registration Form” and complete and sign a “Medical Form.”[ 1]

The Registration Form has three sections. The first section requires the participant to provide personally identifiable information and contact information. The second section is entitled “Release of Liability & User Indemnity Agreement for Wilderness Expeditions, Inc.” App. Vol. I at 57, 83.[ 2] The text under this bold and underlined header reads, in full: I hereby acknowledge that I, or my child, have voluntarily agreed to participate in the activities outfitted by Wilderness Expeditions, Inc. I understand that the activities and all other hazards and exposures connected with the activities conducted in the outdoors do involve risk and I am cognizant of the risks and dangers inherent with the activities. I (or my child) and (is) fully capable of participating in the activities contracted for and willingly assume the risk of injury as my responsibility whether it is obvious or not. I understand and agree that any bodily injury, death, or loss of personal property and expenses thereof as a result of any, or my child’s, negligence in any scheduled or unscheduled activities associated with Wilderness Expeditions, Inc. are my responsibilities. I understand that accidents or illness can occur in remote places without medical facilities, physicians, or surgeons, and be exposed to temperature extremes or inclement weather. I further agree and understand that any route or activity chosen may not be of minimum risk, but may have been chosen for its interest and challenge. I agree to defend, indemnify, and hold harmless Wilderness Expeditions. Inc., the USDA Forest Service, Colorado Parks and Recreation Department, and any and all state or government agencies whose property the activities may be conducted on, and all of their officers, members, affiliated organizations, agents, or employees for any injury or death caused by or resulting from my or my child’s participation in the activities, scheduled and unscheduled, whether or not such injury or death was caused by my, or their, negligence or from any other cause. By signing my initials below, I certify this is a release of liability.

Id.[ 3] Immediately after this paragraph, the form reads, “Adult participant or parent/guardian initial here:(Initials).” Id. The third and final section of the form is entitled: “Adult Agreement or Parent’s/Guardian Agreement for Wilderness Expeditions, Inc.” Id. The text of this provision states: I understand the nature of the activities may involve the physical demands of hiking over rough terrain, backpacking personal and crew gear, and voluntarily climbing mountains to 14, 433 feet in elevation. Having the assurance of my, or my child’s, good health through a current physical examination by a medical doctor, I hereby give consent for me, or my child, to participate in the activities outfitted by Wilderness Expeditions, Inc. I have included in this form all necessary medical information about myself, or my child, that should be known by the leadership of the program. I assure my, or my child’s, cooperation and assume responsibility for my, or my child’s, actions. I understand that I am responsible for any medical expenses incurred in the event of needed medical attention for myself, or my child. I further agree that I will be financially responsible to repair or replace all items lost or abused by myself or my child. In the event of an emergency, I authorize my consent to any X-ray examination, medica1, dental, or surgical diagnosis, treatment, and/or hospital care advised and supervised by a physician, surgeon, or dentist licensed to practice. I understand that the designated next of kin will be contacted as soon as possible. By signing my initials below, I certify this is a release of liability.

Id. And, as with the second section, the form then provides a line for the participant or the parent or guardian of the participant to initial.

The Medical Form has four sections. The first section seeks information about the participant. The second section is entitled “Medical History.” Initially, this section asks the participant if he suffers from a list of medical conditions, including allergies, asthma, and heart trouble. If the participant does suffer from any medical conditions, the form requests that the participant explain the affirmative answer. Thereafter, the section includes the following language: Note: The staff will not administer any medications, including aspirin, Tums, Tylenol, etc. If you need any over the counter medications, you must provide them. Be sure to tell your staff members what medications you are taking. List any medications that you will have with you: Note about food: Trail food is by necessity a high carbohydrate, high caloric diet. It is high in wheat, milk products, sugar, com syrup, and artificial coloring/flavoring. If these food products cause a problem to your diet, you will be responsible for providing any appropriate substitutions and advise the staff upon arrival. * Doctor’s signature is required to participate. No other form can be substituted. By signing below a physician is verifying the medical history given above and approving this individual to participate.

Id. at 58, 84. The form then includes a section titled “Physician’s Evaluation.” Id. This section seeks certification of the participant’s medical capability to partake in the outdoor activities and asks the physician for contact information. It reads: The applicant will be taking part in strenuous outdoor activities that may include: backpacking, rappelling, hiking at 8-12, 000 feet elevation, and an all day summit climb up to 14, 433 feet elevation. This will include high altitude, extreme weather, cold water, exposure, fatigue, and remote conditions where medical care cannot be assured. The applicant is approved for participation. Physician Signature: ___ Date: ___ Physician Name: ___ Phone Number: ___ Office Address: ___ City: ___ State: ___ Zip: ___

Id. The final section of the form is entitled “Participant or Parent/Guardian Signature – All sections of these forms must be initialed or signed.” Id. The text of the section reads: Individuals who have not completed these forms will not be allowed to participate. I have carefully read all the sections of this agreement, understand its contents, and have initialed all sections of page 1 of this document[.] I have examined all the information given by myself, or my child. By the signature below, I certify that it is true and correct. Should this form and/or any wording be altered, it will not be accepted and the participant will not be allowed to participate.

Id.

WEI made the forms available to Mr. Garner for downloading and completion by the individual church members several months prior to the booked trip. Mr. Hamric initialed both blanks on the Registration Form and signed the Medical Form, dating it April 5, 2017. Andrew Sadousky, FNP-C, completed and signed the “Physician’s Evaluation” section of the Medical Form, certifying that Mr. Hamric was medically capable of participating in the outdoor activities listed on the form, including rappelling. Mr. Hamric’s signed forms were delivered to WEI upon the church group’s arrival in Colorado in July 2017.

After spending a night on WEI property, WEI guides took the church group, including Mr. Hamric, to a rappelling site known as “Quarry High.” Because the rappelling course had a section that WEI guides considered “scary,” the guides did not describe a particular overhang at the Quarry High site during the orientation session or before taking the church group on the rappelling course. Id. at 203.

Several members of the church group successfully descended Quarry High before Mr. Hamric attempted the rappel. As Mr. Hamric worked his way down the overhang portion of the course, he became inverted and was unable to right himself. Efforts to rescue Mr. Hamric proved unsuccessful, and he died of positional asphyxiation.

B. Procedural History

In the District of Colorado, Ms. Hamric commenced a negligence action against WEI, sounding in diversity jurisdiction. As a matter of right, Ms. Hamric amended her complaint shortly thereafter. See Fed. R. Civ. P. 15(a)(1)(A) (permitting plaintiff to file amended complaint “as a matter of course” within twenty-one days of serving original complaint). The parties, pursuant to 28 U.S.C. § 636(c), consented to a magistrate judge presiding over the case. WEI answered Ms. Hamric’s First Amended Complaint, in part raising the following affirmative defense: “Decedent Gerald Hamric executed a valid and enforceable liability release. Decedent Gerald Hamric also executed a medical evaluation form which Defendant relied upon. The execution of these document [sic] bars or reduces [Ms. Hamric’s] potential recovery.” Id. at 31-32.

The magistrate judge entered a Scheduling Order adopting several deadlines: (1) August 31, 2019, for amendments to the pleadings; (2) January 31, 2020, for Ms. Hamric to designate her expert witnesses; and (3) April 10, 2020, for the close of all discovery. The Scheduling Order also noted WEI’s defense based on the purported liability release, stating “[t]he parties anticipate that mediation . . . may be useful to settle or resolve the case after meaningful discovery and summary judgment briefing on the issue of the validity and enforceability of the liability release.” Id. at 38 (emphasis added). Finally, the Scheduling Order concluded with language reminding the parties that the deadlines adopted by the order “may be altered or amended only upon a showing of good cause.” Id. at 42 (italicized emphasis added).

In November 2019, after the deadline for amendments to the pleadings but before the discovery deadlines, WEI moved for summary judgment based on its affirmative defense that both the Registration Form and Medical Form contained a liability release that barred Ms. Hamric’s negligence claim. In support of its motion, WEI contended Colorado law controlled the interpretation and validity of the liability release. Ms. Hamric opposed summary judgment, arguing that because Mr. Hamric completed the forms in Texas, a Colorado court would apply Texas law and that, under Texas law, the liability release was not adequately conspicuous to be valid.

Ms. Hamric also sought to avoid disposition of WEI’s motion for summary judgment and dismissal of her action by filing three motions of her own. First, Ms. Hamric moved under Federal Rule of Civil Procedure 56(d) for additional time to conduct discovery, contending further discovery would, among other things, reveal details about Mr. Hamric’s completion of the forms and whether Colorado or Texas law should control the interpretation and validity of the purported liability release. Second, in February 2020, Ms. Hamric moved pursuant to Federal Rule of Civil Procedure 15(a), for leave to file a second amended complaint to seek exemplary damages under § 13-21-102 of the Colorado Revised Statutes based on new allegations of WEI’s willful and wanton conduct.[ 4] Ms. Hamric’s motion to amend, however, did not cite Federal Rule Civil Procedure 16(b) or seek leave to amend the August 31, 2019, Scheduling Order deadline for amendments to the pleadings. Third, in March 2020, Ms. Hamric moved for leave to disclose out of time a “‘Rappelling/Recreational Activities Safety’ expert.” App. Vol. II at 37. Ms. Hamric contended the expert’s opinions about the training, knowledge, and rescue efforts of the WEI guides supported her contention in her proposed second amended complaint that WEI acted in a willful and wanton manner.

The magistrate judge disposed of the four pending motions in a single order. Starting with Ms. Hamric’s motion for leave to amend her complaint, the magistrate judge concluded Ms. Hamric (1) “failed to meet her burden under Rule 16(b) of establishing good cause to generally amend the operative pleading” and (2) had not made out a prima facie case of wanton and willful conduct. Id. at 94. The magistrate judge then turned to WEI’s motion for summary judgment. The magistrate judge concluded WEI’s affirmative defense raised an issue sounding in contract law such that principles of contract law controlled the choice-of-law analysis. Applying contract principles, the magistrate judge determined that although Texas law imposed a slightly more rigorous standard for enforcing a liability release, the difference between Texas law and Colorado law was not outcome-determinative and the court could, therefore, apply Colorado law. The magistrate judge read Colorado law as holding that a liability release is valid and enforceable “so long as the intent of the parties was to extinguish liability and this intent was clearly and unambiguously expressed.” Id. at 106 (citing Heil Valley Ranch v. Simkin, 784 P.2d 781, 785 (Colo. 1989)). Applying this standard, the magistrate judge held the liability release used clear and simple terms such that, even though Mr. Hamric was inexperienced at rappelling, the release was valid and foreclosed Ms. Hamric’s negligence claim. Therefore, the magistrate judge granted WEI’s motion for summary judgment. And, having denied Ms. Hamric’s motion for leave to amend and granted WEI’s motion for summary judgment, the magistrate judge denied both of Ms. Hamric’s discovery motions as moot.

Ms. Hamric moved for reconsideration, which the magistrate judge denied. Ms. Hamric timely appealed.

II. DISCUSSION

On appeal, Ms. Hamric contests the denial of her motion for leave to amend and the grant of summary judgment to WEI. Ms. Hamric also tacitly challenges the magistrate judge’s denial of her discovery motions. We commence our analysis with Ms. Hamric’s motion for leave to amend, holding the magistrate judge did not abuse her discretion in denying the motion where the motion was filed after the Scheduling Order’s deadline for amendments to pleadings and Ms. Hamric did not attempt to satisfy Federal Rule of Civil Procedure 16(b)’s standard for amending a deadline in a scheduling order. Next, we discuss Ms. Hamric’s two discovery motions, concluding the magistrate judge did not abuse her discretion by denying the motions because (1) WEI’s motion for summary judgment presented a largely legal issue on which all facts necessary for resolution already appeared in the record; and (2) consideration of the proposed expert’s opinions potentially capable of supporting allegations of willful and wanton conduct was mooted upon Ms. Hamric failing to satisfy Rule 16(b)’s standard for amending her complaint to allege such conduct. Finally, we analyze WEI’s motion for summary judgment. Although the magistrate judge’s decision was not free of error, the errors are not outcome determinative on appeal given our de novo standard of review. Exercising de novo review, we conclude Colorado law governs the validity of the liability release. And considering the entirety of both the Registration Form and the Medical Form, we conclude the liability release satisfies the factors in Colorado law for enforceability. Therefore, we affirm the magistrate judge’s grant of summary judgment.

A. Ms. Hamric’s Motion for Leave to Amend

1. Standard of Review

“We review for abuse of discretion a district court’s denial of a motion to amend a complaint after the scheduling order’s deadline for amendments has passed.” Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1247 (10th Cir. 2015). “An abuse of discretion occurs where the district court clearly erred or ventured beyond the limits of permissible choice under the circumstances.” Id. (quotation marks omitted). “A district court also abuses its discretion when it issues an arbitrary, capricious, whimsical or manifestly unreasonable judgment.” Id. (internal quotation marks omitted).

2. Analysis

“A party seeking leave to amend after a scheduling order deadline must satisfy both the [Federal Rule of Civil Procedure] 16(b) and Rule 15(a) standards.” Tesone v. Empire Mktg. Strategies, 942 F.3d 979, 989 (10th Cir. 2019). Under the former of those two rules, “[a] schedule may be modified only for good cause and with the judge’s consent.” Fed.R.Civ.P. 16(b)(4). To satisfy this standard a movant must show that “the scheduling deadlines cannot be met despite the movant’s diligent efforts.” Gorsuch, Ltd., B.C. v. Wells Fargo Nat’l Bank Ass’n, 771 F.3d 1230, 1240 (10th Cir. 2014) (internal quotation marks omitted). We have observed the “good cause” standard for amending deadlines in a scheduling order is “arguably [a] more stringent standard than the standards for amending a pleading under Rule 15.” Bylin v. Billings, 568 F.3d 1224, 1231 (10th Cir. 2009).

In moving for leave to file a second amended complaint, Ms. Hamric discussed Federal Rule of Civil Procedure 15 and how Colorado law did not permit a plaintiff to seek exemplary damages until after commencement of discovery. But Ms. Hamric did not advance an argument for amending the Scheduling Order as required by Rule 16(b). Nor does Ms. Hamric cite Rule 16(b) in her briefs on appeal, much less explain how she satisfied, in her papers before the magistrate judge, the Rule 16(b) standard. In fact, Ms. Hamric conceded at oral argument that, before the magistrate judge, she sought only to amend her complaint and “did not seek to amend the scheduling order.” Oral Argument at 7:42-7:46; see also id. at 7:31-9:10. Ms. Hamric also conceded at oral argument that she had not advanced an argument on appeal regarding satisfying Rule 16(b).

This omission by Ms. Hamric is fatal to her argument. Specifically, when a party seeking to amend her complaint fails, after the deadline for amendment in a scheduling order, to present a good cause argument under Rule 16(b), a lower court does not abuse its discretion by denying leave to amend. Husky Ventures, Inc. v. B55 Invs. Ltd., 911 F.3d 1000, 1019-20 (10th Cir. 2018). Even if a party who belatedly moves for leave to amend a pleading satisfies Rule 15(a)’s standard, the party must also obtain leave to amend the scheduling order. But Rule 16(b) imposes a higher standard for amending a deadline in a scheduling order than Rule 15(a) imposes for obtaining leave to amend a complaint. Thus, as Husky Ventures suggests, a party’s ability to satisfy the Rule 15(a) standard does not necessitate the conclusion that the party could also satisfy the Rule 16(b) standard. Id. at 1020; see also Bylin, 568 F.3d at 1231 (observing that Rule 16(b) imposes “an arguably more stringent standard than the standards for amending a pleading under Rule 15”). Accordingly, where Ms. Hamric did not attempt to satisfy the Rule 16(b) standard for amending the Scheduling Order, we affirm the district court’s denial of Ms. Hamric’s motion for leave to amend.

B. Ms. Hamric’s Discovery Motions

After WEI moved for summary judgment, Ms. Hamric filed a pair of discovery-related motions-a motion for additional discovery before disposition of WEI’s motion for summary judgment and a motion to disclose an expert out of time. The magistrate judge denied both motions as moot. After stating the applicable standard of review, we consider each motion, affirming the magistrate judge’s rulings.

1. Standard of Review

We review the denial of a Federal Rule of Civil Procedure 56(d) motion for additional discovery for an abuse of discretion. Ellis v. J.R.’s Country Stores, Inc., 779 F.3d 1184, 1192 (10th Cir. 2015). Likewise, we review the denial of a motion to revisit a scheduling order and allow the disclosure of an expert out of time for an abuse of discretion. Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1253-54 (10th Cir. 2011). “We will find an abuse of discretion when the district court bases its ruling on an erroneous conclusion of law or relies on clearly erroneous fact findings.” Ellis, 779 F.3d at 1192 (internal quotation marks omitted). “A finding of fact is clearly erroneous if it is without factual support in the record or if, after reviewing all of the evidence, we are left with the definite and firm conviction that a mistake has been made.” Id. (quotation marks omitted).

2. Analysis

a. Motion for additional discovery

Before the April 10, 2020, deadline for discovery, WEI filed its motion for summary judgment based on the liability release. Ms. Hamric moved under Federal Rule of Civil Procedure 56(d) to delay resolution of WEI’s motion for summary judgment, asserting additional discovery would allow her to learn further information about the liability release. The magistrate judge denied the motion as moot, concluding further discovery was not needed to assess the validity of the liability release.

Under Rule 56(d), a party opposing a motion for summary judgment may seek additional time for discovery. To do so, a party must “submit an affidavit (1) identifying the probable facts that are unavailable, (2) stating why these facts cannot be presented without additional time, (3) identifying past steps to obtain evidence of these facts, and (4) stating how additional time would allow for rebuttal of the adversary’s argument for summary judgment.” Cerveny v. Aventis, Inc., 855 F.3d 1091, 1110 (10th Cir. 2017). “[S]ummary judgment [should] be refused where the nonmoving party has not had the opportunity to discover information that is essential to his opposition.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5 (1986). “Requests for further discovery should ordinarily be treated liberally.” Cerveny, 855 F.3d at 1110. “But relief under Rule 56(d) is not automatic.” Id. And Rule 56’s provision allowing a non-moving party to seek additional discovery before disposition on a motion for summary judgment “is not a license for a fishing expedition.” Lewis v. City of Ft. Collins, 903 F.2d 752, 759 (10th Cir. 1990); see also Ellis, 779 F.3d at 1207-08 (affirming denial of Rule 56(d) motion where party “required no further discovery to respond to the . . . summary-judgment motion” and additional discovery sought was speculative).

Through the affidavit supporting her Rule 56(d) motion, Ms. Hamric sought four areas of additional discovery. First, she sought discovery on “the drafting of the purported liability release forms” and the meaning of language on the forms. App. Vol. I at 94. Regardless of whether Colorado or Texas law applies, the four corners of the Registration Form and Medical Form, not WEI’s thought process when drafting the forms, controls the validity of the liability release. See B & B Livery, Inc. v. Riehl, 960 P.2d 134, 138 (Colo. 1998) (requiring that intent of parties to extinguish liability be “clearly and unambiguously expressed” (quoting Heil Valley Ranch, 784 P.2d at 785)); Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508 (Tex. 1993) (“[A] party seeking indemnity from the consequences of that party’s own negligence must express that intent in specific terms within the four corners of the contract.”). Therefore, the drafting process employed by WEI and its understanding of the language of the forms is not relevant to whether the forms included sufficiently specific language to foreclose a claim for negligence.

Second, Ms. Hamric sought to discover information about WEI’s process for distributing the forms and how the church group members, including Mr. Hamric, completed and submitted the forms. Ms. Hamric also requested time to discover matters related to the choice-of-law issue, including the “place of contracting,” “the place of performance,” and “the domicile, residence nationality, place of incorporation and place of business of the parties.” App. Vol. I at 95. Information on these matters, however, was known to Ms. Hamric prior to the magistrate judge’s summary judgment ruling. For instance, the record shows Mr. Hamric received and completed the forms in Texas a few months before the WEI-led excursion and that the church group provided WEI the completed forms upon its arrival at WEI’s location in Colorado. Accordingly, there was no need to delay summary judgment proceedings to discover matters already known to the parties. See Ellis, 779 F.3d at 1207-08.

Third, Ms. Hamric, as part of a challenge to the authenticity of the forms, initially sought to discover information regarding anomalies and alterations on the forms attached to WEI’s motion for summary judgment, as well as evidence of fraud by WEI. Subsequent to Ms. Hamric filing her motion for additional discovery, WEI provided her the original forms signed by Mr. Hamric, and she withdrew her challenge to the authenticity of the forms. Accordingly, by the time the district court ruled on WEI’s motion for summary judgment and Ms. Hamric’s motion for additional discovery, the requests for discovery regarding the authenticity of the forms was moot.

Fourth, Ms. Hamric sought time to discover “evidence of willful and wanton conduct by Defendant WEI and/or by its agents, servants and/or employees.” Id. Discovery on this matter, however, became moot with the magistrate judge’s denial of Ms. Hamric’s motion for leave to amend her complaint to seek exemplary damages and add allegations of willful and wanton conduct, a ruling we affirm. See supra at 12-14, Section II(A).

Having considered each additional discovery request advanced by Ms. Hamric, we conclude the magistrate judge did not abuse her discretion by ruling on WEI’s motion for summary judgment without permitting Ms. Hamric additional time for discovery. Accordingly, we affirm the magistrate judge’s denial of Ms. Hamric’s Rule 56(d) motion.

b. Motion for leave to disclose expert out of time

Ms. Hamric moved for leave to disclose a “‘Rappelling/Recreational Activities Safety’ expert” out of time. App. Vol. II at 37. Attached to the motion was a Federal Rule of Civil Procedure 26(a)(2) expert disclosure, offering opinions about the alleged negligent and/or willful and wanton conduct of WEI and its employees. The magistrate judge denied this motion as moot. Considering the magistrate judge’s other rulings and our holdings on appeal, we conclude the magistrate judge did not abuse her discretion. Any opinion offered by the expert as to willful and wanton conduct lost relevance with the denial of Ms. Hamric’s motion for leave to amend her complaint to add allegations of willful and wanton conduct and to seek exemplary damages-a ruling we affirmed supra at 12-14, Section II(A). And the expert’s opinion about WEI acting in a negligent manner lost relevance upon the magistrate judge concluding the liability release was valid and barred Ms. Hamric from proceeding on her negligence claim-a ruling we affirm infra at 19-37, Section II(C). Accordingly, we affirm the magistrate judge’s denial of Ms. Hamric’s motion for leave to disclose an expert out of time.

C. WEI’s Motion for Summary Judgment

After stating our standard of review, we discuss Ms. Hamric’s contentions that the magistrate judge (1) applied the wrong standard when considering WEI’s affirmative defense based on the liability release and (2) resolved issues of disputed fact in favor of WEI. Although we conclude the magistrate judge’s ruling is not free of error, the errors do not bind us because we need not repeat them when conducting our de novo review of the grant of summary judgment. Thus, we proceed to consider the validity of the liability release. In conducting our analysis, we hold that, where the parties contend contract principles provide the framework for our choice-of-law analysis, Colorado law governs the validity of the release.[ 5] And we conclude that, under Colorado law, the liability release is valid and enforceable so as to foreclose Ms. Hamric’s negligence claim. Therefore, we affirm the magistrate judge’s grant of summary judgment.

1. Standard of Review

We review the district court’s rulings on summary judgment de novo. Universal Underwriters Ins. Co. v. Winton, 818 F.3d 1103, 1105 (10th Cir. 2016). Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson, 477 U.S. at 250. “In reviewing a grant of summary judgment, we need not defer to factual findings rendered by the district court.” Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1180 (10th Cir. 2018) (internal quotation marks omitted). For purposes of summary judgment, “[t]he nonmoving party is entitled to all reasonable inferences from the record.” Water Pik, Inc. v. Med-Sys., Inc., 726 F.3d 1136, 1143 (10th Cir. 2013). Finally, “we can affirm on any ground supported by the record, so long as the appellant has had a fair opportunity to address that ground.” Alpine Bank v. Hubbell, 555 F.3d 1097, 1108 (10th Cir. 2009) (internal quotation marks omitted).

2. Alleged Errors by the Magistrate Judge

Ms. Hamric argues the magistrate judge (1) applied the incorrect standard when considering WEI’s affirmative defense and (2) resolved disputed issues of material fact in favor of WEI. We consider each contention in turn.

a. Standard applicable to affirmative defenses

Ms. Hamric contends the magistrate judge announced an incorrect standard of review and impermissibly shifted evidentiary burdens onto her, as the non-moving party. The disputed language in the magistrate judge’s opinion states: When, as here, a defendant moves for summary judgment to test an affirmative defense, it is the defendant’s burden to demonstrate the absence of any disputed fact as to the affirmative defense asserted. See Helm v. Kansas, 656 F.3d 1277, 1284 (10th Cir. 2011). Once the defendant meets its initial burden, the burden shifts to the nonmovant to put forth sufficient evidence to demonstrate the essential elements of her claim(s), see Anderson, 477 U.S. at 248; Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999), and to “demonstrate with specificity the existence of a disputed fact” as to the defendant’s affirmative defense, see Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir. 1997).

App. Vol. II at 100 (emphasis added). Ms. Hamric takes issue with the emphasized phrase.

Nothing on the pages the magistrate judge cited from Anderson and Simms requires a plaintiff responding to a motion for summary judgment based on an affirmative defense to identify evidence supporting each element of her claim. See Anderson, 477 U.S. at 248 (requiring nonmoving party in face of “properly supported motion for summary judgment” to “‘set forth specific facts showing that there is a genuine issue for trial'” (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288 (1968))); Simms, 165 F.3d at 1326, 1328 (discussing summary judgment standard in context of employment discrimination claim and burden-shifting framework from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). In fact, the standard announced by the magistrate judge would unnecessarily require a plaintiff, in response to a motion for summary judgment based on an affirmative defense, to identify evidence supporting elements of her claim never drawn into question by the defendant. Placing such a burden on a plaintiff is all the more problematic where, as here, the parties contemplated a bifurcated summary judgment process initially focused on the validity of the liability release, and WEI filed its motion for summary judgment before the close of discovery.

We have previously stated that a district court errs by requiring a party opposing summary judgment based on an affirmative defense to “establish at least an inference of the existence of each element essential to the case.” Johnson v. Riddle, 443 F.3d 723, 724 n.1 (10th Cir. 2006) (quotation marks omitted). We reaffirm that conclusion today. To defeat a motion for summary judgment, a plaintiff, upon the defendant raising and supporting an affirmative defense, need only identify a disputed material fact relative to the affirmative defense. Id.; Hutchinson, 105 F.3d at 564; see also Leone v. Owsley, 810 F.3d 1149, 1153-54 (10th Cir. 2015) (discussing defendant’s burden for obtaining summary judgment based on an affirmative defense). Only if the defendant also challenges an element of the plaintiff’s claim does the plaintiff bear the burden of coming forward with some evidence in support of that element. See Tesone, 942 F.3d at 994 (“The party moving for summary judgment bears the initial burden of showing an absence of any issues of material fact. Where . . . the burden of persuasion at trial would be on the nonmoving party, the movant may carry its initial burden by providing ‘affirmative evidence that negates an essential element of the nonmoving party’s claim’ or by ‘demonstrating to the Court that the nonmoving party’s evidence is insufficient to establish an essential element of the nonmoving party’s claim.’ If the movant makes this showing, the burden then shifts to the nonmovant to ‘set forth specific facts showing that there is a genuine issue for trial.'” (first quoting Celotex Corp., 477 U.S. at 330, then quoting Anderson, 477 U.S. at 250)); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998) (if summary judgment movant carries its initial burden of showing a lack of evidence in support of an essential element of plaintiff’s claim, “the burden shifts to the nonmovant to go beyond the pleadings and set forth specific facts” supporting the essential element (internal quotation marks omitted)).

The magistrate judge’s erroneous statement regarding Ms. Hamric’s burden, however, does not foreclose our ability to further review the grant of summary judgment. Rather, in accord with the applicable de novo standard of review, we review WEI’s motion for summary judgment under the standard that “should have been applied by the [magistrate judge].”[ 6] Nance v. Sun Life Assurance Co. of Can., 294 F.3d 1263, 1266 (10th Cir. 2002) (quotation marks omitted).

b. Resolution of disputed issues of material fact

Ms. Hamric contends the magistrate judge impermissibly resolved two issues of disputed fact in WEI’s favor. We discuss each asserted factual issue in turn, concluding factual disputes existed and the magistrate judge incorrectly resolved one of the disputes against Ms. Hamric. However, even if this factual dispute were material, we may proceed to analyze the validity of the liability release after resolving the dispute in Ms. Hamric’s favor. See Lincoln, 900 F.3d at 1180 (“In reviewing a grant of summary judgment, we need not defer to factual findings rendered by the district court.” (internal quotation marks omitted)).

i. Language of Registration Form and Medical Form

In moving for summary judgment, WEI’s brief contained edited versions of the Registration Form and Medical Form that focused the reader’s attention on the language most pertinent to Mr. Hamric’s participation in the outdoor excursion and the release of liability. For instance, the version of the forms in WEI’s brief left out phrases such as “(or my child)” and the accompanying properly-tensed-and-conjugated verb that would apply if the forms were completed by a parent or guardian of the participant, rather than by the participant himself. Compare App. Vol. I at 46, with id. at 57, 83.

Although WEI and Ms. Hamric attached full versions of the forms to their papers on the motion for summary judgment, the magistrate judge’s quotation of the language in the forms mirrored that which appeared in WEI’s brief. Ms. Hamric contends the magistrate judge, in not quoting the full forms, resolved a dispute of fact regarding the language of the forms in WEI’s favor. It is not uncommon for a court to focus on the pertinent language of a contract or liability release when putting forth its analysis. In this case, Ms. Hamric claims the forms should be reviewed on the whole. Although there is no indication the magistrate judge did not review the forms in their entirety, despite her use of incomplete quotations, we attach full versions of the Registration Form and Medical Form completed by Mr. Hamric as an appendix to this opinion. And we consider all the language on the forms when assessing whether the forms contain a valid liability release.

ii. Registration Form and Medical Form as single form

The magistrate judge viewed the Registration Form and the Medical Form as a single, “two-page agreement.” App. Vol. II at 103; see also id. at 101 (“Adult customers are required to execute a two-page agreement with WEI before they are permitted to participate in WEI-sponsored activities. The first page of the agreement is a ‘Registration Form’, followed by a ‘Medical Form’ on page two.”). Ms. Hamric contends the two forms are separate agreements, not a single agreement. While a jury could have concluded that the Registration Form and Medical Form were separate agreements, this dispute of fact is not material given applicable law regarding the construction of agreements that are related and simultaneously executed.

It is clear from the record that a participant needed to complete both forms before partaking in the WEI-lead excursion. Further, while the Medical Form required a signature and a date, the Registration Form required only that a participant place his initials on certain lines, suggesting the forms were part of a single agreement. However, the forms do not contain page numbers to indicate they are part of a single agreement. Further, language on the Medical Form is conflicting and ambiguous as to whether the two forms comprise a single agreement: Individuals who have not completed these forms will not be allowed to participate. I have carefully read all the sections of this agreement, understand its contents, and have initialed all sections of page 1 of this document. I have examined all the information given by myself, or my child. By the signature below, I certify that it is true and correct. Should this form and/or any wording be altered, it will not be accepted and the participant will not be allowed to participate.

App., Vol. I at 58, 84 (emphases added). Both the italicized language and the use of “forms” in the plural to describe the agreement support the conclusion that the Registration Form and the Medical Form are a single agreement. But the underlined language, using “form” in the singular, suggests the forms might constitute separate agreements. Otherwise the singular use of “form” would suggest the unlikely result that a participant could not alter the wording of the Medical Form but could alter the wording of the Registration Form.[ 7] Accord Navajo Nation v. Dalley, 896 F.3d 1196, 1213 (10th Cir. 2018) (describing the cannon of expressio unius est exclusio alterius as providing “that the ‘expression of one item of an associated group or series excludes another left unmentioned'” and that “the enumeration of certain things in a statute suggests that the legislature had no intent of including things not listed or embraced.” (quoting NLRB v. SW Gen., Inc., 137 S.Ct. 929, 940 (2017))). Thus, a reasonable jury could have found the Registration Form and the Medical Form were separate agreements.

We conclude, however, that this dispute of fact is not material to resolution of the primarily legal question regarding whether Mr. Hamric entered into a valid liability release with WEI. Under Colorado law, it is well established that a court may, and often must, construe two related agreements pertaining to the same subject matter as a single agreement. See Bledsoe v. Hill, 747 P.2d 10, 12 (Colo.App. 1987) (“If a simultaneously executed agreement between the same parties, relating to the same subject matter, is contained in more than one instrument, the documents must be construed together to determine intent as though the entire agreement were contained in a single document. Although it is desirable for the documents to refer to each other, there is no requirement that they do so.” (citing In re Application for Water Rights v. N. Colo. Water Conservancy Dist., 677 P.2d 320 (Colo. 1984); Harty v. Hoerner, 463 P.2d 313 (Colo. 1969); Westminster v. Skyline Vista Dev. Co., 431 P.2d 26 (Colo. 1967))).[ 8] Thus, although a jury could conclude the Registration Form and Medical Form technically constitute separate agreements, we consider the agreements together when determining if Mr. Hamric released WEI for its negligent acts.

3. Choice-of-Law Analysis

At the heart of WEI’s motion for summary judgment was whether Colorado or Texas law controls and whether the release is valid under the appropriate law. On appeal, Ms. Hamric contends “contract principles” control the choice-of-law analysis because WEI’s affirmative defense “was a contract issue on a purported agreement to release liability.” Opening Br. at 26-27. Ms. Hamric further contends that under contract principles in the Restatement (Second) of Conflicts of Laws, Texas law applies because Mr. Hamric was a Texas resident who completed the Registration Form and the Medical Form while in Texas. WEI agrees that if contract principles govern the choice-of-law issue, the Restatement (Second) on Conflict of Laws provides the appropriate factors for this court to consider. But WEI contends (1) the liability release is valid under both Colorado and Texas law and (2) the relevant factors in §§ 6 and 188 of the Restatement favor application of Colorado law if this court is inclined to resolve the conflict-of-law issue.

Outdoor recreation and tourism is a growing industry in Colorado, as well as several other states within our circuit. And many outdoor tourism outfitters, like WEI, require participants to complete forms containing liability releases. See Redden v. Clear Creek Skiing Corp., ___ P.3d ___, 2020 WL 7776149, at *2 (Colo.App. Dec. 31, 2020); Hamill v. Cheley Colo. Camps, Inc., 262 P.3d 945, 947-48 (Colo.App. 2011); see also Dimick v. Hopkinson, 422 P.3d 512, 515-16 (Wyo. 2018); Penunuri v. Sundance Partners, Ltd., 301 P.3d 984, 986 (Utah 2013); Beckwith v. Weber, 277 P.3d 713, 716-17 (Wyo. 2012). With the prevalence and recurrence of questions regarding the validity of liability releases in mind, and viewing the choice-of-law issue as sounding in contract law as urged by the parties, we consider whether the law of the state where the outdoor recreation company is based and the outdoor excursion occurs controls or whether the law of the state of residence of the participant controls.

a. Framework for choice-of-law analysis

“In a diversity action we apply the conflict-of-laws rules of the forum state.” Kipling v. State Farm Mut. Auto. Ins. Co., 774 F.3d 1306, 1310 (10th Cir. 2014). “This is true even when choice of law determinations involve the interpretation of contract provisions.” Shearson Lehman Brothers, Inc. v. M & L Invs., 10 F.3d 1510, 1514 (10th Cir. 1993). Accordingly, this court must look to Colorado choice-of-law rules to determine if Colorado or Texas law applies.

“Colorado follows the Restatement (Second) of Conflict of Laws (1971) . . . for both contract and tort actions,” Kipling, 774 F.3d at 1310 (citing Wood Brothers Homes, Inc. v. Walker Adjustment Bureau, 601 P.2d 1369, 1372 (Colo. 1979); First Nat’l Bank v. Rostek, 514 P.2d 314, 319-20 (Colo. 1973)). Absent a forum-state “statutory directive,” the Restatement advises a court to consider seven factors: (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied.

Restatement (Second) of Conflict of Laws: Choice-of-Law Principles § 6 (Am. L. Inst. 1971). The commentary to § 6 identifies the first factor as “[p]robably the most important function of choice-of-law rules” because choice-of-law rules are designed “to further harmonious relations between states and to facilitate commercial intercourse between them.” Id. § 6 cmt. d. Meanwhile, the second factor takes into account any special interests, beyond serving as the forum for the action, that the forum state has in the litigation. Id. § 6 cmt. e. As to the fourth factor-“the protection of justified expectations, “- the comments to § 6 note: This is an important value in all fields of the law, including choice of law. Generally speaking, it would be unfair and improper to hold a person liable under the local law of one state when he had justifiably molded his conduct to conform to the requirements of another state.

Id. § 6 cmt. g.

A more specific section of the Restatement addressing contracts lacking a choice-of-law provision provides additional guidance: (1) The rights and duties of the parties with respect to an issue in contract are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the transaction and the parties under the principles stated in § 6. (2) In the absence of an effective choice of law by the parties . . ., the contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include: (a) the place of contracting, (b) the place of negotiation of the contract, (c) the place of performance, (d) the location of the subject matter of the contract, and (e) the domicile, residence, nationality, place of incorporation and place of business of the parties. These contacts are to be evaluated according to their relative importance with respect to the particular issue.

Restatement (Second) of Conflict of Laws: Law Governing in Absence of Effective Choice by the Parties § 188.

b. Colorado law controls

We conclude that, under the Restatement, a Colorado court would apply Colorado law to determine the validity and enforceability of the liability release relied upon by WEI. First looking at § 6 of the Restatement, the liability release was drafted by a Colorado corporation to cover services provided exclusively in Colorado. Applying out-of-state law to interpret the liability release would hinder commerce, as it would require WEI and other outdoor-recreation companies to know the law of the state in which a given participant lives. Such a rule would place a significant burden on outdoor-recreation companies who depend on out-of-state tourists for revenue because it would require a company like WEI to match the various requirements of the other forty-nine states. This approach would not give WEI the benefit of having logically molded its liability release to comply with Colorado law, the law of the state where WEI does business. Furthermore, Ms. Hamric’s primary argument for applying Texas law is that Mr. Hamric signed the forms in Texas. But a rule applying out-of-state law on that basis is likely to deter WEI from furnishing the liability release until a participant enters Colorado. And, while not providing participants the forms until arrival in Colorado might lessen WEI’s liability exposure under out-of-state law, such a practice would not benefit participants because it would pressure participants into a last-minute decision regarding whether to sign the liability release after having already traveled to Colorado for the outdoor excursion.

Colorado also has a strong interest in this matter. Colorado has a booming outdoor-recreation industry, in the form of skiing, hiking, climbing, camping, horseback riding, and rafting excursions. Colorado relies on tax receipts from the outdoor-recreation industry. And while many out-of-state individuals partake in these activities within Colorado, they often purchase their tickets or book excursion reservations before entering Colorado. If we applied Texas law because it is the state where Mr. Hamric signed the liability release, we would essentially allow the other forty-nine states to regulate a key industry within Colorado. Such an approach is impractical and illogical.

Further, the considerations and contacts listed in § 188 of the Restatement favor application of Colorado law. As to the first contact, in accord with the commentary, a contract is formed in “the place where occurred the last act necessary to give the contract binding effect.” Id. § 188 cmt. e. Here, that act occurred when the church group provided the forms to WEI in Colorado; for, before the forms were provided to WEI, Mr. Hamric had not conveyed his acceptance to WEI and WEI did not know whether Mr. Hamric would complete the forms and agree to the liability release. See Scoular Co. v. Denney, 151 P.3d 615, 619 (Colo.App. 2006) (discussing means of accepting an offer and stating “general rule that communication is required of the acceptance of the offer for a bilateral contract”). The second contact consideration is not applicable because the terms of the Medical Form precluded alteration, and there is no suggestion in the record Mr. Hamric attempted to negotiate the terms of the liability release before signing the forms. The third and fourth factors heavily favor application of Colorado law because WEI provides outdoor excursion services in Colorado, not Texas, and Mr. Hamric knew such when he signed the forms. Finally, the fifth factor is neutral because Mr. Hamric was a resident of Texas and WEI has its place of business in Colorado. With three factors favoring Colorado law, one factor inapplicable, and one factor neutral, the overall weight of the § 188 factors favors application of Colorado law.

Concluding that both § 6 and § 188 of the Restatement strongly support application of Colorado law, we hold that a Colorado court would choose to apply Colorado law, not Texas law, when determining whether the Registration Form and Medical Form contain a valid liability release. We, therefore, proceed to that analysis.

4. The Liability Release Is Valid under Colorado Law

Under Colorado law, “[a]greements attempting to exculpate a party from that party’s own negligence have long been disfavored.” Heil Valley Ranch, 784 P.2d at 783.But, such “[e]xculpatory agreements are not necessarily void,” as courts recognize that “[t]hey stand at the crossroads of two competing principles: freedom of contract and responsibility for damages caused by one’s own negligent acts.” Id. at 784.In assessing the validity of a release, “a court must consider: (1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.” Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981); see also Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004) (a release agreement “must be closely scrutinized to ensure that the intent of the parties is expressed in clear and unambiguous language and that the circumstances and the nature of the service involved indicate that the contract was fairly entered into”).

Ms. Hamric challenges only WEI’s ability to show “whether the intention of the parties is expressed in clear and unambiguous language.”[ 9] “To determine whether the intent of the parties is clearly and unambiguously expressed, [the Colorado Supreme Court has] examined the actual language of the agreement for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions.” Chadwick, 100 P.3d at 467. In general accord with this statement, federal district courts in Colorado have discerned five factors from Colorado Supreme Court decisions to determine if a release is unambiguous: (1) “whether the agreement is written in simple and clear terms that are free from legal jargon”; (2) “whether the agreement is inordinately long or complicated”; (3) “whether the release specifically addresses the risk that caused the plaintiff’s injury”; (4) “whether the contract contains any emphasis to highlight the importance of the information it contains”; and (5) “whether the plaintiff was experienced in the activity making risk of that particular injury reasonably foreseeable.” Salazar v. On the Trail Rentals, Inc., Civil Action No. 11-cv-00320-CMA-KMT, 2012 WL 934240, at *4 (D. Colo. Mar. 20, 2012) (deriving factors from Heil Valley Ranch, 784 P.2d at 785; Chadwick, 100 P.3d at 467); see also Eburn v. Capitol Peak Outfitters, Inc., 882 F.Supp.2d 1248, 1253 (D. Colo. 2012) (citing factors set forth in Salazar). Each and every factor, however, need not be satisfied for a court to uphold the validity of a liability release, as the Colorado Supreme Court has upheld the validity of a release where the signor was a novice at the outdoor activity in question. See B & B Livery, Inc., 960 P.2d at 138 (upholding liability release without finding every factor favored validity); id. at 139-40 (Hobbs, J., dissenting) (discussing signor’s inexperience riding horses).

The first four factors taken from Heil Valley Ranch and Chadwick support the validity of the liability release in the Registration Form and Medical Form. The forms span a mere two pages, with language pertinent to the liability release in only four sections of the forms. And those four sections are generally free of legal jargon. For instance, in detailing the scope of the release, the Registration Form required the participant/signor to “hold harmless Wilderness Expeditions, Inc. . . . for any injury or death caused by or resulting from my or my child’s participation in the activities.”[ 10] App. Vol. I at 57, 83. And this language comes after the form describes several of the risks associated with the activities, including “that accidents or illness can occur in remote places without medical facilities” and that “any route or activity chosen [by WEI] may not be of minimum risk, but may have been chosen for its interest and challenge.” Id. The Registration Form also twice places bolded emphasis on the fact that a participant was releasing WEI from liability: “By signing my initials below, I certify this is a release of liability.”Id. Finally, although not explicitly a factor identified by Colorado courts, we observe WEI provided the church group with the forms, and Mr. Hamric completed the forms, months before the booked excursion. Thus, if Mr. Hamric personally had difficulty understanding any of the language on the forms, he had ample time to contact WEI for an explanation or consult legal counsel.

The sole factor clearly cutting against enforcement of the liability release is Mr. Hamric’s lack of rappelling experience. However, as noted above, the Colorado Supreme Court has not found this consideration to be dispositive against the enforcement of a liability waiver. See B & B Livery, Inc., 960 P.2d at 138-39. And, where the liability release between Mr. Hamric and WEI is otherwise clear, specific, and uncomplicated, Mr. Hamric’s lack of experience rappelling is insufficient to defeat the release as a whole.

Accordingly, applying Colorado law, we hold the liability release is valid and its enforcement bars Ms. Hamric’s negligence claim. Therefore, we affirm the magistrate judge’s grant of summary judgment in favor of WEI.

III. CONCLUSION

We affirm the denial of Ms. Hamric’s motion for leave to amend her complaint because the magistrate judge did not abuse her discretion where Ms. Hamric did not attempt to satisfy the Federal Rule of Civil Procedure 16(b) standard for amending the Scheduling Order. We also affirm the denial of Ms. Hamric’s discovery motions, holding the magistrate judge did not abuse her discretion where the items Ms. Hamric sought to discover were either already in the record, were not necessary to determine the validity of the liability release, or went to Ms. Hamric’s effort to obtain exemplary damages, which she could not pursue given the denial of her motion for leave to amend her complaint. Finally, applying de novo review to the choice-of-law issue and the issue regarding the validity of the liability release, we conclude Colorado law applies and the release is valid and enforceable under that law. Therefore, we affirm the magistrate judge’s grant of summary judgment to WEI.

———

Notes:

[ 1]Here, we summarize the Registration Form and the Medical Form. Copies of the full forms, taken from the Appendix submitted by Ms. Hamric, are attached to this opinion. We rely on the full forms, and all of the language thereon, when conducting our analysis. Further, as discussed infra at 25-27, Section II(C)(2)(b)(ii), while the Registration Form and Medical Form could be viewed as separate forms, Colorado law requires us to consider both forms together when conducting our analysis.

[ 2]Throughout our opinion, we cite simultaneously to the Registration Form or Medical Form attached to WEI’s motion for summary judgment, App. Vol. I at 57- 58, and the Registration Form or Medical Form attached to Ms. Hamric’s response to WEI’s motion for summary judgment, id. at 83-84. Although the language of the two sets of forms are identical, the clarity of the text varies somewhat, seemingly based on the proficiency of the respective copy machines used by the parties.

[ 3]In quoting the forms, we seek to replicate the font size, spacing, and bolding of the text of the Registration Form and Medical Form completed by Mr. Hamric.

[ 4] Under Colorado law: A claim for exemplary damages in an action governed by [§ 13-21-102 of the Colorado Revised Statutes] may not be included in any initial claim for relief. A claim for exemplary damages in an action governed by this section may be allowed by amendment to the pleadings only after the exchange of initial disclosures . . . and the plaintiff establishes prima facie proof of a triable issue.

Colo. Rev. Stat. § 13-21-102(1.5)(a).

[ 5]Although Ms. Hamric’s action sounds in tort law, on appeal, the parties do not contend that tort principles provide the framework for the choice-of-law analysis regarding the liability release. Thus, we reach no conclusion as to whether Colorado law or Texas law would govern if tort principles played a role in the choice-of-law analysis.

[ 6]While the magistrate judge incorrectly stated the standard governing WEI’s motion for summary judgment, it is not apparent the magistrate judge’s analysis and conclusion that WEI was entitled to summary judgment hinged on Ms. Hamric’s failure to identify evidence supporting each element of her negligence claim. Rather, the magistrate judge correctly granted WEI summary judgment based on the liability release and WEI’s affirmative defense.

[ 7]WEI has advanced inconsistent positions on whether the Registration Form and Medical Form comprised a single agreement. Although on appeal WEI argues the forms constitute a single agreement releasing liability, WEI’s Answer to Ms. Hamric’s Complaint treats the two forms as separate agreements, stating that “[d]ecedent Gerald Hamric executed a valid and enforceable liability release. Decedent Gerald Hamric also executed a medical evaluation.” App. Vol. I at 32 (emphasis added).

[ 8]Although we conclude that Colorado law, not Texas law, controls the validity of the liability release, infra at 28-33, Section II(C)(3), Texas law likewise permits a court to read separate but related documents together when determining the intent of the parties, see Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 840 (Tex. 2000) (“The City’s argument ignores well-established law that instruments pertaining to the same transaction may be read together to ascertain the parties’ intent, even if the parties executed the instruments at different times and the instruments do not expressly refer to each other, and that a court may determine, as a matter of law, that multiple documents comprise a written contract. In appropriate instances, courts may construe all the documents as if they were part of a single, unified instrument.” (footnotes omitted)).

[ 9]Ms. Hamric also argues that the question of whether Mr. Hamric and WEI entered into a liability release was a question of fact for a jury. But Ms. Hamric withdrew her fact-based challenge to the authenticity of the forms. Further, under Colorado law, “[t]he determination of the sufficiency and validity of an exculpatory agreement is a question of law for the court to determine.” Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981). And, where a liability release has force only if it is “clear and unambiguous,” id., the question of the existence of a liability release and its validity are one in the same because if the language relied on by a defendant does not form a valid release, then no liability release exists.

[ 10] The omitted language marked by the ellipses also required a signor/participant to hold federal and state agencies harmless for injuries or death that might occur as a result of WEI-led activities on federal or state land. Like the rest of the release, this language is plain and clear such that any reasonably educated individual would understand the nature of the release as to these third parties.


N.H. Fish & Game Dep’t v. Bacon, 167 N.H. 591, 116 A.3d 1060, 2015 N.H. LEXIS 34

N.H. Fish & Game Dep’t v. Bacon, 167 N.H. 591, 116 A.3d 1060, 2015 N.H. LEXIS 34 

Supreme Court of New Hampshire

January 15, 2015, Argued; April 30, 2015, Opinion Issued

No. 2014-158

New Hampshire Fish and Game Department v. Edward Bacon

Prior History:  [***1]  6th Circuit Court — Concord District Division.

NEW HAMPSHIRE OFFICIAL REPORTS HEADNOTES

NH1.[] 1.

Negligence > Standard of Care > Ordinary and Reasonable Care

The search and rescue response statute plainly is intended to create a statutory cause of action in favor of the New Hampshire Fish and Game Department to recover the costs it incurs in conducting a search and rescue operation for a person whose negligent conduct required such an operation. Whether or not a common law duty exists, a plaintiff may maintain an action directly under a statute if a statutory cause of action is either expressed or implied by the legislature. Also plain is that the statute imposes as the duty of care the common law standard of negligence, which has been defined as how a reasonable person would be expected to act under the same circumstances. Thus, in order to avoid liability for search and rescue costs, the defendant must have acted in a manner that was reasonable under all of the circumstances. Accordingly, the trial court did not err in using the common law standard of negligence to evaluate defendant’s conduct under the statute. RSA 206:26-bb.

NH2.[] 2.

Appeal and Error > Standards of Review > Generally

The court will uphold the trial court’s findings and rulings unless they lack evidentiary support or are legally erroneous. It is within the province of the trial court to accept or reject, in whole or in part, whatever evidence was presented, including that of the expert witnesses. The standard of review is not whether the court would rule differently than the trial court, but whether a reasonable person could have reached the same decision as the trial court based upon the same evidence. Thus, the court defers to the trial court’s judgment on such issues as resolving conflicts in the testimony, measuring the credibility of witnesses, and determining the weight to be given evidence.

NH3.[] 3.

Negligence > Proceedings > Generally

In determining that a hiker was liable under the search and rescue response statute for his rescue costs, the trial court properly found that he was negligent when he had undergone multiple hip surgeries, had an artificial hip that had dislocated five times, had trained in a city park that did not remotely resemble the challenging mountain terrain he [*592]  would experience, had continued his hike despite the fact that bad weather had been forecast days in advance and when he encountered high winds and rain early on, and chose to jump backward over a rock ledge he was unable to pass. RSA 206:26-bb.

NH4.[] 4.

Negligence > Proximate Cause > Tests and Standards

To establish proximate cause a plaintiff must show that the defendant’s conduct caused or contributed to cause the harm.

NH5.[] 5.

Damages > Practice and Procedure > Generally

In reviewing damage awards, the court will consider the evidence in the light most favorable to the prevailing party. Furthermore, the court will not disturb the decision of the fact-finder unless it is clearly erroneous. The law does not require absolute certainty for recovery of damages. The court does, however, require an indication that the award of damages was reasonable.

NH6.[] 6.

Negligence > Damages > Particular Cases

The damage award of $9,186.38 against a rescued hiker who was found to have been negligent under the search and rescue response statute was reasonable when it represented the costs for the 15 people who participated in the rescue, including overtime, mileage, and benefits. The hiker’s argument that the Fish and Game Department employees were on duty and would have been paid regardless of their participation in the rescue failed to take into account the overtime paid, and also ignored the fact that by being diverted to the rescue operation, the employees were unable to perform their other assigned duties. RSA 206:26-bb.

NH7.[] 7.

Environment and Natural Resources > Game and Fish > Particular Matters

The search and rescue response statute specifically states that the New Hampshire Fish and Game Department is to receive the reasonable costs associated with a rescue. Nothing in the statute otherwise limits the Department’s recovery, and the court will not add limiting language to the statute that the legislature did not include. RSA 206:26-bb.

NH8.[] 8.

Statutes > Generally > Legislative History or Intent

A court interprets legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include.

Counsel: Joseph A. Foster, attorney general (Philip B. Bradley, assistant attorney general, on the brief and orally), for the State.
Seufert, Davis & Hunt, PLLC, of Franklin (Brad C. Davis on the brief and orally), for the defendant.

Judges: LYNN, J. DALIANIS, C.J., and HICKS, CONBOY, and BASSETT, JJ., concurred.

Opinion by: LYNN

Opinion

 [**1062]  Lynn, J. The defendant, Edward Bacon, appeals an order of the Circuit Court (Boyle, J.), following a bench trial, finding that he violated RSA 206:26-bb (2011) (amended 2014) by acting negligently while hiking, so as to require a search and rescue effort by the plaintiff, the New Hampshire Fish and Game Department (Department), and that he, thus, was responsible to the Department for the reasonable costs associated with the search and rescue. We affirm.

I

The following facts are established by the record. On September 16, 2012, the defendant began a five-day solo hiking trip in the White [*593]  Mountains, during which he planned to hike several mountains with summits over 5,000 feet. At the time of the hike, the defendant was fifty-nine years old, had undergone four hip surgeries since 2005, and had an artificial hip that had dislocated on five occasions, twice [***2]  during the prior year. The defendant also had a “bad back” and was taking a variety of medications for multiple ailments. In preparation for his hike, the defendant trained in a city park in Michigan, which had 250-foot hills and some “gravelly” spots. The conditions on the Franconia Ridge Trail between Liberty and Little Haystack Mountains, on which the rescuers eventually located the defendant, are rocky and steep in various locations.

 [**1063]  On September 18, the defendant left the Liberty Springs campsite to begin a planned hike to the summits of Liberty, Little Haystack, Lincoln, and Lafayette Mountains; he planned to end at the Greenleaf Hut, which provides overnight accommodations to hikers. Days in advance, stormy weather had been forecast for the morning the defendant began the hike, and rain began a few hours after he departed the campsite. A bit later, the defendant’s pack cover “on its own accord came off and flew away in the wind.” Sergeant Brad Morse, a Conservation Officer with the Department who helped rescue the defendant, testified that the winds were among the worst he had ever experienced in that part of the Franconia Ridge Trail and had repeatedly blown him to the ground. [***3]  Sometime that morning, the defendant slipped on loose gravel, slid down the trail, hit his pack on a rock, and lost his tent which fell down a ravine. At noon time, the defendant took a photograph of two other hikers he encountered on the trail, both of whom were wearing full rain gear with their hoods over their heads.

At around 1:00 p.m., the defendant encountered a waist-high rock ledge that he needed to traverse in order to continue on the trail. He attempted to jump backward up onto the ledge and, in the process, fell and dislocated his hip. Approximately one hour later, Morse received an alert that a hiker had dislocated his hip and needed assistance. He responded immediately and eventually located the defendant on the trail between Little Haystack and Lincoln Mountains. Morse testified that when he found the defendant his left leg was flexed and internally rotated, the very position that the defendant’s orthopedic surgeon had warned him to avoid due to his hip replacement.

Approximately fifteen Department personnel and thirty-five volunteers participated in the defendant’s rescue during the afternoon and evening of September 18 and into the early morning hours of September 19. [***4]  When Lieutenant James Kneeland visited the defendant in the hospital after his rescue, the defendant explained that he had misread the weather report: he thought the forecast called for 30-40 mph winds with gusts up to 70 mph and heavy rain, instead of the actual forecast of 30-40 mph winds increasing [*594]  to 70 mph and heavy rain. The defendant also told Kneeland that he had caught his left leg while attempting to jump backward up onto a rock ledge and dislocated his artificial hip when he fell.

The defendant testified to a different version of events at trial. For instance, he testified that he was unaware of the weather conditions on the day of the hike because he did not have his reading glasses with him, and that he did not encounter any significant rain or wind. Additionally, he testified that when he dislocated his hip he had not fallen, as he told Kneeland, but instead had jumped backward over a rock ledge and swung his legs up while perfectly maintaining his left leg to avoid flexion and internal rotation.

At the close of the trial, the court accepted closing memoranda from both parties. Thereafter, the court found for the Department “for all of the reasons cited in the plaintiff’s [***5]  closing memorandum,” and awarded the Department $9,334.86 in damages. The defendant filed a motion to reconsider, to which the Department objected. The court denied the defendant’s motion, stating that “[t]he actions of the defendant were a gross deviation from those of a reasonable person that surpasses the [negligence] standard required.” This appeal followed.

II

The defendant raises three arguments on appeal. First, he argues that the trial  [**1064]  court erred by judging his conduct under an ordinary negligence standard which, he asserts, is not the standard mandated by RSA 206:26-bb. Second, he argues that there was insufficient evidence to support the court’s finding that his actions while hiking were negligent, thus necessitating his rescue by the Department. Third, he argues that the court’s damages award was improper under RSA 206:26-bb because the award included recovery for expenses that the Department would have incurred regardless of its effort to rescue him. We address each argument in turn.

A

The defendant first argues that the court erred by applying the ordinary negligence standard to determine his liability under RSA 206:26-bb. He characterizes this standard as “incorrect,” and asserts that the court should instead have [***6]  applied “the full and complete” civil standard of negligence, although he fails to articulate how this standard differs from the standard of “ordinary negligence.”

To resolve this issue we must engage in statutory interpretation. HN1[] “Statutory interpretation is a question of law, which we review de novo.” [*595] 
Appeal of Local Gov’t Ctr., 165 N.H. 790, 804, 85 A.3d 388 (2014). “In matters of statutory interpretation, we are the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole.” Id. “We first look to the language of the statute itself, and, if possible, construe that language according to its plain and ordinary meaning.” Id. “We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include.” Id. “We construe all parts of a statute together to effectuate its overall purpose and avoid an absurd or unjust result.” Id.

NH[1][] [1] We have not previously had occasion to construe the search and rescue response statute. It provides, in pertinent part:

HN2[] I. [A]ny person determined by the department to have acted negligently in requiring a search and rescue response by the department shall be liable to the department [***7]  for the reasonable cost of the department’s expenses for such search and rescue response. The executive director shall bill the responsible person for such costs. Payment shall be made to the department within 30 days after the receipt of the bill, or by some other date determined by the executive director. If any person shall fail or refuse to pay the costs … the department may pursue payment by legal action … .

RSA 206:26-bb. HN3[] This statute plainly is intended to create a statutory cause of action in favor of the Department to recover the costs it incurs in conducting a search and rescue operation for a person whose negligent conduct required such an operation. See Marquay v. Eno, 139 N.H. 708, 714, 662 A.2d 272 (1995) (“Whether or not a common law duty exists, … a plaintiff may maintain an action directly under [a] statute if a statutory cause of action is either expressed or implied by the legislature.”). Also plain is that the statute imposes as the duty of care the common law standard of negligence, which we have defined as how a reasonable person would be expected to act under the same circumstances. See Gelinas v. Metropolitan Prop. & Liability Ins. Co., 131 N.H. 154, 161, 551 A.2d 962 (1988). Thus, in order to avoid liability for search and rescue costs, the defendant must have hiked in a manner that was reasonable under [***8]  all of the circumstances. Accordingly, we hold that the trial court did not err in using the common law standard of negligence to  [**1065]  evaluate the defendant’s conduct under RSA 206:26-bb.

B

The defendant next argues that there was insufficient evidence upon which to find that he acted negligently, resulting in his need for rescue by [*596]  the Department. In particular, the defendant takes issue with the fact that the trial court’s order stated that it found for the Department “for all of the reasons cited in the plaintiff’s closing memorandum.” He asserts that, in so doing, the court improperly adopted as its findings the facts recited in the Department’s memorandum — which facts, he claims, are not supported by the evidence. We disagree.

NH[2][] [2] HN4[] We will uphold the trial court’s findings and rulings unless they lack evidentiary support or are legally erroneous. Cook v. Sullivan, 149 N.H. 774, 780, 829 A.2d 1059 (2003). “It is within the province of the trial court to accept or reject, in whole or in part, whatever evidence was presented, including that of the expert witnesses.” Id. “Our standard of review is not whether we would rule differently than the trial court, but whether a reasonable person could have reached the same decision as the trial court based upon the same [***9]  evidence.” Id. “Thus, we defer to the trial court’s judgment on such issues as resolving conflicts in the testimony, measuring the credibility of witnesses, and determining the weight to be given evidence.” Id.

We first consider the defendant’s argument that the trial court’s findings are not supported by the evidence because the court adopted the Department’s closing memorandum, which he claims relied upon findings that were also not supported by the evidence. Having reviewed both the evidence presented at trial and the Department’s closing memorandum, we reject the defendant’s argument that the Department’s closing memorandum was not supported by the evidence.

NH[3][] [3] We next consider whether there was sufficient evidence to support the trial court’s determination that the defendant acted negligently. As previously stated, a person violates RSA 206:26-bb by not acting as a reasonable person would have acted under the same circumstances. The defendant argues that he did not act negligently because he was prepared for the conditions, physically capable, had proper equipment, and had adequately planned his hike. The trial court concluded to the contrary when it found that the defendant did not act as a reasonably [***10]  prudent hiker would have acted under the same circumstances. The following facts, recited by the Department in its memorandum and based upon the evidence, support the trial court’s conclusion: the defendant had undergone multiple hip surgeries; he had an artificial hip that had dislocated five times, twice within the year prior to his hike; he had trained in a city park that did not remotely resemble the challenging terrain he would experience in the White Mountains; he had continued his hike despite the fact that bad weather had been forecast days in advance and that he encountered high winds and rain early into his hike; and he chose to jump backward over a rock ledge he was unable to pass, despite his artificial hip and experience with hip dislocation.

 [*597] NH[4][] [4] To the extent that the defendant argues that his injury was not foreseeable, we agree with the trial court’s conclusions that the defendant’s injury was foreseeable and directly caused his need to be rescued by the Department. See Estate of Joshua T. v. State, 150 N.H. 405, 408, 840 A.2d 768 (2003) (stating that HN5[] to establish proximate cause a plaintiff must show “that the defendant’s conduct caused or contributed to cause the harm”). For the foregoing reasons  [**1066]  we conclude that the trial court’s determination [***11]  that the defendant acted negligently does not lack evidentiary support and is not legally erroneous. See Cook, 149 N.H. at 780. Accordingly, we uphold the trial court’s ruling.

C

Finally, the defendant argues that the court’s damages award was improper because it included wages and mileage for on-duty Department officers who would have been paid regardless of their participation in the rescue operation. In essence, he claims that the damages provide a windfall to the Department. We disagree.

NH[5][] [5] HN6[] “In reviewing damage awards, we will consider the evidence in the light most favorable to the prevailing party.” Gallentine v. Geis, 145 N.H. 701, 703, 765 A.2d 696 (2001) (quotation and brackets omitted). “Furthermore, we will not disturb the decision of the fact-finder unless it is clearly erroneous.” Id. (quotation omitted). “The law does not require ‘absolute certainty’ for recovery of damages.” Id. (quotation omitted). “We do, however, require an indication that the award of damages was reasonable.” Id.
RSA 206:26-bb states that “any person determined by the department to have acted negligently in requiring a search and rescue response by the department shall be liable to the department for the reasonable cost of the department’s expenses for such search and rescue response.” (Emphasis [***12]  added.)

NH[6][] [6] The trial court awarded $9,186.38 in damages to the Department, plus costs and interest. At trial, Kneeland testified that this amount represented the Department’s costs for the fifteen personnel who participated in the rescue, and included overtime, mileage, and benefits. These figures were contained in a document entitled “Search and Rescue Mission Report,” which was admitted by stipulation as a full exhibit. This detailed, itemized report, when viewed in the light most favorable to the Department, indicates that the trial court’s damages award represented the “reasonable costs” associated with the rescue, as required by RSA 206:26-bb.

NH[7,8][] [7, 8] We reject the defendant’s argument that this sum provides a windfall to the Department because certain officers were on duty and thus would have been paid regardless of their participation in his rescue. Not only does this argument fail to take into account the overtime paid to [*598]  Department employees who would not have worked in the absence of the rescue, but it also ignores the fact that, by being diverted to the rescue operation, Department employees were unable to perform their other assigned duties. HN7[] The statute specifically states that the Department is [***13]  to receive the “reasonable costs” associated with the rescue. RSA 206:26-bb. Nothing in the statute otherwise limits the Department’s recovery, and we will not add limiting language to the statute that the legislature did not include. See Appeal of Local Gov’t Ctr., 165 N.H. at 804 (HN8[] “We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include.”). Because the trial court’s damages award of $9,186.38, plus costs and interest, is reasonable, and thus is not clearly erroneous, we uphold it.

Affirmed.

Dalianis, C.J., and Hicks, Conboy, and Bassett, JJ., concurred.


Fox Factory, Inc v. The Superior Court of Santa Clara County, 11 Cal.App.5th 197, 217 Cal.Rptr.3d 366

Fox Factory, Inc v. The Superior Court of Santa Clara County, 11 Cal.App.5th 197, 217 Cal.Rptr.3d 366

11 Cal.App.5th 197

217 Cal.Rptr.3d 366

Fox Factory, Inc., Petitioner,

v.

The Superior Court of Santa Clara County, Respondent; PETER ISHERWOOD, Real Party in Interest

No. H043648

California Court of Appeals, Sixth District

April 27, 2017

Superior Court of Santa Clara County, No.: 1-13-CV-245098, Beth McGowen, Judge.

11 Cal.App.5th 198

[Copyrighted Material Omitted]

11 Cal.App.5th 199

COUNSEL

Paul Rosenlund, Paul J. Killion, Justin Fields and Duane Morris for Petitioner.

No appearance for Respondent.

Law Office of Gary L. Simms, Gary L. Simms; Rouda, Feder, Tiejen & McGuinn and Cynthia McGuinn for Real Party in Interest.

Opinion by Elia, J., with Premo, Acting P. J., and Grover, J., concurring.

OPINION

ELIA, J.

11 Cal.App.5th 200

[217 Cal.Rptr.3d 368] Petitioner Fox Factory, Inc., doing business as Fox Racing Shox (Fox), is the defendant in an action for personal injuries brought in Santa Clara County by plaintiff and real party in interest Peter Isherwood. Fox moved to dismiss or stay plaintiff’s lawsuit under the doctrine of forum non conveniens, but the superior court denied the motion, citing authority requiring California to be a ” seriously inconvenient” forum for the motion to succeed. Fox seeks writ review, contending that the court applied the wrong legal standard in denying the motion. We agree. Accordingly, we will grant the petition and direct the superior court to reconsider Fox’s motion under the proper standard.

Background

Plaintiff Isherwood is a Canadian citizen and resident of British Columbia. Fox, a California corporation, manufactures bicycle parts, including front fork racing shocks. On April 24, 2011, plaintiff was mountain biking downhill in British Columbia on a full-suspension mountain bike purchased from Oak Bay Bikes, a retail bicycle shop in British Columbia. The mountain bike was assembled with specialized component parts selected by plaintiff from various manufacturers, including a frame manufactured by Specialized Bicycle Components, Inc. (Specialized), [217 Cal.Rptr.3d 369] a California corporation; an adapter made by Full Speed Ahead, Inc., a Washington corporation; a headset made by King Cycle Group, Inc. (King), an Oregon corporation; [1] and Fox Vanilla 36 RC forks which ” a lot of professionals rode.” According to plaintiff’s first amended complaint, the steerer tube used in the Fox racing shocks broke as plaintiff landed a jump. Plaintiff was thrown forward, resulting in a spinal cord injury.

Plaintiff filed this action on April 22, 2013, alleging negligence, strict products liability, breach of the implied warranty of merchantability, and breach of the implied warranty for a particular purpose. Tamara Jayne Bickerton, who later became plaintiff’s wife,[2] also alleged loss of consortium, but she subsequently obtained dismissal of her claim with prejudice. In addition to Fox, plaintiff named Specialized, King, and Full Speed Ahead.

The following day, April 23, 2013, plaintiff filed another court action in Vancouver, British Columbia, naming as defendants SNC Cycles Ltd. (SNC Cycles) and three Doe corporations, as well as three individuals as John Doe defendants. In this pleading plaintiff alleged that the identities of the corporate and individual Doe defendants were unknown to him, even though the

11 Cal.App.5th 201

allegations were the same as those in the California action filed one day earlier. He also alleged that SNC Cycles was the owner and operator of Oak Bay Bicycles. As in the California action, plaintiff claimed that the negligence of these defendants was responsible for the April 24, 2011 accident that had caused his injuries.

The caption of the British Columbia pleading named ” Peter Dilwyn Iserwood” as plaintiff. According to Fox, the misspelling of plaintiff’s name, together with the intentional withholding of the defendants’ true names, precluded discovery of this lawsuit despite ” multiple searches” of the dockets of the Vancouver courts. In addition, plaintiff had testified in his October 2014 deposition that he had never been a plaintiff ” in a lawsuit other than this one.” He also answered ” no” to an interrogatory question about whether, in the past 10 years, he had ” filed an action or made a written claim or demand for compensation for [his] personal injuries.”

Full Speed Ahead obtained summary judgment in the California action on December 18, 2014. Specialized and King likewise obtained summary judgment on February 19, 2016, leaving only Fox as a defendant in this case.

On March 1, 2016, Fox moved to dismiss or, in the alternative, stay all further proceedings in the California case on the ground of forum non conveniens. Citing Code of Civil Procedure sections 410.30, subdivision (a),[3] and 418.10, subdivision (a)(2), Fox argued that British Columbia, where the Canadian case was ongoing, was a suitable forum because plaintiff was a British Columbia resident, the accident took place in British Columbia, and all relevant evidence, medical personnel, and percipient witnesses were located there. Fox believed it was at an unfair disadvantage because it had ” no way to compel the appearance at trial of any of the crucial Canadian witnesses,” whereas plaintiff would be able to obtain the cooperation of his most favorable witnesses. Furthermore, Oak Bay Bikes, the [217 Cal.Rptr.3d 370] British Columbia retailer, was a defendant in the Canadian action. The two cases should be tried together, Fox argued, to prevent piecemeal litigation, assure plaintiff a full recovery, and ensure the participation of Oak Bay Bikes, which was potentially liable. Finally, Fox argued that public interests favored sending this case–which could result in a lengthy, technically complex trial–to Canada, to avoid the further congestion of California’s already ” overburdened” courts by a plaintiff with no connection to this state. Fox stipulated that it would subject itself to jurisdiction in British Columbia.

Plaintiff responded that Fox’s motion was precluded as a matter of law because it had already taken advantage of California’s legal process by conducting discovery in the case. Plaintiff did not dispute that British Columbia was a suitable forum, but he maintained that California was ” equally suitable.” In his view, the private and public interest factors did not support a conclusion that California was a ” seriously inconvenient forum.”

Fox disputed plaintiff’s claims of discovery abuse and pointed to misstatements in plaintiff’s own discovery responses. It explained that despite its docket searches, it had not learned of the British Columbia lawsuit until June 2015, through its communication with Oak Bay Bikes (which had not been named in the California action). Fox asserted that plaintiff had ” deliberately concealed” the British Columbia litigation. Not only was plaintiff’s name misspelled in the caption of the British Columbia complaint, but he had withheld the identities of the defendants by suing them as Doe corporations and alleging that he was unaware of their identities. One of those Doe defendants was Fox itself, through the allegation of the negligent design or manufacture of the steerer tube.[4] Fox also pointed out that even after it learned about the British Columbia lawsuit, it ” lacked universal consensus among defendants” and therefore was unable to seek a stay or dismissal until the other defendants had obtained summary judgment.

On April 19, 2016, the superior court denied Fox’s motion. It rejected plaintiff’s theory that Fox had made an untimely request after conducting extensive discovery: ” Regardless of whether plaintiff was forthcoming about having filed a lawsuit in Canada,” plaintiff did initiate suit there arising from the same facts, and Fox ” could not have brought this motion sooner due to the involvement of other defendants who are no longer in the case.” The court further acknowledged the parties’ stipulation that British Columbia was a suitable forum. It then proceeded to weigh the private and public interest factors it found relevant. Invoking the test articulated in Ford Motor Co. v. Insurance Co. of North America (1995) 35 Cal.App.4th 604, 611 [41 Cal.Rptr.2d 342] ( Ford ), the court stated that ” [t]he inquiry is not whether some other state or country provides a better forum than does California, ‘but whether California is a seriously inconvenient forum.’ Ford Motor Co. v. Insurance Co. of North America [ , supra, ] 35 Cal.App.4th 604, 611 (quoting Northrop Corp. v. American Motorists Ins. Co. [(1990)] 220 Cal.App.3d [1553,] 1561 [270 Cal.Rptr. 233]). While there are some factors [that] weigh against maintaining this action in California, others weigh in favor of proceeding here, such as whether a California defendant is manufacturing and selling defective parts. After balancing [217 Cal.Rptr.3d 371] several factors, the Court concludes that California is not an inconvenient forum.” On November 4, 2016, after receiving Fox’s petition for writ of mandate and plaintiff’s preliminary opposition, we issued an order to show cause. Plaintiff filed a return, followed by Fox’s reply.

Discussion

1. Legal Framework

The doctrine of forum non conveniens is rooted in equity. It allows a court to decline to exercise its jurisdiction over a case when it determines that the case ” may be more appropriately and justly tried elsewhere.” ( Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751 [1 Cal.Rptr.2d 556819 P.2d 14] ( Stangvik ).) The Legislature endorsed the application of this principle by enacting section 410.30, which states, in subdivision (a), ” When a court upon motion of a party or its own motion finds that in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action in whole or in part on any conditions that may be just.” As explained in the Judicial Council’s comment to this section, the provision ” authorizes a court to decline to exercise its jurisdiction in appropriate instances on the ground that the plaintiff has unfairly or unreasonably invoked the jurisdiction of an inconvenient forum.” (Judicial Council of Cal., com., reprinted at Deering’s Ann. Code Civ. Proc. (2015 ed.) foll. § 410.30, p. 337.)

Our Supreme Court in Stangvik set forth a two-step analysis for a court considering a forum non conveniens motion. ” A case-by-case examination of the parties, their dispute and the relationship of each to the state of California is the heart of the required analysis.” ( National Football League v. Fireman ‘ s Fund Ins. Co. (2013) 216 Cal.App.4th 902, 921 [157 Cal.Rptr.3d 318] ( National Football League ).) The court ” must first determine whether the alternate forum is a ‘suitable’ place for trial. If it is, the next step is to consider the private interests of the litigants and the interests of the public in retaining the action for trial in California. The private interest factors are those that make trial and the enforceability of the ensuing judgment expeditious and relatively inexpensive, such as the ease of access to sources of proof, the cost of obtaining attendance of witnesses, and the availability of compulsory process for attendance of unwilling witnesses. The public interest factors include avoidance of overburdening local courts with congested calendars, protecting the interests of potential jurors so that they are not called upon to decide cases in which the local community has little concern, and weighing the competing interests of California and the alternate jurisdiction in the litigation.” ( Stangvik, supra, 54 Cal.3d at p. 751, citing Piper Aircraft Co. v. Reyno (1981) 454 U.S. 235, 259-261 [70 L.Ed.2d 419102 S.Ct. 252] ( Piper ) and Gulf Oil Corp. v. Gilbert (1947) 330 U.S. 501, 507-509 [91 L.Ed. 105567 S.Ct. 839].) Also of potential concern is ” the interest in trying the case in a forum familiar with the applicable law, and the interest in avoiding unnecessary conflicts of laws.” ( Monegro v. Rosa (9th Cir. 2000) 211 F.3d 509, 512.) These public and private interests are to be ” applied flexibly, without giving undue emphasis to any one element.” ( Stangvik, supra, at p. 753.)

The burden of proof is on the defendant, as the party asserting forum non conveniens. ( Stangvik, supra, 54 Cal.3d at p. 751.) On appeal, the ” threshold” determination–the suitability of the alternative forum–is examined de novo. ( Id. at p. 752, fn. 3; American Cemwood Corp. v. American Home Assurance Co. (2001) 87 Cal.App.4th 431, 436 [104 Cal.Rptr.2d 670]; [217 Cal.Rptr.3d 372Investors Equity Life Holding Co. v. Schmidt (2011) 195 Cal.App.4th 1519, 1528 [126 Cal.Rptr.3d 135].) We review the ultimate ruling, however, for abuse of discretion, and the lower court’s ruling is entitled to ” substantial deference.” ( Stangvik, supra, at p. 751.)

Before proceeding to the merits of Fox’s petition, we briefly address plaintiff’s renewed assertion that Fox’s motion was untimely, because it could have sought a stay earlier but simply ” laid [ sic ] back and waited” for the other defendants to secure a favorable dismissal. We reject plaintiff’s argument, as did the superior court. The court was entitled to find that Fox could not practically have brought its motion any sooner while the other defendants remained in the case. Plaintiff fails to show error in either the court’s reasoning or its conclusion on this point.

2. The ” Seriously Inconvenient” Standard

The essence of Fox’s argument is that the superior court applied the wrong legal standard in denying Fox’s motion. Because plaintiff is a Canadian citizen, not a California resident, Fox contends that plaintiff was entitled to less deference in his forum choice, and it should not have been required to show that California was a seriously inconvenient forum in order to obtain a stay or dismissal.[5] Plaintiff responds that whether a plaintiff is a resident or nonresident is not dispositive: although the forum choices of nonresidents enjoy less deference than those of residents, ” both types of plaintiffs [ sic ] have the same burden–to show that California is seriously inconvenient. Fox muddles these two principles.”

In his return, plaintiff clarifies that it is the defendant that has this burden. He nonetheless adheres to the assertion that the required showing is a seriously inconvenient forum, even when the plaintiff is not a resident of California. Plaintiff even urges this court to reach the same result as we did in one of our unpublished decisions, as if withholding the name of the case allows it to rely on that opinion ” [t]o ensure consistency of decisional principle.” We will ignore plaintiff’s inappropriate, two-paragraph discussion of the court’s analysis in that case. (Cal. Rules of Court, rule 8.1115(a).) Suffice it to say that this court has never adopted the ” seriously inconvenient” standard advocated by plaintiff.

The primary source of the standard on which the court and plaintiff relied is Ford. In Ford the Second Appellate District, Division One, reversed a dismissal based on forum non conveniens in an action brought by a California plaintiff against multiple liability insurers. The court imposed on the defendants ” the burden of producing sufficient evidence to overcome the strong presumption of appropriateness attending plaintiff’s choice of forum. That is, the inquiry is not whether Michigan provides a better forum than does California, but whether California is a seriously inconvenient forum.” ( Ford, supra, 35 Cal.App.4th at p. 611; see also Morris v. AGFA Corp. (2006) 144 Cal.App.4th 1452, 1463-1464 [51 Cal.Rptr.3d 301] [upholding stay based on finding that California was a seriously inconvenient forum for Texas plaintiffs suing for toxic exposure of decedent in Texas]; Hansen v. Owens-Corning Fiberglas Corp. (1996) 51 Cal.App.4th 753, 760 [59 Cal.Rptr.2d 229] [217 Cal.Rptr.3d 373] [finding balance of public and private interests to favor Montana notwithstanding plaintiffs’ insistence that California was not ” seriously inconvenient” ]; In re Marriage of Taschen (2005) 134 Cal.App.4th 681, 691 [36 Cal.Rptr.3d 286] [upholding stay in favor of litigation in Germany based on trial court’s determination that California was a seriously inconvenient forum].)

Plaintiff insists that Ford articulated the proper test for determining Fox’s forum non conveniens motion. We disagree. First, applying the ” seriously inconvenient” standard to plaintiff’s lawsuit would amount to according his forum preference ” great weight,” as did the court in Ford. ( Ford, supra, 35 Cal.App.4th at p. 610.) But to do so here would contravene the guidance of our Supreme Court in Stangvik, which clearly explained that the forum choice of a foreign plaintiff is not entitled to a presumption of convenience. ( Stangvik, supra, 54 Cal.3d at pp. 754-755; see Piper, supra, 454 U.S. at pp. 255-256 [approving of distinction between a resident plaintiff’s choice of home forum and a foreign plaintiff’s choice, which ” deserves less deference” ].) In discussing the residence of the parties as a factor in the analysis of private and public interests, the Supreme Court in Stangvik limited the prior appellate holdings that the plaintiff’s forum choice ” should rarely be disturbed unless the balance is strongly in favor of the defendant.” ( Stangvik, supra, at p. 754.) ” [T]he reasons advanced for this frequently reiterated rule apply only to residents of the forum state: (1) if the plaintiff is a resident of the jurisdiction in which the suit is filed, the plaintiff’s choice of forum is presumed to be convenient [citations]; and (2) a state has a strong interest in assuring its own residents an adequate forum for the redress of grievances [citation]. … Where, however, the plaintiff resides in a foreign country, Piper holds that the plaintiff’s choice of forum is much less reasonable and is not entitled to the same preference as a resident of the state where the action is filed. ( Piper, supra, 454 U.S. at p. 256.)” ( Stangvik, supra, at pp. 754-755.) Accordingly, the choice of California as a forum by the Stangvik plaintiffs–all of whom were residents of Sweden or Norway–was ” not a substantial factor in favor of retaining jurisdiction here.” ( Id. at p. 755.)

Even the court in Ford acknowledged that under Stangvik ” a foreign, noncitizen plaintiff’s choice of forum is entitled to less deference.” ( Ford, supra, 35 Cal.App.4th at p. 611.) Northrop Corp. v. American Motorists Ins. Co., supra, 220 Cal.App.3d at page 1561 ( Northrop ), the case cited by the Ford court in support of its ” seriously inconvenient” language, did not employ such a standard; indeed, the Northrop court did not use that language at all. The focus of the court was on the ” substantial and ‘deeply rooted'” interests and policies according weight to a California resident ‘ s choice of forum. ( Id. at p. 1562.)

National Football League offers a more factually analogous and more cogent analysis than that of Ford. There the plaintiff football league (NFL) had its headquarters and its ” ‘physical center of operations’ ” in New York, and it therefore was deemed not to be a California resident as it had claimed to be, notwithstanding the location of three of its 32 teams. ( National Football League, supra, 216 Cal.App.4th at p. 919.) After the trial court granted the defendant insurers’ motions to stay NFL’s action against them, NFL appealed, contending that the court had abused its discretion in weighing the private and public interest factors. Among [217 Cal.Rptr.3d 374] its arguments was the assertion that the trial court had erred in not requiring the insurers to demonstrate that California was a seriously inconvenient forum. The appellate court (Second Dist., Div. Five) agreed with the trial court that this standard is inapplicable to a nonresident plaintiff.

Plaintiff complains that the National Football League court ” blithely dismissed” the Judicial Council comment to section 410.30, which states, ” Under the doctrine of inconvenient forum, a court, even though it has jurisdiction, will not entertain the suit if it believes that the forum of filing is a seriously inconvenient forum for the trial of the action.” But as noted in National Football League, the Supreme Court in Stangvik clarified that ” the basis of the inconvenient forum doctrine is the need to give preference to California residents and guard against the ‘” unchecked and unregulated importation of transitory causes of action for trial in this state.” ‘” ( National Football League, supra, 216 Cal.App.4th at p. 926, italics added.) We likewise reject plaintiff’s implicit suggestion that in every case great weight is required to overcome a nonresident plaintiff’s forum choice. Even if we were reviewing a dismissal order in a suit brought by a California resident–we would not subscribe to the analysis employed in Ford. And plaintiff’s position is all the more untenable in this case, as he is not even a United States citizen, a distinction highlighted in Stangvik. The superior court therefore erred in imposing a burden on Fox to show that California is a seriously inconvenient forum in order to obtain a dismissal or stay under the forum non conveniens doctrine.

” A trial court abuses its discretion when it applies the wrong legal standards applicable to the issue at hand.” ( Paterno v. State of California (1999) 74 Cal.App.4th 68, 85 [87 Cal.Rptr.2d 754]; accord, Doe 2 v. Superior Court (2005) 132 Cal.App.4th 1504, 1517 [34 Cal.Rptr.3d 458]; see also Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733 [101 Cal.Rptr.3d 758219 P.3d 736] [” An abuse of discretion is shown when the trial court applies the wrong legal standard” ].) Here, the superior court’s dismissal of Fox’s motion based on the ” seriously inconvenient” standard amounted to an abuse of discretion which cannot stand.

In his preliminary opposition to Fox’s petition plaintiff maintains that if erroneous, the ruling was not prejudicial. He relies on article VI, section 13, of the California Constitution– which precludes reversal absent a miscarriage of justice[6]–and on Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580 [34 Cal.Rptr.2d 607882 P.2d 298], which affirmed a judgment where the asserted instructional error was harmless. Even if the procedural posture of this case were comparable to that of Soule and judicial applications of article VI, section 13, we would not speculate as to how the court would have ruled had it not believed it was obligated to grant the motion only if California were a seriously inconvenient forum. As noted earlier, it is for the superior court to weigh and flexibly apply the private and public interests at stake. ( Stangvik, supra, 54 Cal.3d at p. 753.) Here it is conceivable that upon [217 Cal.Rptr.3d 375] reconsidering the motion under the correct standard the court will find that equity and the balance of private and public interests compel the granting of the motion.[7] Accordingly, we cannot accede to plaintiff’s request that we deem the error harmless as a matter of law. By the same token, we decline Fox’s request to direct the court to stay or dismiss the California action. Instead, we must remand the matter to permit the proper exercise of the superior court’s discretion.

Disposition

Let a peremptory writ of mandate issue directing respondent court to set aside its April 19, 2016 order denying petitioner Fox’s motion to dismiss or stay plaintiff’s lawsuit, and to reconsider the motion in accordance with the correct standard for evaluating this forum non conveniens motion. The temporary stay is vacated effective upon the finality of this opinion. Costs in this original proceeding are awarded to Fox.

Premo, Acting P. J., and Grover, J., concurred.

———

Notes:

[1]King was erroneously sued as Chris King Precision Components.

[2]Plaintiff and Bickerton did not have any officially recognized relationship until the date of their marriage, which plaintiff testified was July 12, 2014.

[3]All further statutory references are to the Code of Civil Procedure.

[4]The Vancouver ” Notice of Civil Claim” alleged: ” The steerer tube and other components of the SX Trail were designed, manufactured, marketed and distributed by the Defendants Doe Corporations #1, #2 and #3.”

[5]Plaintiff asserts that Fox forfeited its challenge by not presenting it to the superior court. He is incorrect. Fox argued vigorously in its reply that plaintiff was mischaracterizing the applicable standard.

[6]This constitutional provision states: ” No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13.)

[7]The court’s written order specifically identified only one of the Stangvik factors, by suggesting the relevance of ” whether a California defendant is manufacturing and selling defective parts.”


Tuttle v. Heavenly Valley, L.P., 2020 Cal. App. Unpub. LEXIS 814, 2020 WL 563604

Tuttle v. Heavenly Valley, L.P., 2020 Cal. App. Unpub. LEXIS 814, 2020 WL 563604

Tuttle v. Heavenly Valley, L.P.

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

February 5, 2020, Opinion Filed

G056427

Reporter

2020 Cal. App. Unpub. LEXIS 814 *; 2020 WL 563604

GRANT TUTTLE et al., Plaintiffs and Appellants, v. HEAVENLY VALLEY, L.P., Defendant and Respondent.

Notice: NOT TO BE PUBLISHED IN OFFICIAL REPORTS. CALIFORNIA RULES OF COURT, RULE 8.1115(a), PROHIBITS COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 8.1115(b). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 8.1115.

Subsequent History: Request denied by Tuttle v. Heavenly Valley, L.P., 2020 Cal. LEXIS 2940 (Cal., Apr. 29, 2020)

Prior History:  [*1] Appeal from a judgment and post judgment orders of the Superior Court of Orange County, Ct. No. 30-2015-00813230, Nathan R. Scott, Judge.

Disposition: Affirmed.

Counsel: The Simon Law Group, Thomas J. Conroy; Williams Iagmin and Jon R. Williams for Plaintiffs and Appellants.

Wilson, Elser, Moskowitz, Edelman & Dicker, Steven R. Parminter, Patrick M. Kelly and John J. Immordino for Defendant and Respondent.

Judges: DUNNING, J.*, BEDSWORTH, ACTING P. J., MOORE, J. concurred.

Opinion by: DUNNING, J.

Opinion

INTRODUCTION

Skier and Heavenly Valley season passholder Dana Tuttle died after she and a snowboarder collided at Heavenly Valley’s resort in South Lake Tahoe. Tuttle’s spouse and sons sued Heavenly Valley and the snowboarder.1 Defendant asserted as defenses the doctrines of primary assumption of the risk, on the ground Tuttle’s accident was the result of the inherent risks of skiing, and express assumption of the risk, based on Tuttle’s signed release of all claims and liability for defendant’s negligence.

The trial court determined as a matter of law the release was unambiguous and covered Tuttle’s accident. Despite these conclusions, the jury was still asked to decide whether defendant “unreasonably increased the risks . . . over and above [*2] those inherent in the sport of skiing.” The jury found defendant did, but unanimously agreed defendant did not act with gross negligence. Finding Tuttle and defendant each 50 percent at fault, the jury awarded plaintiffs substantial damages.

A judgment in plaintiffs’ favor typically would have followed as a matter of course unless defendant formally moved for, and was granted, a judgment notwithstanding the verdict (JNOV). However, the trial court determined the jury’s factual finding that defendant was not grossly negligent, coupled with its legal conclusion that the release provided a complete defense to plaintiffs’ lawsuit, compelled entry of a judgment in defendant’s favor, even without a posttrial JNOV motion.

Plaintiffs appeal, but do not challenge the jury instructions, the special verdict form, or the finding that defendant did not act with gross negligence. Plaintiffs urge this court to (1) review the release do novo and conclude it does not cover Tuttle’s accident, (2) hold the release violates public policy, (3) find that defendant invited errors in the special verdict form and jury instructions and forfeited the opportunity for entry of judgment in its favor without first [*3]  formally moving for JNOV, and (4) order a new trial. We find no error, however, and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I.

The Release

On September 2, 2013, Tuttle purchased a season ski pass from defendant and executed a release.2 The release begins with an all-capital advisement: “WARNING, ASSUMPTION OF RISK, RELEASE OF LIABILITY INDEMNIFICATION AGREEMENT PLEASE READ CAREFULLY BEFORE SIGNING. THIS IS A RELEASE OF LIABILITY WAIVER OF CERTAIN LEGAL RIGHTS.” Salient provisions of the release are found in paragraphs 1, 2, 5, 6, and 13.

In paragraph 1, Tuttle acknowledged snow skiing “can be HAZARDOUS AND INVOLVES THE RISK OF PHYSICAL INJURY AND/OR DEATH.” In paragraph 2, she “ASSUME[D] ALL RISKS . . . known or unknown, inherent or otherwise [associated with skiing at the resort, including] falling; slick or uneven surfaces; surface and subsurface snow conditions; . . . variations in terrain; design and condition of man-made facilities and/or terrain features; . . . [and] collisions.” Paragraph 5 advised: “The description of the risks listed above is not complete and participating in the Activities may be dangerous and may also include risks which are inherent and/or which cannot be reasonably [*4] avoided without changing the nature of the Activities.”

Paragraph 6 included Tuttle’s express agreement “NOT TO SUE AND TO RELEASE [DEFENDANT] FROM ALL LIABILITY . . . for . . . injury or loss to [her], including death.” This paragraph specifically advised that Tuttle was releasing all “CLAIMS BASED ON [DEFENDANT’S] ALLEGED OR ACTUAL NEGLIGENCE . . . .” In paragraph 13, Tuttle agreed the release was “binding to the fullest extent permitted by law . . . on [her] heirs, next of kin, executors and personal representatives.”

II.

The Accident and the Lawsuit

The accident occurred on December 21, 2013. Snowboarder Anthony Slater was proceeding out of defendant’s terrain park and collided with skier Tuttle after their respective trails merged. The impact of the collision propelled Tuttle into a tree. Tuttle died the following morning. Factors that potentially contributed to the accident included defendant’s signage, fencing, crowd control the day of the accident, Tuttle’s ski path, and Slater’s speed.

Plaintiffs sued defendant and Slater.3 Defendant raised the defenses of implied and express assumption of the risk: (1) “any injury, loss or damage purportedly sustained . . . by Plaintiffs was directly [*5]  and proximately caused and contributed to by risks which are inherent to the activity in which Plaintiffs participated”; (2) “Plaintiffs either impliedly or expressly relieved Defendant of its duty, if any, to Plaintiffs by knowingly assuming the risk of injury”; and (3) defendant “is entitled to defense and indemnity of each and every cause of action alleged in the Complaint pursuant to the release agreement signed by Plaintiffs and/or Plaintiffs’ representative or agent.”

III.

The Jury Trial

The jury trial spanned five weeks.4 The week before jury selection, the parties stipulated to a special verdict form that posed two liability questions: (1) whether defendant “unreasonably increased the risks to Tuttle over and above those inherent in the sport of skiing” and (2) whether defendant was grossly negligent. The special verdict form further instructed the jury that if it answered “yes” to either question, it was to make findings regarding the amount of damages and allocation of fault. Before the final witness concluded his testimony, the trial court confirmed that counsel was not making any changes to the special verdict form.

The following day, at the close of evidence and outside the [*6] jurors‘ presence, the trial court denied plaintiffs’ motion for directed verdict and defendant’s renewed motion for nonsuit.5 The trial court rejected plaintiffs’ argument the release was fatally ambiguous with regard to the risks involved in the accident. Given the absence of competent extrinsic evidence regarding the release, the trial court determined its interpretation presented a legal question for the court: “So I will construe the release, relying on its plain language. I find that it is not ambiguous. It covers the risks here, most notably in paragraph 2 where it covers risks regarding design and collision, and later where it notes that the risks include injury, including death.”

In the trial court’s own words, the finding as a matter of law that the release unambiguously discharged defendant from liability for its own ordinary negligence meant “we still have questions for the jury about whether the contract was entered into and whether the defendant[] committed gross negligence that cannot be released. For these reasons, the plaintiffs’ motion for directed verdict is denied.”

The rulings prompted defendant’s counsel to suggest additional jury instructions and a revision to the [*7] special verdict form might be necessary to address the fact issues surrounding Tuttle’s execution of the release. The following colloquy then ensued: “[Plaintiffs’ counsel]: Your Honor I’ll shortcut the whole thing. With the court’s ruling, I’ll stipulate to the formation of the contract and proceed with the verdict form as is, so no need for additional instructions. [¶] [Defendant’s counsel]: I’m sorry. To be clear, we have a stipulation that the contract existed and that the contract included the release and waiver language? [¶] [Plaintiffs’ counsel]: Right. The release and—release of liability and waiver was executed—existed and was executed. That’s the stipulation. [¶] [Defendant’s counsel]: Accepted, your Honor. [¶] The Court: So stipulated.” (Italics added.)

At this point, the jurors returned to the courtroom. The trial court read the jury instructions, and plaintiffs’ counsel began his closing argument. He had this to say about the release: “What we’re talking about here, the liability of the resort does not fall under this release. And you are not going to be asked any questions on the verdict form about the release. Yeah, [Tuttle] signed one, and she understood the inherent [*8] risks of skiing, and that’s what the release
releases. It does not release gross negligence. It does not release what we’re talking about.”

At the beginning of the afternoon session, before defendant’s closing argument, the trial court and counsel met again outside the jurors’ presence to discuss the stipulation concerning the release. Plaintiffs’ counsel maintained the jury should not hear about the stipulation. When the trial court repeated its concern the jury could “end up finding that the release was not valid” and invited counsel to revisit the special verdict form, plaintiffs’ counsel replied there was no need as “the release in evidence releases
negligence. And the questions on the verdict form
go [] to gross negligence, and—this doesn’t have to do with the release, but the increase of unreasonable risk.” Defendant’s counsel remarked the “dialogue this morning, your Honor, was prompted in part by the plaintiffs’ desire not to have to modify further the special verdict form.” Plaintiffs’ counsel concurred: “Right.” Counsel then agreed the stipulation would not be read to the jury.

Closing arguments continued. Defendant’s counsel did not mention the release in his closing argument. [*9]  Neither did plaintiffs’ counsel in his rebuttal argument. There, he referred to the special verdict form and told the jurors, “[a]t the end of the day, it’s a simple exercise. That jury form . . . . [¶] . . . If you perceive wrong on the part of [defendant], you tick those two boxes. And there’s two of them—you tick them both. Procedurally, you tick the one about increased unreasonable risk, and then you tick the one about gross negligence. If you perceive wrong, that’s what you do.”

The jury was never told the release provided a complete defense to defendant’s ordinary negligence.

IV.

The Special Verdict

As to defendant, the special verdict form included three liability questions, three damages questions, and three comparative fault/apportionment of liability questions. The liability questions read as follows:

“3. Did Heavenly Valley do something or fail to do something that unreasonably increased the risks to Dana Tuttle over and above those inherent in the sport of skiing?

“Yes X No __

“4. Was Heavenly Valley grossly negligent in doing something or failing to do something that caused harm to Dana Tuttle?

“Yes __ No X

“If you answered ‘Yes’ to either question 3 or 4, then answer question [*10]  5. [¶] If you answered ‘No’ to both questions 3 and 4, and also answered ‘No’ to either question 1 or 2, then sign and return this verdict form. You do not need to answer any more questions.

“If you answered ‘Yes’ to both questions 1 and 2, and answered ‘No’ to both questions 3 and 4, insert the number ‘0’ next to Heavenly Valley’s name in question 11, skip question 5, and answer questions 6-11.

“5. Was Heavenly Valley’s conduct a substantial factor in causing harm to Dana Tuttle?

“Yes X No __”

Because the jury answered “yes” to question 5, it was instructed to answer the remaining questions. The jury determined plaintiffs’ damages were $2,131,831, with Tuttle and defendant sharing equal responsibility.

Immediately after polling the jurors, the trial court asked plaintiffs’ counsel to prepare the judgment and submit it the next morning. The trial court then thanked and discharged the jury without objection from trial counsel. No one noted on the record that express assumption of the risk was a complete defense to the jury’s verdict.

V.

Entry of a Defense Judgment

At the trial court’s direction, plaintiffs’ counsel prepared a proposed judgment awarding plaintiffs $1,065,915.50, plus costs and [*11] interest. Defendant objected on the basis the jury found defendant was not grossly negligent and the release provided “a complete and total defense to this entire lawsuit and Plaintiffs should take nothing.”6

After briefing and a hearing, the trial court sustained defendant’s objection to plaintiffs’ proposed judgment. In its March 9, 2018 order, the trial court reiterated its finding as a matter of law that Tuttle’s release “clearly, unambiguously, and explicitly released defendant from future liability for any negligence against Dana Tuttle.” The trial court explained its earlier finding concerning the scope of the release still left open fact questions as to whether Tuttle knowingly accepted the release agreement and, if she did, whether defendant acted with gross negligence. With the parties’ stipulation that Tuttle knowingly executed the release and the jury’s factual finding that defendant did not act with gross negligence, the trial court further explained there was only one legal conclusion: “[D]efendant has prevailed on the express assumption issue and ‘negate[d] the defendant’s duty of care, an element of the plaintiff’s case.'”

The trial court acknowledged “the structure” of [*12] the special verdict form erroneously directed the jury to continue to answer questions on damages after finding defendant had not been grossly negligent. The trial court found, however, the jury’s specific finding that defendant did not act with gross negligence was not inconsistent with, but instead overrode, the award of damages.

The trial court did not invite defendant to file a motion for JNOV or call for the filing of such a motion on its own initiative. Instead, it entered judgment in favor of defendant.

VI.

Plaintiffs’ Post judgment Motions

The defense judgment reiterated the jury’s special verdict findings and stated in relevant part: “It appearing that by reason of those special verdicts, and the Court’s interpretation of the terms of the legal contract in Decedent Dana Tuttle’s season ski pass agreement, and [the] legal conclusions as set forth in that certain Order entered on March 9, 2018, Defendants Heavenly Valley L.P., and Anthony Slater are entitled to judgment on Plaintiffs’ complaint.” (Some capitalization omitted.)

Plaintiffs filed a motion to set aside the judgment under Code of Civil Procedure section 663 on the ground the judgment was not consistent with the special verdict and adversely affected plaintiffs’ [*13] substantial rights. Plaintiffs also filed a motion for JNOV or, in the alternative, a new trial, on the grounds there was insufficient evidence defendant had not acted with gross negligence,7 the special verdict was “hopelessly contradictory” because the jury’s gross negligence finding imposed no liability, but its apportionment of fault between Tuttle and defendant did, and defendant invited errors.

The trial court denied plaintiffs’ post judgment motions. Plaintiffs timely appealed.

DISCUSSION

I.

The Release Covered Tuttle’s Accident.

The trial court found as a matter of law that defendant’s release was not ambiguous and covered Tuttle’s accident. Our review of the release is de novo. (Paralift, Inc. v. Superior Court (1993) 23 Cal.App.4th 748, 754, 29 Cal. Rptr. 2d 177.) No extrinsic evidence concerning the meaning of the release was presented in the trial court, so “the scope of a release is determined by [its] express language.” (Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1357, 129 Cal. Rptr. 2d 197 (Benedek).)

Rather than a straightforward argument the trial court erred as a matter of law in interpreting the release, plaintiffs contend the release was narrow in scope and applied only to risks inherent in the sport of snow skiing. But a release that applies only to the inherent risks of a sport is the legal equivalent of no release at all. [*14]  (Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1490, 72 Cal. Rptr. 3d 471 (Cohen); Zipusch v. LA Workout, Inc. (2007) 155 Cal.App.4th 1281, 1291, 66 Cal. Rptr. 3d 704 (Zipusch).) To understand the distinction, we detour briefly to discuss the doctrines of implied and express assumption of the risk.

A.

Overview: Assumption of the Risk

The California Supreme Court’s decision in Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal. Rptr. 2d 2, 834 P.2d 696 (Knight)8 and its progeny have established that a ski resort operator is not liable for injuries caused by risks inherent in the sport of snow skiing.9 Instead, pursuant to the doctrine of primary assumption of the risk, participants in active sports assume responsibility for injuries sustained as a result of the sport’s inherent risks. (Id. at p. 321.) Stated another way, the defendant owes no duty of care to protect the plaintiff from the inherent risks of an active sport. (Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1367, 59 Cal. Rptr. 2d 813 (Allan).) Because no duty of care is owed and the plaintiff has assumed the risk of injury, no release is necessary to absolve a defendant of liability when a plaintiff is injured as the result of an inherent risk in an active sport such as skiing.

A ski resort operator “still owe[s] a duty, however, not to increase the risks of injury beyond those that are inherent in the sport. This distinction is closely tied to the policy underlying the finding of no duty, i.e., there should be no liability imposed [*15]  which would chill normal participation or fundamentally alter the nature of the sport, but liability may be appropriate where the risk is not ‘inherent’ in the sport.” (Allan, supra, 51 Cal.App.4th at p. 1367, italics omitted.) This is the doctrine of secondary assumption of the risk, and it is an exception to the complete defense of primary assumption of risk. (Knight, supra, 3 Cal.4th at p. 308.)

Comparative fault principles apply in secondary assumption of the risk cases. The trier of fact considers the “plaintiff’s voluntary action in choosing to engage in an unusually risky sport, whether or not the plaintiff’s decision to encounter the risk should be characterized as unreasonable” and weighs it against the defendant’s breach of the duty not to increase the risks beyond those inherent in the active sport. (Knight, supra, 3 Cal.4th at p. 314.) Where a plaintiff’s “injury has been caused by both a defendant’s breach of a legal duty to the plaintiff and the plaintiff’s voluntary decision to engage in an unusually risky sport, application of comparative fault principles will not operate to relieve either individual of responsibility for his or her actions, but rather will ensure that neither party will escape such responsibility.” (Ibid.; see Allan, supra, 51 Cal.App.4th at p. 1367.)

A different analysis applies when a skier [*16] signs a written release that expressly holds the ski operator harmless for its own negligence. This triggers the doctrine of express assumption of the risk. Unlike secondary assumption of the risk, but like primary assumption of the risk, the doctrine of express assumption of the risk provides a complete defense in a negligence action.

However, unlike both implied primary and secondary assumption of the risk, which focus on risks inherent in an active sport like skiing, express assumption of the risk focuses on the agreement itself. A valid release “operates to relieve the defendant of a legal duty to the plaintiff with respect to the risks encompassed by the agreement and, where applicable, to bar completely the plaintiff’s cause of action.” (Knight, supra, 3 Cal.4th at p. 309, fn. 4, italics added.) The legal issue in an express assumption of the risk case “‘is not whether the particular risk of injury appellant suffered is inherent in the recreational activity to which the Release applies [citations], but simply the scope of the Release.'” (Hass, supra, 26 Cal.App.5th at p. 27.)

Additionally, a plaintiff does not need to have “‘specific knowledge of the particular risk that ultimately caused the injury. [Citation.] If a release of all liability is given, the [*17] release applies to any negligence of the defendant [so long as the negligent act that results in injury is] “‘reasonably related to the object or purpose for which the release is given.'” [Citation.]’ [Citation.] As we have said, ‘[t]he issue is not whether the particular risk of injury is inherent in the recreational activity to which the release applies, but rather the scope of the release.'” (Cohen, supra, 159 Cal.App.4th at p. 1485; see Allan, supra, 51 Cal.App.4th at p. 1374 [courts will enforce a skier’s agreement “to ‘shoulder the risk’ that otherwise might have been placed” on the ski resort operator].)

There is an outer limit to the scope of a release from liability for one’s own negligence in the recreational sports context: As a matter of public policy, if a skier proves the operator unreasonably increased the inherent risks to the level of gross negligence, express assumption of the risk is no longer a viable defense; and the operator will be liable for damages notwithstanding the existence of a valid release of liability for ordinary negligence. (See City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 777, 62 Cal. Rptr. 3d 527, 161 P.3d 1095 (Santa Barbara).)

To recap, snow skiing has inherent risks, and a ski operator does not owe skiers any duty to protect against them. If a skier is injured as a result of a risk inherent in the sport, [*18] the doctrine of primary assumption of the risk provides a complete defense to a lawsuit against the ski operator. But a ski resort operator owes a duty not to unreasonably increase the risks beyond those inherent in the sport. If a ski operator breaches this duty, the doctrine of secondary assumption of the risk makes the ski resort liable to an injured skier on a comparative fault basis. If the skier executes a release that absolves the ski resort operator of liability for the operator’s negligence, the release is a complete defense, provided the ski operator did not act with gross negligence. That is to say, the ski operator is entitled to judgment as a matter of law if the skier has signed a valid release and the ski operator’s conduct, although negligent, was not grossly negligent.

B.

Analysis

The parties stipulated Tuttle executed the release with full knowledge of its content; consequently, the validity of the release is not before us. The jury unanimously agreed defendant’s conduct did not constitute gross negligence, and plaintiffs do not challenge the sufficiency of the evidence to support that finding; thus, no public policy considerations preclude its enforcement. Our only [*19] concern is “‘whether the release in this case negated the duty element of plaintiffs’ causes of action.'” (Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 719, 183 Cal. Rptr. 3d 234.) If so, it applied to any ordinary negligence by defendant. (Benedek, supra, 104 Cal.App.4th at p. 1357.)

Defendant’s release did precisely that. Tuttle assumed “ALL RISKS associated with [skiing], known or unknown, inherent or otherwise.” She also agreed not to sue defendant and to release it “FROM ALL LIABILITY . . . BASED ON [DEFENDANT’S] ALLEGED OR ACTUAL NEGLIGENCE.” No more was required.

Defendant’s use of the phrase, “inherent or otherwise” did not create any ambiguity or confusion. As the United States Court of Appeals for the Tenth Circuit has recognized, “[t]he term ‘otherwise,’ when ‘paired with an adjective or adverb to indicate its contrary’ . . . is best understood to mean ‘NOT.’ Webster’s Third New Int’l. Dictionary 1598 (2002). The plain language and meaning of the phrases therefore reflect a clear intent to cover risks that are not inherent to skiing.” (Brigance v. Vail Summit Resorts, Inc. (10th Cir. 2018) 883 F.3d 1243, 1256-1257.)

Plaintiffs’ contention that defendant’s release “bears many similarities to the release” in Cohen, supra, 159 Cal.App.4th 1476 misses the mark. The plaintiff in Cohen fell from a rented horse on a guided trail ride. She sued the stable, alleging its employee, the trail guide, negligently [*20]  and “unexpectedly provoke[d] a horse to bolt and run without warning” (id. at p. 1492), causing her to lose control of her horse (id. at p. 1482). The trial court granted the defendant’s motion for summary judgment based on the plaintiff’s written agreement “‘to assume responsibility for the risks identified herein and those risks not specifically identified.'” (Id. at p. 1486, italics omitted.)

The Court of Appeal reversed. The Cohen majority noted “the trial court apparently granted summary judgment on the theory that the risks ‘not specifically identified’ in the Release include the risk that misconduct of respondent or its employee might increase a risk inherent in horseback riding.” (Cohen, supra, 159 Cal.App.4th at pp. 1486-1487, italics omitted.) This interpretation was erroneous because the stable’s agreement did not explicitly advise that the plaintiff was releasing the defendant from liability for the defendant’s negligence. Although a release is not required to use “the word ‘negligence‘ or any particular verbiage . . . [it] must inform the releasor that it applies to misconduct on the part of the releasee.” (Id. at pp. 1488-1489.) The release in Cohen used the word “negligence” only once, in reference to the plaintiff’s negligence, not that of the defendant. The stable’s release [*21] also did not “indicate that it covers any and all injuries arising out of or connected with the use of respondent’s facilities.” (Id. at p. 1489.)

Having found the release ineffective to trigger the doctrine of express assumption of the risk, the Cohen majority turned to the doctrines of implied assumption of the risk, i.e., it focused on the inherent risks of horseback riding. Summary judgment could not be granted on that basis, either, because a triable issue of fact existed as to whether the trail guide acted recklessly and increased the inherent risks of a guided horseback ride. (Cohen, supra, 159 Cal.App.4th at p. 1494-1495.)

Here, in contrast, Tuttle assumed all risks associated with her use of defendant’s facilities and expressly released defendant from all liability for its negligence. That language applied to ordinary negligence by defendant and provided a complete defense to plaintiffs’ lawsuit, so long as defendant’s conduct did not constitute gross negligence. (Knight, supra, 3 Cal.4th at pp. 308-309, fn. 4.)

The release in Zipusch, supra, 155 Cal.App.4th 1281 mirrors the one in Cohen, but not the one in this case. As in Cohen, the plaintiff in Zipusch did not agree to assume the risk of negligence by the defendant gym. Accordingly, the agreement was ineffective as an express release; and the issue for the Court [*22]  of Appeal was whether the plaintiff’s injury was the result of an inherent risk of exercising in a gym, in which case the primary assumption of the risk doctrine would apply, or whether it was the result of the gym increasing the inherent risks of exercise, in which case the secondary assumption of the risk doctrine would apply. (Id. at pp. 1291-1292.)

Hass, supra, 26 Cal.App.5th 11 is instructive. Plaintiffs cite Hass in their opening brief, but do not attempt to distinguish it, even though the release in Hass is similar to the one Tuttle signed. The analysis in Hass applies in this case.

In Hass, the plaintiffs’ decedent suffered a fatal cardiac arrest after finishing a half marathon organized and sponsored by the defendant. His heirs sued for wrongful death. The Court of Appeal held that cardiac arrest is an inherent risk of running a race, but a triable issue of material fact existed as to whether the defendant acted with gross negligence in failing to provide timely and adequate emergency medical services. (Hass, supra, 26 Cal.App.5th at p. 18.)

Addressing the release, Hass held: “By signing the Release in the instant case, we conclude that [the decedent] intended both to assume all risks associated with his participation in the race, up to and including the risk [*23]  of death, and to release [the defendant] (on behalf of himself and his heirs) from any and all liability with respect to any injuries he might suffer as a result of his participation. This was sufficient to block the [plaintiffs’] wrongful death claim for ordinary negligence.”10 (Hass, supra, 26 Cal.App.5th at p. 27.)

Our independent examination of defendant’s release convinces us Tuttle assumed all risks that might arise from skiing at defendant’s resort, including risks created by defendant’s ordinary negligence. With a valid release and no gross negligence by defendant, the issue of inherent risk was no longer relevant. (Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC (2018) 25 Cal.App.5th 344, 353, 235 Cal. Rptr. 3d 716 [where the doctrine of express assumption of risk applies, implied assumption of the risk is no longer considered].)

II.

Enforcement of the Release Does not Violate California’s Public Policy.

Plaintiffs next argue the release‘s exculpatory language violates California’s public policy. The linchpin of their argument is that defendant’s act of unreasonably increasing the inherent risk of an active sport was neither ordinary negligence nor gross negligence, but a separate category of “aggravated” negligence.

Plaintiffs argue Santa Barbara, supra, 41 Cal.4th 747 “left open the question of whether public policy precludes the contractual release [*24]  of other forms of ‘aggravated’ misconduct, in addition to gross negligence.” (Some capitalization omitted.) The argument is raised for the first time on appeal; it has no merit.

In Santa Barbara, a parent signed an agreement releasing the defendants from liability for “‘any negligent act'” related to her child’s participation in summer camp. (Santa Barbara, supra, 41 Cal.4th at p. 750.) The child drowned. (Ibid.) The trial court denied the defendants’ motion for summary judgment based on the release, and the appellate court denied defendants’ petition for writ of mandate challenging that ruling. (Id. at p. 753.) The sole issue before the Supreme Court was “whether a release of liability relating to recreational activities generally is effective as to gross negligence.” (Id. at p. 750.)

The defendants argued California law, specifically Civil Code section 1668,11 impliedly allowed recreational activity releases to be enforced against a claim of gross negligence. (Santa Barbara, supra, 41 Cal.4th at pp. 762-763.) At the time, no published California decision “voided[] an agreement purporting to release liability for future gross negligence.” (Id. at p. 758.) The Santa Barbara majority turned to out-of-state authorities and rejected the defendants’ position based on public policy principles. (Id. at pp. 760-762.)

References in Santa Barbara to “aggravated [*25]  wrongs” (a term used by Prosser & Keeton, The Law of Torts (5th ed. 1984) § 68, p. 484) (Santa Barbara, supra, 41 Cal.4th at pp. 762, 765, 776) and “aggravated misconduct” (id. at pp. 760, 762, 777, fn. 54) do not suggest a new species of negligence that might affect a liability release for recreational activities. Rather, those phrases encompassed misconduct that included gross negligence and willful acts. (Id. at p. 754, fn. 4.) As the majority held, “the distinction between ‘ordinary and gross negligence‘ reflects ‘a rule of policy’ that harsher legal consequences should flow when negligence is aggravated instead of merely ordinary.” (Id. at p. 776.) With a valid release, “a theory of gross negligence, if supported by evidence showing the existence of a triable issue, is the only negligence-based theory that is potentially open to [the] plaintiffs.” (Santa Barbara, supra, 41 Cal.4th at p. 781.)

Here, no public policy considerations preclude the enforcement of defendant’s recreational activity release that exculpated it from liability for its own ordinary negligence. (Knight, supra, 3 Cal.4th at p. 309, fn. 4.)

III.

The Trial Court did not Err by Entering Judgment in Favor of Defendant.

Plaintiffs argue the trial court should have entered judgment in their favor regardless of the jury’s finding concerning gross negligence because the jury made findings on damages and apportioned fault [*26] between Tuttle and defendant. They contend the responsibility to seek a JNOV or some other post judgment remedy should have fallen to defendant, not plaintiffs. But once the trial court determined the special verdict was not inconsistent and Tuttle’s express release provided a complete defense as a matter of law, entry of a defense judgment was proper. Even if the trial court erred in entering a defense judgment without a formal motion for JNOV, any error was harmless.

A.

Legal Principles Governing Special Verdicts

A special verdict must include “conclusions of fact as established by the evidence . . . [so] that nothing shall remain to the Court but to draw from them conclusions of law.” (Code Civ. Proc., § 624.) A special verdict is not a judgment. (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1331-1332, 104 Cal. Rptr. 3d 219, 223 P.3d 77.) If a special verdict includes findings on inconsistent theories, the findings on the legal theory that does not control the outcome of the litigation “may be disregarded as surplusage.” (Baird v. Ocequeda (1937) 8 Cal.2d 700, 703, 67 P.2d 1055.) Additionally, “where no objection is made before the jury is discharged, it falls to ‘the trial judge to interpret the verdict from its language considered in connection with the pleadings, evidence and instructions.'” (Woodcock v. Fontana Scaffolding & Equip. Co. (1968) 69 Cal.2d 452, 456-457, 72 Cal. Rptr. 217, 445 P.2d 881; see Zagami, Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 1091-1092, 74 Cal. Rptr. 3d 235.)

B.

The Trial Court’s Ruling

As noted, the jury [*27] was discharged before the parties raised an issue concerning the special verdict form and the jury’s findings. The trial court recognized and fulfilled its duty to interpret the special verdict: “After [this] court rejected several unilateral proposals, the parties stipulated to a special verdict form. . . . But they did so before the court construed the release in response to defendant’s nonsuit motion and before the parties stipulated Ms. Tuttle entered into the release. [¶] Thus, the form presented only two questions addressing the assumption of the risk. Question #3 asked whether defendant unreasonably increased the inherent risks of skiing. Question #4 asked whether defendant acted with gross negligence. [¶] The answer ‘NO’ to either Question #3 or #4 exonerates defendant. Answering ‘No’ to Question #3 would foreclose the only relevant exception to the primary assumption defense. Answering “NO’ to Question #4 would foreclose the only relevant exception to the express assumption defense. [¶] But the form allowed the jurors to answer ‘YES’ to one question and ‘NO’ to [the] other one and continue to answer questions, including determining and allocating damages.” (Italics and bold [*28] omitted.)

The trial court further explained: “Here, the specific finding that defendant did not act with gross negligence controls over the general award of damages. The jury was properly instructed with the definition of gross negligence. The jury received percipient and expert testimony that, if credited, showed defendant did not act with gross negligence. The parties argued whether defendant [did] or did not act with gross negligence. The answer ‘NO’ to Question #4 unambiguously shows the jury found defendant did not act with gross negligence. That resolved the only factual question on the express assumption issue in favor of defendant. [¶] . . . [¶] The award of damages is not a hopeless inconsistency so much as it is mere surplusage once the court honors the jury’s unambiguous finding that defendant acted without gross negligence and draws the legal conclusion—a conclusion that [the] jury was not asked to draw—that the release covers these claims and effects an express assumption of the risk.”

The trial court also correctly concluded the “jury’s findings on Question[] #3 and Question #4 [were not] irreconcilable. The concept of unreasonably increasing inherent risks is distinct [*29] from the concept of gross negligence. In a particular case, the same facts that show an unreasonable increase in the inherent risks may also show gross negligence. [Citation.] Overlap is possible, [but not] necessary. In this case, the jury found no such overlap. There is no inconsistency in defendant losing on the primary assumption issue but prevailing on the express assumption issue. And that, after five weeks of trial, is what happened here.”

C.

Analysis

A validly executed express release of liability for a defendant’s ordinary negligence means the only viable theory for a judgment in a plaintiff’s favor is if the defendant acted with gross negligence. (Santa Barbara, supra, 41 Cal.4th at p. 781.) There is no inconsistency between findings that a defendant is ordinarily negligent by unreasonably increasing the inherent risks of snow skiing, but not grossly negligent. A finding of gross negligence would necessarily mean a defendant unreasonably increased the inherent risks of snow skiing, so that comparative fault principles apply. But an express release, coupled with an undisputed factual finding that a defendant did not act with gross negligence, necessarily results in a defense judgment. Accordingly, Question No. 3 concerning [*30] whether defendant unreasonably increased the inherent risk should have been removed from the special verdict form.

Also, the special verdict form should have instructed the jury that if it found defendant was not grossly negligent, it should not answer the remaining questions. The jury’s compliance with the trial court’s instructions and consequent damages-related findings were surplusage, but did not create an inconsistency with its finding that defendant did not act with gross negligence. The trial court correctly entered judgment in favor of defendant based on the dispositive finding of no gross negligence. The trial court’s explanation of its ruling demonstrates the trial court’s application of the correct legal principles in doing so.

In their appellate opening brief, plaintiffs argue defendant forfeited any objection to the special verdict form because it (1) failed to object to the special verdict before the jury was discharged; (2) invited the erroneous instructions in the special verdict form because it had participated in drafting it; and (3) failed to bring “a statutorily authorized post-trial motion” challenging the special verdict form. Although the special verdict form [*31] should have been amended before deliberations, there is no issue of forfeiture or invited error on defendant’s part.

The parties jointly agreed on the wording of the special verdict form. Any fault in the drafting cannot be assigned to one side over the other, and all parties bear responsibility for the erroneous directions in the stipulated special verdict form. Nothing in the record suggests the special verdict form or the objection to entry of a plaintiffs’ judgment was the product of gamesmanship. (See Lambert v. General Motors (1998) 67 Cal.App.4th 1179, 1183, 79 Cal. Rptr. 2d 657.)

Additionally, plaintiffs’ trial strategy to stipulate to Tuttle’s knowing execution of the release was wise: Evidence Tuttle understood the release was overwhelming. As part of the discussion pertaining to the parties’ stipulation, however, both the trial court and defendant’s trial counsel questioned the adequacy of the special verdict form. But plaintiffs’ trial counsel maintained the special verdict form was fine “as is” and persuasively argued against making any changes or advising the jury of the stipulation. This meant the doctrine of implied secondary assumption of the risk was not relevant unless the jury found defendant acted with gross negligence.

We agree the procedural [*32] aspects surrounding the entry of the defense judgment on what appeared to be a plaintiffs’ verdict were unconventional; but the bottom line is once the jury found no gross negligence, defendant was entitled to judgment as a matter of law. Under these circumstances, it would have been a waste of resources to require defendant, or the trial court on its own initiative, to formally notice a motion for JNOV (Code Civ. Proc., § 629, subd. (a)).

Even if we found the procedure to have been erroneous, the error would have been procedural, not substantive; and, plaintiffs have not demonstrated the likelihood of a different outcome. (See Webb v. Special Electric, Co., Inc. (2016) 63 Cal.4th 167, 179, 202 Cal. Rptr. 3d 460, 370 P.3d 1022 [because the defendant “did not have a complete defense as a matter of law, the entry of JNOV was unjustified [on the merits]. In light of this conclusion, we need not reach plaintiffs’ claims of procedural error”].) Defendant had a complete defense; there is no reasonable probability the trial court would have denied a formal JNOV motion.

Plaintiffs argue they relied on the state of the special verdict form in making the decision to stipulate to the validity of the release agreement. Plaintiffs suggest defendant, by agreeing to the special verdict form, tacitly stipulated to a deviation from [*33] the applicable law to allow plaintiffs to recover damages based solely on a finding defendant had unreasonably increased the inherent risk, notwithstanding the existence of a valid, applicable release. Such an argument is without support in the law. It is also belied by the record. As already discussed, both defendant’s counsel and the trial court raised questions concerning the special verdict form once the parties stipulated to Tuttle’s execution of the release. Plaintiffs’ trial counsel maintained there should be no changes in the jury instructions or the special verdict form.

IV.

Plaintiffs are not Entitled to a New Trial.

Plaintiffs argued in their motion for new trial that the special verdict was “hopelessly contradictory” and, consequently, against the law. Plaintiffs also asserted there were errors in the special verdict form, they “excepted to” those errors, but then were penalized because “the jury’s finding of unreasonably increased inherent risk has ex post facto been deemed insufficient to impose liability on Defendant Heavenly Valley.” Although plaintiffs did not claim instructional error in the trial court, they complained the modified version of CACI No. 431,12 to which they agreed, [*34]  misled the jurors into thinking they could find defendant liable if they found it unreasonably increased the inherent risk of skiing or if they found it acted with gross negligence.

On appeal, plaintiffs ask this court to reverse the denial of their motion for a new trial. They fail to cite applicable authorities to support their arguments. (Cal. Rules of Court, rule 8.204(a)(1)(B).) Instead, they contend “the trial court changed the rules of the game only after the game had already been played, leaving the parties and their counsel without the opportunity to satisfy those new rules, and robbing the jury of the ability to assess all viable liability options.” Plaintiffs add they stipulated to Tuttle’s execution of the release “in reliance on the wording of the then existing Special Verdict form, which . . . made clear that a finding of gross negligence was only one of two disjunctive liability paths, and was not necessary to impose liability against Heavenly. As a consequence, [plaintiffs] . . . were . . . induced into a stipulation concerning that issue in light of the wording of the existing Special Verdict form, an unfair sequence which the trial court itself acknowledged worked against [plaintiffs].” This characterization [*35] misstates the record.

First, the trial court made legal rulings throughout trial when called upon to do so. The trial court did not change any of its pronouncements of law after the trial concluded. The record shows the trial court gave the parties every opportunity to revisit the jury instructions and special verdict form before they were given to the jury.

Second, although the trial court described the sequence of events, it did not suggest the events were unfair or “worked against” plaintiffs. As discussed ante, when the trial court denied defendant’s renewed motion for nonsuit, it advised counsel the jury must decide whether Tuttle actually executed the release. Because neither side proposed jury instructions or questions on the special verdict form addressing the issue of contract formation, defendant’s counsel suggested they should revisit both the jury instructions and the special verdict form. Plaintiffs’ trial counsel immediately stipulated to Tuttle’s execution of the release and advised he would “proceed with the verdict form as is.” This statement calls into question plaintiffs’ claim they were induced into entering into the stipulation.

Third—and significantly—plaintiffs’ [*36] counsel did not discuss disjunctive liability paths in his closing arguments. Instead, plaintiffs’ counsel focused on the evidence and urged the jury to find gross negligence: “What we’re talking about here, the liability of the resort does not fall under this release. And you are not going to be asked any questions on the verdict form about the release. Yeah, [Tuttle] signed one, and she understood the inherent risks of skiing, and that’s what the release
releases. It does not release gross negligence. It does not release what we’re talking about.”

The jury unanimously found defendant did not act with gross negligence. The jury’s function is to make ultimate findings of fact, and it is the trial court’s responsibility to apply the law to the relevant findings of fact. Nothing in the special verdict form misled the jury with regard to the factors it should consider in making any particular finding. We conclude the trial court correctly applied the law and entered judgment accordingly.

DISPOSITION

The judgment and post judgment orders are affirmed. Respondents shall recover costs on appeal.

DUNNING, J.*

WE CONCUR:

BEDSWORTH, ACTING P. J.

MOORE, J.

 


Kuchta v. Opco, 2020 Nev. App. Unpub. LEXIS 549, 2020 WL 3868434

Kuchta v. Opco, 2020 Nev. App. Unpub. LEXIS 549, 2020 WL 3868434

Court of Appeals of Nevada

July 8, 2020, Filed

No. 76566-COA

Reporter

2020 Nev. App. Unpub. LEXIS 549 *; 2020 WL 3868434

Joseph Kuchta, an Individual, Appellant, vs. Sheltie Opco, LLC, A Nevada Limited Liability Company, d/b/a John Ascuaga’s Nugget, d/b/a Gilley’s Nightclub; and Wolfhound Holdings, Llc, A Delaware Limited Liability Company, Respondents.

Notice: NOT DESIGNATED FOR PUBLICATION. PLEASE CONSULT THE NEVADA RULES OF APPELLATE PROCEDURE FOR CITATION OF UNPUBLISHED OPINIONS.

Judges:  [*1] Gibbons, C.J., Bulla, J. TAO, J., dissenting.

Opinion by: Gibbons

Opinion

ORDER OF REVERSAL AND REMAND

Joseph Kuchta appeals a district court order granting Sheltie Opco, LLC’s (Sheltie Opco) motion for summary judgment in a tort action. Second Judicial District Court, Washoe County; Scott N. Freeman, Judge.

While socializing with friends at Gilley’s Nightclub in Sparks, Nevada, a bar owned by respondent Sheltie Opco, Kuchta and his friends observed an employee riding a mechanical bull. As the employee was riding the bull, another employee used a joystick to control the bull’s movements. After the employee demonstrated how easy and non-challenging it was to engage safely in a slow ride, she stepped off the bull.

Sometime later that night, Kuchta and his friends were considering riding the bull. Kuchta’s group approached the same employee, who they had watched ride the bull earlier, and who was now operating the joystick and controlling the ride. Two different people within the group that Kuchta was part of conversed with the employee about riding the mechanical bull.

Viewing all factual allegations in a light most favorable to Kuchta, his friends told the employee that each person in their group wanted an easy [*2]  ride, which based on a difficulty scale of one to ten, they described as a two (with one meaning not moving at all), which the employee said she could provide. The friends indicated that everyone in the group was a novice and wanted a ride similar to the ride the employee had demonstrated. Furthermore, they told the employee that everyone should be able to step off the bull once the ride concluded, just as the employee had been able to do earlier that night after her ride. The employee agreed to provide the type of a ride Kuchta’s group requested. Thus, Kuchta’s and the employee’s understandings and expectations regarding Kuchta’s ride were that it would be easy, at a level two or at a low speed, and that Kuchta would be able to dismount after the ride was finished.

Before any person could ride the mechanical bull, however, Gilley’s required each patron to sign a previously prepared Assumption of Risk, Release, Indemnity, and Medical Treatment Authorization Agreement (Agreement), also known as a written waiver. The Agreement listed potential risks and possible injuries involved in riding the bull, including broken bones, and also released Sheltie Opco from any and all liability for [*3]  injuries or negligence that occur from all risks, both known and unknown. Kuchta signed the Agreement, although the record does not reveal when it was signed in relation to the conversations described above.

According to Kuchta, once on the bull, the ride was initially slow, as had been requested. However, after approximately 20 seconds, the operator significantly increased the speed and violence of the bull’s movements. Kuchta was thrown from the bull and suffered a fractured pelvis.

Kuchta sued Sheltie Opco alleging: negligence, negligence per se, negligent hiring and respondent superior, negligent supervision, negligent entrustment, and battery. Sheltie Opco moved for summary judgment on all claims, arguing there was no genuine issue of fact because Kuchta expressly assumed the risks of the ride and consented to the battery when he signed the Agreement before riding the bull. The district court granted Sheltie Opco’s motion for summary judgment finding that Kuchta expressly assumed the risks of riding the bull by signing the Agreement, including consenting to the touching that was the basis for his battery claim.

On appeal, Kuchta argues that the district court erred in granting summary [*4]  judgment because even though he signed the Agreement, under the doctrine of express assumption of risk, there are genuine issues of fact. He further contends that the district court erred in granting summary judgment to Sheltie Opco on his battery claim because battery is not covered by the Agreement. We agree that under the facts of this case, genuine issues of material fact remain as to Kuchta’s negligence and battery claims, and therefore, we reverse and remand.

Standard of review

We review a district court order granting summary judgment de novo. Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). Summary judgment is proper if the pleadings and all other evidence on file, viewed in the light most favorable to the non-moving party, demonstrate that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Id. “A factual dispute is genuine when the evidence is such that a rational trier of fact could return a verdict for the nonmoving party.” Id. at 731, 121 P.3d at 1031.

The district court erred by granting summary judgment to Sheltie Opco on the negligence claims

Kuchta argues that he did not expressly assume the risk because the operator specifically agreed to provide the requested slow ride (i.e., an intensity [*5]  of two out of ten) and the operator instead ultimately conducted a wild ride exceeding his expectations. Sheltie Opco argues that the Agreement was a valid written waiver and that Kuchta understood the risks when he got on the bull. Specifically, he understood that the bull could “jerk[ ] and spin[ ] violently and unexpectedly” resulting in “broken bones.” And, as counsel for Sheltie Opco pointed out at oral argument, Kuchta could have declined to ride the bull if he had any concerns about the possibility of injury as fully explained in the Agreement. Moreover, no one forced Kuchta to sign the Agreement and ride the bull.

In Nevada, an exculpatory agreement is a “valid exercise of the freedom of contract.” Miller v. A&R Joint Venture, 97 Nev. 580, 582, 636 P.2d 277, 278 (1981). Though generally enforceable, exculpatory clauses in a contract must meet four standards before a party seeking to enforce the clause can be absolved of liability:

(1) Contracts providing for immunity for liability for negligence must be construed strictly since they are not favorite[s] of the law . . . (2) such contracts must spell out the intention of the party with the greatest particularity . . . and show the intent to release from liability beyond doubt by express stipulation [*6]  and no inference from the words of general import can establish it . . . (3) such contracts must be construed with every intendment against the party who seeks immunity from liability . . . (4) the burden to establish immunity from liability is upon the party who asserts such immunity . . . .

Agric. Aviation Eng’g Co. v. Bd. of Clark Cty. Comm’rs, 106 Nev. 396, 399-400, 794 P.2d 710, 712-13 (1990) (quoting Richard’s 5 & 10, Inc. v. Brooks Harvey Realty Inv’rs, 264 Pa. Super. 384, 399 A.2d 1103, 1105 (Pa. Super. Ct. 1979)).

Looking to the Agreement’s exculpatory clause, it warns that any ride participant will:

FULLY RELEASE FROM ALL LIABILITY ARISING FROM MY PARTICIPATION IN THE MECHANCIAL BULL RIDING PROGRAM the Nugget Hotel and Casino, Gilley’s, and their respective owners . . . . I AGREE NEVER TO SUE ANY RELEASEE . . . for any cause of action arising from my participation in the MECHANICAL BULL RIDING PROGRAM . . . . ALL PROVISIONS OF THIS AGREEMENT APPLY IRRESPECTIVE OF AND EVEN IN THE CASE OF [ ] NEGLIGENCE. . . .

Even when strictly construed, the language in the Agreement expressly states, with particularity, Sheltie Opco’s intent to release itself and others designated from any and all liability. The Agreement also specifically states that Sheltie Opco would be released from liability for any negligence on its part that may occur while a person rides the mechanical bull, Further, [*7]  the parties concede that Kuchta voluntarily signed the Agreement, which included the exculpatory clause.

However, our inquiry does not stop here as it pertains to the waiver‘s validity; we must determine whether Kuchta expressly assumed the risks contemplated by the waiver. Renaud v. 200 Convention Ctr. Ltd., 102 Nev. 500, 501,102 Nev. 500, 728 P.2d 445, 446 (1986) (analyzing an exculpatory waiver under the doctrine of express assumption of the risk).1 “Assumption of the risk is based on a theory of consent.” Id.

Next, reviewing the Agreement’s express waiver, it warns in relevant part:

There is a significant risk that I will be seriously injured as a result of my participating in the MECHANICAL BULL RIDING PROGRAM, including permanent paralysis, head injury, broken neck, other broken bones and death, whether or not I am thrown from or fall from the MECHANICAL BULL . . . . I KNOWINGLY AND FREELY ASSUME ALL RISKS ARISING FROM MY PARTICIPATION IN THE MECHANICAL BULL RIDING PROGRAM, including all risks to my life, health, safety and property, both known and unknown.

“Express assumption of risk[‘s] . . . vitality stems from a contractual undertaking that expressly relieves a putative defendant [*8]  from any duty of care to the injured party; such a party has consented to bear the consequences of a voluntary exposure to a known risk.” Mizushima v. Sunset Ranch, Inc., 103 Nev. 259, 262, 737 P.2d 1158, 1159 (1987), overruled on other grounds by Turner v. Mandalay Sports Entm’t, LLC, 124 Nev. 213, 180 P.3d 1172 (2008). Generally, “[a]ssumption of the risk is based on a theory of consent.” Renaud, 102 Nev. at 501, 728 P.2d at 446. For a party to assume the risk there are two requirements. “First, there must have been voluntary exposure to the danger. Second, there must have been actual knowledge of the risk assumed.” Id. Actual knowledge of the danger by the party alleged to have assumed the risk is the essence of the express assumption of risk doctrine. Id. To determine whether the party signing had actual knowledge of the risks assumed, courts must consider “[(1)] the nature and extent of the injuries, [(2)] the haste or lack thereof with which the release was obtained, and [(3)] the understandings and expectations of the parties at the time of signing.” Id. at 502, 728 P.2d at 446 (emphasis added).

Here, Kuchta’s injuries were severe, but were injuries a person would associate with being thrown from a bull. Furthermore, there is nothing in the record to suggest that Kuchta was rushed into signing the exculpatory agreement. However, the third factor weighs heavily in Kuchta’s favor. According [*9]  to Kuchta’s responses to Sheltie Opco’s interrogatories,2 the bull operator was told that they all wanted a slow ride, similar to the ride the operator had while demonstrating the use of the bull.3 Kuchta and former co-plaintiff Rebecca Bodnar both alleged in their responses to Sheltie Opco’s interrogatories that their rides on the bull started gently before the bull operator significantly increased the intensity, leading them to suffer injury. The bull ride operator, in an affidavit, states that she did not “operate the bull in a fashion that was intended to exceed Plaintiffs’ expectations of how intense the bull’s motions would be,” thereby suggesting that expectations had been set for Kuchta’s ride that may have been different than those described in the waiver.4

These conflicting allegations create a genuine dispute of material fact as to the expectations of the parties and as to whether the bull operator’s conduct failed to meet those expectations.5 Because Kuchta and Sheltie Opco each presented consistent and conflicting facts regarding [*10]  both parties’ expectations of the ride, and knowledge of the risks involved in a level two-of-ten or easy ride, a trier of fact should have resolved this issue.6 Thus, the district court erred by granting summary judgment in favor of Sheltie Opco as to Kuchta’s negligence claims.7

The district court erred by granting summary judgment in favor of Sheltie Opco on Kuchta’s battery claim

Kuchta argues that the district court erred in granting summary judgment in favor of Sheltie Opco on his battery claim because the Agreement did not contemplate gross negligence or intentional misconduct. Sheltie Opco contends that uncontroverted facts show that Kuchta consented to any conduct resulting from the bull ride, and thus, summary judgment was appropriate on his battery claim.

“A battery is an intentional and offensive touching of a person who has not consented to the touching . . . .” Humboldt Gen. Hosp. v. Sixth Judicial Dist. Court, 132 Nev. 544, 549, 376 P.3d 167, 171 (2016) (internal quotation marks omitted). “[G]eneral clauses exempting the defendant from all liability for negligence will not be construed to include intentional or reckless misconduct, or extreme and unusual kinds of negligence, unless such intention [*11]  clearly appears.” Restatement (Second) of Torts § 496B cmt. d (1965).

Here, Kuchta consented to a bull ride, but he claims he only consented to a mild ride, and therefore, any contact associated with a mild ride was allowed and could not be a battery. However, if the ride went beyond a mild ride, then there is a material question of fact as to the nature of the ride and to whether Kuchta consented to the resulting physical contact as the result of the unexpectedly rough ride. Further, Kuchta presented facts from two interrogatory responses that the bull rider intentionally increased the intensity of the bull machine, possibly attempting to throw him from the bull despite his understanding that the ride would be of mild intensity.8 Sheltie Opco provided an affidavit from the bull ride operator that stated that she did not intentionally increase the intensity of the bull ride beyond Kuchta’s expectations (which could also imply that she did in fact increase the intensity and understood his expectations). Viewing these assertions in a light most favorable to Kuchta, the nonmoving party, a rational trier of fact could find that the bull operator committed a battery by intentionally increasing the speed of the ride thereby deliberately [*12]  failing to meet the agreed upon expectations.9

Based on the parties’ conflicting factual assertions, it was inappropriate for the district court to grant summary judgment in favor of Sheltie Opco, as the trier of fact should resolve the conflict. Thus, the district court erred in granting summary judgment in favor of Sheltie Opco as to Kuchta’s battery claim. Accordingly, we

ORDER the judgment of the district court REVERSED AND REMAND this matter to the district court for proceedings consistent with this order.10

/s/ Gibbons, C.J.

Gibbons

/s/ Bulla, J.

Bulla

Dissent by: TAO

Dissent

TAO, J., dissenting:

Although ostensibly arising from a personal injury suit, the only question at issue in this appeal is whether Kuchta’s tort claims were contractually waived, which presents a question of contract law. The majority reverses by concluding that a genuine issue of fact exists under NRCP 56. But this can only be true if the scope of the waiver contract isn’t limited to its express words, but rather depends upon Kuchta’s verbal testimony, proffered during a deposition many months after the fact, regarding his intentions — even though those supposed intentions are contained nowhere in the contractual words and actually [*13]  contradict those words. Respectfully, I dissent.

I.

Liability waivers must mean something in Nevada, even if they might be allowed to mean less in other states. What Nevada has always represented is the opportunity to try things that aren’t available anywhere else. One hundred fifty years ago, it was the chance to strike gold and silver ore in the desert. Then it became the chance to strike it rich on a roulette wheel or a slot machine. But more and more nowadays, it’s the chance to experience an adventure that you simply can’t have anywhere else. With an economy now driven largely by tourism, what Nevada offers are things that other states and cities do not. Gambling, of course. Concerts, shows, and world-class restaurants also. Convention space, surely. Quick marriages and no-fault divorces too. But, also, the chance, for some, to engage in derring-do — to fly a fighter plane in aerial combat; to ride a zipline over city streets and steep canyons; to engage in gun battles armed with simunition; to skydive 30,000 feet to the desert; to swim with dolphins in their habitat; to fire a real machine gun or ride in an armored tank; to bungee jump from a tower; to ride a roller-coaster suspended [*14]  500 feet in the air; to race luxury cars around a track at breakneck speed. One could argue that mining and gaming aren’t our real stock in trade, but rather novelty.

But with some novel experiences comes some level of danger. Jumping out of an airplane is an activity fraught with risk no matter how carefully the parachute was packed. There’s no way to entirely eliminate all of the risk from ziplines, bungee jumps, and rafting through whitewater rapids. If Nevada intends to remain the premier tourist destination in a fast-evolving and competitive world, then our law must permit some proprietors to operate businesses that are, at least at some level, inherently risky and dangerous. If we ever lose our reputation for remaining on the cutting edge, then there’ll be no more reason for millions of tourists to visit. And if that day ever comes, Nevada will no longer be what it always has been.

Liability waivers thus serve an important role in a state like ours: they allow proprietors to stay on the cutting edge by allowing them to operate with some level of risk, so long as they take the time to apprise their customers of those risks. Here, Kuchta signed a written liability waiver whose terms [*15]  unambiguously cover the precise injuries he suffered (broken bones) and the precise way he incurred them (being thrown) using the precise apparatus (a mechanical bull) that the waiver precisely addressed. The district court granted summary judgment, concluding that this waiver barred his tort claims.

Let’s briefly summarize the facts and the arguments that Kuchta makes in appealing from the district court’s order. I’ll return to analyze these arguments later in more detail, so for now just a synopsis will do. Viewing the facts in the light most favorable to Kuchta, he contends that he and his friends arrived at Gilley’s, watched a demonstration of the mechanical bull, and then spoke with the ride operator who verbally agreed to provide him with a ride that equated to a difficulty level of 2 out of 10. The majority describes Kuchta’s testimony as follows:

Viewing all factual allegations in a light most favorable to Kuchta, his friends told the employee that each person in their group wanted an easy ride, which based on a difficulty scale of one to ten, they described as a two (with one meaning not moving at all), which the employee said she could provide. The friends indicated that everyone [*16]  in the group was a novice and wanted a ride similar to the ride the employee had demonstrated. Furthermore, they told the employee that everyone should be able to step off the bull once the ride concluded, just as the employee had been able to do earlier that night after her ride. The employee agreed to provide the type of a ride Kuchta’s group requested. (Order, page 2).

Kuchta and his friends then ate dinner. After dinner, they decided to get a ride, and Kuchta signed a written waiver stating as follows:

I AM FULLY INFORMED OF ALL RISKS ARISING FROM MY PARTICIPATION IN THE MECHANICAL BULL RIDING PROGRAM, including the risks described in this paragraph. The mechanical bull jerks and spins violently and unexpectedly. There is a significant risk that I will be seriously injured . . . [i]ncluding permanent paralysis, head injury, broken neck, other broken bones, and death, whether or not I am thrown from or fall.

Note that, by signing this, Kuchta acknowledged that the mechanical bull “jerks and spins violently and unexpectedly” and that riding it created a “significant risk” of injury from being “thrown,” including “broken bones.” Note also that this isn’t a generic catch-all waiver that [*17]  purports to cover the entire panoply of any kind of negligence that could conceivably occur on the premises, such as wet floors, rotten food, or debris falling from the roof. Quite to the contrary, it’s a narrow waiver that specifically covers one thing and one thing only, the mechanical bull and nothing else. After signing the waiver and mounting the bull, Kuchta was thrown from the bull in the very way that the waiver warned might happen, suffering one of the very injuries (broken bones) that the waiver warned might result. The district court granted summary judgment, concluding that the waiver covered Kuchta’s injuries.

On appeal, Kuchta argues that the words of the written waiver do not mean what they seem to so plainly say, not because any words of the waiver actually agree with him, but rather because when the ride operator verbally agreed to provide a level 2 ride, he changed Kuchta’s understanding and expectations” regarding the meaning of the waiver. But as the cliche goes, apples are not oranges, and here the verbal conversation had nothing to do with the waiver. Note what’s omitted from even the majority’s summary of the verbal conversation: any mention of the waiver whatsoever. [*18]  Just because the ride operator verbally agreed to try to provide a level 2 ride does not mean that he legally changed the waiver so that it only covered a level 2 ride and nothing more. Indeed, the truth at the heart of this case is that nobody (not even Kuchta) contends that the verbal discussion between Kuchta and the ride operator constituted a negotiation of the waiver; everyone agrees that it was only a conversation about the kind of ride Kuchta wanted. What Kuchta requested was a particular kind of ride, not a particular kind of waiver.

Kuchta tries to bootstrap the conversation about the ride into the contract about the waiver by arguing that it’s “parol evidence” regarding his “understanding and expectations” of what the contract covered. But a verbal conversation about the kind of ride Kuchta requested isn’t “parol evidence” for two reasons: first, the verbal conversation occurred before Kuchta signed the waiver, which means that the written contract supersedes any and all earlier alleged negotiations. Second, the kind of ride he requested isn’t a term of the waiver contract. The kind of ride he wanted, and the kind of ride he agreed to waive, are two very different things, [*19]  only one of which was ever the subject of the written waiver contract. Kuchta argues that merely because the ride he got was not the ride he requested, it fell outside of the scope of the waiver. But the waiver says nothing remotely like that.

The proper analysis here is to compare the ride he got to the plain words of the waiver. The very question in this case (not the answer, but the question) is whether the ride that Kuchta actually got was encompassed within the scope of the waiver that he signed. Kuchta tries to mix up the question with its answer, and make it all a circularity, by arguing that the waiver must only cover the ride he asked for. But nothing in the written waiver (and nothing in the verbal conversation either) indicates that the scope of waiver was supposed to be a moving target that ratcheted up or down to whatever kind of ride Kuchta personally wanted and, likewise, ratchets up or down for every other customer who requests a different level of ride. Reading the contract that way means that it lacks any fixed or objective meaning whatsoever but instead changes its meaning for each different customer even though the words themselves remain exactly the same, reducing [*20]  the contract to nothing more than a Rorshach ink blot having no intrinsic meaning apart from what any reader wants to see in it.

But this isn’t how contract law tells us to read a contract. The district court interpreted the contract correctly as a matter of law according to the objective meaning of its words – and I would affirm.

II.

Here’s how contract law actually works and how this appeal should have been analyzed.

To start with, it’s well-settled that interpreting the meaning of a contract is a question of law, not a question of fact. Redrock Valley Ranch, LLC v. Washoe County, 127 Nev. 451, 460, 254 P.3d 641, 647 (2011). Disputes regarding the scope and meaning of a contract do not preclude summary judgment because such disputes present pure questions of law for the court, not the jury, to resolve. “[I]n the absence of ambiguity or other factual complexities, contract interpretation presents a question of law that the district court may decide on summary judgment.” Galardi v. Naples Polaris LLC, 129 Nev. 306, 309, 301 P.3d 364, 366 (2013) (internal quotation marks omitted).

So, if there is no dispute over what the words of a contract consist of, and the only dispute is over what those words mean, the court is presented with a question of law that it may dispose of on summary judgment. Here, there are no factual disputes that a jury must sort [*21]  out. The parties do not dispute what words the written waiver consists of; Kuchta does not, for example, contend that any pages are missing or any clauses are blurry or incomplete. The parties also do not dispute what the words of the verbal conversation between Kuchta and the ride operator consist of; accept what Kuchta says to be true and agree with him that the operator agreed to try to provide a level 2 ride. There may exist some disagreement over what legal effect those words may have, if any; but there is no dispute regarding what the words of the conversation were. There are thus no factual disputes, only legal ones. The only thing left in dispute is what those words (both the undisputed words of the document and the undisputed words of the verbal conversation) mean about the scope of the waiver, which is a pure question of law that we must answer ourselves in this appeal de novo. May v. Anderson, 121 Nev. 668, 672, 119 P.3d 1254, 1257 (2005).

To answer that purely legal question, we start with the words of the contract. Bielar v. Washoe Health Sys., Inc., 129 Nev. 459, 465, 306 P.3d 360, 364 (2013). “A basic rule of contract interpretation is that ‘[e]very word must be given effect if at all possible.’ Id., 306 P.3d at 364. (quoting Musser v. Bank of Am., 114 Nev. 945, 949, 964 P.2d 51, 54 (1998) (alteration in original). Those words will either be unambiguous, or they will be ambiguous. Am. First Fed. Credit Union v. Soro, 131 Nev. 737, 739, 359 P.3d 105, 106 (2015). If the [*22]  words are unambiguous, then we look no farther than the four corners of the written document for its meaning. Id., 359 P.3d at 106. The court “has no authority to alter the terms of an unambiguous contract.” Canfora v. Coast Hotels and Casinos, Inc., 121 Nev. 771, 776, 121 P.3d 599, 603 (2005). Rather, an unambiguous contract “will be enforced as written.” Am. First Fed. Credit Union, 131 Nev. at 739, 359 P.3d at 106. “[T]he words of the contract must be taken in their usual and ordinary signification.” Traffic Control Svcs., Inc. v. United Rentals Northwest, Inc., 120 Nev. 168, 174, 87 P.3d 1054., 120 Nev. 168, 87 P.3d 1054, 1058 (2004). Only if the words are ambiguous do we venture outside of the document itself to examine such extrinsic things as parol evidence and settled rules of construction in order to determine the intent of the parties. M.C. Multi-Family Dev., LLC v. Crestdale Assocs., Ltd., 124 Nev. 901, 913-14, 193 P.3d 536, 544-45 (2008). An ambiguity must be inherent within the contractual term itself, and “does not arise simply because the parties disagree on how to interpret their contract.” Galardi, 129 Nev. at 309, 301 P.3d at 366.

Kuchta contends that the conversation regarding the level 2 ride must be considered “parol evidence” of contractual meaning. But “parol evidence” is only admissible when some contractual term is facially ambiguous. “The parol evidence rule does not permit the admission of evidence that would change the contract terms when the terms of a written agreement are clear, definite, and unambiguous.” Ringle v. Bruton, 120 Nev. 82, 91, 86 P.3d 1032, 1037 (2004). Further, even when such an ambiguity exists, courts can utilize parol evidence to [*23]  clear up what those ambiguous words mean but they cannot use parol evidence “to add to, subtract from, vary, or contradict” the words of the contract itself. M.C. Multi-Family Dev., LLC,124 Nev. at 913-14, 193 P.3d at 544-45. “[P]arol evidence may not be used to contradict [express] terms.” Galardi, 129 Nev. at 309, 301 P.3d at 366 (Quoting Kaldi v. Farmers Ins. Exch., 117 Nev. 273, 281, 21 P.3d 16, 21 (2001)). Thus, even when admissible (i.e., only when there’s an ambiguity), parol evidence is only meaningful to the extent that it clarifies and does not contradict or re-write the plain words of the contract itself. Id. And this is true whether the final document is integrated or not: if a contract is integrated then it may neither be supplemented nor contradicted by any additional evidence of any kind. If a contract is not integrated, then it may be supplemented by “consistent additional terms” but it still may never be contradicted by any extrinsic evidence. John D. Calamari & Joseph M. Perillo, Contracts § 3-2, “The Parol Evidence Rule”, 135-36 (3d ed. 1987) (text cited as authority in Matter of Kern, 107 Nev. 988. 991, 107 Nev. 988, 823 P.2d 275, 277 (1991).

Here, no term of the written waiver is facially ambiguous. Rather than identify some particular term that might be inherently ambiguous, Kuchta (and the majority) seem to contend instead that the entire contract was effectively re-written through the verbal conversation. [*24]  But that’s using “parol evidence” beyond its permissible purpose: not to clarify the meaning of an ambiguous term, but to change the scope and meaning of the entire contract. The majority uses the supposed “parol evidence” not to clarify the written words of the contract, but to make the entire contract mean only what the parol evidence says it means regardless of what the written words actually say. Not to illuminate the written words, but to replace them; not to make the written words clear, but to make them meaningless.

That isn’t how “parol evidence” works. There are several layers of problems here. First, parol evidence can never be used to contradict a writing, whether or not the writing was integrated. Galardi, 129 Nev. at 309, 301 P.3d at 366. Yet that’s exactly what Kuchta proposes. The written words, taken in their “usual and ordinary signification,” are clear. Traffic control Svcs., Inc. v. United Rentals Northwest, inc., 120 Nev. 168, 174, 87 P.3d 1054., 120 Nev. 168, 87 P.3d 1054, 1058 (2004). They expressly inform Kuchta that the ride will be violent with “unexpected” movements that may cause injury, and Kuchta’s signature acknowledges that he understood this. But Kuchta now says that he misunderstood this and the verbal conversation led him to “expect” a less-violent ride that [*25]  couldn’t cause injury. This isn’t using extrinsic evidence to clarify the words of a contract; it’s abusing extrinsic evidence to re-write the words of a contract to mean their exact opposite.

Second, the sequence of events matters. As the majority itself notes, the conversation between Kuchta and the rider operator occurred first. Only well after the conversation ended did Kuchta later sign the written waiver. And the law is clear that a written contract supersedes and obliterates all prior negotiations:

“an earlier tentative agreement will be rejected in favor of a later expression. More simply stated, the final agreement made by the parties supersedes tentative terms discussed in earlier negotiations. Consequently, in determining the content of the contract, earlier tentative agreements and negotiations are inoperative.”

Calamari & Perillo, supra at 135. So the verbal conversation isn’t “parol evidence” at all, but rather was nothing more than an early negotiation that never found its way into the written contract and now has no legal importance to what the parties signed later. (This, by the way, is the problem with footnote 2 of the majority’s order, which concludes that the verbal conversation constituted its [*26]  own separate contract: if the alleged verbal agreement covered the same subject matter as the signed contract (i.e., it was a negotiation over the waiver rather than the ride), then the earlier unsigned agreement was legally superseded by the later signed writing. If it covered some other subject matter (i.e., it was not a negotiation of the waiver but only covered the ride), then it was not superseded, but it has no relevance to the signed contract. Beyond that, if indeed there existed a contract requiring the operator to provide a level 2 ride, then the failure to do so was a breach of contract, not a tort, and the majority order now thoroughly confuses the standard of care by violating the “fundamental boundary between contract law, which is designed to enforce the expectancy interests of the parties, and tort law, which imposes a duty of reasonable care and thereby [generally] encourages citizens to avoid causing physical harm to others.” Terracon Consultants W., Inc. v. Mandalay Resort Grp., 125 Nev. 66, 206 P.3d 81. 72-73, 125 Nev. 66, 206 P.3d 81, 86 (2009). On remand, should the defendant be held to the words of the alleged oral contract, or the standard of a reasonable person, when only tort claims and no contract claims have been asserted? Good luck sorting that out.).

Third, even assuming [*27]  that the verbal conversation is “parol evidence” at all (which it isn’t, but let’s skip past that hurdle), it proves nothing relevant to the waiver contract. Kuchta acknowledged during oral argument that the conversation did not overtly represent a negotiation of the waiver; indeed, the words of the conversation never reference the waiver at all, only the kind of ride Kuchta wanted. Rather, Kuchta only alleges that the conversation affected his “understanding and expectation” of what the waiver contract was supposed to mean. See Renaud v. 200 Convention Cor. Ltd., 102 Nev. 500, 501, 102 Nev. 500, 728 P.2d 445, 446 (1986). What he’s saying is this: the contract must be read to mean not what the words of the document say, but only what he intended them to mean in his mind. But under principles of contract law, whether we read the four corners of an unambiguous contract or whether we look at parol evidence outside of an ambiguous one, what we’re looking for is not “intent” in the sense of the subjective intention of the parties (i.e., what the parties may have thought in their minds), but only the objective meaning conveyed by the words they used in the agreement. “[T]he making of a contract depends not on the agreement of [*28]  two minds in one intention, but on the agreement of two sets of external signs, not on the parties’ having meant the same thing but on their having said the same thing.” Hotel Riviera, Inc. v. Torres, 97 Nev. 399, 401, 632 P.2d 1155, 1157 (1981) (alteration in original, internal quotation marks omitted). In the oft-cited words of Holmes, “we ask, not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used.” Oliver W. Holmes, The Theory of Legal Interpretation, 12 Harv. L. Rev. 417, 417-18 (1899). “[T]he words of the contract must be taken in their usual and ordinary signification,” not twisted around to mean some personal peculiarity at odds with accepted English usage. Traffic Control Svcs., Inc. v. United Rentals Northwest, Inc., 120 Nev. 168, 174, 87 P.3d 1054, 1058 (2004). That the words of a contract are interpreted objectively according to normal rules of grammar, rather than subjectively according to the parties’ personal thoughts, has been the law for centuries. See Calamari & Perillo, supra, § 2-2, “Offer and Acceptance” at 26. “Objective manifestations of intent of the party should be viewed from the vantage point of a reasonable man in the position of the other party,” not the party alleging that his own words meant something else. Id. Thus, if one party offers to sell his car for $500 and the other says, “I accept,” [*29]  a contract is formed because of what they said, not what they thought; once they uttered the objective words of offer, acceptance, and consideration, a contract was created by operation of law. This is true even if one party later claims that he was only kidding. Id. at 27. The inquiry is not into what the parties may have intended in their minds to convey but rather the most reasonable meaning to be given to the words they utilized in the contract itself. The issue is not what Kuchta claims he meant, but what his words objectively conveyed to the other party, and the agreement must be “ascertained from the writing alone” (unless the writing is ambiguous). Oakland-Alameda Cty. Coliseum, Inc. v. Oakland Raiders, Lid., 197 Cal. App. 3d 1049, 243 Cal. Rptr. 300, 304 (Ct. App. 1988). But here, Kuchta proposes the opposite: that we ignore the words of the written document and instead make the contract only mean what was in his mind rather than what everyone signed on paper.

Finally, even if we skip past all of that and assume that parol evidence could be used the way that Kuchta proposes (even though it can’t be, but let’s ignore that for a moment), the content of both the document and the alleged “parol evidence” is wholly undisputed: nobody contests what words were written in the document or spoken during the conversation. [*30]  So what we’re left with is only a question of law regarding what those words mean, something that appellate courts are supposed to answer themselves as a matter of law and not leave to the jury. Thus, even if parol evidence was supposedly useable this way (again, ignoring settled principles of contract law), then the appropriate disposition is for us to just say, as a matter of law, whether the waiver contract covers the incident or not, without remanding a pure question of law back to the district court to grapple with during a jury trial. “[I]n the absence of ambiguity or other factual complexities, contract interpretation presents a question of law [appropriate for] summary judgment.” Galardi, 129 Nev. at 309, 301 P.3d at 366 (internal quotation marks omitted).

III.

Summing up, what 500 years of contract law tell us is this:

(1) a contract means what its words say and an unambiguous contract “will be enforced as written”;

(2) what the contractual words say is what they objectively convey in their ordinary sense regardless of what the parties might have personally thought or intended in their heads;

(3) the final contract supersedes all earlier verbal negotiations;

(4) parol evidence may only be used to clarify a term that is [*31]  ambiguous, and an ambiguity does not arise merely because the parties disagree on what they think the contract means;

(5) parol evidence may never be used to contradict an express term of a contract, whether the contract is integrated or not;

(6) parol evidence may never consist of earlier negotiations inconsistent with the final contract, whether the final document is integrated or not;

(7) when there is no dispute regarding what the words of the contract consist of (and there is no dispute regarding what any parol evidence admitted to clarify an ambiguity actually is), and the only remaining dispute is over what those undisputed words and parol evidence mean, then all that remains is a pure question of law for the court.

Applying these seven principles leads to an obvious and straightforward outcome. Here, nobody disputes what the words of the written waiver are; there’s not even any dispute about what the words of the “parol evidence” were, only what legal effect those words have or do not have. There’s no dispute that the alleged verbal agreement was never intended to be final, never mentioned the waiver in any way, and occurred before the signing of the written waiver contract. There [*32]  is no factual question left to work out. The only question before us is what all of the undisputed evidence means. That’s a pure question of law that we, not the jury, are supposed to answer.

IV.

With no dispute about what words the contract consisted of, what remains is solely a question of contractual interpretation. Redrock Valley Ranch., LLC v. Washoe County, 127 Nev. 451, 460, 254 P.3d 641, 647 (2011).

Here, the written words say that Kuchta waived the right to pursue any liability arising from broken bones that may result from being thrown from the “violent and unexpected” jerking of the mechanical bull. The parol evidence (assuming that the verbal conversation was any such thing) is that Kuchta asked for a level 2 ride and the operator agreed to try to provide one. None of this is in dispute. What does this all mean as a matter of law?

In the context of liability waivers, there are a couple of additional rules of construction to follow. In Nevada, an exculpatory agreement is a “valid exercise of the freedom of contract.” Miller v. A&R Joint Venture, 97 Nev. 580, 582, 636 P.2d 277, 278 (1981). Though generally enforceable, exculpatory clauses in a contract must meet four standards before a party seeking to enforce the clause can be absolved of liability:

(1) Contracts providing for immunity for liability for negligence must be construed [*33]  strictly since they are not favorite[s] of the law . . . ; (2) such contracts must spell out the intention of the party with the greatest particularity . . . and show the intent to release from liability beyond doubt by express stipulation and no inference from the words of general import can establish it . . . (3) such contracts must be construed with every intendment against the party who seeks immunity from liability . . . (4) the burden to establish immunity from liability is upon the party who asserts such immunity . .

Agric. Aviation Eng’g Co. v. Bd. of Clark Cty. Comm’rs,, 106 Nev. 396, 399400, 794 P.2d 710, 712-13 (1990) (quoting Richard’s 5 & 10, Inc. v. Brooks Harvey Realty Inv’rs, 264 Pa. Super. 384, 399 A.2d 1103, 1105 (Pa. Super. Ct. 1979)).

Here, all four requirements are met. Indeed, the majority seems to fully agree, as it does not conclude that the waiver contract is invalid or illegal, only that some dispute of facts exists regarding its meaning. So everyone agrees that the contract is valid; the only disagreement is over what it covers or does not cover.

It seems pretty clear to me that, whatever else this agreement covers, it covers what happened to Kuchta. Kuchta alleges in his lawsuit that, due to the unexpected and violent jerking of the bull, he was thrown and suffered broken bones. In other words, the appellant alleges that he suffered the exact injury (broken [*34]  bones) from the exact outcome (being thrown from the bull) caused by the exact movement (unexpected and violent jerking) expressly warned about in the waiver. Kuchta’s “parol evidence” (assuming it is any such thing) only shows that he asked for a level 2 ride, not that he asked for the waiver to only encompass a level 2 ride, so it tells us nothing about what the terms of the waiver contract were. The legal answer seems clear to me: Kuchta waived the right to sue for his injuries.

This all seems obvious under settled principles of contract law. So how does the majority come to a different conclusion? By reading Renaud v. 200 Convention Ctr. Ltd., 102 Nev. 500, 501, 102 Nev. 500, 728 P.2d 445, 446 (1986) in an astonishingly broad way that demolishes and re-writes much of existing contract law in Nevada.

V.

Based upon Renaud, Kuchta argues (and the majority agrees) that summary judgment was inappropriate. But I don’t read Renaud the way that either Kuchta or the majority do. There are two ways to read what Renaud supposedly says. The first is to read it broadly to overrule virtually the entirety of Nevada contract law in a way that requires reversal of this appeal. The second is to read it narrowly in a way that fits in quite [*35]  nicely with existing principles of Nevada contract law, but requires affirmance of this appeal. The majority chooses the former, but I think it’s the latter.

Before we get to the larger questions, here are some preliminary observations about Renaud. First, it’s a 1986 case decided under the old summary judgment standard that was expressly overruled in Wood v. Safeway, Inc., 121 Nev. 724, 731, 121 P.3d 1026, 1029 (2005), under which summary judgment could only be granted if no reasonable doubt exists that the plaintiff must lose and the “truth” is “clear.” See In re Hilton Hotel, 101 Nev. 489, 492, 706 P.2d 137, 138 (1985) (overruled by Wood). Indeed, the opinion hinges on the overruled pre-Wood language: “summary judgment is appropriate only when it is quite clear what the truth is.” Renaud, 728 P.2d at 446. It seems pretty clear to me that, just because summary judgment was improper in Renaud under the old standard — a standard that made summary judgment pretty much impossible to obtain, which is exactly why it was overruled, see Wood, 121 Nev. at 729-32, 121 P.3d at 1029-31 — that says nothing about whether we should follow its reasoning under the very different standard that exists today.

Second, the facts of Renaud are quite different than the facts of this case in a way that seriously undermines its relevance. The liability waiver at issue in Renaud was a blanket one that “purported [*36]  to exculpate Flyaway of any liability for negligence that might occur while [plaintiff] was on its premises.” 102 Nev. at 501, 728 P.2d at 446. The plaintiff contended that this release failed to apprise her of any specific risk associated with the free-fall simulator that injured her, a contention that was obviously quite true as the waiver failed to identify any particular risk of injury or even mention the simulator at all. Indeed, the waiver in Renaud consisted of the very “words of general import” that the Nevada Supreme Court disapproved in the four-prong test articulated in Agric. Aviation Eng’g Co., 106 Nev. at 399-400, 794 P.2d at 712-13. Consequently, summary judgment was inappropriate (especially under the old pre-Wood standard) because a serious question existed whether the waiver apprised the plaintiff of the particular risks specifically associated with the free-fall simulator when it never even mentioned the simulator or any risks at all. There’s no other way the case could have come out (which is probably why Renaud was so unimportant that it was issued as an unsigned per curiam opinion). If a waiver fails to even mention the apparatus that caused the injury, then there exists a dispute right on the face of the waiver itself as to what risks it identifies when the [*37]  waiver itself says barely anything at all one way or the other. Under principles of contract law alone, let alone tort law, such a waiver contains a facial ambiguity necessitating the evaluation of parol evidence to determine what the contract was supposed to cover or not cover. See M.C. Multi-Family Dei, 124 Nev. at 913-14, 193 P.3d at 544-45. Thus, under either contract law or tort law, whenever a waiver is facially vague and unclear, summary judgment was inappropriate because the waiver clearly failed to apprise the plaintiff of any risks in particular.

But that’s not anything like the case at hand. In stark contrast to Renaud, the release at issue here was far from a blanket one purporting to absolve the landowner from “all” unspecified and unnamed potential liability in some vague and incredibly generic way without bothering to identify what those risks were. Rather, the release here was narrowly and specifically targeted to the mechanical bull that described its operation and listed its particular hazards in detail, including the very injuries (broken bones from being thrown) that the plaintiff actually suffered. Indeed, the waiver covered nothing but the mechanical bull, and only people wishing to ride the mechanical bull were required [*38]  to sign it; patrons wishing only to have a drink at the bar weren’t required to sign it and weren’t asked to waive anything.

So there exist very different sets of facts between Renaud and this appeal. But the question becomes what that means: does Renaud apply only to vague blanket waivers that fail to identify any particular risks, or does it articulate a standard that broadly applies to all waivers including the narrow targeted one at issue here?

VI.

Renaud observes that two things are required for a plaintiff to have assumed the risk of an injury: “First, there must have been voluntary exposure to the danger. Second, there must have been actual knowledge of the risk assumed.” Renaud, 102 Nev. at 501, 728 P.2d at 446. To determine whether the party signing a liability waiver had actual knowledge of the risks assumed, courts must consider “the nature and extent of the injuries, the haste or lack thereof with which the release was obtained, and the understandings and expectations of the parties at the time of signing.” Id. at 502, 728 P.2d at 446.

The majority agrees that the first two factors strongly favor affirmance, but concludes that summary judgment is not warranted as to the third because factual disputes exist. In other words, the majority interprets [*39]  this language as a standalone three-part test that must be satisfied regardless of how detailed the language of the waiver happens to be. It becomes a test that exists apart from and outside of the contract itself, under which the words of the contract itself have no independent legal significance but are reduced to merely being one small piece of evidence among other evidence tending to prove the three prongs of the test. In addition to making it a standalone test, the majority interprets the three-part test as fundamentally factual. It becomes an inquiry focused upon what was said between the Kuchta and the ride operator regardless of what the waiver itself said or didn’t say within its four corners; and when those understandings and expectations are disputed, summary judgment cannot be granted.

Indeed, that’s how the majority order is structured: it recites the written words of the waiver on page 6, but then after launching into Renaud, it never cites those words again — they just disappear from the analysis for the rest of the order — instead only concluding that the third prong of the three-part test was factually disputed in a way having nothing to do with those words.

Well, that’s [*40]  one way to read Renaud. But it’s not how I read it, and here’s why: it deeply conflicts with long-settled principles of contract law.

Here’s the problem in a nutshell. If Renaud sets forth the standalone fact-based test that the majority proposes, then it requires the court to always, every single time, look outside of the four corners of the waiver to investigate the parties’ understandings and expectations, whether the words of the contract are ambiguous or not. And that judicial investigation must include superseded earlier negotiations that would otherwise be evidence of nothing under contract law. Maybe summary judgment could still sometimes still be granted if no dispute exists regarding that evidence; but the evidence must always be admitted and at least considered in some way whether there was any textual ambiguity in the contract or not. That’s a major re-writing of contract law, which starts with the fundamental proposition that contracts are enforced as written based upon the words contained within their four corners, and going outside of them is the exception, not the rule, an exception that only arises in the event of an ambiguity.

And there’s more. If Renaud is indeed the [*41]  standalone factual test that Kuchta proposes, then courts must always admit extrinsic evidence whether or not it qualifies as admissible “parol evidence” in contract law. Beyond that, here’s what the court would use that extrinsic evidence to do: not to clear up the meaning of an ambiguity in the text (because under this test no such ambiguity would be required as a trigger anyway), but to determine what the parties thought and expected the waiver contract to mean in the first place regardless of the words used. But this violates the idea that “[t]he making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs, not on the parties’ having meant the same thing but on their having said the same thing.” Hotel Riviera, 97 Nev. at 401, 632 P.2d at 1157 (alteration in original, internal quotation marks omitted). Here, Kuchta reads Renaud as requiring the exact opposite: courts must read contracts not according to their words, but rather according to the personal “understandings and expectations of the parties at the time of signing.” It replaces the objective test of contract law with an entirely subjective approach that focuses not upon the plain and ordinary meaning [*42]  of the words of the document that everyone signed but, instead, upon what everyone thought regardless of the written words that they agreed upon. The old rule has long been that “we ask, not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used,” Oliver W. Holmes, The Theory of Legal interpretation, 12 Harv. L. Rev. 417, 417-18 (1899), and “the words of the contract must be taken in their usual and ordinary signification,” Traffic Control Svcs., 120 Nev. at 174, 87 P.3d at 1058. But the majority’s new rule is that we ask not what words were used, but only what the parties imagined in their heads.

This is revolutionary. Make no mistake about how far-reaching this is. But it’s the only way to reverse summary judgment here, because all of the factual disputes that Kuchta (and the majority) point to lie entirely outside of the four corners of the written contract and consist entirely of a prior, superseded verbal conversation that nobody even asserts was a negotiation of the waiver contract itself. And those supposed factual disputes serve not to clarify a term of the contract, but to contradict those terms.

In short, Kuchta and the majority read Renaud as supplanting (or at least [*43]  creating an unprecedented major exception to) settled law: when it comes to liability waivers, courts do something entirely different than they’ve done with every other contract since the time of Blackstone.

That’s an incredibly broad reading of Renaud. But accepting it is the only way to reverse summary judgment in this case, because if we apply traditional contract law and stay within the four corners of the waiver itself — or, alternatively, even if we concede some kind of ambiguity but limit ourselves to parol evidence consistent with the written words in order to clarify the written words — Kuchta must lose. For what Kuchta now claims he believed about the waiver comes very close to representing the exact opposite of what its written words actually say: the written waiver says that the movements of the bull are “violent” and “unexpected” and may cause injury, but Kuchta now asserts that he had a specific expectation that the ride would be non-violent and could not cause injury.

VII.

Let’s ask a practical question: under this standard, what kind of trial will this be? The answer is: not one in which the jury will be instructed to honor the written words of the waiver contract even [*44]  if the words are clear and unambiguous. If any parol evidence is deemed admissible in the event of ambiguity, not one in which the jury will be instructed to consider only parol evidence that doesn’t flatly contradict the written words or re-write the entire contract. In sum, not one in which the words of the contract matter much at all.

Instead, the trial will consist (as the interrogatory responses and deposition testimony before us currently do) of dueling, uncorroborated, and self-serving testimony regarding a single verbal conversation that occurred years ago that was never memorialized and never referenced in any way in the final writing, one that Kuchta himself agrees was not a negotiation of the terms of the waiver. In weighing that conversation, the jury will be asked to determine not what contractual terms Kuchta agreed to and signed, but only what inner thoughts he secretly harbored at the time.

VIII.

I don’t read Renaud that way. It’s a two-page unsigned per curiam opinion, and nothing in it suggests that it was meant to broadly overrule so much clear and established law. It’s axiomatic that we do not read statutes as if Legislatures decided to “hide elephants in mouseholes.” [*45]  Whitman v. American Trucking Association, 531 U.S. 457, 468, 121 S. Ct. 903, 149 L. Ed. 2d 1 (2001). I doubt that we ought to read Renaud as if the Nevada Supreme Court intended to do exactly that.

Instead, I read Renaud as saying something much simpler that overrules nothing and fits very happily within existing tenets of contract law. Courts must determine whether a waiver warns of the risk and injury at issue, just as Renaud says they must; but they do so within the context of settled law by examining the terms of the waiver itself. If the words of the waiver contain a sufficient warning, then no extrinsic evidence is needed and the inquiry stops there because the contract must be interpreted according to the four corners of its text as a matter of law. Only if the waiver is ambiguous as to what is covered can the court go outside of the four corners of the document to examine parol evidence to clear up the ambiguity.

Renaud itself was a straightforward application of this simple idea. In it, the waiver at stake was so generically written that it fails to mention the free-fall simulator at all, much less describe any particular injuries that could occur from using it. Thus, the written contract itself was silent on whether it covered either the plaintiffs particular injury or the [*46]  risk that inflicted that injury. In that event, established principles of contract law dictate that the written waiver could either be read as ambiguous regarding whether it covered the free-fall simulator, or it could also be read, as a matter of law, as not covering the free-fall simulator. In the first instance, parol evidence must be considered to resolve the ambiguity and, in the second instance, any evidence of a waiver, if there was one, must exist entirely outside of the written contract in the form of an oral contract. Either way, and especially under the old pre-Wood standard for granting summary judgment, summary judgment was not warranted because no such evidence had been presented or considered.

So I read Renaud not as some sweeping and revolutionary holding inconsistent with contract law in any way, but as a simple and straightforward application of clearly established law. If a waiver is so poorly worded or generic as to be ambiguous, then summary judgment cannot be granted absent consideration of parol evidence. On the other hand, if the written waiver is sufficiently clear and precise that its terms convey that there was “voluntary exposure to the danger as well as [*47]  actual knowledge of the risk assumed” — including that “the nature and extent of the injuries” were of the kind warned about in the waiver, and the ‘understandings and expectations of the parties at the time of signing” are clearly conveyed in the document — then the only question presented is one of contract interpretation (a question of law). If the written words meet all of these tests, then as a matter of law the waiver operates to bar any claim arising from any injury specifically warned of in the waiver. Renaud, 102 Nev. at 501, 728 P.2d at 446.

Consequently, summary judgment was properly granted in this case. The waiver is specific and precise, there are no ambiguities in it, and it covered the very injuries suffered by the very means warned about in the waiver. I would conclude as a matter of law that summary judgment was properly granted as the only question before us is one of contract interpretation, which presents a pure question of law. The only factual “disputes” that appellant cites relate to inadmissible extrinsic evidence lying outside of the contract that both pre-dates and contradicts the writing, and therefore are neither “genuine” nor “material.” See Wood, 121 Nev. at 731, 121 P.3d at 1029 (“A factual dispute is genuine when the evidence is [*48]  such that a rational trier of fact could return a verdict for the nonmoving party.”). See
NRCP 56 (summary judgment warranted when plaintiff not “entitled to judgment as a matter of law”). I would affirm and respectfully dissent.

/s/ Tao, J.

Tao


Markovitz v. Cassenti, 56 N.E.3d 894, 90 Mass.App.Ct. 1102 (2016)

Markovitz v. Cassenti, 56 N.E.3d 894, 90 Mass.App.Ct. 1102 (2016)

90 Mass.App.Ct. 1102 (2016)

56 N.E.3d 894

Joanne Markovitz & another [ 1]

Christine Cassenti & another. [ 2]

15-P-1274

Appeals Court of Massachusetts

August 18, 2016

Editorial Note:

This decision has been referenced in an “Appeals Court of Massachusetts Summary Dispositions” table in the North Eastern Reporter. And pursuant to its rule 1:28, As Amended by 73 Mass.App.Ct. 1001 (2009) are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel’s decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 N.4, 881 N.E.2d 792 (2008).

Judgment affirmed.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

In this negligence action arising out of the plaintiff’s injury following her fall off a horse during a group riding lesson at defendants’ Chrislar Farm, a Superior Court judge granted summary judgment for the defendants.[ 3] The plaintiff appealed.

Background.

On July 16, 2009, the plaintiff filled out and signed an application for riding lessons at Chrislar Farm. In that application, she wrote that she had six months of riding experience in 2001 and that she wanted to continue to learn to ride. The form contained a section entitled ” RELEASE,” which stated: ” I, the Club member/Student (or parent or guardian) recognize the inherent risks of injury involved in horseback riding/driving and being around horses generally, and in learning to ride/drive in particular. In taking lessons at CHRISLAR FARM or participating in Club activities, I assume any and all such risk of injury and further, I voluntarily release CHRISLAR FARM, its owners, instructors, employees and agents from any and all responsibility on account of any injury I (or my child or ward) may sustain for any reason while on the premises of CHRISLAR FARM or participating in Club activities, and I agree to indemnify and hold harmless CHRISLAR FARM, its owners, instructors, employees and agents on account of any such claim.”

The plaintiff signed the form on the signature line immediately below the release.[ 4]

Between July of 2009 and September of 2010, the plaintiff took thirty-minute private riding lessons on a regular basis. Between September, 2010, and January, 2011, the plaintiff took one-hour group riding lessons and walked, trotted, and cantered several different horses. On September 3, 2010, the defendants leased a horse named Jolee. Christine Cassenti had known this horse for a long time. The trainer conducting the lessons thought that the horse was ” sweet and did everything you asked her to do.”

The plaintiff first rode Jolee during a ” musical horses” exercise. She then rode Jolee during the next three one-hour group lessons on December 23, 2010, December 30, 2010, and January 6, 2011. At one point during the December 23, 2010, lesson, Jolee went from a trot into a canter and stayed in a circle formation instead of performing a figure eight. Following the instructions from the trainer, the plaintiff slowed down and stopped Jolee. The plaintiff rode Jolee without incident on December 30, 2010, and January 6, 2011.

On January 20, 2011, a year and one-half after the plaintiff began taking lessons at Chrislar Farm, the plaintiff rode Jolee for the fourth time. She noticed that Jolee briefly pinned her ears. After finishing a walk, the plaintiff began trotting Jolee. At one point, Jolee sped up into a faster trot and turned left, causing the plaintiff to lose her balance and fall.

Discussion.

Massachusetts courts have generally upheld release agreements immunizing defendants from future liability for their negligent acts, including in cases related to sports and recreation. See Lee v. Allied Sports Assocs., Inc., 349 Mass. 544, 550, 552, 209 N.E.2d 329 (1965) (spectator at pit area of speedway); Cormier v. Central Mass. Chapter of the Natl. Safety Council, 416 Mass. 286, 288-289, 620 N.E.2d 784 (1993) (beginner rider in motorcycle safety class); Sharon v. Newton, 437 Mass. 99, 105-107, 769 N.E.2d 738 (2002) (student at cheerleading practice). The challenges to releases from liability have regularly been resolved by summary judgment. See, e.g., Cormier, supra at 287; Sharon, supra at 103; Gonsalves v. Commonwealth, 27 Mass.App.Ct. 606, 606, 541 N.E.2d 366 (1989). In this case, we conclude that the release signed by the plaintiff, which the plaintiff has not challenged as unclear or ambiguous, barred her negligence claim.[ 5]

To avoid the preclusive effect of the release, the plaintiff argues that she was entitled to proceed under G. L. c. 128, § 2D( c )(1)(ii), inserted by St. 1992, c. 212, § 1, which provides one of the exceptions to the exemption from liability: ” Nothing in subsection (b) shall prevent or limit the liability of an equine activity sponsor, an equine professional, or any other person if the equine activity sponsor, equine professional, or person: ” (1) . . . (ii) provided the equine and failed to make reasonable and prudent efforts to determine the ability of the participant . . . to safely manage the particular equine based on the participant’s representations of his ability.” [ 6]

Rather than creating a new duty in addition to those that already exist under our common law, as argued by the plaintiff, this subsection provides an exception to the overall bar to liability established by the statute, and allows a plaintiff to proceed with a negligence claim in certain limited circumstances. Because the statute does not create new duties on the part of the equine professional, the plaintiff cannot rely on it to avoid the preclusive effect of the release she signed. This case is distinguishable from Pinto v. Revere-Saugus Riding Academy, Inc., 74 Mass.App.Ct. 389, 395, 907 N.E.2d 259 (2009), which did not involve a release.

Where the release is dispositive of the plaintiff’s claim, we need not decide if there were genuine issues of material fact as to whether the defendants failed to make reasonable efforts to determine the plaintiff’s ability to safely manage Jolee.

Judgment affirmed.

Cohen, Agnes & Henry, JJ.[ 7].

———

Notes:

[1]Gabriel Markovitz. He claimed loss of consortium.

[2]Lawrence Cassenti.

[3]For simplicity, we will refer to Joanne Markovitz as the plaintiff.

[4]The form also contained the following: ” WARNING: Under Massachusetts law, an equine professional is not liable for any injury to, or the death of, a participant in equine activities resulting from the inherent risks of equine activities, pursuant to Chapter 128, Section 2D of the General Laws.”

[5]” [W]hile a party may contract against liability for harm caused by its negligence, it may not do so with respect to its gross negligence.” Zavras v. Capeway Rovers Motorcycle Club, Inc., 44 Mass.App.Ct. 17, 19, 687 N.E.2d 1263 (1997). In a footnote in her brief, the plaintiff argues that it is a question of fact whether the trainer’s conduct amounted to gross negligence or wilful and wanton conduct. Here, viewing the summary judgment record in the light most favorable to the plaintiff, she cannot make out a case of gross negligence.

[6]The complaint contains a negligence count and a loss of consortium count. There is no mention of G. L. c. 128, § 2D.

[7]The panelists are listed in order of seniority.

———


Blanchette v. Competitor Group, Inc., 2019 Cal. App. Unpub. LEXIS 7714, 2019 WL 6167131

Blanchette v. Competitor Group, Inc., 2019 Cal. App. Unpub. LEXIS 7714, 2019 WL 6167131

Craig Blanchette, Plaintiff and Respondent,

v.

Competitor Group, Inc., Defendant and Appellant.

D073971

California Court of Appeals, Fourth District, First Division

November 20, 2019

NOT TO BE PUBLISHED

APPEAL from a judgment and postjudgment order of the Superior Court of San Diego County No. 37-2016-00018380- CU-PO-CTL, Richard E. L. Strauss, Judge. Affirmed.

Horvitz & Levy, S. Thomas Todd, Eric S. Boorstin; Daley & Heft, Robert H. Quayle IV, Lee H. Roistacher and Rachel B. Kushner for Defendant and Appellant.

Higgs Fletcher & Mack, John Morris, Rachel E. Moffitt; RDM Legal Group, Russell Myrick and Keith Rodenhuis for Plaintiff and Respondent.

IRION, J.

Plaintiff Craig Blanchette (Plaintiff), then an elite wheelchair racer, competed in the 2014 San Diego Rock ‘n’ Roll Marathon (Marathon), which was owned and operated by defendant Competitor Group, Inc. (Defendant). During the race, Plaintiff was injured as he attempted a 90 degree left-hand turn, could not complete the turn, went through the orange traffic cones that marked the course boundary, and crashed into a car stopped at a traffic light in a lane outside the course.

Following a jury trial on one cause of action for gross negligence, the court entered a judgment in favor of Plaintiff and against Defendant in the amount of $3.2 million. On appeal, Defendant argues, as a matter of law, that it neither acted grossly negligent nor increased the risk inherent in wheelchair racing on city streets. As we explain, Defendant did not meet its burden of establishing, as a matter of law, either that it was not grossly negligent or that Plaintiff assumed the risk of the injuries he received. Thus, we will affirm the judgment and the order denying Defendant’s postjudgment motions.

I. FACTUAL BACKGROUND[ 1]

Due to a birth defect, Plaintiff’s femur bones are about two inches long, and Plaintiff has used a wheelchair since he was in the eighth grade. When Plaintiff was 15 years old, his grandfather bought him his first racing wheelchair. Plaintiff participated in his first professional wheelchair race two years later in 1986, placing fifth in a field of 250. He won his next eight races, setting four world records along the way. At age 20, Plaintiff won a bronze medal in the 1988 Summer Olympics; and over the next approximately 11 years of competition (i.e., prior to the year 2000), he set 21 world records and obtained sponsors.

Plaintiff took a break from wheelchair racing, competing in hand cycling for a few years. He eventually returned to wheelchair racing; and, by June of 2014, he was again “in race shape” as an elite athlete and participated in the Marathon.[ 2] Plaintiff described the “elite level” of wheelchair racing as the professional level, “allow[ing] you to make money competing[.]” Indeed, the Marathon had an elite athlete coordinator who invited Plaintiff, then a resident of Washington state, to come to San Diego to compete at the event. By that time Plaintiff had competed in hundreds of wheelchair races.

Plaintiff arrived in San Diego two days before the Marathon. Because he had not previously competed in a San Diego Rock ‘n’ Roll Marathon, during that time he “did everything” he was aware of to prepare for the race. He reviewed the basic course map; he studied “the virtual tour” video-at least 15 times-which played continuously on a monitor in the lobby of the hotel where the elite racers stayed; he went to the prerace exposition, where competitors signed in and received their racing bibs; and the night before the race, he attended the all-competitor meeting which included a general safety check, the distribution of additional copies of the basic course map, and the further opportunity to view the virtual tour video.

The basic course map that Defendant provided Plaintiff was on one piece of paper and covered the area from Balboa Avenue on the north to National Avenue/Logan Avenue on the south and from west of Interstate 5 on the west to Interstate 15 on the east. The marathon course is shown in a solid red line; the half-marathon course is shown in a solid blue line; and some of the shorter streets on the courses are unidentified. The virtual tour was a video of the entire racecourse, from start to finish, recorded from a car that traveled the streets of the course during normal daytime traffic conditions.[ 3] The entire video played at a speed that covered the entire 26.2-mile course in approximately five minutes-i.e., at a rate in excess of 300 miles per hour-and ran on a continuous loop in multiple locations.

The virtual tour video of the racecourse was especially important to Plaintiff, since wheelchair racers rely on the “racing line” they choose to maximize speed to gain an advantage during competition. According to Plaintiff, a wheelchair racer tries to “have the fastest racing line through” the turns; “you start wide, you taper down narrow,” completing the turn in “the exit lane.” In particular, from the virtual tour video, Plaintiff had studied the intersection where his accident occurred-11th Avenue just south of its intersection with B Street-and the racing line he would take as he turned left from B Street onto 11th Avenue.

According to the individual who was Defendant’s president and chief executive officer at all relevant times, [ 4] Defendant made available a one page document entitled “Turn by Turn Directions” (turn-by-turn directions) that listed each of the Marathon’s more than 40 turns and specified for each whether the entire street (“whole road”) or a portion of the street (e.g., “southbound lanes,” “east side of road,” etc.) was part of the racecourse. (See fn. 7, post.) Defendant presented evidence that these directions were available only on Defendant’s website and at an information booth at the prerace exposition. There is no evidence either that Defendant told Plaintiff about these directions or that Plaintiff knew about these directions; and Plaintiff testified that, before this lawsuit, he had never seen a copy of the turn-by-turn directions.

Defendant also presented evidence that it had provided the elite wheelchair racers with “a 24-hour concierge” who was able to answer questions they had, including information about or a tour of the racecourse. Defendant’s president and chief executive officer confirmed, however, that a competitor would have to contact the concierge and request services and that Defendant did not offer tours directly to the racers. In any event, there is no evidence that Plaintiff was aware of either the concierge or the services Defendant’s witness said the concierge could provide.

Finally, Defendant presented evidence that it provided bicycle-riding “spotters” on the racecourse who were responsible for providing visual cues to alert the elite racers-both those running and those wheeling-of course conditions. Defendant did not present evidence that any of its spotters was at or near the location of Plaintiff’s accident at any time; Defendant’s witnesses did not know the location of any of the spotters at or near the time of Plaintiff’s accident; and Plaintiff did not see any spotters on the racecourse at or near the place of his accident.

At the Marathon, Defendant hosted approximately 25, 000 athletes-five of whom competed in wheelchairs. The wheelchair racers started first, since they travel at much faster speeds than the runners.[ 5]

The accident occurred early in the race, approximately 3.9 miles from the start.[ 6] The Marathon began on 6th Avenue at Palm Street and proceeded north approximately one mile to University Avenue; the course continued east (right turn) on University Avenue for more than one-half mile to Park Boulevard; and then the course went south (right turn) on Park Boulevard for approximately two miles. The following two turns in quick succession, at times referred to “a zigzag” or “an S turn,” led to the accident: At the intersection of Park Boulevard and B Street, the racers made a 90 degree right turn (west) onto B Street; and one block later, they made a 90 degree left turn (south) onto 11th Avenue. At the speed he was traveling, Plaintiff was unable to negotiate the left turn from B Street onto 11th Avenue. Instead of completing the left turn and continuing south on 11th Avenue, at about 45 degrees, Plaintiff went off the course to the west and crashed into a car stopped at a traffic light in the western-most lane of 11th Avenue.

There are three lanes on B Street and four lanes on 11th Avenue. Under normal conditions on 11th Avenue, all four lanes of vehicle traffic travel northbound and merge into a freeway two blocks north of B Street. During the race, the far west lane of 11th Avenue was unavailable for the southbound racers; instead, it was kept open for northbound vehicle traffic from downtown to the freeway.

 Approximately one hour before the race, Defendant closed the Marathon streets downtown and, as relevant to this lawsuit, set up traffic cones, 15 feet apart, which directed the Marathon racers to make the left turn from the three lanes of B Street to the three eastern lanes of 11th Avenue-thereby eliminating the west lane of 11th Avenue to wheelchair racers and making it available for vehicles traveling north to the freeway. At all times, including well in advance of the Marathon, Defendant knew that the west lane of 11th Avenue would be closed to competitors and open to vehicle traffic: Defendant was using the same course it had used in prior years; and Defendant had prepared and provided to many others “an internal working document” that contained sufficient detail to show the traffic cones and elimination of the west lane on 11th Avenue. In this latter regard, Defendant provided its “internal working document” to the course setup teams, the traffic control setup teams, the bands, the aid stations, the medical people, and “those that needed that level of detail”-but not to the elite wheelchair racers.

Not until he was racing-indeed, not until the point in time at which he was at the west end of the one block of B Street, turning left onto 11th Avenue at a speed in excess of 20 miles per hour-did Plaintiff first learn that Defendant had closed the west lane of 11th Avenue to racers and left it open to motor traffic. Nowhere in what Defendant provided-which included the basic course map, the virtual tour video of the course, and the information at the prerace exposition (sign-in) and the all-competitor safety check meeting-was Plaintiff told that, as the racecourse turned left from B Street to 11th Avenue: the west lane of 11th Avenue would be unavailable to racers; a row of orange traffic cones would separate the three east lanes of 11th Avenue (i.e., the course) from the one west lane (i.e., outside the course); or cars would be in the one west lane of 11th Avenue while the racers would be limited to the three east lanes, separated only by traffic cones 15 feet apart from one another.

This was significant to Plaintiff. In planning his speed and racing line for the S curve (right turn from Park Blvd. to B St. followed immediately by the left turn from B St. to 11th Ave.), he had to know his exit lane on 11th Avenue in order to “set up for this corner.” That is because, according to Plaintiff, “the width of the exit is the primary factor that determines the speed of entrance.” To safely set up for the S curve, for example, “you had to know the specifics of what was happening on 11th [Avenue] back on Park [Boulevard]” in order to maneuver the S curve “at the right speed.” More specifically, Plaintiff testified that he “would have needed to know about this racing lane elimination [on the west side of 11th Avenue] prior to entering the corner on [B Street]-off of Park [Boulevard].”[ 7] (Italics added.)

That did not happen. Based on the information Defendant provided Plaintiff-i.e., from studying the basic course map and the virtual tour video, and attending the prerace exposition and the all-competitor meeting-Plaintiff had no reason to suspect that his planned exit lane would be closed to wheelchair racers and open to cars. Given his speed, his “racing line,” and his view of the road, Plaintiff had only two seconds from the time he first learned that the west lane of 11th Avenue was unavailable as an exit lane until he crossed the boundary and crashed into the car in the west lane.

Plaintiff testified that, throughout his 30 years of racing, he had “never seen a lane elimination like that” on the turn from B Street to 11th Avenue at the Marathon. Consistently, another of the elite wheelchair racers who competed at the Marathon testified that, based on the approximately 140 races in which he has participated over 27 years, he would not expect motor vehicle traffic like the wheelchair racers encountered on 11th Avenue. Finally, Plaintiff’s expert testified: changing a racecourse that a wheelchair racer is expecting an hour before the race is not only misleading but “would make the race inherently more dangerous”; “on Sunday morning there can be no changes”; and the organizer of the race is responsible for ensuring the safety of the competitors.

As a result of the crash into the stopped vehicle on 11th Avenue, Plaintiff suffered personal injuries, including broken bones, and the healing process required multiple surgeries. Since the accident at the Marathon, Plaintiff has been unable to compete as an elite athlete in longer wheelchair races.

II. PROCEDURAL BACKGROUND

In June 2016, Plaintiff filed a complaint based on the injuries he suffered during the Marathon when he crashed into the stopped vehicle on 11th Avenue. The operative complaint is a first amended complaint in which Plaintiff alleged three causes of action-negligence, gross negligence, and fraud-against Defendant and two other entities.

As to the two other entities, the trial court granted their summary judgment motion, and there is no issue on appeal as to these defendants or the claims Plaintiff alleged against them. As to Defendant, the trial court granted its motion for summary adjudication as to the claims for negligence, fraud, and punitive damages; and there is no issue on appeal regarding these claims. The case proceeded to a jury trial on Plaintiff’s one claim for gross negligence against Defendant.

Over the course of seven days in January 2018, the trial court presided over a jury trial, and the jury returned a verdict in Plaintiff’s favor, finding in relevant part: Defendant was grossly negligent (vote 9-3); Plaintiff did not assume the risk of the injury he suffered (vote 9-3); Plaintiff suffered damages in the amount of $4 million (vote 12-0); and Plaintiff was 20 percent contributorily negligent (vote 10-2). Accordingly, the court entered judgment for Plaintiff and against Defendant in the amount of $3.2 million.

Defendant filed postjudgment motions, including supporting documentation, for a new trial and for a judgment notwithstanding the verdict. Plaintiff filed oppositions to the motions, and Defendant filed replies to Plaintiff’s oppositions. Following hearing, in March 2018 the trial court denied Defendant’s motions.

Defendant timely appealed from both the judgment and the order denying the postjudgment motions.

III. DISCUSSION

Defendant contends that the judgment should be reversed with directions to enter judgment in Defendant’s favor on either of the following two grounds: (1) As a matter of law, Plaintiff failed to establish gross negligence by Defendant; or (2) as a matter of law, Defendant established that it did not unreasonably increase the risk (i.e., Plaintiff assumed the risk) that Plaintiff would injure himself by turning from B Street to 11th Avenue at too high a speed to complete the turn.

The parties disagree as to the standard of review to be applied. Defendant argues that, because the material facts are undisputed and only one inference can reasonably be drawn, we review both issues de novo. In response, Plaintiff argues that, because material facts were disputed-or, at a minimum, conflicting inferences exist from the undisputed facts-we review both issues for substantial evidence. As we explain, under either standard we must consider the evidence in a light most favorable to Plaintiff; thus, in essence, we will be reviewing both issues for substantial evidence. In doing so, we apply well-established standards.

We “look to the entire record of the appeal,” and if there is substantial evidence, “it is of no consequence that the [jury] believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion.” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874, italics deleted.)” ‘[T]he test is not the presence or absence of a substantial conflict in the evidence. Rather, it is simply whether there is substantial evidence in favor of the respondent.'” (Dane-Elec Corp., USA v. Bodokh (2019) 35 Cal.App.5th 761, 770.) “If this ‘substantial’ evidence is present, no matter how slight it may appear in comparison with the contradictory evidence, the judgment must be upheld.” (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631 (Howard).) The fact that the record may contain substantial evidence in support of an appellant’s claims is irrelevant to our role, which is limited to determining the sufficiency of the evidence in support of the judgment actually made. (Ibid.)

In determining the sufficiency of the evidence, we “may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to [the verdict] must be accepted as true and conflicting evidence must be disregarded.” (Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 118, italics added; accord, Howard, supra, 72 Cal.App.4th at p. 631 [“we will look only at the evidence and reasonable inferences supporting the successful party, and disregard the contrary showing”].) The testimony of a single witness, including that of a party, may be sufficient (In re Marriage of Mix (1975) 14 Cal.3d 604, 614; Evid. Code, § 411); whereas even uncontradicted evidence in favor of an appellant does not establish the fact for which the evidence was submitted (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 890 (Foreman)).

Under these standards, as we will explain, substantial evidence supports the jury’s findings both that Defendant was grossly negligent (i.e., Plaintiff proved Defendant’s extreme departure from the ordinary standard of care) and that Plaintiff did not assume the risk of the injury he suffered (i.e., Defendant failed to prove that it did not unreasonably increase the risks to Plaintiff over and above those inherent in wheelchair racing). Thus, as we will conclude, Defendant did not meet its burden of establishing reversible error. (See Jameson v. Desta (2018) 5 Cal.5th 594, 609 [“a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate… an error that justifies reversal”].)

A. Gross Negligence

The jury answered “Yes” to special verdict question No. 1, “Was [Defendant] grossly negligent?” Defendant contends that, as a matter of law, the undisputed material facts do not support the jury’s finding of gross negligence. We disagree.

1. Law

Ordinary negligence “consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm.” (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 753-754 (Santa Barbara).)” ‘” ‘[M]ere nonfeasance, such as the failure to discover a dangerous condition or to perform a duty, ‘” amounts to ordinary negligence.'” (Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC (2018) 25 Cal.App.5th 344, 358 (Willhide-Michiulis).) In contrast, to establish gross negligence, a plaintiff must prove “either a ‘want of even scant care’ or ‘an extreme departure from the ordinary standard of conduct.'” (Santa Barbara, at p. 754; accord, Willhide-Michiulis, at p. 358.)

California does not recognize a cause of action for “gross negligence.” (Santa Barbara, supra, 41 Cal.4th at pp. 779-780.) Rather, as our Supreme Court explained, “the distinction between ‘ordinary and gross negligence’ reflects ‘a rule of policy’ that harsher legal consequences should flow when negligence is aggravated instead of merely ordinary.” (Id. at p. 776.) For this reason,” ‘”‘ “[g]ross negligence” falls short of a reckless disregard of consequences, and differs from ordinary negligence only in degree, and not in kind.'” ‘” (Willhide-Michiulis, supra, 25 Cal.App.5th at p. 358.)

2. Analysis

Defendant argues for de novo review on the basis that, according to Defendant, “the material facts are undisputed and only one inference can reasonably be drawn.” Plaintiff disagrees, arguing that many material facts were disputed, conflicting inferences exist, Defendant’s appeal “presents garden-variety challenges to a jury’s factual findings”-and, accordingly, the issues Defendant raises in this appeal are subject to substantial evidence review.

 Persuasively, Plaintiff relies on Cooper v. Kellogg (1935) 2 Cal.2d 504 (Cooper). In Cooper, the plaintiff was a passenger in the defendant’s car, and late at night the plaintiff was injured when the defendant fell asleep, crossed into oncoming traffic, and hit a car traveling in the opposite direction. (Id. at pp. 506-507.) Under the law in effect at the time of the accident, the plaintiff could recover from the defendant driver only if the defendant was grossly negligent. (Id. at pp. 505-506.) Thus, to recover, the plaintiff had to establish “whether defendant [driver] was grossly negligent in permitting himself to fall asleep”-i.e., not merely “whether he was negligent in the manner in which he controlled the car[.]” (Id. at p. 507.)

Following trial, the court found that the defendant had not operated the vehicle in a grossly negligent manner. (Cooper, supra, 2 Cal.2d at p. 507.) The plaintiff in Cooper argued on appeal that the uncontradicted evidence required a finding as a matter of law that the defendant driver was grossly negligent. (Id. at p. 508.) The uncontradicted evidence in Cooper included the defendant’s considerable activities during the 18 hours preceding the accident (from 8:00 a.m. until the accident at 2:00 a.m. the following morning[ 8]), and the defendant’s testimony that, despite the activities, he had no premonition or warning of sleepiness. (Id. at pp. 506-507.) The plaintiff could add nothing to the evidence of the accident, since he had fallen asleep. (Id. at p. 506.)

In response to the plaintiff’s argument that “the uncontradicted evidence requires a finding of gross negligence upon the part of [the defendant driver],” the Supreme Court disagreed, ruling: “Whether there has been such a lack of care as to constitute gross negligence is a question of fact for the determination of the trial court or jury, and this is so ‘even where there is no conflict in the evidence if different conclusions upon the subject can be rationally drawn therefrom.'” (Cooper, supra, 2 Cal.2d at pp. 508, 511, italics added.) Thus, even though the evidence concerning the defendant driver and his activities during the 18 hours preceding the accident was undisputed, the Supreme Court refused to rule as a matter of law, deferring instead to the trier of fact: Despite the undisputed facts, “we cannot say that the only reasonable conclusion the trial court could reach was that there was such a likelihood of his falling asleep, of which he knew or should have been aware, that his continuing to operate the car amounted to gross negligence as defined above.” (Id. at p. 511.)

The analysis and result are the same here. We cannot say that the only reasonable conclusion the jury could reach was that Defendant’s actions were not grossly negligent. Even if some facts are undisputed, viewing the evidence in a light most favorable to Plaintiff-as we must (see fn. 1, ante)-” ‘different conclusions upon the subject can be rationally drawn therefrom.'” (Cooper, supra, 2 Cal.2d at p. 511.) Thus, as in Cooper, we do not apply independent review. (Ibid.) Although Defendant does not present its arguments based on substantial evidence review, by contending that the undisputed material facts require as a matter of law a ruling that Defendant was not grossly negligent, Defendant is arguing that substantial evidence does not support the jury’s finding of gross negligence. As we explain, we are satisfied that substantial evidence supports the jury’s finding that Defendant was grossly negligent-i.e., Defendant’s behavior was an extreme departure from the ordinary standard of conduct.[ 9]

Defendant argues: “As a matter of law, [Defendant] did not fail to use even scant care, or depart in an extreme way from the ordinary standard of conduct, when it posted the turn-by-turn directions on its website and made them available at its information booth, but did not physically hand a copy to [P]laintiff and the other wheelchair racers.” Very simply, this argument fails to consider or apply the appropriate standard of review.[ 10] As we introduced at footnote 1, ante-and as Defendant invites us to do, but fails to do in its analysis-we construe all facts and inferences in a light most favorable to Plaintiff. (Mary M., supra, 54 Cal.3d at p. 214, fn. 6 [on appeal where appellant contends the material facts are undisputed]; Carrington, supra, 30 Cal.App.5th at p. 518 [on appeal from the judgment where appellant contends the record lacks substantial evidence to support the verdict]; Jorge, supra, 3 Cal.App.5th at p. 396 [on appeal from the denial of a motion for judgment notwithstanding the verdict where appellant contends the record lacks substantial evidence to support the verdict].)

According to Defendant, we should credit fully the evidence presented by Defendant-including but not limited to the testimony that the turn-by-turn directions were available to Plaintiff-and discredit the evidence from the wheelchair racers that races like the Marathon do not have either lane elimination (like that on the turn from B Street to 11th Avenue) or vehicle traffic (like that in the west lane of 11th Avenue). However, this is not the appropriate standard when viewing the evidence in a light most favorable to the prevailing party. (See pt. III., before pt. III.A., ante.) To accept Defendant’s argument would result in this appellate court usurping the jury’s responsibility for determining credibility of witnesses and truth of evidence. (City of Hope National Medical Center v. Genetech, Inc. (2008) 43 Cal.4th 375, 394; Hawkins v. City of Los Angeles (2019) 40 Cal.App.5th 384, 393 [” ‘”‘ “it is the exclusive province of the [jury] to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends” ‘”‘ “; brackets in original].) Even though a material fact may be “undisputed” as argued by Defendant, on the present record this means only that contrary evidence was not presented; it does not mean that Plaintiff agreed to the fact or that the jury-or this court on appeal-must credit the undisputed fact as a matter of law. (See Hass v. RhodyCo Productions (2018) 26 Cal.App.5th 11, 33 [defense summary judgment on claim of gross negligence inappropriate in part due to “credibility questions that need to be answered”].)

We consider, for example, Defendant’s actions in making the west lane of 11th Avenue unavailable for racers; in making the west lane of 11th Avenue available for vehicle traffic; in separating the wheelchair racers’ exit lane and the traffic lane with cones placed 15 feet apart; and in notifying the racers of this situation. Defendant’s president and chief economic officer testified that Defendant prepared turn-by-turn directions that communicated to racers that the west lane of 11th Avenue would not be available for racers and that Defendant made these directions available both on its website and at its information booth at the exposition.[ 11] However, Plaintiff testified that he neither saw nor knew of the turn-by-turn directions;[ 12] and the record does not contain evidence from anyone who actually saw the directions either on Defendant’s website or Defendant’s information booth. Thus, although Defendant tells us that it “is undisputed that the turn-by-turn directions were” on Defendant’s website and at Defendant’s information booth, at best the facts on which Defendant relies were uncontradicted, not undisputed; yet even uncontradicted evidence in favor of an appellant does not establish the fact for which the evidence was submitted (Foreman, supra, 3 Cal.3d at p. 890).

In any event, these facts raise inferences and credibility determinations that preclude a ruling-either way-whether Defendant was grossly negligent as a matter of law.

Through the basic course map and the virtual tour video it provided to the Marathon racers, Defendant represented to Plaintiff that all lanes on 11th Avenue would be open to the racers-including specifically the west lane, which Plaintiff reasonably considered and planned to use as the exit lane for his turn from B Street to 11th Avenue. At all times, however, Defendant knew that traffic cones would be used both to direct wheelchair racers to make the left turn from B Street to 11th Avenue and to eliminate the west lane of 11th Avenue to wheelchair racers. Although Defendant prepared an “internal working document” with this specific information and provided it to “those that needed that level of detail,” Defendant did not provide it to the wheelchair racers. One hour before the start of the race and with no notice to Plaintiff-at a time when Plaintiff was already near the starting line and warming up-Defendant placed traffic cones, 15 feet apart from one another, on the outside of the left turn from B Street to 11th Avenue and down the length of 11th Avenue, blocking Plaintiff from using the exit lane he had planned based on the basic course map and virtual tour video Defendant provided.

In this regard, the following evidence from two of the five elite wheelchair racers who competed at the Marathon was uncontradicted: One racer testified that, in his 30 years’ experience in wheelchair racing, he had “never seen a lane elimination” like that on the left turn from B Street to 11th Avenue; and another racer testified that, based on his 27 years’ experience in over 140 wheelchair races, he would never expect motor vehicle traffic to be in the lane next to the wheelchair racers separated only by traffic cones placed 15 feet apart. Moreover, according to Plaintiff’s expert, Defendant was responsible for ensuring the safety of all racers, and on the morning of the race “there can be no changes” made to racecourse, because to do so “would make the race inherently more dangerous” for the wheelchair competitors. Given his speed, his racing line, and his view of the racecourse as he proceeded down the one block of B Street, Plaintiff had only two seconds to attempt to change his course from when he first learned that Defendant had closed the west lane of 11th Avenue and when he crashed into the car in the west lane of 11th Avenue. Had Plaintiff known of the lane elimination on 11th Avenue, he would have been able to negotiate the turn from B Street by “com[ing] into the corner differently.”

Like Cooper, even where (as here) there is no conflict in the evidence, because various conclusions can be drawn from the evidence based on inferences and credibility, we cannot say that the only reasonable finding the jury could reach was that Defendant’s actions were not an extreme departure from what a reasonably careful person would do in the same situation to prevent harm to Plaintiff. Stated differently, the evidence and inferences from the evidence described in the preceding paragraphs substantiate the jury’s finding that Defendant was grossly negligent.

 Defendant’s legal authorities do not support a different analysis or result. Defendant first cites seven cases-each followed by a one sentence (or less) parenthetical describing facts or quoting language-in which intermediate appellate courts ruled that a plaintiff could not establish a lack of gross negligence as matter of law. Defendant continues by citing five cases-each followed by a one sentence (or less) parenthetical describing facts or quoting language-in which intermediate appellate courts ruled that a defendant failed to establish a lack of gross negligence as a matter of law. Defendant then concludes by stating without discussion or argument: “Contrasting the facts of the cases that find no gross negligence as a matter of law with the facts of the cases that find possible gross negligence, it is apparent that our case falls in the former category.” Defendant does not suggest the reason, and we decline to speculate as to what “is apparent” to Defendant. In short, Defendant’s one-sentence argument is neither helpful nor persuasive.

For the foregoing reasons, Defendant did not meet its burden of establishing, as a matter of law, that Plaintiff failed to prove gross negligence.

B. Assumption of the Risk

The jury answered “Yes” to special verdict question No. 3, “Did [Defendant] do something or fail to do something that unreasonably increased the risks to [Plaintiff] over and above those inherent in marathon wheelchair racing?” Defendant contends that, as a matter of law, the undisputed material facts do not support the jury’s finding that Defendant unreasonably increased the risks inherent in marathon wheelchair racing. Stated differently, Defendant contends that, as a matter of law, Plaintiff assumed the risk of the injuries he sustained by competing as an elite wheelchair racer at the Marathon. We disagree.

1. Law

Assumption of the risk is an affirmative defense to a plaintiff’s claim of negligence. (6 Witkin, Summary of Cal. Law (11th ed. 2017) Torts, § 1437(2), p. 758.) Primary assumption of risk, when applicable, “completely bars the plaintiff’s recovery,” whereas secondary assumption of risk” ‘is merged into the comparative fault scheme, and the trier of fact, in apportioning the loss resulting from the injury, may consider the relative responsibility of the parties.'” (Cheong v. Antablin (1997) 16 Cal.4th 1063, 1068 (Cheong); see Knight v. Jewett (1992) 3 Cal.4th 296, 314-315 (Knight ).) The presence or absence of duty determines whether an application of the defense will result in a complete bar (primary assumption of the risk) or merely a determination of comparative fault (secondary assumption of the risk). (6 Witkin, supra, § 1437(2) at p. 758.)

” ‘Although persons generally owe a duty of due care not to cause an unreasonable risk of harm to others (Civ. Code, § 1714, subd. (a)), some activities-and, specifically, many sports-are inherently dangerous. Imposing a duty to mitigate those inherent dangers could alter the nature of the activity or inhibit vigorous participation.'” (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1154 (Nalwa).) Primary assumption of risk is a doctrine of limited duty which was “developed to avoid such a chilling effect.” (Ibid.) If it applies to a recreational activity like the Marathon, an event sponsor like Defendant owes the “participants only the duty not to act so as to increase the risk of injury over that inherent in the activity.” (Ibid. [primary assumption of the risk applied as a complete defense to bumper car passenger’s action against amusement park owner for injuries sustained when bumper cars collided].)

In Knight, supra, 3 Cal.4th 296, our Supreme Court considered the proper application of the assumption of risk doctrine in terms of duty, given the court’s adoption of comparative fault principles in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804.[ 13] The court “distinguished between (1) primary assumption of risk-‘those instances in which the assumption of risk doctrine embodies a legal conclusion that there is “no duty” on the part of the defendant to protect the plaintiff from a particular risk’-and (2) secondary assumption of risk-‘those instances in which the defendant does owe a duty of care to the plaintiff but the plaintiff knowingly encounters a risk of injury caused by the defendant’s breach of that duty.'” (Cheong, supra, 16 Cal.4th at pp. 1068-1069, quoting Knight, at p. 308.)

The test for whether primary assumption of risk applies is whether the activity” ‘involv[es] an inherent risk of injury to voluntary participants… where the risk cannot be eliminated without altering the fundamental nature of the activity.'” (Nalwa, supra, 55 Cal.4th at p. 1156.) “The test is objective; it ‘depends on the nature of the sport or activity in question and on the parties’ general relationship to the activity’ rather than ‘the particular plaintiff’s subjective knowledge and awareness[.]'” (Cheong, supra, 16 Cal.4th at p. 1068, quoting Knight, supra, 3 Cal.4th at p. 313.)

In determining whether the doctrine of assumption of the risk will be a defense to a claim of negligence in a sporting activity, the trial court must consider three issues:”‘ “whether an activity is an active sport, the inherent risks of that sport, and whether the defendant has increased the risks of the activity beyond the risks inherent in the sport.” ‘” (Fazio v. Fairbanks Ranch Country Club (2015) 233 Cal.App.4th 1053, 1061 (Fazio); see Knight, supra, 3 Cal.4th at p. 317 [in analyzing the duty of an owner/operator of a sporting event, courts should consider “the risks inherent in the sport not only by virtue of the nature of the sport itself, but also by reference to the steps the sponsoring business entity reasonably should be obligated to take in order to minimize the risks without altering the nature of the sport” (italics added)].) The first two issues, which relate to duty, are determined by the court, and the third-viz., increased risk-is a question to be decided by the trier of fact.[ 14] (Fazio, at pp. 1061-1063.)

2. Analysis

In its opening brief, Defendant explained that, at trial, in response to Defendant’s prima facie showing in support of its affirmative defense of primary assumption of the risk, “[P]laintiff had to prove that [Defendant] unreasonably increased the risk to him over and above the risks inherent in wheelchair racing on city streets.”[ 15] In this context, Defendant characterized the risk at issue as follows:

“The pertinent inherent risk was that [P]laintiff would attempt to turn a corner at too high a speed, run off the race course, and crash.”

In this context, Defendant described the issue on appeal to be:

 “[W]hether [Defendant], by not physically handing [P]laintiff a copy of the turn-by-turn directions, in addition to making them available on its website and at its information booth, unreasonably increased the inherent risk that [P]laintiff would attempt to turn a corner at too high a speed, run off the race course, and crash.”

Defendant accordingly limited its substantive argument on appeal to establishing, as a matter of law, that it did nothing to increase the risk that “[P]laintiff would attempt to turn a corner too fast, run his wheelchair off the race course, and crash” and that it was not required to undertake any affirmative efforts to decrease that risk.

In its brief, Plaintiff criticized Defendant for “tak[ing] too narrow a view of its duty here (framing this issue as simply as whether it ‘unreasonably increased the inherent risk’ that [Plaintiff] would ‘roll over or run off the race course and crash’).” Plaintiff disagreed with Defendant’s “formulation,” corrected Defendant’s statement of the inherent risk at issue, and explained his position as follows:

“The ‘precise issue,’ instead, is whether… [Defendant] increased the risks inherent in wheelchair racing in multiple ways, including: (1) by failing to indicate on the basic course map provided to all competitors that the outside lane of 11th Avenue (the necessary ‘exit lane’ for a fast-moving wheelchair) would not be available on race day (or by failing to at least direct competitors to its much-heralded turn-by-turn directions for information regarding lane closures); (2) by affirmatively representing to racers through its ‘virtual tour’ that all lanes on 11th Avenue would be available to complete that turn; (3) by removing 13 feet… of the roadway from the critical ‘exit lane’ about an hour before the race began without ever alerting at least the… wheelchair racers to this change; and (4) by [f]ailing to take other necessary precautions (for instance, with announcements, required tours, better barricades, bigger signs, or sufficient spotters) to advise racers of that particularly precarious intersection.”

In its argument, consistent with its position on gross negligence, Plaintiff emphasized that Defendant affirmatively increased the inherent risks of marathon wheelchair racing by changing the racecourse from that shown on the basic course map and the virtual tour video. According to Plaintiff, an hour before the race began with the wheelchair competitors already at the starting line, Defendant increased the risks by: eliminating the west lane of 11th Avenue, whereas the basic course map and virtual tour video did not indicate the loss of a lane; and allowing vehicle traffic in the west lane of 11th Avenue, where wheelchair racers would ordinarily complete their left turns from B Street, separating the racecourse from vehicle traffic by plastic traffic cones placed 15 feet apart. In support of his argument, Plaintiff relied on the following testimony: In his 30 years of wheelchair racing, Plaintiff had “never seen a lane elimination like that” on the turn from B Street to 11th Avenue; and based on his 27 years of wheelchair racing, another Marathon wheelchair competitor would never have expected the motor vehicle traffic that the wheelchair racers encountered on 11th Avenue-i.e., motor vehicles traveling in the lane next to the wheelchair racers’ exit lane, where competitors were racing at speeds exceeding 20 miles per her, separated only by traffic cones placed 15 feet apart.

In its reply brief, Defendant acknowledged that Plaintiff considered Defendant’s increase to the inherent risks in wheelchair racing to be the elimination of the west lane of 11th Avenue without notice, but continued with its position from its opening brief, restating it in part as follows:

 “Stated in terms of legal requirements, [Defendant] had no duty to eliminate or minimize the inherent risks of wheelchair road racing, one of which is that [P]laintiff would attempt to go too fast around a corner, run off the race course and crash. [¶] In the opening brief, we said the precise issue on appeal is whether [Defendant] unreasonably increased the inherent risk of injury by making the turn-by-turn directions available on its website and at its manned information booth, but not physically handing [P]laintiff a copy of the directions.”

Defendant again argued that it did not increase the inherent risks associated with wheelchair racing by eliminating the west lane and allowing vehicle traffic on 11th Avenue, because Defendant prepared turn-by-turn directions that a defense witness said were available on Defendant’s website and at Defendant’s information booth at the exposition.

The parties again disagree as to the standard of review. Defendant contends that, because the facts are undisputed, we are to review the judgment de novo; whereas Plaintiff contends that, because many facts-and inferences from the facts-are disputed, we are to review the judgment for substantial evidence. As before, Plaintiff has the better position.

As we explained in reviewing whether Defendant was grossly negligent (see pt. III.A.2, ante), even if some facts are undisputed, viewing the evidence in a light most favorable to Plaintiff-as we must (see fn. 1, ante)-” ‘different conclusions upon the subject can be rationally drawn therefrom’ “; and if different conclusions can be drawn, then the issue to be determined is a question of fact” ‘even where there is no conflict in the evidence.'” (Cooper, supra, 2 Cal.2d at p. 511 [uncontradicted evidence of arguably gross negligence does not require a finding of gross negligence as a matter of law].) Since the same “undisputed” evidence is at issue in reviewing whether Defendant increased the risks of injury to the wheelchair racers at the Marathon, we apply the same standard of review-i.e., substantial evidence.

The determination of whether Defendant increased the risks for wheelchair racers beyond those inherent in the sport of marathon wheelchair racing is an issue of fact.[ 16] (Fazio, supra, 233 Cal.App.4th at p. 1061; see pt. III.B.1., ante.) As we discuss, the same substantial evidence that supported the jury’s finding of gross negligence (see pt. III.A.2., ante) also supports the jury’s finding that Defendant affirmatively increased the risks associated with marathon wheelchair racing.[ 17]

Through the basic course map and the virtual tour video it provided to Plaintiff, Defendant represented that all lanes on 11th Avenue would be open to the racers-including specifically the west lane, which Plaintiff reasonably considered and planned to use as the exit lane for his left turn from B Street to 11th Avenue. One hour before the start of the race and with no notice to Plaintiff-at a time when Plaintiff was already near the starting line and warming up-Defendant placed traffic cones, 15 feet apart from one another, on the outside of the left turn from B Street to 11th Avenue and down the length of 11th Avenue, blocking Plaintiff from using the exit lane he had planned. This action increased the risks otherwise inherent in wheelchair racing, because: Neither lane elimination on the racecourse nor vehicle traffic separated by traffic cones next to the wheelchair racers’ exit lane on the racecourse is a risk inherent in marathon wheelchair racing; yet Defendant’s actions both eliminated a lane on 11th Avenue and allowed for a lane of vehicle traffic on 11th Avenue next to the exit lane for the left turn from B Street, separated only by traffic cones 15 feet apart.

Thus, the record contains substantial evidence to support the finding that Defendant increased the risks inherent in marathon wheelchair racing. In short, the record contains evidence that Defendant changed the racecourse from what Defendant showed Plaintiff on the basic course map and virtual tour video-merely one hour before the start of the race-without disclosing the change to Plaintiff or the other wheelchair racers.

Consistent with its argument as to gross negligence, Defendant contends that, with regard to assumption of the risk, although “it is the racers’ responsibility to become sufficiently familiar with the race course to successfully negotiate its features,” Plaintiff failed to “go on [Defendant’s] website, visit [Defendant’s] information booth, or consult [Defendant’s] knowledgeable personnel” where Plaintiff could have received a copy of the turn-by-turn directions. Consistent with our ruling on gross negligence (see pt. III.A.2., ante), Defendant does not cite to evidence that Plaintiff knew of such resources, let alone that those resources had turn-by-turn directions or other information which disclosed the changes to the racecourse from the information Defendant affirmatively provided him in the basic course map and virtual tour video.

For the foregoing reasons, Defendant did not meet its burden of establishing, as a matter of law, that Plaintiff assumed the risk of the injuries he sustained by competing as a wheelchair racer at the Marathon.

IV. DISPOSITION

The judgment and the order denying Defendant’s postjudgment motions are affirmed. Plaintiff is entitled to his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)

  WE CONCUR: HALLER, Acting P. J., O’ROURKE, J.

———

Notes:

[ 1] Defendant argues for de novo review of the two issues (gross negligence and assumption of the risk) based on its contention that “the material facts are undisputed and only one inference can reasonably be drawn.” Defendant’s principal authority for this standard is Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202 (Mary M.), which instructs that, when applying this standard, the facts must be considered “in the light most favorable” to the prevailing party. (Id. at p. 214, fn. 6.) Indeed, citing this same footnote in Mary M., Defendant acknowledges that, under this standard, even “[d]isputed material facts can become undisputed by construing them in the manner most favorable to the opposing party.” Construction of the evidence in a light most favorable to the prevailing party is consistent with established standards of review following a jury verdict and the denial of a motion for judgment notwithstanding the verdict. (Carrington v. Starbucks Corp. (2018) 30 Cal.App.5th 504, 518 (Carrington) [appeal from judgment where appellant contends the record lacks substantial evidence to support the verdict]; Jorge v. Culinary Institute of America (2016) 3 Cal.App.5th 382, 396 (Jorge) [appeal from order denying motion for judgment notwithstanding the verdict].)

[ 2] The Marathon was 26.2 miles. It began just north of downtown San Diego (on 6th Ave. near Palm St., west of Balboa Park) and finished in the south end of downtown San Diego (on 13th St. near K St., east of Petco Park).

[ 3] A copy of the virtual tour video was not available for trial. As described by Plaintiff, on one-way streets where the racers would be traveling against the flow of the traffic during the recording session, the camera was placed in the rear of the car, and when the video was prepared, the portions recorded from the rear of the car were spliced into the video in reverse.

[ 4] We describe this evidence-and the evidence in the subsequent two paragraphs of the text-since Defendant emphasizes it in Defendant’s appellate briefing. However, this is not evidence we consider when analyzing the evidence and inferences in a light most favorable to Plaintiff, as previewed at footnote 1, ante, and discussed at parts III.A.2. and III.B.2., post.

[ 5] The Marathon course diagram, which is an internal document that the course operations team prepares, indicates that the wheelchair racers were scheduled to start 5 minutes before the first group of runners.

[ 6] The reporter’s transcript contains testimony from Defendant’s president and chief executive officer that the accident happened “at a little less than a fourth of a mile” from the start line. Based on the course map and the testimony of two racers, apparently either the witness misspoke or the reporter’s transcript contains an error.

[ 7] Plaintiff testified that, had he been given advance notice that the west lane of 11th Avenue had been eliminated from the course he had seen on the virtual tour video, he would have planned for a different racing line and successfully completed the turn from B Street to 11th Avenue. The turn-by-turn directions-the existence of which was never made known to Plaintiff-described the S curve from Park Boulevard to 11th Avenue as follows: “1.6 [miles] Right (south) turn on Park Blvd[.], southbound lanes only “3.8 [miles] Right (west) turn on B St[.], whole road “3.9 [miles] Left (south, against traffic) turn on 11th Ave[.], east side of road[.]” Notably, these directions do not disclose either that the west lane of 11th Avenue would be unavailable to racers or that vehicle traffic would be traveling northbound in the west lane of 11th Avenue.

[ 8] The plaintiff and defendant left Santa Rosa around 8:00 a.m.; more than two hours later they had lunch in San Francisco; they drove to San Mateo and attended a football game; after the game, they drove to San Francisco, where they had dinner and attended the theater; they took the ferry to Sausalito around midnight; and the accident occurred as the defendant drove from Sausalito back to Santa Rosa. (Cooper, supra, 2 Cal.2d at p. 506.)

[ 9] Consistent with CACI No. 425, the court instructed the jury: “Gross negligence is the lack of any care or an extreme departure from what a reasonably careful person would do in the same situation to prevent harm to oneself or to others. [¶] A person can be grossly negligent by acting or by failing to act.”

[ 10] Defendant’s argument also implies that Plaintiff should have requested or taken advantage of the turn-by-turn directions. However, since there is no evidence suggesting that Plaintiff knew such information was available, we question how Plaintiff could have requested or taken advantage of it.

[ 11] Defendant does not contend that its turn-by-turn directions or any other evidence told Plaintiff that the west lane of 11th Avenue would be open to vehicle traffic or separated from the racecourse only by traffic cones 15 feet apart.

[ 12] In its reply, Defendant argues that Plaintiff was unaware of turn-by-turn directions because “Plaintiff chose not go on the website, visit the information booth, or consult the knowledgeable personnel.” (Italics added.) Defendant cites no evidence-and in our review of the record, we are unaware of evidence-that Plaintiff chose not to take advantage of those services. While that is one inference that can be drawn from Plaintiff’s testimony, that is not the only inference. Other reasonable inferences include that Plaintiff failed to take advantage of those services either: because he did not know they were available; or, since Plaintiff had never seen a lane eliminated like on 11th Avenue and elite wheelchair racers do not expect motor vehicle traffic to be separated from the competitors by traffic cones, he would not think to ask about such services. As Defendant acknowledges, because multiple inferences can be drawn from Plaintiff’s failure to take advantage of those services, such failure is not an “undisputed fact” for purposes of our appellate review. (Mary M., supra, 54 Cal.3d at p. 213.)

[ 13] Knight was a plurality opinion, but a unanimous court later “restated the basic principles of Knight‘s lead opinion as the controlling law.” (Cheong, supra, 16 Cal.4th at p. 1067, citing Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 537-538.)

[ 14] We recognize-as we did in Fazio, supra, 233 Cal.App.4th at page 1061-that Court of Appeal decisions conflict as to whether the issue of increased risk is a legal question for the court or a factual question for the jury. (Id. at pp. 1061-1063.) We have no reason to reconsider our ruling and analysis in Fazio, and Defendant does not suggest otherwise. (See fn. 16, post.)

[ 15] In this regard, the trial court instructed the jury as follows, consistent with CACI No. 472, entitled “Primary Assumption of Risk-Exception to Nonliability-… Event Sponsors”: “[Plaintiff] claims he was harmed while participating in a wheelchair race as part of [Defendant’s] Rock and Roll Marathon. To establish this claim, [Plaintiff] must prove all of the following: [¶] 1. That [Defendant] was the operator of the Rock and Roll Marathon; [¶] 2. That [Defendant] unreasonably increased the risks to [Plaintiff] over and above those inherent in the sport of wheelchair marathon racing[; ¶] 3. That [Plaintiff] was harmed; and [¶] 4. That [Defendant’s] conduct was a substantial factor in causing [Plaintiff’s] harm.” (Italics added.)

[ 16] As we introduced ante, the other two issues associated with the potential application of the doctrine of assumption of the risk-whether marathon wheelchair racing is “an active sport” and “the risks inherent in that sport”-are legal issues that are reviewed de novo. (Fazio, supra, 233 Cal.App.4th at p. 1061.) Although Defendant does not directly raise either of those issues in its appeal, we have no difficulty concluding that: Marathon wheelchair is an active sport; and turning a corner at too high a speed and running off the racecourse is a risk inherent in marathon wheelchair racing. In its reply brief, Defendant suggests that we apply a de novo standard of review because “this appeal involves a mixed question of law and fact.” We disagree that this appeal involves a mixed question. Each of the three issues under Fazio is decided and reviewed separately: two are issues of law, and one-i.e., whether the defendant increased the risks inherent in the sport-is an issue of fact. (Fazio, supra, 233 Cal.App.4th at pp. 1061-1063.) This appeal involves only the last issue, and as an issue of fact, it is reviewed on appeal for substantial evidence.

[ 17] In its reply brief, for the first time, Defendant “note[d]” that, in Fazio, supra, 233 Cal.App.4th 1053, “this court held that, in the summary judgment context, if there are disputed material facts, the jury will decide whether the defendant increased the inherent risk.” We agree that, if there are disputed material facts, then the jury must decide the factual dispute; and that is what happened in this case. Defendant then argues “that, after trial, if the case goes up on appeal, the appellate court is bound by the jury’s resolution of the factual disputes, but not by the jury’s determination that the defendant increased the inherent risk,” suggesting instead that “[t]he appellate court, based on the now-established facts, decides de novo whether the defendant increased the inherent risk.” Not only does Defendant fail to provide authority for its suggestion, in the context of the present appeal, the suggestion makes no sense. Here, the jury resolved the ultimate factual dispute-i.e., whether the defendant increased the inherent risk: “[Defendant] d[id] something or fail[ed] to do something that unreasonably increased the risks to [Plaintiff] over and above those inherent in marathon wheelchair racing.” As we ruled in Fazio: “[R]esolving the question of whether [the defendant] increased the risk of [the harm the plaintiff suffered] is properly decided by the trier of fact. This question… ‘requires application of the governing standard of care (the duty not to increase the [inherent risks]) to the facts of this particular case-the traditional role of the trier of fact.'” (Fazio, supra, 233 Cal.App.4th at pp. 1062-1063; italics and second and third brackets added.) For these reasons, we disagree with Defendant’s reply argument in support of de novo review.


Crisp v. Nelms, 2018 Tenn. App. LEXIS 160; 2018 WL 1545852

Crisp v. Nelms, 2018 Tenn. App. LEXIS 160; 2018 WL 1545852

Court of Appeals of Tennessee, At Knoxville

January 16, 2018, Session; March 28, 2018, Filed

Reporter

CAROLYN CRISP v. MICHAEL NELMS, ET AL.

Subsequent History: Request granted Crisp v. Nelms, 2018 Tenn. LEXIS 401 (Tenn., Aug. 8, 2018)

Later proceeding at Crisp v. Nelms, 2018 Tenn. LEXIS 503 (Tenn., Aug. 9, 2018)

Prior History: Tenn. R. App. P. 3 [*1]
Appeal as of Right; Judgment of the Circuit Court Reversed; Case Remanded. Appeal from the Circuit Court for Blount County. No. L-18929. Rex H. Ogle, Judge.

Disposition: Judgment of the Circuit Court Reversed; Case Remanded.

Counsel: David T. Black, Melanie E. Davis, and Carlos A. Yunsan, Maryville, Tennessee, for the appellant, Carolyn Crisp.

P. Alexander Vogel, Knoxville, Tennessee, for the appellee, Michael Nelms. Rick L. Powers and William A. Ladnier, Knoxville, Tennessee, for the appellee, George Long.

Judges: D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which CHARLES D. SUSANO, JR. and THOMAS R. FRIERSON, II, JJ., joined.

Opinion by: D. MICHAEL SWINEY

Opinion

This appeal arises from a lawsuit over a fatal cycling accident. Carolyn Crisp (Plaintiff), surviving spouse of William Andrew Crisp (Decedent), sued Michael Nelms (Nelms) and George Long (Long) (Defendants, collectively) in the Circuit Court for Blount County (the Trial Court) for negligence. Decedent and four others, including Nelms and Long, were riding as part of a paceline group when a crash occurred. Nelms asserted comparative fault, stating that Long slowed down suddenly at the head of the line. Long denied he slowed down suddenly. Defendants [*2]
filed motions for summary judgment. The Trial Court held, among other things, that paceline cycling inherently is dangerous and that Decedent was at least 50% at fault for his accident. Plaintiff appealed to this Court. We hold, inter alia, that there is a genuine issue of material fact as to whether Long slowed down suddenly at the head of the line and whether a reasonable jury could find Decedent less than 50% at fault in his accident. We reverse the judgment of the Trial Court and remand for the case to proceed.

OPINION

Background

On February 25, 2014, five people embarked on a cycling expedition along the shoulder of U.S. Highway 321 near Townsend, Tennessee. The group was riding in a paceline, an activity wherein cyclists ride in a line one after the other in close quarters. This action serves to increase the efficiency of the ride as the riders draft off one another to counteract the wind resistance. At the front of the line was Long. Behind Long was Nelms. Richard Cox was third. Decedent was fourth, and Stacy Napier was at the back of the line. This was not a group of novices. Rather, these were seasoned cyclists riding expensive bicycles. Long and Decedent, friends since childhood [*3]
and regular cycling companions, were in their 70s.

The cyclists left Cycology, a bicycle shop on U.S. highway 321 in Blount County, at 10:30 a.m. The riders were traveling at a speed of about 22 miles per hour. Around noon, the incident occurred. Nelms front tire struck Longs back tire. Nelms wrecked and fell to the pavement. Cox, third in line, swerved and avoided Nelms. Decedent, fourth, steered right but wound up flying off his bicycle and landing on his head. Hospital records reflect that another rider hit Nelms. Nelms denies that Decedent hit him, asserting instead that Decedent sharply applied his breaks and thereby caused his own misfortune.

Decedent was rendered quadriplegic by the wreck. Decedent dictated a note to Nelms, stating in part: I think it is important for you to know that I place no blame on you for the accident . . . it was just one of those things that you cannot understand. On August 22, 2014, Decedent died.

In February 2015, Plaintiff, Decedents widow, sued Nelms in the Trial Court. In April 2015, Nelms filed an answer denying liability. Nelms raised the defense of comparative fault and stated that Long may have been negligent in causing the incident. In [*4]
June 2015, Plaintiff filed an amended complaint, this time including Long as a defendant. In August 2015, Long filed an answer acknowledging that Nelms struck his bicycle but denying that he slowed down. Long raised the defense of comparative fault with respect to Nelms and Decedent. Discovery ensued.

Timothy Joganich, a bicycle safety expert testifying for Plaintiff, stated in his deposition:

Q. All right. The last sentence here, The collision with Mr. Nelms bike and the wheel of Mr. Longs
strike that. The collision with Mr. Nelms bike and with the wheel of Mr. Longs bike shows that these duties were breached by Mr. Nelms. That is an opinion you will be giving?

A. Yes.

Q. If Mr. Longs bike slowed suddenly, and Mr. Nelms front wheel contacted Mr. Longs back wheel, would that be a breach of a duty by Mr. Nelms?

A. You have to define suddenly because this is really a control systems problem. The reality is there is a variation in speed of all the cyclists out there, even the one in front. Now, it may be so subtle and so small that you may not perceive it. The fact is that the rider out in front has the duty to maintain a constant pace as possible, and then all the riders following [*5]
have to respond to any variation in input. Now, if for reason the rider out in front had an emergency braking where the following riders would not respond in time, then you are going to have a crash. In this case, I dont see anything in the evidence to support Mr. Long slowing down in a sudden manner to the point where Mr. Nelms could not respond.

Q. Okay. Well, you read Mr. Nelms deposition, did you not?

A. Correct. He said that he slowed down suddenly. But when you look at all the other evidence, even Mr. Nelms said that there was nothing in the roadway that he saw I should backup and say that the only reason why the rider is going to slow down is for some external factors such as something in the roadway Im talking about an emergency type of condition such as a deer runs out or a squirrel runs out, and that happens all the time. It happens to our group, but theres no evidence of anything like that happening. Mr. Long testified that he was going to go at a constant pace all the way to River Road, so theres no reason for him to slow down. The only other reason for him to slow down is he were going to pull off and switch positions, but theres no evidence of that.

Q. Well, [*6]
theres been testimony that there was a strong headwind that day. Are you going to give any opinion about the wind conditions on the day of the accident in question?

A. I will certainly refer to it because that is an issue in the case, and its been discussed in the depositions.

Q. Well, while we are on that topic, and I will cover it again, but I dont see that you give any opinion in your affidavit or in this letter where you discuss the wind conditions. Are you sticking to that?

A. Well, its not going to be a main point. It may be a sub opinion based on some of the main opinions Im talking about. If you asked me, was there a wind at the time, then Im going to talk to you about what the others said and what the climatology report says.

Q. Okay. When Mr. Long says that there was a strong headwind that day, do you have any reason to dispute that?

A. Well, I will say theres conflicting testimony in that regard because Ms. Napers doesnt remember any wind, and Mr. Nelms only suspects that there was a strong wind, so yes, Mr. Long did testify there was a wind. Now, when you look at the climatology records in that time frame, we are talking 8 to 10 miles an hour with the wind coming predominantly [*7]
out of the north, and it gives the wind direction, 330 degrees.

Q. Are you ruling out wind as any possible contribution to any of the accidents?

A. I dont see it playing a significant role.

***

Q. You state in paragraph 16 that the front wheel of Mr. Crisps bicycle subsequently ran into Mr. Nelms. Now, you understand that that statement, that fact, is disputed?

A. Its in the medical records.

Q. That was my next question.

A. Okay.

Q. What do you rely on to come to that conclusion?

A. A couple things. One is primarily the medical records. I will refer you

Q. The medical records of whom?

A. Mr. Nelms. I will refer you to the specific record. Im referring to the Care Today Clinic. Its for Michael Nelms. Lets see if theres a date on it. The date is 2/25/14. The time is 7:23. Under HPI, which is history of the patient, it says, Riding bicycle approximately 22 miles an hour, wrecked, and another rider hit him. When you look at that evidence in the context of all of the other testimony of the other riders that avoided the pileup, logically, you can only conclude it was Mr. Crisp hitting Mr. Nelms. Then Stacy testified that Mr. Crisp hit Mr. Nelms bike. Well, everything is happening so quick, [*8]
but both the bike and Nelms are on the ground, so bike versus Mr. Nelms, so I can see where there would be some confusion, and it may have been both.

James Green, a forensic engineer specializing in bicycle wreck reconstruction hired by Nelms, also was deposed. Green testified in part:

Q. You said you were employed to determine causation. Can you tell us whether or not this accident would have happened but for Mr. Nelms hitting the bicycle in front of him and losing control and wrecking?

A. Well, Im not sure I can answer it the way youve phrased it. If youre – – let me see if I understand your question and Ill try to answer it. Are you asking me if the accident to Mr. Crisp would have occurred if Mr. Nelms had not hit the bike ahead of him, or are you asking me what are you asking me causation, I guess is my question to you, to answer your question?

Q. No. Im asking you this question, and however you interpret it. But my question is, would this accident have happened not have happened but for the fact that Mr. Nelms hit the bicycle in front of him?

A. Im not Im not sure. If you isolate it just to the series of events, I would say it wouldnt. But if youre looking at causation [*9]
in terms of the whole scenario, Im going to say that you basically had four gentlemen in their 70s, and Im 71, riding riding bikes in a tight paceline on a very, very windy day where wind was coming from several different directions over time, and it really isnt an appropriate thing to do, in my opinion. I dont ride pacelines anymore, and I used to race as a pro. So and Im very familiar with riding in that area. I just dont see if youre going to ride in a paceline, even as a pro, in your 20s and 30s, eventually youre going to wreck riding in one. Its just a very dangerous activity. Its not a safe activity.

***

Q. Would you[r] opinion be different if you assume these facts. That Mr. Nelms says that he was struck by another bicyclist, that Mr. Crisp says that he struck Mr. Nelms and thats what caused him to hit and go over the handlebars, and that he had no time to apply his brakes. If those facts were true, would your opinion differ?

A. Well, those first of all, those arent facts. Those are fact statements. Witness statements. And no, it wouldnt change my opinion, because it does not line up with the engineering data that Ive already given you in the record. The [*10]
two of them for me to accept the fact witness statement its got to agree with the engineering, and the engineering is not supporting that statement. Its not supporting your hypothetical on Nelms or your hypothetical on Crisp.

Nelms and Long filed motions for summary judgment in April and May 2016, respectively. In September 2016 following a hearing, the Trial Court entered an order granting Defendants motions for summary judgment. In its oral ruling attached to its order, the Trial Court stated in part:

This is obviously a very tragic case, loss of life and just theres nothing that anybody can do to obviously change this. My first thought, as I have read through these things, is that there is no difference here in how this proceeded than a stock car race. Everybody bunched together.

You know, back in the old days, Dale Earnhardt, Sr., would run you off the road, and there you were off the track, and there you were in the wall. But by its very nature, NASCAR granted higher speeds is different, but theyve got steel and helmets and everything else. This type of activity, in a sense, is no different than that.

These gentlemen were riding together. It is very reasonable to [*11]
assume and well, its a fact that its not seriously disputed that an accident, when they are riding this closely together, is certainly foreseeable on everybodys part. And unfortunately, something happened up front that caused people to slow. But as it relates to Mr. Crisp, the Court would have to leap to assumptions in order to say what he did or what he didnt do, and he owed himself a duty of reasonable care to see what was in front of him and to understand his surroundings as well.

It would also as I have understood it and read it and counsel, this Court, as Ive said many times, I cannot guarantee you Im right, but I guarantee you I try to be right. From my reading of the record, from the affidavits, that there is no basis other than sheer speculation that would allow a jury to find for the plaintiff in this case.

In fact, speculation is pretty much all there is in this case. We could allow them to speculate about certain facts, but the ultimate conclusion is, is that these types of accidents are foreseeable in bicycle racing, especially this close type of racing. We see it all the time. We pass them on the highways. Im not taking well, I think I could take judicial [*12]
notice that cyclists in group activities wreck.

And so these parties chose to engage in this activity. They chose to ride together. Theres testimony throughout about what happens when these cyclists are riding together, about drafting, about various movements on the surface that they are cycling on.

And the Court hates to do it, but the Court does not see how any jury could reasonably find that either of these defendants were negligent in the cause the cause in fact or the proximate cause of the tragic accident and injury and ultimate death o[f] Mr. Crisp.

***

[T]he Court also holds that no jury that the actions of Mr. Crisp were at least his actions were at least fifty percent of the cause of his own accident.

In October 2016, Plaintiff filed a motion to alter or amend and a request for findings of fact and conclusions of law. In May 2017, the Trial Court entered an order denying Plaintiffs motion, stating:

After considering the plaintiffs motion and the responses thereto, the Court finds as follows:

1. That the Memorandum Opinion was issued by the Court and incorporated in the Order Granting the Motion for Summary Judgment on September 29, 2016.

2. That the plaintiff mistakenly [*13]
understood the Court to infer that the parties were racing. That was not the intention nor finding of this Court. The Court was merely referencing to the fact that bumper to bumper activities by automobiles or bicycles can lead to disastrous consequences.

3. That the plaintiffs basic position is that she does not know what happened, but that she wants a jury to try this matter.

4. That taken in a light most favorably to the plaintiff, there are no genuine issues of material fact upon which a claim of negligence against the defendants could be found.

5. That the unexplained cause or causes of the accident in question could not require a finding of negligence.

6. That because Mr. Crisp chose to ride in the activity of paceline riding where it is certainly foreseeable that an accident could occur, the Court finds that a reasonable jury would have to find that he was at least 50% liable for his own injuries.

From all of which it is hereby ORDERED, ADJUDGED, AND DECREED that the above, along with the Courts Memorandum Opinion, are the findings and fact and conclusions of law, and that no further hearing on this particular issue shall be considered by the Court, and that this order is hereby [*14]
deemed a final order in all respects. Any remaining court costs are hereby taxed to the plaintiff, for which execution shall issue if necessary.

Plaintiff timely appealed to this Court.

Discussion

We restate and consolidate the issues Plaintiff raises on appeal into the following dispositive issue: whether the Trial Court erred in granting summary judgment to Defendants.

As our Supreme Court has instructed regarding appellate review of a trial courts ruling on a motion for summary judgment:

HN1[] Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Tenn. R. Civ. P. 56.04. HN2[] We review a trial court
s ruling on a motion for summary judgment de novo, without a presumption of correctness. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997); see also Abshure v. Methodist Healthcare—Memphis Hosps., 325 S.W.3d 98, 103 (Tenn. 2010). In doing so, we make a fresh determination of whether the requirements of Rule 56 of the Tennessee Rules of Civil Procedure have been satisfied. Estate of Brown, 402 S.W.3d 193, 198 (Tenn. 2013) (citing Hughes v. New Life Dev. Corp., 387 S.W.3d 453, 471 (Tenn. 2012)). . . .

* * *

HN3[] [I]n Tennessee, as in the federal system, when the moving party does not bear the burden of proof at trial, the moving party may satisfy its burden [*15]
of production either (1) by affirmatively negating an essential element of the nonmoving partys claim or (2) by demonstrating that the nonmoving partys evidence at the summary judgment stage is insufficient to establish the nonmoving partys claim or defense. We reiterate that HN4[] a moving party seeking summary judgment by attacking the nonmoving partys evidence must do more than make a conclusory assertion that summary judgment is appropriate on this basis. Rather, Tennessee Rule 56.03 requires the moving party to support its motion with a separate concise statement of material facts as to which the moving party contends there is no genuine issue for trial.
Tenn. R. Civ. P. 56.03.
Each fact is to be set forth in a separate, numbered paragraph and supported by a specific citation to the record.
Id. When such a motion is made, any party opposing summary judgment must file a response to each fact set forth by the movant in the manner provided in Tennessee Rule 56.03. HN5[]
[W]hen a motion for summary judgment is made [and] . . . supported as provided in [Tennessee Rule 56], to survive summary judgment, the nonmoving party may not rest upon the mere allegations or denials of [its] pleading, but must respond, and by affidavits or one [*16]
of the other means provided in Tennessee Rule 56, set forth specific facts
at the summary judgment stage
showing that there is a genuine issue for trial.
Tenn. R. Civ. P. 56.06. The nonmoving party
must do more than simply show that there is some metaphysical doubt as to the material facts.
Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S. Ct. 1348. The nonmoving party must demonstrate the existence of specific facts in the record which could lead a rational trier of fact to find in favor of the nonmoving party. HN6[] If a summary judgment motion is filed before adequate time for discovery has been provided, the nonmoving party may seek a continuance to engage in additional discovery as provided in Tennessee Rule 56.07. However, after adequate time for discovery has been provided, summary judgment should be granted if the nonmoving party
s evidence at the summary judgment stage is insufficient to establish the existence of a genuine issue of material fact for trial. Tenn. R. Civ. P. 56.04, 56.06. The focus is on the evidence the nonmoving party comes forward with at the summary judgment stage, not on hypothetical evidence that theoretically could be adduced, despite the passage of discovery deadlines, at a future trial. . . .

Rye v. Womens Care Cntr. of Memphis, MPLLC, 477 S.W.3d 235, 250, 264-65 (Tenn. 2015).

Defendants argue that paceline riding is an inherently risky activity as described [*17]
by the experts and participants, especially for a rider of Decedents age. Nelms argues that Decedent had his own duty to adhere to, as well. Plaintiff argues in response that no rider in a paceline assumes that the person riding in front of him suddenly and inexplicably will slow down. Our initial inquiry is whether a duty of care exists in paceline riding and what the nature of that duty is.

The case of Becksfort v. Jackson is highly instructive. In Becksfort, a woman was injured while participating in a tennis drill at a club. We discussed as follows:

In Perez v. McConkey, 872 S.W.2d 897 (Tenn. 1994), our HN7[] Supreme Court abolished implied assumption of the risk as a complete bar to recovery in a negligence action and held that cases involving implied assumption of the risk issues should be analyzed under the principles of comparative fault and the common law concept of duty. The Court stated that the reasonableness of a partys conduct in confronting a risk should be determined under the principles of comparative fault. Attention should be focused on whether a reasonably prudent person in the exercise of due care knew of the risk, or should have known of it, and thereafter confronted the risk; and whether such a person would have [*18]
behaved in the manner in which the plaintiff acted in light of all the surrounding circumstances, including the confronted risk.
Id. at 905.

HN8[] Everyone has a duty to exercise ordinary and reasonable care in light of the surrounding circumstances to refrain from conduct that could foreseeably injure others, and some locations and circumstances may require a higher degree of care than others. White v. Metropolitan Government of Nashville and Davidson County, 860 S.W.2d 49, 51 (Tenn. App. 1993). The term reasonable care must be given meaning in relation to the circumstances. Doe v. Linder Constr. Co., Inc. 845 S.W.2d 173, 178 (Tenn. 1992). HN9[] To establish a claim for negligence a plaintiff must prove: (1) a duty of care owed by the defendant to the plaintiff; (2) conduct falling below the applicable standard of care amounting to a breach of that duty; (3) injury or loss; (4) causation in fact; (5) and proximate causation. Haynes v. Hamilton County, 883 S.W.2d 606, 611 (Tenn. 1994).

***

[B]y participating in the drill, Ms. Becksfort did not confront or accept the risk that another player would act or play unreasonably. The plaintiff offered proof that Ms. Jackson knew or should have known that Ms. Becksfort was not watching Jacksons ball, and was rather watching only her (Becksforts) ball. The plaintiff also offered proof that Ms. Jackson knew or should have known that the ball was traveling in the direction of the plaintiff. [*19]
Kent Shultz stated in his deposition that during the two ball drill the respective sets of players focused on the ball in play on their half of the court. Mr. Shultz also testified that the shot which Ms. Jackson hit into the eye of the plaintiff was a forehand shot with some power behind it. Ms. Jackson contended in her deposition that (apparently due to the speed at which the ball was traveling) there simply was no time to issue a warning; however, that appears to be a question of fact upon considering all the circumstances involved.

We think there is sufficient evidence to create a genuine issue of material fact as to whether Ms. Jackson acted unreasonably by failing to warn of the errant shot. Based upon this record, reasonable minds could differ as to whether Ms. Jackson acted reasonably under the circumstances. Therefore, this question should be resolved by the trier of fact.

Becksfort v. Jackson, No. 02A01-9502-CV-00027, 1996 Tenn. App. LEXIS 257, 1996 WL 208786, at *2-4 (Tenn. Ct. App. April 30, 1996), no appl. perm. appeal filed.

In Becksfort, we elaborated upon the duty of care in a sports context as follows:

The reason many courts have required a plaintiff to prove reckless or intentional conduct on the part of a defendant in order to recover for injuries sustained in an athletic competition, is that [*20]
these courts have feared that an ordinary negligence standard will increase litigation of sports injuries and stifle athletic competition. See, e.g., Hoke v. Cullinan, 914 S.W.2d 335, 337, 42 12 Ky. L. Summary 33 (Ky. 1995) (A view often expressed is that such a standard promotes sound public policy by allowing redress in extraordinary circumstances without permitting fear of litigation to alter the nature of the game.); Knight v. Jewett, 3 Cal. 4th 296, 11 Cal. Rptr. 2d 2, 834 P.2d 696, 710 (Cal. 1992) (The courts have concluded that vigorous participation in sporting events likely would be chilled if legal liability were to be imposed on a participant on the basis of his or her ordinary careless conduct.). We do not share these courts concerns with respect to the imposition of an ordinary negligence standard in cases of sports related injuries, because we think that the recognition that the reasonableness of a persons conduct will be measured differently on the playing field than on a public street, will sufficiently prevent the stifling of athletic competition. We also note that the reasonableness of a persons conduct will be measured differently depending upon the particular sport involved and the likelihood and foreseeability of injury presented by participation in the particular sport. What is reasonable, acceptable, and [*21]
even encouraged in the boxing ring or ice hockey rink, would be negligent or even reckless or intentional tortious conduct in the context of a game of golf or tennis. We should not fashion a different standard of care for each and every sport. We simply recognize that the reasonable conduct standard of care should be given different meaning in the context of different sports and athletic competitions.

Becksfort, 1996 Tenn. App. LEXIS 257, 1996 WL 208786, at *3 n. 4.

In the present case, we respectfully disagree with the apparent position of the Trial Court and Defendants that to participate in paceline riding is to assume the risk of whatever dangerous conduct, however unreasonable, is engaged in by the participants. Many years ago, our Supreme Court abolished implied assumption of the risk as a complete bar to recovery. We decline Defendants invitation to essentially resurrect implied assumption of the risk through a special carve-out exception. Inherently risky or not, a paceline rider still has a duty of care to her fellow riders. For instance, while wrecks can and do happen, a paceline rider has a duty to refrain from abruptly applying her brakes or from hitting the wheel of the rider of front of her without good reason. We conclude that each [*22]
paceline rider in the instant case had a duty to act reasonably under the circumstances.

Having concluded that the paceline riders owed a duty of care, it remains to be established in this case at the summary judgment stage whether that duty was breached and by whom. That is problematic because there are conflicting accounts as to what happened. Chiefly, it never has been established how Nelms came to collide with Longs bicycle. Nelms states that Long suddenly slowed down. Long disputes this. Nelms and Long are, therefore, at odds in their accounts. This is not a trivial dispute but rather goes to the heart of the case—whether a breach of duty occurred and, if so, by whom. This is what juries often are called on to decide in a negligence case where comparative fault is alleged. There are genuine issues of material fact as to whether Defendants acted reasonably under the circumstances, and the issue of fault allocation, if any, should be resolved by the trier of fact. We take no position on the merits of the question, only that it remains a question suitable for trial.

The Trial Court, in its order denying Plaintiffs motion to alter or amend, also stated: [B]ecause [Decedent] chose [*23]
to ride in the activity of paceline riding where it is certainly foreseeable that an accident could occur, the Court finds that a reasonable jury would have to find that he was at least 50% liable for his own injuries. This is a puzzling and unsupported finding. There were five participants in the paceline group at issue, and three of those were involved in the crash. If Decedent is presumed to be at least 50% responsible for his own accident simply for participating in paceline riding, then the other riders involved in the crash also must be at least 50% responsible simply by participating. The math does not add up as, naturally, one cannot exceed 100% in an allocation of fault. Finding or holding that someone who participates with others in an inherently dangerous activity must be at least 50% at fault if he is injured is, once again, an attempt to resurrect the defense of assumption of the risk. We decline to do so.

As genuine issues of material fact remain unresolved in this case, summary judgment is inappropriate. We reverse the judgment of the Trial Court and remand for further proceedings.

Conclusion

The judgment of the Trial Court is reversed, and this cause is remanded to the [*24]
Trial Court for collection of the costs below and for further proceedings consistent with this Opinion. The costs on appeal are assessed one-half equally against the Appellees, Michael Nelms and George Long.

D. MICHAEL SWINEY, CHIEF JUDGE


Cizek v. North Wall, Inc., 2018 IL App (2d) 170168-U *; 2018 Ill. App. Unpub. LEXIS 320

Cizek v. North Wall, Inc., 2018 IL App (2d) 170168-U *; 2018 Ill. App. Unpub. LEXIS 320

Appellate Court of Illinois, Second District

March 2, 2018, Order Filed

No. 2-17-0168-U

Notice: THIS ORDER WAS FILED UNDER SUPREME COURT RULE 23 AND MAY NOT BE CITED AS PRECEDENT BY ANY PARTY EXCEPT IN THE LIMITED CIRCUMSTANCES ALLOWED UNDER RULE 23(e)(1).

Prior History:
[**1] Appeal from the Circuit Court of McHenry County. No. 15-LA-56. Honorable Thomas A. Meyer, Judge, Presiding.

Disposition: Affirmed.

Judges: PRESIDING JUSTICE HUDSON delivered the judgment of the court. Justices Schostok and Spence concurred in the judgment.

Opinion by: HUDSON

Opinion

PRESIDING JUSTICE HUDSON delivered the judgment of the court.

Justices Schostok and Spence concurred in the judgment.

ORDER

 [*P1] Held: Plaintiff validly waived any cause of action stemming from defendants alleged negligence and failed to identify facts from which willful and wanton conduct could be inferred; therefore, trial courts grant of summary judgment was proper.

 [*P2]
I. INTRODUCTION

 [*P3]
Plaintiff, Patricia Cizek, appeals an order of the circuit court of McHenry County granting summary judgment in favor of defendant, North Wall, Inc. (doing business as North Wall Rock Climbing Gym). For the reasons that follow, we affirm.

 [*P4]
II. BACKGROUND

 [*P5]
Defendant operates an indoor rock climbing gym; plaintiff was a customer at the gym when she was injured. Plaintiff and a friend, Daniel Kosinski, attended the gym. Plaintiff had never been climbing before. At some point, after having been climbing for a while, plaintiff became tired and jumped down or fell from the climbing [**2]
wall. Plaintiffs right foot landed on a mat, but her left foot landed on the floor. Plaintiffs left ankle broke.

 [*P6]
In her deposition (taken December 23, 2015), plaintiff testified as follows. She stated that she had been a member of a health club for 10 years, where she primarily swam and did yoga. Prior to February 14, 2013, plaintiff had no experience rock climbing or bouldering, though she had observed people rock climbing in the past. She agreed that she understood that rock climbing involved being at a height higher than the ground.

 [*P7]
On February 14, 2013, she attended respondents gym with Kosinski, a coworker. She characterized Kosinski as a good climber, experienced. Kosinski told her climbing was one of his hobbies. She did not think climbing would involve any risk because [k]ids were doing it. Further, climbing occurred at a gym, which she viewed as a safe zone. Also, based on what she saw on television, she believed she would be using a harness. She and Kosinski did not consume any alcohol prior to arriving at North Wall, and she was not taking any medication at the time.

 [*P8]
When they arrived, Kosinski paid the fee. Plaintiff signed and returned a waiver form. Kosinski [**3]
had climbed at North Wall before. At the time, plaintiff did not know whether Kosinski was a member at North Wall, though she later learned that he had been at the time she was injured. Plaintiff acknowledged that she did, in fact, read and understand the waiver form. She did not look at the back of the form, but she recalled that she was given only one sheet of paper. She was provided with a pair of climbing shoes.

 [*P9]
When she first arrived, she observed children in harnesses with ropers. There were two large green pads that covered most of the floor. Plaintiff did not recall seeing any bulletin boards or posters. She also did not recall seeing a black line running continuously around the parameter [sic] of the climbing wall. At the time of the deposition, she was aware that such a line existed. Beyond signing the waiver when she arrived, she had no further interaction with respondents staff. Plaintiff reviewed a number of pictures of the facility and testified that it had changed since her accident. She also identified a photograph taken in October 2013 that showed where she was injured.

 [*P10]
She and Kosinski then proceeded to the climbing wall. She asked, What about my harness? Kosinski [**4]
said that harnesses were more trouble than they were worth. Plaintiff stated that she kind of was dumbfounded. Plaintiff proceeded to climb without a harness. Kosinski went first. He told her to follow some yellow markers, as they were for beginners. While she watched Kosinski, she did not see a black, horizontal line on the wall. Prior to climbing, Kosinski placed a mat below the area in which he intended to climb. Plaintiff found climbing very difficult, explaining that [y]ou use your core. Plaintiff would shimmy down when she got sore. She added, [i]ts tough work getting up there, so I need[ed] to get down. She would jump down from two to three feet off the ground. Plaintiff made three or four climbs before she was injured.

 [*P11]
Large green mats covered almost the entire floor of the gym. There were also smaller black mats that could be placed in different locations by climbers. Kosinski was not near plaintiff when she was injured. Before being injured, plaintiff had moved to a new climbing area. She placed a black mat where she planned on climbing. A green mat also abutted the wall in that area. The black mat was three to six inches away from the wall.

 [*P12]
Plaintiff was injured [**5]
during her third attempt at climbing that day, and she did not feel comfortable climbing. She explained that she was not wearing a harness, but was trying to do her best. There was a part of the floor that was not covered by a green mat in this area, which is where plaintiff landed when she was injured. Plaintiff stated she jumped off the wall and when she landed, her right foot was on a green mat, but her left foot landed on the uncovered floor. She felt pain in her left ankle and could not put weight on it. Kosinski and an employee came over to assist plaintiff. Kosinski got plaintiff some ibuprofen. Plaintiff felt a little dizzy. An employee called the paramedics. The paramedics stated that plaintiffs ankle was broken. They assisted plaintiff to Kosinskis car, and he drove her to St. Alexius hospital. At the hospital, they x-rayed plaintiffs ankle and confirmed that it was broken. She was given some sort of narcotic pain killer, and her ankle was placed in a cast. Plaintiff was discharged and told to follow up with an orthopedic surgeon.

 [*P13]
She followed up with Dr. Sean Odell. Odell performed a surgery six days after the accident. He installed eight pins and a plate. Plaintiff [**6]
had broken both leg bones where they intersect at the ankle. She took Norco for months following the surgery. She engaged in physical therapy for years, including what she did at home. The hardware was removed in December 2013. Her ankle continues to be stiff, she has trouble with many activities, and she takes ibuprofen for pain several times per week.

 [*P14]
On cross-examination, plaintiff stated that she read the wavier form before she signed it (though, she added, she did not study it). Other climbers were climbing without ropes, and the only people she saw using ropes were children. She was not offered a rope or harness. Plaintiff still takes prescription pain killers on occasion. However, she does not like to take it due to its side effects.

 [*P15]
A discovery deposition of Daniel Kosinski was also conducted. He testified that he knew plaintiff from work. She was a travel agent that did all the travel arrangements for [his] company. He and plaintiff were friends, though they do not associate outside of work.

 [*P16]
Kosinski stated that rock climbing is one of his hobbies. He started climbing in 2008. He initially climbed at Bloomingdale Lifetime Fitness. They eventually offered him a job, and [**7]
he worked there for four or five years. His title was [r]ock wall instructor. He described bouldering as climbing without a rope. He stated that it is a little more intense. Generally, one climbs at lower levels, and there are mats, as opposed to ropes, for protection. He added that [t]heres not really much instruction [to do] in terms of bouldering. He explained, bouldering, theres just—okay, this is how high you can go and thats pretty much it. There was no bouldering line at Lifetime Fitness. However, they did have a rule that you should not climb above the height of your shoulders. A spotter is not typically required when bouldering.

 [*P17]
He and plaintiff went to North Wall on February 14, 2013. He was a member and had been there multiple times previously. When he first went to North Wall, he signed a waiver and viewed a video recording that concerned safety. Due to height considerations, Kosinski characterized North Wall as pretty much a dedicated bouldering gym. North Wall offers top rope climbing, which Kosinski said was often used for childrens parties.

 [*P18]
Kosinski believed he was aware that plaintiff did not have any climbing experience prior to their trip to North [**8]
Wall. He could not recall whether there were any safety posters displayed. He and plaintiff had a conversation about the risks involved in rock climbing. He also explained to her what bouldering entailed and that a rope was not used. He noted that plaintiff was shaky or nervous on her first climb. Kosinski told plaintiff that if she was not comfortable, she should come down. He did not recall a bouldering line at North Wall and believed it was permissible to climb all the way to the top when bouldering. He did not recall whether plaintiff had been provided with climbing shoes. Plaintiff was in better than average physical condition.

 [*P19]
When plaintiff was injured, she was climbing on a wall called Devils Tower. It was toward the back, right of the facility. During the climb on which plaintiff was injured, Kosinski observed that plaintiff was stuck at one point and could not figure out what to do next. He walked over to assist her. She was four or five feet off the ground. Plaintiffs left foot and hand came off the wall, and her body swung away from the wall (counterclockwise). She then fell and landed on the edge of a mat. Kosinski stated she landed half on the mat and was rotating [**9]
when she landed. After plaintiff landed, Kosinski went over to check on her. Plaintiff said she believed she had broken her ankle. He did not know whether plaintiff had applied chalk to her hands before, nor did he recall what she was wearing. It did not appear that plaintiff had control of herself before she fell off the wall and injured herself. It also did not appear to him that plaintiff was attempting to get down from the wall or that she deliberately jumped.

 [*P20]
Kosinski told an employee of respondents to call the paramedics. Kosinski recalled an employee offering plaintiff ice. Plaintiff declined a ride to the hospital in an ambulance, and Kosinski drove her there instead.

 [*P21]
Kosinski testified that he and plaintiff had never been romantically involved. He recalled that plaintiff used crutches following the injury and took some time off from work. According to Kosinski, she used crutches for quite a while.

 [*P22]
On cross-examination, Kosinski explained that a spotter, unlike a belayer, only has limited control over a climber. A spotter just direct[s] them to fall onto a mat and not hit their head. It would have been possible for plaintiff to use a rope while climbing (assuming one was [**10]
available). Kosinski stated that use of a rope might have prevented plaintiffs injury; however, it might also have caused another injury, such as plaintiff hitting her head on something. Kosinski agreed that he climbed twice a week or about 100 times per year. He did not recall an employee ever advising him about not climbing too high when bouldering. An automatic belayer might have lessened the force with which plaintiff landed and mitigated her injury. It was about 25 to 30 feet from the front desk to the place where plaintiff fell. The safety video new customers had to watch was about two minutes long. He did not observe plaintiff watching the video.

 [*P23]
Prior to climbing, Kosinski told plaintiff that climbing was a dangerous sport and that they would be climbing without ropes. He did not recall any employee of respondent testing plaintiff with regard to her climbing abilities. After refreshing his recollection with various documents, Kosinski testified that they had been climbing for about half an hour when plaintiff was injured. He agreed that plaintiff was an inexperienced climber.

 [*P24]
On redirect-examination, he confirmed that he was not present when plaintiff first checked in at North [**11]
Wall. He had no knowledge of what transpired between plaintiff and respondents employees at that point.

 [*P25]
Jason R. Cipri also testified via discovery deposition. He testified that he had been employed by respondent as a manager for two years, from 2012 to 2014. His immediate supervisor was Randy Spencer (respondents owner). When he was hired in 2012, Cipri was trained on office procedures, logistics, how to deal with the cash register, where to put the mail, and the use of a computer system. He was also trained on dealing with customers. Cipri started climbing in 2000 and had worked for respondent for about a year around the time of plaintiffs injury.

 [*P26]
Novice climbers were supposed to sign a waiver and view a video. Spencer trained Cipri to go over any and all safety procedures with new climbers. Cipri was trained to interact with the customers to decide and figure out their climbing ability. Three types of climbing occurred at North Wall: bouldering, top-rope climbing, and lead climbing (also known as sport climbing). Plaintiff was bouldering when she was injured. Bouldering does not involve the use of ropes. Cipri estimated about 90 percent (or at least the vast majority) of [**12]
the climbing at North Wall is bouldering. Cipri received very specific training regarding how to execute waiver forms. Customers were instructed to read the waiver form.

 [*P27]
There was a bouldering line on the climbing wall. People engaged in bouldering were not supposed to bring their feet above that line. The bouldering line is described in the waiver. However, Cipri explained, having a bouldering line is not common. He added, We all kind of thought it was cute, but it didnt really serve a purpose.

 [*P28]
Cipri was working as a manager on the day plaintiff was injured. He recalled that an employee named Miranda, whom he called a coach, came and told him that someone had been injured. He called the paramedics, as that was what plaintiff wanted. He brought plaintiff some ice. He described Kosinski (whom he initially called Eric) as a pretty novice climber. Cipri did not know whether plaintiff was above the bouldering line when she fell. Plaintiff did not appear intoxicated or smell of alcohol. She did not appear to have any injuries besides the one to her ankle. Plaintiff would not have been allowed to use a rope because you have to be certified and taken through a lesson to use the [**13]
ropes.

 [*P29]
To the left side of the customer-service counter, there were posters addressing safety and such. Cipri filled out an accident report concerning plaintiffs injury. Cipri denied that he was terminated by respondent and that the owner ever accused him of using drugs on the job. There was no manual on how to run North Wall, but there was an unofficial manual kept on the front desk. This was comprised of a couple of binders that concerned how to teach climbing, use of the telephone, memberships, employee conduct, and various rules. He did not recall anything specific relating to dealing with novice climbers. There was a copy of the Climbing Wall Association manual in a file-cabinet drawer; however, he never used it for anything. Cipri did not recall Spencer instructing him to use this manual. Spencer did train employees on climbing, particularly new hires. Cipri described Spencer as an absentee manager. He would come in early in the day, and Cipri typically would not see him.

 [*P30]
Aside from ascertaining a customers age and climbing experience, they did nothing else to assess his or her proficiency. They would show new climbers a video and explain the rules of the gym to them. [**14]
Cipri could not say whether a copy of a manual shown to him was the manual they were actually using when he worked for respondent. However, he stated various forms shown to him, including one concerning bouldering orientation, were not used when he was there. Spencer never told Cipri to get rid of any document; rather, he was adamant about keeping such material. Weekly inspections of the premises were conducted, but no records documenting them were maintained.

 [*P31]
On cross-examination, Cipri stated that his sister had been hired to rewrite the operations manual. One document stated, If the facility allows bouldering, the staff provides an orientation before novice climbers are allowed to boulder without assistance or direct supervision. Cipri testified that this was not generated by respondent, but they followed it. Employees working the counter were trained to have new customers watch a video, instruct them on safety procedures, and assess their abilities. To the left of the front door, posters from the Climbing Wall Association were displayed. There was also one near the back door. Cipri did not remember what they were about beyond that they concerned stable rules of the Climbing [**15]
Wall Association.

 [*P32]
Cipri did not witness plaintiffs accident, and he did not recall being present when she was checked in. He never had rejected a customer previously, but he had the authority to do so. He never encountered a situation where he felt it was necessary.

 [*P33]
On redirect-examination, Cipri agreed that beyond verbal questioning, they did not test new customers. They did not inspect or observe climbers while they were actually climbing to determine competency. They did orientate climbers and show them the video. Further, new climbers read the waiver forms. Climbers were instructed on general and bouldering safety rules. Cipri was aware of an earlier incident where a young boy cut his head while climbing. Cipri stated that it was arguable that climbing with a rope was more dangerous than bouldering because a person could get tangled in the rope. Cipri did not give plaintiff an orientation, and he had no recollection of anyone giving her one.

 [*P34]
Randall Spencer, respondents owner, also testified via discovery deposition. Spencer testified that North Wall is pretty much run by employees and he does not have much of a role anymore. The business is run by a manager, Eric Paul. [**16]
Spencer did not have an independent recollection of plaintiffs accident. Cipri was the manager at the time. There was another manager as well named Chuck Kapayo, who Spencer described as co-managing with Cipri. Anything Spencer knew about plaintiffs accident he learned from Cipri or another employee named Terri Krallitsch. Usually, two people worked at any given time, although, sometimes, only one would be present.

 [*P35]
Spencer identified the waiver form signed by plaintiff. However, he acknowledged that it was not the original. The purpose of the waiver was to inform a customer about the danger involved in rock climbing. Further, employees were trained to talk about the rules and safety items when [customers] first come into the gym. In addition, there were posters, four of which were visible at the entrance. The posters were produced by the Climbing Wall Association as part of their Climb Smart Program. Spencer added that they say [c]limbing is [d]angerous. One says Bouldering is Dangerous Climb Smart. These were the only ways customers were informed of the dangers of rock climbing. Customers are not tested as to their climbing proficiency, and they are not trained unless they [**17]
sign up for a class. Customers were told not to climb above the bouldering line when bouldering.

 [*P36]
Employees were instructed to follow the policies of the Climbing Wall Association. If an employee did not spend time with a new customer explaining the policies and procedures of bouldering, that would be a violation of company policy. This is true even if the new customer is accompanied by a more experienced climber.

 [*P37]
Spencer explained that bouldering is climbing without a rope. The bouldering line is a little bit over three feet from the floor. Climbers were to keep their feet below the bouldering line. The accident report prepared by Cipri states plaintiffs feet were six feet off the floor when she fell. The only equipment provided by respondent to plaintiff was climbing shoes. Respondent could have provided a harness, and plaintiff could have been belayed. They did not provide chalk to plaintiff.

 [*P38]
Spencer testified that the waiver form states that it is not intended to provide a description of all risks and hazards. He explained that this means it is possible to get hurt in a manner not described in the waiver. There was no formal training program for employees. Managers trained [**18]
new employees, and managers themselves came to respondent already having climbing experience. In 2013, respondent had no auto-belay system in place. Spencer testified that he fired Cipri because of suspected drug use.

 [*P39]
The released signed by plaintiff states, in pertinent part, as follows. Initially, it states that plaintiff is giving up any right of actions arising out of use of the facilities of North Wall, Inc. Plaintiff then acknowledged that the sport of rock climbing and the use of the facilities of North Wall, Inc., has inherent risks. It then states that plaintiff has full knowledge of the nature and extent of all the risks associated with rock climbing and the use of the climbing gym, including but not limited to the following:

1. All manner of injury resulting from falling off the climbing gym and hitting rock faces and/or projections, whether permanently or temporarily in place, or on the floor or loose. 2. Rope abrasions, entanglement and other injuries ***. 3. Injuries resulting from falling climbers or dropped items ***. 4. Cuts and abrasions resulting from skin contact with the climbing gym and/or the gyms devices and/or hardware. 5. Failure of ropes, slings, [**19]
harnesses, climbing hardware, anchor points, or any part of the climbing gym structure.

Plaintiff then waived any cause of action arising out of or in any way related to [her] use of the climbing gym whether that use is supervised or unsupervised, however the injury or damage is caused.

 [*P40]
The trial court granted summary judgment in favor of defendant. It noted that case law indicates that a competent adult recognizes the danger of falling from a height. It next observed that the waiver plaintiff signed stated that she was releasing defendant from all manner of injury resulting from falling off the climbing gym. The trial court then rejected plaintiffs argument that this language was too general to be enforced. It further found that plaintiff had set forth no facts from which willful and wanton conduct could be inferred. This appeal followed.

 [*P41]
III. ANALYSIS

 [*P42]
We are confronted with two main issues. First is the effect of the waiver form signed by plaintiff. Second, we must consider whether plaintiffs count alleging willful and wanton conduct survives regardless of the waiver (an exculpatory agreement exempting liability for willful and wanton conduct would violate public policy (Falkner v. Hinckley Parachute Center, Inc., 178 Ill. App. 3d 597, 604, 533 N.E.2d 941, 127 Ill. Dec. 859 (1989))). [**20]
Plaintiffs brief also contains a section addressing proximate cause; however, as we conclude that the waiver bars plaintiffs cause of action, we need not address this argument.

 [*P43]
A. THE WAIVER

 [*P44]
The trial court granted summary judgment on all but the willful and wanton count of plaintiffs complaint based on plaintiffs execution of a waiver. As this case comes to us following a grant of summary judgment, our review is de novo. Bier v. Leanna Lakeside Property Assn, 305 Ill. App. 3d 45, 50, 711 N.E.2d 773, 238 Ill. Dec. 386 (1999). Under the de novo standard of review, we owe no deference to the trial courts decision and may freely substitute our judgment for that of the trial court. Miller v. Hecox, 2012 IL App (2d) 110546, ¶ 29, 969 N.E.2d 914, 360 Ill. Dec. 869. Summary judgment is a drastic method of resolving litigation, so it should be granted only if the movants entitlement to judgment is clear and free from doubt. Bier, 305 Ill. App. 3d at 50. It is appropriate only where the pleadings, affidavits, depositions, and admissions on file, when viewed in the light most favorable to the nonmovant, show that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law.
Id. Finally, it is axiomatic that we review the result to which the trial court arrived at, rather than its reasoning. In re Marriage of Ackerley, 333 Ill. App. 3d 382, 392, 775 N.E.2d 1045, 266 Ill. Dec. 973 (2002).

 [*P45]
Though we are not bound by the trial courts reasoning, [**21]
we nevertheless find ourselves in agreement with it. Like the trial court, we find great significance in the proposition that the danger of falling from a height is open and obvious to an adult. Ford ex rel. Ford v. Narin, 307 Ill. App. 3d 296, 302, 717 N.E.2d 525, 240 Ill. Dec. 432 (1999); see also Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 448, 665 N.E.2d 826, 216 Ill. Dec. 568 (1996); Mount Zion Bank & Trust v. Consolidated Communications, Inc., 169 Ill. 2d 110, 118, 660 N.E.2d 863, 214 Ill. Dec. 156 (1995) (In Illinois, obvious dangers include fire, drowning in water, or falling from a height.). Thus, for the purpose of resolving this appeal and in the absence of evidence to the contrary, we will presume that plaintiff was aware that falling off the climbing wall presented certain obvious dangers.

 [*P46]
We also note that, in Illinois, parties may contract to limit the liability for negligence. Oelze v. Score Sports Venture, LLC, 401 Ill. App. 3d 110, 117, 927 N.E.2d 137, 339 Ill. Dec. 596 (2010). Absent fraud or willful and wanton negligence, exculpatory agreements of this sort are generally valid. Id. An agreement may be also vitiated by unequal bargaining power, public policy considerations, or some special relationship between the parties (Id.); however, such issues are not present here. This court has previously explained that [a]n exculpatory agreement constitutes an express assumption of risk insofar as the plaintiff has expressly consented to relieve the defendant of an obligation of conduct toward him [or her].
Falkner, 178 Ill. App. 3d at 602.

 [*P47]
Agreements of this nature must be expressed in clear, explicit [**22]
and unequivocal language showing that such was the intent of the parties.
Calarco v. YMCA of Greater Metropolitan Chicago, 149 Ill. App. 3d 1037, 1043, 501 N.E.2d 268, 103 Ill. Dec. 247 (1986). That is, it must
appear that its terms were intended by both parties to apply to the conduct of the defendant which caused the harm.
Id., (quoting Restatement (Second) of Torts, Explanatory Notes
496B, comment d, at 567 (1965)). Nevertheless, “The precise occurrence which results in injury need not have been contemplated by the parties at the time the contract was entered into.
Garrison v. Combined Fitness Centre, Ltd., 201 Ill. App. 3d 581, 585, 559 N.E.2d 187, 147 Ill. Dec. 187 (1990). Thus, an exculpatory agreement will excuse a defendant from liability only where an
injury falls within the scope of possible dangers ordinarily accompanying the activity and, thus, reasonably contemplated by the plaintiff.
Id. The foreseeability of the danger defines the scope of the release. Cox v. U.S. Fitness, LLC, 2013 IL App (1st) 122442, ¶ 14, 377 Ill. Dec. 930, 2 N.E.3d 1211.

 [*P48]
Numerous cases illustrate the degree of specificity required in an exculpatory agreement necessary to limit a defendants liability for negligence. In Garrison, 201 Ill. App. 3d at 583, the plaintiff was injured when a weighted bar rolled off a grooved rest on a bench press and landed on his neck. The plaintiff alleged that the bench press was improperly designed and that the defendant-gym was negligent in providing it when it was not safe for its intended use. Id. [**23]
The plaintiff had signed an exculpatory agreement, which stated, inter alia:

It is further agreed that all exercises including the use of weights, number of repetitions, and use of any and all machinery, equipment, and apparatus designed for exercising shall be at the Members sole risk. Notwithstanding any consultation on exercise programs which may be provided by Center employees it is hereby understood that the selection of exercise programs, methods and types of equipment shall be Members entire responsibility, and COMBINED FITNESS CENTER [sic] shall not be liable to Member for any claims, demands, injuries, damages, or actions arising due to injury to Members person or property arising out of or in connection with the use by Member of the services and facilities of the Center or the premises where the same is located and Member hereby holds the Center, its employees and agents, harmless from all claims which may be brought against them by Member or on Members behalf for any such injuries or claims aforesaid.
Id. at 584.

The plaintiff argued that the agreement did not contemplate a release of liability for the provision of defective equipment. The trial court granted the defendants motion [**24]
for summary judgment based on the exculpatory agreement.

 [*P49]
The reviewing court affirmed. Id. at 586. It explained as follows:

Furthermore, the exculpatory clause could not have been more clear or explicit. It stated that each member bore the sole risk; of injury that might result from the use of weights, equipment or other apparatus provided and that the selection of the type of equipment to be used would be the entire responsibility of the member.
Id. at 585.

It further noted that the defendant was aware of the attendant dangers in the activity and, despite the fact that plaintiff now alleges that the bench press he used was unreasonably unsafe because it lacked a certain safety feature, the injury he sustained clearly falls within the scope of possible dangers ordinarily accompanying the activity of weight-lifting.
Id.

 [*P50]
Similarly, in Falkner, 178 Ill. App. 3d at 603, the court found the following exculpatory clause exempted the defendant from liability following a parachute accident: The Student exempts and releases the [defendant] *** from any and all liability claims *** whatsoever arising out of any damage, loss or injury to the Student or the Students property while upon the premises or aircraft of the [defendant] or while [**25]
participating in any of the activities contemplated by this agreement. The plaintiffs decedent died during a parachute jump. The court placed some significance on the fact that the decedent had been a pilot in the Army Air Corp. Id.

 [*P51]
Another case that provides us with some guidance is Oelze, 401 Ill. App. 3d 110, 927 N.E.2d 137, 339 Ill. Dec. 596. There, the plaintiff had signed an exculpatory agreement stating, I hereby release SCORE Tennis & Fitness and its owners and employees from any and all liability for any damage or injury, which I may receive while utilizing the equipment and facilities and assume all risk for claims arising from the use of said equipment and facilities.
Id. at 118. The plaintiff, who was playing tennis, was injured when she tripped on a piece of equipment that was stored behind a curtain near the tennis court she was using while she was trying to return a lob. Id. at 113. The plaintiff argued that this risk was
unrelated to the game of tennis and thus outside the scope of the release. Id. at 120. However, the court found that the broad language of the release encompassed the risk, relying on the plaintiffs agreement to assume the risk for her use of the clubs equipment and facilities.‘”
Id.

 [*P52]
Finally, we will examine Calarco, 149 Ill. App. 3d 1037, 501 N.E.2d 268, 103 Ill. Dec. 247. In that case, the plaintiff [**26]
was injured when weights from a Universal gym machine fell on her hand. Id. at 1038. The trial court granted summary judgment based on an exculpatory clause. Id. at 1038-39. The clause read:

“‘In consideration of my participation in the activities of the Young Mens Christian Association of Metropolitan Chicago, I do hereby agree to hold free from any and all liability the [defendant] and do hereby for myself, *** waive, release and forever discharge any and all rights and claims for damages which I may have or which may hereafter accrue to me arising out of or connected with my participation in any of the activities of the [defendant].

I hereby do declare myself to be physically sound, having medical approval to participate in the activities of the [defendant].‘”
Id. at 1039.

The reviewing court reversed, finding that the language of the release was not sufficiently explicit to relieve the defendant from liability. Id. at 1043. It explained, The form does not contain a clear and adequate description of covered activities, such as use of the said gymnasium or the facilities and equipment thereof, to clearly indicate that injuries resulting from negligence in maintaining the facilities or equipment would be covered by the release [**27] .” (Emphasis added.) Id.

 [*P53]
In the present case, plaintiff waived any cause of action arising out of or in any way related to [her] use of the climbing gym whether that use is supervised or unsupervised, however the injury or damage is caused. (Emphasis added.) This is remarkably similar to the language, set forth above, that the Calarco court stated would have been sufficient to shield the defendant in that case. Id. Likewise, in Garrison, 201 Ill. App. 3d at 585, the language that was found sufficient to protect the defendant stated that each member bore the sole risk; of injury that might result from the use of weights, equipment or other apparatus provided and that the selection of the type of equipment to be used would be the entire responsibility of the member. Again, identifying the activity involved along with an expressed intent to absolve the defendant from any liability prevailed. Here, the activity was clearly defined and plaintiffs intent to waive any cause related to that activity was clear. Furthermore, plaintiffs injury was of the sort that a participant in that activity could reasonably expect. As Oelze, 401 Ill. App. 3d at 120, indicates, language encompassing assumption of the risk for her use of the clubs equipment and [**28]
facilities‘” is broad and sufficient to cover accidents of the sort that are related to the primary activity. See also Falkner, 178 Ill. App. 3d at 603. Here, falling or jumping off the climbing wall are things a climber can clearly expect to encounter.

 [*P54]
Plaintiff cites Locke v. Life Time Fitness, Inc., 20 F. Supp. 3d 669 (N.D. Ill. 2014), a case from the local federal district court. Such cases merely constitute persuasive authority (Morris v. Union Pac. R.R. Co., 2015 IL App (5th) 140622, ¶ 25, 396 Ill. Dec. 330, 39 N.E.3d 1156); nevertheless, we will comment on it briefly. In that case, the plaintiff suffered a heart attack and died during a basketball game at a gym operated by the defendant. Id. at 671. There was an automatic defibrillator on site, but no employee retrieved it or attempted to use it. Id. The plaintiff had signed a waiver, which included the risk of a heart attack. Id. at 672. However, the waiver did not mention the defendants failure to train its employees in the use of the defibrillator. Id. The Locke court held that by advancing this claim as a failure to train by the defendant, the plaintiff could avoid the effect of the waiver. Id. at 674-75.

 [*P55]
We find Locke unpersuasive. Following the reasoning of Locke, virtually any claim can be recast as a failure to train, supervise, or, in some circumstances, inspect. Allowing such a proposition to defeat an otherwise valid exculpatory agreement [**29]
would effectively write such agreements out of most contracts. See Putnam v. Village of Bensenville, 337 Ill. App. 3d 197, 209, 786 N.E.2d 203, 271 Ill. Dec. 945 (2003) (Limiting the disclaimer in the manner suggested by the plaintiffs would effectively write it out of the contract. Virtually every error in construction by a subcontractor could be recast and advanced against [the defendant] as a failure to supervise or inspect the project.). Here, plaintiff promised to release defendant from any liability resulting from her use of the climbing wall. Moreover, we fail to see how providing additional training to employees would have impacted on plaintiffs perception of an obvious risk. Allowing her to avoid this promise in this manner would be an elevation of form over substance.

 [*P56]
At oral argument, plaintiff relied heavily on the allegation that the spot where she landed was uneven due to the placement of mats in the area. As noted, one of plaintiffs feet landed on a mat and the other landed directly on the floor. According to plaintiff, the risk of landing on an uneven surface was not within the scope of the waiver she executed. This argument is foreclosed by two cases which we cite above. First, in Oelze, 401 Ill. App. 3d at 113, the plaintiff was injured while, during a game of tennis, she tripped on a piece [**30]
of equipment stored behind a curtain near the tennis court. This arguably dangerous condition was found to be within the scope of her waiver. Id. at 121-22. Furthermore, in Garrison, 201 Ill. App. 3d at 584, the plaintiff argued that an alleged defect in gym equipment rendered ineffective an exculpatory agreement which stated that the plaintiff bore the sole risk of injury that might result from the use of weights, equipment or other apparatus provided and that the selection of the type of equipment to be used would be the entire responsibility of the member.
Id. at 585. In this case, assuming arguendo, there was some unevenness in the floor due to the placement of the floor mats, in keeping with Oelze and Garrison, such a defect would not vitiate plaintiff
s waiver.

 [*P57]
In sum, the release here is clear, pertains to use of defendants climbing gym, and is broad enough to encompass falling or jumping from the climbing wall.

 [*P58]
B. WILLFUL AND WANTON CONDUCT

 [*P59]
In an attempt to avoid the effect of the exculpatory agreement, plaintiff also contends that defendant engaged in willful and wanton conduct. Conduct is willful and wanton where it involves a deliberate intention to harm or a conscious disregard for the safety of others. In re Estate of Stewart, 2016 IL App (2d),151117 ¶ 72, 406 Ill. Dec. 345, 60 N.E.3d 896. It is an aggravated [**31]
form of negligence.
Id. Plaintiff contends that defendant should have followed its own policies and evaluated her abilities. However, plaintiff does not explain what such an evaluation would have shown or what sort of action it would have prompted one of defendant
s employees to take that would have protected plaintiff from the injury she suffered. Plaintiff also points to defendants failure to advise her not to climb above the bouldering line. As the trial court observed, the risk of falling from a height is open and obvious to an adult. Ford ex rel. Ford, 307 Ill. App. 3d at 302. Plaintiff cites nothing to substantiate the proposition that failing to warn plaintiff of a risk of which she was presumptively already aware rises to the level of willful and wanton conduct. Indeed, how a defendant could consciously disregard the risk of not advising plaintiff of the dangers of heights when she was presumptively aware of this risk is unclear (plaintiff provides no facts from which an intent to harm could be inferred).

 [*P60]
In short, the conduct identified by plaintiff simply does not show a willful and wanton disregard for her safety.

 [*P61]
IV. CONCLUSION

 [*P62]
In light of the foregoing, the judgment of the circuit court of McHenry County [**32]
is affirmed.

 [*P63]
Affirmed.


Grosch v. Anderson, 2018 IL App (2d) 170707-U; 2018 Ill. App. Unpub. LEXIS 1529

Grosch v. Anderson, 2018 IL App (2d) 170707-U; 2018 Ill. App. Unpub. LEXIS 1529

Grosch v. Anderson

Appellate Court of Illinois, Second District

September 12, 2018, Order Filed

No. 2-17-0707

Reporter

2018 IL App (2d) 170707-U *; 2018 Ill. App. Unpub. LEXIS 1529 **

TRACEY GROSCH, Individually and as Mother and Next Friend of Riley Grosch, a Minor, Plaintiff and Counterdefendant-Appellant, v. BRIAN ANDERSON, JO ANDERSON, CARY-GROVE EVANGELICAL FREE CHURCH, d/b/a Living Grace Community Church of Cary, Defendants and Counterplaintiffs-Appellees.

Notice: THIS ORDER WAS FILED UNDER SUPREME COURT RULE 23 AND MAY NOT BE CITED AS PRECEDENT BY ANY PARTY EXCEPT IN THE LIMITED CIRCUMSTANCES ALLOWED UNDER RULE 23(e)(1).

Prior History:  [**1] Appeal from the Circuit Court of Kane County. No. 14-L-619. Honorable James R. Murphy, Judge, Presiding.

Disposition: Affirmed.

Judges: JUSTICE BIRKETT delivered the judgment of the court. Justices McLaren and Burke concurred in the judgment.

Opinion by: BIRKETT

Opinion

JUSTICE BIRKETT delivered the judgment of the court.

Justices McLaren and Burke concurred in the judgment.

ORDER

 [*P1] 
Held: The trial court properly granted summary judgment in favor of defendants because the fire pole was an open and obvious condition and no exception existed, and there were no genuine issues of material fact sufficient to preclude summary judgment.

 [*P2]  Plaintiff, Tracey Grosch, individually and as mother and next friend of Riley Grosch, a minor, appeals the judgment of the circuit court of Kane County, granting summary judgment in favor of defendants, Brian Anderson, Jo Anderson, and the Cary-Grove Evangelical Free Church d/b/a Living Grace Community Church on plaintiff’s claims of negligence related to Riley’s fall as he was attempting to slide down a fire pole in the Andersons’s back yard during an event sponsored by the Church’s youth ministry. On appeal, plaintiff argues that the trial court erred in relying on the open-and-obvious doctrine and in concluding [**2]  that there were no genuine issues of material fact sufficient to preclude summary judgment. We affirm.

 [*P3]  I. BACKGROUND

 [*P4]  We summarize the pertinent facts. On November 14, 2016, the Andersons were members of the Church; plaintiff’s family attended the Church, but were not members. According to Pastor Cory Shreve, quite a few more people attended the Church than were members. Shreve was the youth pastor and was responsible for running and administering the Church’s youth ministry. He was in charge of the Radiate program which provided for fellowship and religious mentoring of youths beginning in seventh grade and ending upon high school graduation. Radiate was open to members and attendees, and it incorporated youths from other churches and even the “unchurched” as well. Radiate had contacted the Andersons seeking to hold a bonfire at their home; the group had held a bonfire there previously.

 [*P5]  In the Andersons’ back yard, Brian had constructed a platform in a tree from which he had removed the upper branches and foliage. The platform was about 25 feet above the ground. The platform was reached by a ladder tied to the tree. The platform had a rail around it, but no other fall protection. The [**3]  platform had a triangular hole in it, and through the hole, was a metal “fire pole.” The pole was made out of sprinkler pipe, was affixed in concrete at the base, and was 3 1/2 inches in diameter. The surface of the pole had oxidized. The ground around the pole was grass covered, and no force-absorbing material, such as sand or wood chips, had been placed around the bottom of the pole.

 [*P6]  Brian explained that he built the platform and fire pole for his children. Both Brian and Jo testified in deposition that between 150 to 200 people had used the pole, all without injury. Brian testified that he was a construction contractor and was familiar with fall protection for working above the ground and had employed it in his work; no fall protection was installed or available on the platform. Brian testified that he did not research or follow any building codes for the platform and fire pole.

 [*P7]  On the day of the Radiate event, Shreve arrived 15-30 minutes before the announced start of the event. Some of the parents stayed to socialize, others dropped their children off. Plaintiff dropped off Riley and then went shopping nearby, intending to finish shopping and then return for the balance of the [**4]  event. Jo was inside the house for the event, and she monitored the food and drinks, making sure that there was plenty for all of the guests. She also socialized with the other parents. Brian was also inside socializing. Shreve was monitoring the bonfire. At one point, he intercepted one of the youths who tried to jump over the bonfire and explained to the youth why that was not a wise decision. At the time of Riley’s accident, Shreve had gone inside.

 [*P8]  Riley, the Andersons, and Shreve all testified that it was a cool or cold evening, estimating the temperature was anywhere from the 20s to the 40s. According to Shreve and Brian, the point of the event was the bonfire and indoor fellowship; the youths attending were not expected to play in the back yard, but were expected to roast marshmallows in the bonfire and to play in the basement, where pool, basketball, and board games were available. After about an hour outside, Shreve went inside, planning to steer the event towards worship. One of the youths came inside and alerted Shreve and the adults that Riley was hurt.

 [*P9]  Riley testified that he climbed up the ladder. The ladder had metal rungs, so his hands became cold. At the top, on the [**5]  platform while waiting for his turn, he put on gloves. Riley testified that the gloves were like ski gloves, and believed they were slick, possibly made of nylon. Riley testified that he awaited his turn along with several other youths. On that day, Riley was 13 years of age. He grabbed the pole with his hands, but he did not wrap his arms or legs around the pole. As Riley began his descent, he lost control, grabbed for the edge of the platform but could not hang on, and he plummeted the rest of the way to the ground. Riley suffered a comminuted fracture of his left femur and broke several long bones in his right foot. Riley’s femur was repaired surgically, and he had a rod emplaced in the bone. There is a possibility that the rod may have to be removed at a future date. Riley also developed a foot drop following his fall from the platform.

 [*P10]  The adults came out to investigate after they were notified. One of the youths, an Eagle Scout, obtained a rigid table top, and after they had ascertained that Riley had no apparent head or spinal injuries, placed him on the table top and moved him inside. Their purpose was to get him off of the cold ground; Riley apparently was complaining of resting [**6]  on the cold ground. Plaintiff was informed and told to return to the Andersons’ house. According to Brian, she arrived in minutes; plaintiff and other deponents testified that it was closer to 20 minutes. Eventually, an ambulance was called. It appears that plaintiff made the call for an ambulance as the other adults wanted to defer to her wishes. The ambulance took Riley to the hospital where he was treated for his injuries.

 [*P11]  Shreve and the Andersons testified that, when the plans were made to use the Anderson property for the Radiate bonfire, they did not conduct an inspection of the property to determine if there were any unsafe conditions. Rather, Brian testified that he had a safe house, including the fire pole, because nobody had been injured using it up to that time.

 [*P12]  Plaintiff’s expert, Alan Caskey, a park and recreation planner and consultant, testified that the fire pole was too wide, too high, and the landing area was too hard. Caskey opined that the width of the pole, being almost twice the diameter that industry standards allowed in playground equipment, contributed to Riley’s injury, because the excessive width of the pole decreased the strength of the user’s grip of the [**7]  pole. Caskey did not, however, offer any opinion about the effect of Riley’s gloves on his ability to grip the pole, but noted that any effect would depend on the type of glove, which he could not recall. Caskey also specifically noted that the fall height was much greater than industry standards allowed (five feet is the norm), and the landing area did not contain any force-mitigating substances, and these circumstances caused or contributed to the likelihood and severity of injury. Caskey also opined that the darkness could have contributed to Riley losing his grip on the pole because it obscured the size of the pole and its texture. However, Caskey admitted that these were assumptions on his part, and he conceded that there was no testimony specifically addressing these issues.

 [*P13]  As to the procedural posture of this case, on December 15, 2014, plaintiff timely filed her initial complaint; on February 19, 2015, plaintiff filed the first amended complaint at issue in this case. On April 28, 2016, the Andersons filed their motion for summary judgment followed on June 29, 2016, with the Church’s motion for summary judgment. The motions were stayed while plaintiff procured her expert testimony. [**8]  In November 2016, defendants filed their counterclaims against plaintiff.

 [*P14]  On March 16, 2017, plaintiff filed a motion for leave to file a second amended complaint, which the trial court granted. On March 31, 2017, the Church, joined by the Andersons, filed a motion to vacate the trial court’s grant of leave to file the second amended complaint. On April 6, 2017, the trial court vacated its order granting leave to file the second amended complaint and reinstated the briefing schedule on defendants’ motions for summary judgment.

 [*P15]  On May 15, 2017, the trial court apparently heard the parties’ arguments regarding defendants’ motions for summary judgment. On that date, the trial court continued the cause until June 2, 2017, for ruling. On June 2, 2017, the trial court entered summary judgment in favor of defendants and against plaintiff. The court specifically held that:

“defendants owed no duty to plaintiff based on the open and obvious nature of the subject condition [(the platform and fire pole)] on the property; there being no proximate cause between the condition on the property and the injury to [Riley]; and there being no question of material fact raised by plaintiff.”

The trial court [**9]  entered judgment for defendants and dismissed plaintiff’s case. No transcripts of either the argument or the pronouncement of judgment were included in the record.

 [*P16]  On June 30, 2017, plaintiff filed her motion to reconsider. On August 11, 2017, the trial court denied plaintiff’s motion to reconsider, and plaintiff timely appeals.

 [*P17]  II. ANALYSIS

 [*P18]  On appeal, plaintiff argues that the trial court erred in holding that the platform and fire pole presented open and obvious conditions precluding the imposition of a duty. Plaintiff specifically contends that the design flaws in the construction of the platform and the fire pole and the lack of lighting rendered the dangers hidden rather than open and obvious; alternatively, plaintiff argues that the distraction doctrine should apply. Plaintiff also contends that there is a genuine issue of material fact regarding “the true cause” of Riley’s fall. We consider the arguments in turn.

 [*P19]  A. General Principles

 [*P20]  This case comes before us following the trial court’s grant of summary judgment in favor of defendants. In deciding a motion for summary judgment, the court must determine whether the pleadings, depositions, admissions, and affidavits in the record [**10]  show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2016). The purpose of summary judgment is not to try a factual issue but to determine if a factual issue exists. Monson v. City of Danville, 2018 IL 122486, ¶ 12. While summary judgment provides an expeditious means to resolve a lawsuit, it is also a drastic means of disposing of litigation. Id. Because of this, the court must construe the record strictly against the moving party and favorably towards the nonmoving party, and the court should grant summary judgment only if the moving party’s right to judgment is clear and free from doubt. Id. We review de novo the trial court’s judgment on a motion for summary judgment. Id.

 [*P21]  Here, plaintiff alleged that defendants were negligent regarding the platform and fire pole. In a negligence action, the plaintiff must plead and prove that the defendant owed the plaintiff a duty, that the defendant breached the duty owed, and that an injury proximately resulted from the breach. Bujnowski v. Birchland, Inc., 2015 IL App (2d) 140578, ¶ 12, 394 Ill. Dec. 906, 37 N.E.3d 385. The existence of a duty is a question of law and may properly be decided by summary judgment. Id. If the plaintiff cannot demonstrate the existence of a duty, no recovery by the plaintiff [**11]  is possible, and summary judgment in favor of the defendant must be granted. Wade v. Wal-Mart Stores, Inc., 2015 IL App (4th) 141067, ¶ 12, 396 Ill. Dec. 315, 39 N.E.3d 1141. With these general principles in mind, we turn to plaintiff’s contentions.

 [*P22]  B. Open and Obvious

 [*P23]  Plaintiff argues the trial court erred in determining that the platform and the fire pole were open and obvious conditions precluding the finding of a duty on the part of defendants. As a general matter, the owner or possessor of land owes a visiting child the duty to keep the premises reasonably safe and to warn the visitor of dangerous nonobvious conditions, but if the conditions are open and obvious, the owner or possessor has no duty. Friedman v. Park District of Highland Park, 151 Ill. App. 3d 374, 384, 502 N.E.2d 826, 104 Ill. Dec. 329 (1986). The analysis of duty with respect to children follows the customary rules of negligence. Id. This means that a dangerous condition on the premises is deemed one that is likely to cause injury to a general class of children, who, by reason of their immaturity, might be unable to appreciate the risk posed by the condition. Id. However, the open-and-obvious doctrine may preclude the imposition of a duty. Id.

 [*P24]  Recently, this court gave a thoroughgoing analysis of the open-and-obvious doctrine, how exceptions to that doctrine are accounted for, and, ultimately, how duty is imposed [**12]  in these types of cases. Bujnowski, 2015 IL App (2d) 140478, ¶¶ 13-46.1 We concluded that, in cases in which the open-and-obvious doctrine applies, the court will consider whether any exception to the doctrine applies, such as the distraction exception (id. ¶ 18 (discussing Ward v. K Mart Corp., 136 Ill. 2d 132, 149-50, 554 N.E.2d 223, 143 Ill. Dec. 288 (1990) (it is reasonably foreseeable to the defendant that the plaintiff’s attention might be distracted so that the plaintiff will not discover or will forget what is obvious)) or the deliberate-encounter exception (id. ¶ 32 (discussing LaFever v. Kemlite Co., 185 Ill. 2d 380, 391, 706 N.E.2d 441, 235 Ill. Dec. 886 (1998) (it is reasonably foreseeable to the defendant that the plaintiff, generally out of some compulsion, will recognize the risk but nevertheless proceed to encounter it because, to a reasonable person in the same position, the advantages of doing so outweigh the apparent risk)). When no exception applies, the court proceeds to the general four-factor test for imposing liability: (1) whether an injury was reasonably foreseeable; (2) the likelihood of injury; (3) the magnitude of the burden of guarding against the injury; and (4) the consequences of placing that burden on the defendant. Id. ¶ 19 (quoting Ward, 136 Ill. 2d at 151).

 [*P25]  We held that the case law had developed into two approaches in applying the four-factor [**13]  duty test. In one approach, the first two factors will favor the defendant (because the danger is open and obvious), and the court must consider the third and fourth factors which could, at least theoretically, counterbalance the first two factors. Id. ¶ 46. Under the second approach, which we deemed to be more consistent with section 343A of the Restatement (Second) of Torts (Restatement (Second) of Torts § 343A (1965)) on which our supreme court had relied, the last two factors could never outweigh the first two factors, so even if the burden and consequences were minimal, the defendant necessarily would not have any duty to the plaintiff. Bujnowski, 2015 IL App (2d) 140478, ¶ 46.

 [*P26]  Generally, falling from a height is among the dangers deemed to be open and obvious and appreciable even by very young children. Qureshi v. Ahmed, 394 Ill. App. 3d 883, 885, 916 N.E.2d 1153, 334 Ill. Dec. 265 (2009). The risk that confronted Riley as he clambered up to the platform and attempted to use the fire pole was simply a fall from a height, and thus, was an open and obvious risk. We next turn to whether there is an available exception to the open-and-obvious doctrine.

 [*P27]  Plaintiff first argues that the distraction exception applies here. The distraction exception had its genesis in Ward, 136 Ill. 2d 132, 554 N.E.2d 223, 143 Ill. Dec. 288. In that case, a shopper exited the store carrying large mirror he had just purchased and was injured when he walked into a [**14]  concrete post. Id. at 135. The court explained that, even though the post was an open and obvious condition, harm was nevertheless reasonably foreseeable because the store had reason to expect that its customer’s attention may have been distracted so that the customer would not have discovered what is obvious, or would have forgotten what was discovered, or would have failed to protect himself. Id. at 149-50.

 [*P28]  In support of her argument that the distraction exception should apply, plaintiff cites only Ward and Sollami v. Eaton, 201 Ill. 2d 1, 15-16, 772 N.E.2d 215, 265 Ill. Dec. 177 (2002). Ward gave several examples of circumstances in which the distraction exception could apply. As an example, stairs are generally not unreasonably dangerous, but they may be so if, under the circumstances, the plaintiff may fail to see the stairs. Ward, 136 Ill. 2d at 152. Additionally, an open and obvious condition may nevertheless be unreasonably dangerous if it exists in an environment in which the plaintiff is attending to his or her assigned workplace duties and encounters the condition. Id. at 153. For example, a builder carrying roof trusses steps into an open hole in the floor, or a dock worker unloading a truck steps off of a lowered dockplate while unloading a truck, or a customer falls when he or she misses the step off of the stoop [**15]  at the entrance to the store, are all instances in which the defendant should have foreseen the risk of harm caused by the otherwise open and obvious condition.

 [*P29] 
Sollami, by contrast, involved a child “rocket jumping” on a trampoline with several other children when she injured her knee after being “rocketed” to a greater-than-usual height and landing on the surface of the trampoline. Sollami, 201 Ill. 2d at 4. After briefly discussing the parameters of the distraction exception (id. at 15-16), the court held that there was no evidence to show that the child was distracted while jumping on the trampoline (id. at 16). In other words, the child was using the trampoline as she intended to, and she was fully aware of the danger jumping on it may have presented.

 [*P30]  Considering the evidence in the record, we conclude that there was no evidence of distraction presented in the record. Riley climbed up the ladder to the platform, some 25 feet above the ground. Once there, he waited in a line for the fire pole. He did not testify that any of the other persons in the line bothered or distracted him as he prepared to slide down the fire pole. Instead, he put on slick nylon gloves and attempted to slide down the pole by grasping the pole with [**16]  only his hands. As he began his descent, he lost control, attempted to arrest his descent by grabbing the deck of the platform, failed, and fell from a height onto the ground. There is nothing in the evidence in the record to support a conclusion that Riley was distracted. He was not going about his profession or avocation as in the examples in Ward when he encountered the condition. Rather, he was participating in using the fire pole as he intended, as in Sollami. Indeed, Riley attributed his fall to losing his grip when he attempted to slide down the pole using only his hands and not wrapping his arms and legs around the pole. Accordingly, we hold the distraction exception does not apply here.

 [*P31]  Plaintiff argues that the darkness of the evening distracted Riley from perceiving the width of the fire pole and the height of the drop from the platform. We disagree. Riley had to have been acutely aware of the height of the platform, having climbed every inch of the 25-foot height up the ladder. As to the width of the pole, Riley would have perceived it as he grasped it. Brian Anderson testified that everyone he had observed use the pole had instinctually wrapped their arms and legs around [**17]  it. Riley testified that he attempted to use only his hands to grip the pole for his descent, despite the fact that a number of other children had used the pole before him and he apparently had the opportunity to observe them while waiting his turn.

 [*P32]  We also note that there is no evidence that Riley stepped through the opening while trying to use the fire pole, which would, perhaps, have brought the circumstances within the examples in Ward in which workers encountered a condition that was otherwise open and obvious while performing work-related tasks. Instead, Riley testified that he was able to negotiate his way to the pole and grasp it to begin his descent. Thus, there is no evidence that he simply stepped into the opening which went unperceived due to the darkness of the evening. Likewise, there is no evidence that one of the persons waiting for a turn distracted him so he stepped into the opening and fell. There is no evidence of distraction evident, so we reject plaintiff’s contention that Riley was distracted by the darkness and the other children, or that the presence of darkness and other children were sufficient to demonstrate a factual issue in the absence of any evidence [**18]  that these purported distracting circumstances contributed in Riley’s fall.

 [*P33]  The deliberate-encounter exception is usually raised in cases in which an economic compulsion (such as employment) causes the plaintiff to encounter the dangerous condition because, to a reasonable person in that position, the advantages of doing so outweigh the apparent risk. Sollami, 201 Ill. 2d at 15-16. Plaintiff does not contend that the deliberate-encounter exception is applicable to the circumstances. While the deliberate-encounter exception may not be limited to circumstances of economic compulsion, there is no evidence that Riley was under any compulsion, such as peer pressure, to attempt to slide down the fire pole. Because there is no evidence, we hold the deliberate-encounter exception does not apply.

 [*P34]  In the Bujnowski analytical framework, we now turn to the four-factor duty test. Because the condition was open and obvious, namely falling from a height, Riley’s injury was not reasonably foreseeable, because falling from a height is among the risks that even very young children (and Riley was not a very young child but 13 years of age) are capable of appreciating and avoiding that risk. Qureshi, 394 Ill. App. 3d at 885. Likewise, the likelihood of injury is [**19]  small because the risk was apparent. Thus, the first two factors strongly favor defendants.

 [*P35]  The remaining factors appear to be split between plaintiff and defendant. The burden of guarding against the injury appears relatively slight. Defendants could have forbidden the children to use the platform and fire pole. The consequences of placing the burden on defendants are perhaps greater. The Andersons testified that they erected the structure for the amusement of their children. They also testified that of hundreds of users and uses, no one had ever been injured, from young children to older adults. (Plaintiff testified that one of the Andersons told her that one of their children had been injured using the fire pole; the Andersons denied making this statement and denied that any of their children had been injured using the fire pole.) The consequences of forbidding the structure’s use that evening would have been miniscule; the consequences of forbidding access altogether would have been much greater. Even if this calculus on the final two factors favors plaintiff, we cannot say that, in light of the open and obvious nature of the hazard, that they outweigh the first two factors. See [**20] 
Bujnowski, 2015 IL App (2d) 140578, ¶ 55 (no published case has held both that the open-and-obvious doctrine applied without any exception being present and the defendant still owed a duty to the plaintiff). Accordingly, we hold that defendants did not owe Riley any duty in this case.

 [*P36]  Plaintiff argues that the hazard in this case was not open and obvious. Plaintiff argues first that the fire pole, being almost twice the diameter recommended in the industry, was a hidden and dangerous condition. We disagree. The risk posed by the structure was a fall from a height, and the evidence shows that Riley made the climb up to the platform and fell when he had donned slick nylon-shelled ski gloves and did not wrap his arms and legs around the pole.

 [*P37]  Plaintiff argues that the darkness of the evening concealed the width of the pole from Riley. Riley did not testify that he fell through the opening because it was too dark to see. Rather, he testified that he fell when he tried to slide down without wrapping his arms and legs around the pole and when his slick gloves caused his grip to fail. We reject plaintiff’s contentions.

 [*P38]  Plaintiff contends that, due to the construction of the structure and the darkness of the evening, the dangers [**21]  associated with it were not obvious to Riley. We disagree. Riley climbed up to the platform, so he knew that he was very high above the ground. The risk of a fall from a height was therefore clearly apparent, as even very young children are deemed to appreciate the risk of a fall from a height. Qureshi, 394 Ill. App. 3d at 885. We therefore reject plaintiff’s contention and persist in holding that the risk was open and obvious.

 [*P39]  As plaintiff has neither convinced us that the risk was not open and obvious nor that any exception to the open-and-obvious doctrine was applicable, we affirm the judgment of the trial court on this point.

 [*P40]  C. Factual Issues

 [*P41]  Plaintiff argues there is a factual issue whether Riley’s slick gloves or the 3 1/2-inch diameter of the pole caused Riley’s fall. Plaintiff contends that Caskey testified that the pole was so wide that Riley had inadequate grip strength to descend safely (perhaps implying the converse that, if the pole were narrower, Riley’s grip strength would have been adequate). Plaintiff concludes that there is a factual issue regarding the mechanism of Riley’s fall, and this issue should have precluded summary judgment.

 [*P42]  We disagree. Even conceding a factual issue in the mechanism [**22]  of Riley’s fall, defendants did not owe Riley any duty because the risk of a fall from a height was open and obvious, no exception to the open-and-obvious doctrine applied, and the final two factors of the four-factor duty test did not outweigh the first two factors. Thus, the factual issue regarding the mechanism of Riley’s fall was not material in the absence of a duty.

 [*P43]  Plaintiff also contends that defendants owed a duty to instruct Riley on the use of the pole. While this contention is perhaps structurally misplaced in plaintiff’s argument, it is unavailing. The danger of the structure to Riley was open and obvious: a fall from a height. If, as plaintiff appears to contend, Riley did not know how to descend a fire pole, the risk of a fall from a height was still something he could appreciate. Under the law, then, Riley is deemed to be able to appreciate and avoid that risk, including his own limitations on using the fire pole to descend from the height. Accordingly, we reject plaintiff’s contentions.

 [*P44]  We close with the following observation from Bujnowski: “[t]ragic as the facts of this case are, they are not extraordinary in a legal sense and do not call for a result that would [**23]  appear to be without precedent.” Bujnowski, 2015 IL App (2d) 140578, ¶ 55.

 [*P45]  III. CONCLUSION

 [*P46]  For the foregoing reasons, we affirm the judgment of the circuit court of Kane County.

 [*P47]  Affirmed.

End of Document


Scott-Moncrieff v. Lost Trails, LLC, 2018 U.S. Dist. LEXIS 146936; 2018 WL 4110742

 

Scott-Moncrieff v. Lost Trails, LLC

 

, 2018 U.S. Dist. LEXIS 146936 *; 2018 WL 4110742

United States District Court for the Middle District of Pennsylvania

August 29, 2018, Decided; August 29, 2018, Filed

CIVIL ACTION NO. 3:16-CV-1105

Reporter

2018 U.S. Dist. LEXIS 146936 *; 2018 WL 4110742

PATRICE SCOTT-MONCRIEFF, Plaintiff v. THE LOST TRAILS, LLC, et al, Defendants

Subsequent History: Appeal filed, 09/13/2018

Counsel:  [*1] For Patrice Scott-Moncrieff, Plaintiff: James W. Sutton, III, LEAD ATTORNEY, LAW OFFICES OF VIASAC & SHMARUK, FEASTERVILLE, PA.

For The Lost Trails, LLC, d/b/a Lost Trails ATV Adventures, Defendant, Cross Claimant, Cross Defendant: John T. McGrath, Jr., Marshall, Dennehey, Warner, Coleman & Goggin, Scranton, PA; Michael J. Connolly, Moosic, PA.

Judges: KAROLINE MEHALCHICK, United States Magistrate Judge.

Opinion by: KAROLINE MEHALCHICK

Opinion

MEMORANDUM OPINION

Before the Court is a motion for summary judgment filed by Defendant, The Lost Trails, LLC (“Lost Trails”) in this matter. The motion (Doc. 50) was filed on November 14, 2017, together with a brief in support (Doc. 52), and Statement of Facts (Doc. 53). Plaintiff, Patrice Scott-Moncrieff, filed a brief in opposition (Doc. 54) on November 28, 2017, a reply brief (Doc. 55) was filed on December 6, 2017, and a sur reply brief (Doc. 62) was filed on January 17, 2018. This motion is ripe for disposition. For the following reasons, the Court will grant the motion for summary judgment.

I. Factual Background and Procedural History

The factual background is taken from Defendant’s Statements of Undisputed Material Facts (Doc. 53). Where the parties dispute certain facts, [*2]  those disputes are noted. In addition, the facts have been taken in the light most favorable to the plaintiff as the non-moving party, with all reasonable inferences drawn in her favor. This is in accordance with the Local Rules of this Court, which state, in pertinent part, as follows:

LR 56.1 Motions for Summary Judgment.

A motion for summary judgment filed pursuant to Fed.R.Civ.P.56, shall be accompanied by a separate, short and concise statement of the material facts, in numbered paragraphs, as to which the moving party contends there is no genuine issue to be tried.

The papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts, responding to the numbered paragraphs set forth in the statement required in the foregoing paragraph, as to which it is contended that there exists a genuine issue to be tried.

Statements of material facts in support of, or in opposition to, a motion shall include references to the parts of the record that support the statements.

All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing [*3]  party.

Local Rule 56.1 (emphasis added).

To comply with Local Rule 56.1, Plaintiff should (1) clearly and unequivocally admit or deny whether each fact contained in Defendant’s statement of facts is undisputed and/or material, (2) set forth the basis for any denial if any fact is not admitted in its entirety, and (3) provide a citation to the record that supports any such denial. Occhipinti v. Bauer, No. 3:13-CV-1875, 2016 U.S. Dist. LEXIS 136082, 2016 WL 5844327, at *3 (M.D. Pa. Sept. 30, 2016); Park v. Veasie, 2011 U.S. Dist. LEXIS 50682, 2011 WL 1831708, *4 (M.D. Pa. 2011). As such, where Plaintiff disputes a fact set forth by Defendant, but fails to provide a citation to the record supporting their denial, that fact will be deemed to be admitted. “Unsupported assertions, conclusory allegations, or mere suspicions” are insufficient to overcome a motion for summary judgment. Schaar v. Lehigh Valley Health Servs., Inc., 732 F.Supp.2d 490, 493 (E.D.Pa. 2010). In this matter, Plaintiff, though including a statement of fact in her brief in opposition to Defendant’s motion for summary judgment (Doc. 54), does not comply with the local rules and submit a separate statement of material facts in opposition to Defendant’s statement of material facts. Notably, despite being given the opportunity to file a sur-reply brief in this matter, after Defendant raises the issue of Plaintiff’s failure to file a statement of facts in its Reply Brief (Doc. 55), Plaintiff still [*4]  did not file a separate statement of fact. As such, the facts set forth in Defendant’s statement of material facts will be deemed admitted.

On October 20, 2013, Plaintiff visited Defendant’s ATV facility for the first time and, prior to using the facility, executed a waiver of liability. (Doc. 50-2, at 4-5; DOC. 53, AT ¶¶ 5, 9). Plaintiff did not read the waiver in its entirety prior to signing it, and claims she was rushed during the process. (Doc. 53, at ¶ 7; Doc. 50-2, at 71). On June 22, 2014, Plaintiff returned to the facility, at which time she alleged suffered injuries when she was thrown from the ATV she was riding. (Doc. 1).

The release from liability signed by Plaintiff on October 20, 2013 reads, in pertinent part, as follows:

In consideration for the opportunity for event participation and utilization of general admission, all facilities, equipment and premises of Lost Trails, LLC (LT), North American Warhorse Inc, (NAW) Theta Land Corp. (TLC), 1000 Dunham Drive LLC (DD), and their respective affiliates, members, agents, employees, heirs and assigns and other associates in furtherance of the sport of Off-Road Riding, racing and any other activities, scheduled or unscheduled, [*5]  (hereinafter collectively called “Off-Roading.”) This Waiver shall commence on the date first signed and shall remain binding for all time thereafter.

By signing this document, I hereby understand and agree for me and/or my minor child to this Release of Liability, Wavier of Legal rights and Assumption of Risk and to the terms hereof as follows:


2. I hereby RELEASE AND DISCHARGE LT, NAW, TLC, DD and all related parties, event volunteers, company officers, directors, elected officials, agents, employees, and owners of equipment, the land used for Off-Roading activities and any owners of adjourning lands to the premises (hereinafter collectively referred to as “Released parties”) from any and all liability claims, demands or causes of action that I, my minor child or my representatives and my heirs may hereafter have for injuries, loss of life, and all other forms of damages arising out of my voluntary participation in Off-Roading activities.

3. I understand and acknowledge that Off-Road riding and racing activities have inherent dangers that no amount of care, caution, instruction or expertise can eliminate and I EXPRESSLY AND VOLUNTARILY ASSUME ALL RISK OF DEATH OR PERSONAL INJURY [*6]  OR OTHER FORMS OF DAMAGES SUSTAINED WHILE PARTICIPATING IN OFF-ROADING ACTIVITIES WHETHER OR NOT CAUSED BY THE NEGLIGENCE OF THE RELEASE PARTIES.

4. I further agree that I WILL NOT SUE OR OTHERWISE MAKE A CLAIM on behalf of me and/or on behalf of my minor child, against the Released Parties for damages or other losses sustained as a result of my participation in Off-Roading activities.

5. I also agree to INDEMNIFY AND HOLD THE RELEASED PARTIES HARMLESS from all claims, judgments and costs, including attorneys’ fees, incurred in the connection with any action brought against them, jointly or severally, as a result of my or my minor child’s participation in “Off-Roading” activities.

6. I take full responsibility for, and hold harmless Released Parties for any injury, property damage, or death that I or my minor child may suffer or inflict upon others .or their property as a result of my engaging in Off-Roading activities.

7. I further represent that I am at least 18 years of age, or that as the parent or (adult) legal guardian, I waive and release any and all legal rights that may accrue to me, to my minor child or to the minor child for whom I am (adult) legal guardian, as the result of [*7]  any injury or damage that my minor child, the minor child for whom I am (adult) legal guardian, or I may suffer while engaging in Off-Roading activities.

8. I hereby expressly recognize that this Release of Liability, Waiver of Legal Rights and Assumption of Risks is a contract pursuant to which I have released any and all claims against the Released Parties resulting from participation in Off-Roading activities including any claims related to the negligence of the Released Parties by any of the undersigned.

9. I further expressly agree that the foregoing Release of Liability, Waiver of Legal Rights and Assumption of Risks is intended to be as broad and inclusive as is permitted by law of the province or state in which services, materials and/or equipment are provided and the course of business is conducted, and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full legal force and effect. I agree that, should any claim or action arise from my participation as described herein, including any issue as to the applicability of this Release or any provision contained within it, proper Jurisdiction and Venue will lie only in Monroe [*8]  County, Pennsylvania and I waive Jurisdiction and Venue anywhere else.

(Doc. 54-1, at 20-21).

Plaintiff initialed all of the above provisions. She did not initial paragraph 10 on the next page, however, which states as follows:

l0. Having had ample time and opportunity to raise any concerns or questions that I may have, and having read and understood the information, I certify my acceptance of the aforementioned provisions by signing below.

I am in good health and physical condition. I am voluntarily participating with knowledge that dangers are involved and agree to assume all risks. I also understand that if I am injured or become ill, I agree that Lost Trails LLC, or any of its employees, volunteers or guests will not be held liable should they render medical assistance to me or my minor child.

(Doc. 54-1, at 21).

Despite not specifically initialing paragraph 10, Plaintiff did sign the agreement, indicating her acceptance and understanding of the exculpatory clauses. (Doc. 54-1).

II. Legal Standard

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be granted only if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” only [*9]  if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A dispute of material fact is “genuine” if the evidence “is such that a reasonable jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248. In deciding a summary judgment motion, all inferences “should be drawn in the light most favorable to the non-moving party, and where the non-moving party’s evidence contradicts the movant’s, then the non-movant’s must be taken as true.” Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994).

A federal court should grant summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000). In deciding a motion for summary judgment, the court’s function is not to make credibility determinations, weigh evidence, or draw inferences from the facts. Anderson, 477 U.S. at 249. Rather, the court must simply “determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249.

The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion,” and demonstrating the absence of a genuine dispute of any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). If the movant makes [*10]  such a showing, the non-movant must go beyond the pleadings with affidavits or declarations, answers to interrogatories or the like in order to demonstrate specific material facts which give rise to a genuine issue. Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324. The non-movant must produce evidence to show the existence of every element essential to its case, which it bears the burden of proving at trial, because “a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323. Furthermore, mere conclusory allegations and self-serving testimony, whether made in the complaint or a sworn statement, cannot be used to obtain or avoid summary judgment when uncorroborated and contradicted by other evidence of record. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990); see also Thomas v. Delaware State Univ., 626 F. App’x 384, 389 n.6 (3d Cir. 2015) (not precedential) (“[U]nsupported deposition testimony, which is contradicted by the record, is insufficient to defeat summary judgment.”); NLRB v. FES, 301 F.3d 83, 95 (3d Cir. 2002) (“[The plaintiff’s] testimony . . . amounts to an unsupported, conclusory assertion, which we have held is inadequate to satisfy the movant’s burden of proof on summary judgment.”).

As this jurisdiction of this Court is sounded in the diversity of the parties pursuant to 28 U.S.C. § 1332(a), Pennsylvania substantive [*11]  law will apply. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

III. Discussion

Defendant submits that it is entitled to judgment in its favor because Plaintiff executed a valid waiver of all liability prior to ever engaging in any recreational activities on Defendant’s property; because such releases and waivers are recognized under Pennsylvania law; and because within the waiver, Plaintiff specifically acknowledged that she was assuming all of the risks associated with these activities. (Doc. 52, at 2). In response, Plaintiff argues that Plaintiff did not sign a waiver on the date of the accident, and therefore did not waive any liability or assume any risk; that she was rushed and unable to read the original waiver in its entirety; that the waiver is unenforceable as not properly conspicuous; and finally, that because the earlier waiver signed by Plaintiff was “for all time thereafter” it should not be enforced. (Doc. 54).

A. The Exculpatory Clause is Valid

An exculpatory clause is valid if the following conditions are met: 1) the clause does not contravene public policy; 2) the contract is between parties relating entirely to their own private affairs; and 3) the contract is not one of adhesion. Evans v. Fitness & Sports Clubs, LLC, No. CV 15-4095, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at *3 (E.D. Pa. Sept. 28, 2016); [*12] 
Topp Copy Prods., Inc. v. Singletary, 533 Pa. 468, 626 A.2d 98, 99 (Pa. 1993). A valid exculpatory clause is only enforceable if “the language of the parties is clear that a person is being relieved of liability for his own acts of negligence.” Id. A waiver of liability violates public policy only if it involves “a matter of interest to the public or the state. Such matters of interest to the public or the state include the employer-employee relationship, public service, public utilities, common carriers, and hospitals.” Seaton v. E. Windsor Speedway, Inc., 400 Pa. Super. 134, 582 A.2d 1380, 1382 (Pa. Super. Ct. 1990); see also Kotovsky v. Ski Liberty Operating Corp., 412 Pa. Super. 442, 603 A.2d 663, 665 (Pa. Super. Ct. 1992). The exculpatory clause at issue in this case does not contravene public policy because it does not affect a matter of interest to the public or the state. See Kotovsky, 603 A.2d at 665-66 (holding that releases did not violate public policy because “[t]hey were [in] contracts between private parties and pertained only to the parties’ private rights. They did not in any way affect the rights of the public.”). Thus, the exculpatory clause meets the first two prongs of the Topp Copy standard for validity.

The contract meets the third prong of the Topp Copy validity standard because it is not a contract of adhesion. Agreements to participate in “voluntary sporting or recreational activities” are not contracts of adhesion because “[t]he signer is a free agent [*13]  who can simply walk away without signing the release and participating in the activity, and thus the contract signed under such circumstances is not unconscionable.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1190-91 (Pa. 2010). “The signer is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential services, but merely governs a voluntary recreational activity.” Id. The Agreement at issue here is not a contract of adhesion because it is a contract to participate in voluntary recreational activities. The Agreement does not relate to an essential service, and Plaintiff was free to engage in the activity, or not, as she wished. She was under no compulsion to do so. See Chepkevich, supra; see also Hinkal v. Pardoe, 2016 PA Super 11, 133 A.3d 738, 741-2 (Pa. Super. Ct. 2016) (en banc), appeal denied, 636 Pa. 650, 141 A.3d 481 (Pa. 2016) (citing the “thorough and well-reasoned opinion” of the trial court, which held that the plaintiff’s gym membership agreement was not a contract of adhesion because exercising at a gym is a voluntary recreational activity and the plaintiff was under no compulsion to join the gym). The Agreement meets all three prongs of the Topp Copy standard for validity, and thus the exculpatory clause is facially valid.

B. The Exculpatory Clause is Enforceable

Even if an exculpatory clause is [*14]  facially valid, it is enforceable only if it clearly relieves a party of liability for its own negligence. Evans v. Fitness & Sports Clubs, LLC, No. CV 15-4095, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at *5 (E.D. Pa. Sept. 28, 2016). The following standards guide a court’s determination of the enforceability of an exculpatory clause:

1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing the immunity is upon the party invoking protection under the clause.

Topp Copy, 626 A.2d at 99.

The Court now turns to Plaintiff’s arguments against the enforceability of the exculpatory clause.

1. Plaintiff’s first waiver is enforceable, including the clause “for all time thereafter.”

Plaintiff submits that the waiver she executed in October 2013 did not apply to her visit to Defendant on June 22, 2014, because “it is uncontroverted that the Defendant has a policy that dictates all [*15]  riders must sign a waiver every time they ride an ATV at their park” (Doc. 54, at 4), and Plaintiff did not sign a waiver when she visited the park in June 2014. Defendant counters that Plaintiff is misconstruing the record in making this assertion. (Doc. 55, at 2). Specifically, Defendant submits that the testimony cited by Plaintiff is that of a former maintenance man who has nothing to do with policy or procedure at Defendant’s property, and further, that he neither testifying as a representative of, nor acting on behalf of, Lost Trails, LLC. (Doc. 55-1, at 4). The testimony offered by the Plaintiff on this issue is that of Matthew Anneman, who testified as follows:

Q: Everybody that goes there is supposed sign the waiver before they go out on the trails, is that fair to say?

A: Yes.

Q: Do you know if Miss Moncrieff signed a waiver before she went on the trail that day?

A: Yes. It is imperative that everybody who comes to ride on that mountain is to fill out a waiver.


Q: So every single time somebody comes to the facility, before they go out there, they go in and sign a waiver.

A: Yes.

Q: And you’re not involved in that part of it, the sign in, and the waiver.

A: No, no. Leslie or one [*16]  of her employees would work the front desk.

(Doc. 54-1, at 12; Anneman Dep. at 36).

The Court finds this testimony to have little to no bearing on the validity and applicability of the October 2013 waiver. Even construing the evidence in the record in Plaintiff’s favor, Mr. Anneman’s testimony does not change the fact Plaintiff did sign a waiver in October 2013, one which indicated that it “shall remain binding for all time thereafter.” (Doc. 54-1, at 20) (emphasis added). Nothing in the record before the Court indicates that Mr. Anneman was responsible for either policy at Defendant’s facility, or in any way even involved with the waiver process. Further, the language of the waiver is clear. In interpreting the language of a contract, courts attempt to ascertain the intent of the parties and give it effect. Sycamore Rest. Grp., LLC v. Stampfi Hartke Assocs., LLC, 2017 Pa. Super. 221, 174 A.3d 651, 656 (2017); LJL Transp., Inc. v. Pilot Air Freight Corp., 599 Pa. 546, 962 A.2d 639, 648 (2009). When a writing is clear and unequivocal, its meaning must be determined by its contents alone. Synthes USA Sales, LLC v. Harrison, 2013 Pa. Super. 324, 83 A.3d 242, 250-51 (2013); Murphy v. Duquesne Univ. of the Holy Ghost, 565 Pa. 571, 591, 777 A.2d 418, 429 (2001) (citations and quotation marks omitted). “[I]t is not the function of this Court to re-write it, or to give it a construction in conflict with … the accepted and plain meaning of the language used.” Id.; citing Robert F. Felte, Inc. v. White, 451 Pa. 137, 144, 302 A.2d 347, 351 (1973) (citation omitted). Here, the language of the waiver form (Doc. 54-1, [*17]  at 20) is unequivocal in stating the intent that it is binding for all time thereafter. As the Pennsylvania Supreme Court has stated,

The word “all” needs no definition; it includes everything, and excludes nothing. There is no more comprehensive word in the language, and as used here it is obviously broad enough to cover liability for negligence. If it had been the intention of the parties to exclude negligent acts they would have so written in the agreement. This paragraph of the lease is clear and unambiguous. No rules of construction are required to ascertain the intention of the parties.

Topp Copy Prods. v. Singletary, 533 Pa. 468, 472, 626 A.2d 98, 100 (1993); citing Cannon v. Bresch, 307 Pa. 31, 34, 160 A. 595, 596 (1932).

As such, the Court finds that the October 2013 waiver executed by Plaintiff was in effect during her June 2014 visit to Defendant’s property.1

2. Plaintiff’s argument that she was rushed and unable to read the original waiver in its entirety is without merit.

Plaintiff next argues that, should the Court find that the 2013 waiver was in effect in June 2014, she was rushed and therefore did not have time to read the waiver before signing it. “The law of Pennsylvania is clear. One who is about to sign a contract has a duty to read that contract [*18]  first.” Hinkal v. Pardoe, 2016 Pa. Super. 11, 133 A.3d 738, 743, appeal denied, 636 Pa. 650, 141 A.3d 481 (2016); In re Estate of Boardman, 2013 PA Super 300, 80 A.3d 820, 823 (Pa.Super.2013); citing Schillachi v. Flying Dutchman Motorcycle Club, 751 F.Supp. 1169, 1174 (E.D.Pa.1990) (citations omitted). In the absence of fraud, the failure to read a contract before signing it is “an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract.” Germantown Sav. Bank v. Talacki, 441 Pa.Super. 513, 657 A.2d 1285, 1289 (1995) (citing Standard Venetian Blind Co. v. American Emp. Ins. Co., 503 Pa. 300, 469 A.2d 563, 566 note (1983)); see also Wroblewski v. Ohiopyle Trading Post, Inc., No. CIV.A. 12-0780, 2013 U.S. Dist. LEXIS 119206, 2013 WL 4504448, at *7 (W.D. Pa. Aug. 22, 2013) (Under Pennsylvania law, the failure to read a contract does not nullify the contract’s validity.); Arce v. U-Pull-It Auto Parts, Inc., No. 06-5593, 2008 U.S. Dist. LEXIS 10202, 2008 WL 375159, at *5-9 (E.D.Pa. Feb.11, 2008) (written release found to be enforceable even when the agreement was in English but the plaintiff only read and spoke Spanish, noting that the “[p]laintiff cannot argue that the release language was inconspicuous or somehow hidden from his attention…. Nor did Defendant have an obligation to verify that [p]laintiff had read and fully understood the terms of the document before he signed his name to it.”). In this case, there is no allegation or evidence of fraud, and as such, Plaintiff’s argument is without merit.

3. The waiver is properly conspicuous.

Finally, Plaintiff avers that summary judgment should be denied because the waiver was not properly conspicuous, and relies on the Pennsylvania Superior Court’s decision in Beck-Hummel in making [*19]  this assertion. The Beck-Hummel court addressed the enforceability of a waiver of liability printed on the back of a tubing ticket. The exculpatory language appeared in a font that was “just barely readable,” and smaller than the font used for some other portions of the ticket. Id. at 1274-75. The Beck-Hummel court looked to the conspicuousness of the waiver of liability as a means of establishing whether or not a contract existed, setting forth three factors to consider in determining conspicuousness: 1) the waiver’s placement in the document; 2) the size of the waiver’s font; and 3) whether the waiver was highlighted by being printed in all capital letters or a different font or color from the remainder of the text. Beck-Hummel, 902 A.2d at 1274. After considering these factors, the Beck-Hummel court could not conclude as a matter of law that the exculpatory clause was enforceable because the language of the ticket was not sufficiently conspicuous as to put the purchaser/user on notice of the waiver. Id.at 1275.

However, in a more recent Pennsylvania Superior Court case, the court held that, as in the case presently before this Court, where the exculpatory clause was part of a signed contract between the parties, the requirements of [*20]  conspicuity set forth in Beck-Hummel would not necessarily apply. In Hinkal v. Pardoe, the en banc Superior Court of Pennsylvania examined whether the Beck-Hummel conspicuity requirements for the enforcement of exculpatory clauses applies to signed valid written contracts. Hinkal v. Pardoe, 2016 Pa. Super. 11, 133 A.3d 738, 743-745, appeal denied, 636 Pa. 650, 141 A.3d 481 (2016). In Hinkal, the plaintiff had signed a membership agreement with Gold’s Gym that contained a waiver of liability for negligence claims on the back page. Id. at 741. The Hinkal court found the plaintiff’s comparison of her case to Beck-Hummel “inapposite” because, unlike a waiver printed on the back of a tubing ticket that did not require a signature; the gym waiver was part of a signed agreement. Id. at 744-45. Further, the court noted that conspicuity is generally not required to establish the formation of a contract, but “has been resorted to as a means of proving the existence or lack of a contract,” where it is unclear whether a meeting of the minds occurred, and imposing such a requirement would allow a properly executed contract to be set aside through one party’s failure to do what the law requires – reading a contract. Id. at 745. The Hinkal court concluded that the waiver of liability was valid and enforceable because [*21]  the plaintiff had signed the agreement. Similarly, in Evans v. Fitness & Sports Clubs, LLC, the District Court determined that the exculpatory clauses contained in a fitness club’s membership agreements were valid and enforceable where the plaintiff had signed both a membership and personal training agreement, including an acknowledgement that the plaintiff had read and understood the entire agreement, including the release and waiver of liability, appears directly above the plaintiff’s signature on the first page of each agreement. Evans v. Fitness & Sports Clubs, LLC, No. CV 15-4095, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at *6 (E.D. Pa. Sept. 28, 2016).

The Court finds the agreement at issue in this case to be far more in line with the waivers discussed by the Pennsylvania Superior and Eastern District of Pennsylvania courts in Hinkal and Evans. The waiver form in this case was two pages in length, and initialed and signed by Plaintiff. It was not, like the waiver in Beck-Hummel, printed in small font on the back of a tubing ticket. This was a waiver that was reviewed, initialed and signed by Plaintiff. As such, the requirements of conspicuity set forth in Beck-Hummel would not necessarily apply. Hinkal v. Pardoe, 133 A.3d at 743-745.

Even if those conspicuity requirements applied, however [*22]  the exculpatory clauses in the Waiver Form would still be enforceable. The document is titled, in larger font, bold, underlined, and all capital letters “LOST TRAILS ATV ADVENTURES WAIVER FORM.” The language specifically indicating release and discharge, assumption of the risk, an agreement not to sue, and indemnification, are set of in all capitals in the numbered paragraphs, and were acknowledged by Plaintiff initialing each paragraph. (Doc. 54-1, at 20). Immediately above the signature line, in all capital bold letters, the release reads:

I HAVE READ THIS RELEASE OF LIABILITY, WAIVER OF LEGAL RIGHTS AND ASSUMPTIONS OF RISK AND FULLY UNDERSTAND ITS CONTENTS. I SIGN IT WILLINGLY, VOLUNTARILY AND HAVING HAD AMPLE OPPORTUNITY TO RAISE ANY QUESTIONS OR CONCERNS THAT I MAY HAVE, I ACKNOWLEDGE THAT I AM PARTICIPATING VOLUNTARILY WITH KNOWLEDGE THAT DANGERS ARE INVOLVED AND I AGREE TO ASSUME ALL THE RISKS.

(Doc. 54-1, at 21).

These clauses are conspicuously set apart, appearing in capital letters, and in the case of the final paragraph, fully set apart, in all bold and all capitals. Further, the agreement itself is titled “Waiver Form” which notifies the reader of the purpose of the form. [*23]  Plaintiff initialed the paragraphs setting forth the exculpatory clauses,2 and signed the agreement directly underneath the final, most prominent waiver clause. As such, the Court finds that the exculpatory clauses are valid and enforceable. See Evans, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at n. 6.

IV. Conclusion

For the reasons set forth above, the undisputed material facts in the record establish that Defendant is entitled to summary judgment. Viewing the record in light most favorable to the Plaintiff, the Court finds that the exculpatory clauses at issue are valid and enforceable. As such, Defendant’s motion will be granted, and judgment will be entered in favor of Defendant.

An appropriate Order follows.

Dated: August 29, 2018

/s/ Karoline Mehalchick

KAROLINE MEHALCHICK

United States Magistrate Judge

ORDER

AND NOW, this 29th day of August, 2018, IT IS HEREBY ORDERED that for the reasons set forth in the memorandum filed concurrently with this Order, Defendant’s motion for summary judgment (Doc. 50) is GRANTED, and judgment is entered in favor of Defendant. The Clerk of Court is directed to CLOSE this matter.

BY THE COURT:

Dated: August 29, 2018

/s/ Karoline Mehalchick

KAROLINE MEHALCHICK

United States Magistrate Judge

End of Document


Overturned by the PA Supreme Court: Bourgeois v. Snow Time, Inc., 2018 Pa. Super. Unpub. LEXIS 2938; 2018 WL 3868670

Bourgeois v. Snow Time, Inc., 2018 Pa. Super. Unpub. LEXIS 2938 *; 2018 WL 3868670

Bourgeois v. Snow Time, Inc.

 

 

Superior Court of Pennsylvania

August 14, 2018, Decided; August 14, 2018, Filed

No. 1086 MDA 2017

Reporter

2018 Pa. Super. Unpub. LEXIS 2938 *; 2018 WL 3868670

RAY M. BOURGEOIS AND MARY ANN I. BOURGEOIS, Appellants v. SNOW TIME, INC. AND SKI ROUNDTOP OPERATING CORPORATION

Notice: DECISION WITHOUT PUBLISHED OPINION

Prior History:  [*1] Appeal from the Order Entered June 19, 2017. In the Court of Common Pleas of York County Civil Division at No(s): 2015-SU-001900-71.

Judges: BEFORE: OTT, J., DUBOW, J., and STRASSBURGER,* J. Judge Ott joins the memorandum. Judge Strassburger files a dissenting memorandum.

Opinion by: DUBOWS

Opinion

MEMORANDUM BY DUBOW, J.:

Appellants, Ray M. Bourgeois and Mary Ann I. Bourgeois, appeal from the Order entered in the York County Court of Common Pleas granting the Motion for Summary Judgment filed by Appellees, Snow Time, Inc. and Ski Roundtop Operating Corporation.1 Appellants challenge the trial court’s finding that Appellants could not establish that Appellees acted recklessly or with gross negligence. After careful review, we agree with the trial court that Appellants failed to provide an expert report that articulated a relevant standard of care. As a result, Appellants failed to establish that Appellees had a duty to Appellants and, thus, acted recklessly or were grossly negligent in placing deceleration mats at the end of the tubing run. We affirm the Order of the trial court.

In the instant matter, Appellant Ray Bourgeois was seriously injured while snow tubing when his tube crossed folded anti-fatigue rubber kitchen [*2]  mats which Appellees had placed in the deceleration area of the snow tubing run. Appellants’ theory of the case is that Appellees acted recklessly and with gross negligence by placing the mats at the end of the tubing run to aid in tube deceleration.

Appellants filed a Complaint against Appellees on July 24, 2015, asserting claims for negligence, gross negligence, recklessness, and loss of consortium.

On February 14, 2017, Appellees filed a Motion for Summary Judgment, which the trial court granted on June 19, 2017.

This timely appeal followed. Appellants filed a court-ordered Pa.R.A.P. 1925(b) Statement of Errors Complained of on Appeal. The trial court filed a Pa.R.A.P. 1925(a) Opinion, incorporating its Opinion in Support of the Order granting the Motion for Summary Judgment.

Appellants raise the following issues for our review:

1. Did the trial court err in granting [Appellees’] Motion for Summary Judgment when it disregarded [Appellants’] liability expert reports, which support the conclusion that, based on the evidence of record, that in placing large rubber kitchen mats, folded in half, on the snow and in the path of its patrons who were traveling at high speeds, [Appellees] acted recklessly and/or with gross negligence? [*3] 

2. Did the trial court err in granting [Appellees’] Motion for Summary Judgment, by holding that, as a matter of law, [Appellees] were not reckless and/or grossly negligent, in that the trial court disregarded genuine issues of material fact showing recklessness and/or gross negligence, including but not limited to the following:

(a) the manufacturer of the inner tube [Appellees] provided Mr. Bourgeois specifically warned [Appellees] not to place obstacles, such as large folded rubber kitchen mats, in the path of tubing participants;

(b) [Appellees] deliberately placed obstacles-large, heavy, folded kitchen mats that [Appellees] knew were not designed for snow tubing and which would cause tubing participants to come to an abrupt stop during high-speed conditions-directly in Mr. Bourgeois’s path;

(c) [Appellees] knew that folding the large mats made them obstacles as the mats were fixed heavy masses that protruded high off the surface of the snow;

(d) [Appellees] had actual and/or constructive knowledge of similar incidents involving the folded kitchen mats prior to Mr. Bourgeois’s catastrophic accident;

(e) [Appellees] acknowledged in their written warnings that their tubing runs-including [*4]  their use of large rubber mats to stop speeding tubing patrons-posed a risk of grievous injury or death to its patrons; and

(f) the risk of grave harm posed by the folded rubber kitchen mats to [Appellees’] snow tubing patrons was obvious and readily apparent to a reasonable person?

3. Did the trial court err in granting [Appellees’] Motion for Summary Judgment, in that the trial court relied upon the testimony of [Appellees’] own employees-in contravention of the Nanty-Glo[]2 holding-to conclude as a matter of law that [Appellees] did not know or have reason to know that using folded kitchen mats to bring its fast-moving snow-tubing patrons to an abrupt stop did not pose a risk of serious bodily harm or death to its patrons?

4. Did the trial court err in granting [Appellees’] Motion for Summary Judgment as to [Appellee] Snow Time, Inc., when (a) the Release signed by Mr. Bourgeois did not name Snow Time as a signatory, and (b) there were genuine issues of fact that [Appellee] Snow Time directly participated and acted negligently with regard to Mr. Bourgeois?

Appellants’ Brief at 6-7.

Issues 1 and 2 – Summary Judgment

In their first two issues, Appellants argue that the trial court erred [*5]  in granting Appellees’ Motion for Summary Judgment by disregarding the conclusions of their experts that Appellees’ conduct was reckless and grossly negligent. Appellants’ Brief at 35, 42. In support, Appellants emphasize certain evidence and argue that the record contains genuine issues of material fact that make the grant of summary judgment inappropriate. Based on the following discussion, however, we find that Appellants did not establish a prima facie claim for recklessness or gross negligence and thus, the trial court did not err in granting summary judgment on these issues.

Our standard of review of the grant of a Motion for Summary Judgment is as follows. We “may reverse a grant of summary judgment if there has been an error of law or an abuse of discretion.” Summers v. Certainteed Corp., 606 Pa. 294, 997 A.2d 1152, 1159 (Pa. 2010). However, when there are no genuine issues as to any material fact and the only issue on appeal is a question of law, our standard of review is de novo.” Id.

In order to survive a motion for summary judgment, the non-moving party “must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor.” Washington v. Baxter, 553 Pa. 434, 719 A.2d 733, 737 (Pa. 1998) (citation omitted). If the non-moving [*6]  party fails to establish one of the essential elements of her claim, the movant has valid grounds for summary judgment. Babb v. Ctr. Cmty. Hosp., 2012 PA Super 125, 47 A.3d 1214, 1223 (Pa. Super. 2012) (citation omitted).

It is well-established that when a trial court considers a motion for summary judgment that includes an expert report, the trial court must determine, inter alia, whether the expert sufficiently supports his conclusions in his expert report:

At the summary judgment stage, a trial court is required to take all facts of record, and all reasonable inferences therefrom, in a light most favorable to the non-moving party. This clearly includes all expert testimony and reports submitted by the non moving party or provided during discovery; and, so long as the conclusions contained within those reports are sufficiently supported, the trial judge cannot sua sponte assail them in an order and opinion granting summary judgment. Contrarily, the trial judge must defer to those conclusions, and should those conclusions be disputed, resolution of that dispute must be left to the trier of fact.

Summers, supra at 1161 (citations omitted).

In this case, the trial court concluded as a matter of law that Appellants could not establish a claim for recklessness or gross negligence. The trial [*7]  court reasoned that since Appellants’ experts had not articulated the standard of care that Appellees failed to meet, a factfinder could not conclude that Appellees were aware of that standard of care and disregarded it and, thus, acted recklessly or with grossly negligence:

[Appellants] have not produced sufficient evidence to show that an industry standard exists for placing the mats at the bottom of hills for snow tubers. . . . The absence of any standard on the record makes it difficult for the [c]ourt to find that [Appellees] knew that their conduct of using deceleration mats to stop snow tubers in the runout area would be placing [Appellant] at a higher unreasonable risk of harm than if [Appellees] had placed mats in a different manner, selected to purchase a different kind of mat, or used a different method for stopping the snow tubers.

Trial Ct. Op., 7/19/17, at 18-19. The trial court similarly found no evidence that Appellees “knew or had reason to know that folding the mats created an unreasonable risk of physical harm.” Id. Appellants challenge these conclusions.

We first turn to the definitions of recklessness and gross negligence. The Pennsylvania Supreme Court, citing the [*8]  Restatement (Second) of Torts, found that a defendant acts recklessly, when, inter alia, he owes a duty to the plaintiff and fails to meet that duty. That is, a defendant is reckless when:

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.

Tayar v. Camelback Ski Corp., 616 Pa. 385, 47 A.3d 1190, 1200 (Pa. 2012), citing
Restatement (Second) of Torts § 500 (emphasis added). Therefore, an element of recklessness is the failure of the defendant to do any act that he has a duty to do for the plaintiff.

That failure, however, must be an intentional failure. In other words, a plaintiff must establish that a defendant consciously acted or failed to act. Thus, recklessness is more closely aligned with intentional conduct than with negligence, which suggests “unconscious inadvertence.” Id.

Similarly, an element of gross negligence is the deviation from a standard of care. More precisely, a plaintiff must establish that a defendant’s conduct grossly and flagrantly deviated from “the ordinary [*9]  standard of care.” Bloom v. Dubois Regional Medical Center, 409 Pa. Super. 83, 597 A.2d 671, 679 (Pa. Super. 1991).

Generally, it is for the jury to determine whether a party acted grossly negligent. Colloi v. Philadelphia Electric Co., 332 Pa. Super. 284, 481 A.2d 616, 621 (Pa. Super. 1984). However, a court may decide this question as a matter of law where the case is entirely free from doubt and there is no possibility that a reasonable jury could find gross negligence. Id.

Expert testimony is often required to opine about a defendant’s duty to the plaintiff, i.e., the standard of care that defendant failed to meet. In particular, an expert must opine about the relevant standard of care, the manner in which defendant’s actions deviated from the standard, and the manner in which that deviation caused the plaintiff’s harm. See Toogood v. Owen J. Rogal, D.D.S., P.C., 573 Pa. 245, 824 A.2d 1140, 1145 (Pa. 2003) (medical expert report must describe standard of care so as to establish duty, breach of duty, and causation). See also Zokaites Contracting Inc. v. Trant Corp., 2009 PA Super 35, 968 A.2d 1282, 1287 (Pa. Super. 2009) (in a professional negligence action, expert testimony is required to establish the “relevant standard of care applicable to the rendition of the professional services” and that the defendant’s conduct fell below that standard); Truax v. Roulhac, 2015 PA Super 217, 126 A.3d 991, 997-99 (Pa. Super. 2015) (discussing plaintiff’s use of an engineer’s expert testimony to establish the elements of negligence in a premises liability action).3 If the expert fails to provide the required information, a trial [*10]  court may conclude that the report is insufficient as a matter of law. Id.

We now turn to the theory of Appellants’ case. Appellants allege in their Complaint, inter alia, that Appellees’ use of folded deceleration mats at the base of its tubing run was reckless and grossly negligent because the use of the mats caused Appellant’s snow tube to stop suddenly and unexpectedly, resulting in the serious injuries that Appellant sustained. Appellants assert the same theory on appeal by arguing that Appellees engaged in reckless and grossly negligent conduct when they placed “large, heavy rubber mats in [Appellant’s] path … and that the mats could bring [Appellant] to an abrupt, immediate stop.”4
See Appellants’ Brief at 36.

In support of Appellants’ response to Appellees’ Motion for Summary Judgment, Appellants presented two expert reports that concluded that Appellees engaged in reckless and grossly negligent conduct. Neither expert, however, set forth a relevant standard of care and, thus, the duty that Appellees failed to meet.

Appellants’ first expert, Mark DiNola, is an expert in the field of ski and snow tubing risk management. When addressing Appellees’ standard of care, he did so generally [*11]  and failed to articulate a specific standard of care or industry standard for the use of deceleration mats in a tubing run-out area. In particular, DiNola first concluded generally that Appellees’ “decision to use deliberately deployed folded anti-fatigue rubber mats as a deceleration device constitutes an extreme departure from the ordinary standards of conduct for a tubing park operator.” DiNola Report, 3/15/17, at 40 (emphasis added). DiNola, however, did not cite or explain the “ordinary standards of conduct for a tubing park operator” from which Appellees’ conduct had departed. He just baldly opined that the use of the mats departs from ordinary standards of conduct.

In another portion of the report, however, DiNola discusses a standard of care set forth in National Ski Areas Association’s “Tubing and Operations Resource Guide.”5 That “standard of care,” however, addresses the length of a tubing run-out, not a standard of care for the use of mats as deceleration devices. Thus, this portion of the expert report does not sufficiently articulate the applicable standard of care or conduct to support Appellants’ theory of this case.

The second expert report, written by Gordon Moskowitz, [*12]  Ph.D., a mechanical and biomechanical engineering expert, does not set forth any standards of care for tubing operators. Thus, this report is not relevant to the determination of whether Appellees engaged in reckless or grossly negligent conduct in failing to meet a standard of care by using folded rubber mats in the deceleration area.

Therefore, we are constrained to agree with the trial court that Appellants failed to articulate the appropriate standard of care for the use of deceleration mats. Without such a standard of care, Appellants, as a matter of law, cannot establish Appellees’ duty to Appellants and that Appellees knew or should have known about the standard of care. Since Appellants failed to meet this element of recklessness and gross negligence, the trial court properly granted Appellees’ Motion for Summary Judgment on this issue.

Issue 3 – Nanty-Glo Rule

In their third issue, Appellants claim that the trial court erred in concluding, solely based on Appellees’ employees’ testimony, that Appellees were not aware of the risk of harm posed by their use of anti-fatigue mats in the deceleration areas of the tubing run. Appellants’ Brief at 55.

The Nanty-Glo Rule limits the trial [*13]  court’s use of affidavits or depositions to decide motions for summary judgment. The Rule provides that a trial court, when ruling on a motion for summary judgment, may not rely solely upon the moving party’s own testimonial affidavits or depositions, or those of its witnesses, to determine that no genuine issue of material fact exists. Dudley v. USX Corp., 414 Pa. Super. 160, 606 A.2d 916, 918 (Pa. Super. 1992) (citation and footnote omitted).

Before applying the Nanty-Glo Rule, however, the trial court must first determine whether the plaintiff has alleged sufficient facts to establish a prima facie case:

Initially, it must be determined whether the plaintiff has alleged facts sufficient to establish a prima facie case. If so, the second step is to determine whether there is any discrepancy as to any facts material to the case. Finally, it must be determined whether, in granting summary judgment, the trial court has usurped improperly the role of the fact-finder by resolving any material issues of fact. It is only when the third stage is reached that Nanty-Glo comes into play.

DeArmitt v. New York Life Ins. Co., 2013 PA Super 161, 73 A.3d 578, 594-95 (Pa. Super. 2013) (citation omitted and emphasis added).

As discussed above, the trial court properly found as a matter of law that Appellants’ experts had not opined about a relevant standard of care [*14]  and, thus, Appellants could not establish facts sufficient to make out a prima facie case of recklessness or gross negligence. Accordingly, Appellants have not demonstrated the applicability of the Nanty-Glo Rule. This third issue, thus, warrants no relief.

Issue 4 – The Release of Snow Time, Inc.

Lastly, Appellants contend that the trial court erred in dismissing the negligence claim against Snow Time, Inc. because the Release at issue did not specifically name or identify Snow Time, Inc. Appellants’ Brief at 61. We disagree.

The Release at issue states, in pertinent part, that Appellants release from negligence claims Appellee Ski Liberty Operating Corporation and its owners:

In consideration of being allowed to use the tubing area at Liberty, Whitetail or Roundtop, I HEREBY AGREE NOT TO SUE AND TO RELEASE, SKI LIBERTY OPERATING CORP., WHITETAIL MOUNTAIN OPERATING CORP. AND SKI ROUNDTOP OPERATING CORP., AS WELL AS THEIR OWNERS, AGENTS AND EMPLOYEES FROM ANY AND ALL LIABILITY RELATED TO INJURY, PROPERTY LOSS OR OTHERWISE RELATED TO MY USE OF THE TUBING FACILITY, REGARDLESS OF ANY NEGLIGENCE ON THE PART OF THE SAME. I FURTHER AGREE TO INDEMNIFY AND DEFEND THE SAME, FROM ANY CLAIM FOR LIABILITY [*15]  RELATED TO INJURY AS A RESULT OF MY OR MY CHILD’S USE OF THE FACILITIES, REGARDLESS OF ANY NEGLIGENCE, RECKLESSNESS OR IMPROPER CONDUCT.

Release (emphasis added).

It is undisputed that Appellee Snow Time, Inc. owns Appellee Ski Roundtop Operating Corporation. Although the Release does not specifically name Appellee Snow Time, Inc., the Release still covers Appellee Snow Time, Inc. because the Release clearly and unambiguously covers the owner of Ski Roundtop Operating Corporation.