Ketler v. PFPA, LLC, 2016 Del. LEXIS 19

Ketler v. PFPA, LLC, 2016 Del. LEXIS 19

Deshaun Ketler and Brittany Ketler, his wife, Plaintiff-Below, Appellant, v. PFPA, LLC, a Delaware Corporation, d/b/a Planet Fitness, Defendant-Below, Appellee.

No. 319, 2015

SUPREME COURT OF DELAWARE

2016 Del. LEXIS 19

December 2, 2015, Submitted

January 15, 2016, Decided

NOTICE:

THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.

PRIOR HISTORY: [*1] Court Below: Superior Court of the State of Delaware. C.A. No. N14C-12-235.

Ketler v. PFPA, LLC, 2015 Del. Super. LEXIS 270 (Del. Super. Ct., June 3, 2015)

DISPOSITION: Upon appeal from the Superior Court. AFFIRMED.

COUNSEL: Edward T. Ciconte, Esquire, Adam F. Wasserman, Esquire, Ciconte, Scerba & Kerrick, LLC, Wilmington, Delaware, for Appellant.

Gary H. Kaplan, Esquire, Jessica L. Tyler, Esquire, Marshall Dennehey Warner Coleman & Goggin, Wilmington, Delaware, for Appellee.

JUDGES: Before STRINE, Chief Justice; VALIHURA, and VAUGHN, Justices.

OPINION BY: VAUGHN

OPINION

VAUGHN, Justice:

Plaintiffs-Below/Appellants DeShaun Ketler and Brittany Ketler appeal from a Superior Court order granting Defendant-Below/Appellee PFPA, LLC’s (“Planet Fitness”) motion for judgment on the pleadings. DeShaun Ketler was injured while using exercise equipment in a Planet Fitness facility. The Ketlers claim that the injuries were caused by negligence on the part of Planet Fitness. The Superior Court found that the Ketlers claim was barred by a signed release of liability. It determined that a release which allows a party to avoid liability for its own negligence is permissible under Delaware Law if the release is unambiguous, not unconscionable, and not against public policy. It further determined that the release satisfied all three criteria. [*2] On appeal, the Ketlers contend that the Superior Court erred because the release is ambiguous, unconscionable, and against public policy. We approve the Superior Court’s determinations and affirm.

In 2010, DeShaun joined Planet Fitness at a cost of $10 per month.1 DeShaun signed a membership agreement, which contained the following:

I understand and expressly agree that my use of this Planet Fitness facility . . . involves the risk of injury to me or my guest whether caused by me or not. I understand that these risks can range from minor injuries to major injuries including death. In consideration of my participation in the activities and use of the facilities offered by Planet Fitness, I understand and voluntarily accept this risk and agree that Planet Fitness . . . will not be liable for any injury, including, without limitation, personal, bodily, or mental injury. . . resulting from the negligence of Planet Fitness or anyone on Planet Fitness’ behalf whether related to exercise or not. Accordingly, I do hereby forever release and discharge Planet Fitness from any and all claims, demands, injuries, damages, actions or causes of action. I further understand and acknowledge that Planet [*3] Fitness does not manufacture fitness or other equipment in its facilities, but purchases and/or leases equipment, and therefore Planet Fitness may not be held liable for defective products.2

In April 2013, DeShaun was injured when a cable broke on a seated rowing machine that he was using at Planet Fitness.

1 Devana Fitness, LLC was the franchisee of the Planet Fitness location on the date the Membership Agreement was executed. On July 31, 2012, prior to Ketler’s incident, Devana Fitness, LLC assigned its rights and interests in, and under, all Membership Agreements to PFPA, LLC.

2 Appellant’s Op. Br. App. at A8.

This Court has previously recognized that [HN1] a release of prospective negligence may be valid.3 Such a release must be “‘clear and unequivocal’ to insulate a party from liability . . . .”4 The release provision involved here expressly releases Planet Fitness from any liability for any injury resulting from the negligence of Planet Fitness, whether related to exercise or not. It expressly releases Planet Fitness from any and all claims or causes of action. The provision’s language is clear and unequivocal.

3 Riverbend Cmty., LLC v. Green Stone Eng’g, LLC, 55 A.3d 330, 336 (Del. 2012).

4 Id. (quoting State v. Interstate Amiesite Corp., 297 A.2d 41, 44 (Del. 1972)).

[HN2] It must also not be unconscionable. Unconscionability is a concept that [*4] is used sparingly.5 Traditionally, an unconscionable contract is one which “no man in his senses and not under delusion would make on the one hand, and as no honest or fair man would accept, on the other.”6 “But mere disparity between the bargaining powers of parties to a contract will not support a finding of unconscionability.”7 “[T]here must be an absence of meaningful choice and contract terms unreasonably favorable to one of the parties.”8 There is no deprivation of meaningful choice if a party can walk away from the contract.9 Here, DeShaun was free to accept the Planet Fitness membership or not. The Superior Court did not err in concluding that the release is not unconscionable.

5 See Progressive Int’l Corp. v. E.I. DuPont de Nemours & Co., 2002 Del. Ch. LEXIS 91, 2002 WL 1558382, at *11 (Del. Ch. July 9, 2002) (discussing the reluctance of courts to apply the doctrine).

6 Reserves Mgmt., LLC v. Am. Acquisition Prop., LLC, 86 A.3d 1119, 2014 WL 823407, at *9 (Del. 2014) (internal quotations omitted).

7 Id.

8 Tulowitzki v. Atl. Richfield Co., 396 A.2d 956, 960 (Del. 1978).

9 See Graham v. State Farm Mut. Auto. Ins. Co., 565 A.2d 908, 913 (Del. 1989) (finding the doctrine of unconscionability inapplicable, in part, because the plaintiffs had the opportunity to cancel the insurance policy); Progressive, 2002 Del. Ch. LEXIS 91, 2002 WL 1558382, at *11 (rejecting the plaintiff’s unconscionability argument, in part, because nothing had prevented the plaintiff from walking away from a contract with allegedly unfavorable terms).

Finally, [HN3] the release must not violate public policy. The public policy of this state is typically [*5] determined by the Delaware General Assembly. No Delaware statute has been identified which bears on the validity of a release of prospective negligence. The Ketlers argue that the release violates the public policy embodied in the principle that a property owner has a duty to make his property safe for business invitees. However, a general release by its nature releases a party from a potential liability otherwise imposed by law. The public policy involved must be one which disapproves of the release.

For the foregoing reasons, the judgment of the Superior Court is AFFIRMED.


Gomes v. Boy Scouts of America, et al., 51 Misc. 3d 1206(A); 2016 N.Y. Misc. LEXIS 1088; 2016 NY Slip Op 50444(U)

Gomes v. Boy Scouts of America, et al., 51 Misc. 3d 1206(A); 2016 N.Y. Misc. LEXIS 1088; 2016 NY Slip Op 50444(U)

Davide E. Gomes, Plaintiff, against Boy Scouts of America, et al., Defendants.

115435/10

SUPREME COURT OF NEW YORK, NEW YORK COUNTY

51 Misc. 3d 1206(A); 2016 N.Y. Misc. LEXIS 1088; 2016 NY Slip Op 50444(U)

March 10, 2016, Decided

NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.

PRIOR HISTORY: Gomes v. Boy Scouts of America, 2013 N.Y. Misc. LEXIS 4622 (N.Y. Sup. Ct., Oct. 9, 2013)

COUNSEL: [*1] For plaintiff: Scott W. Epstein, Esq., Antich, Erlich & Epstein, LLP, New York, NY.

For Council and Troop 141: Brian P. Morrissey, Esq., Connell Foley, LLP, New York, NY.

JUDGES: Barbara Jaffe, JSC.

OPINION BY: Barbara Jaffe

OPINION

Barbara Jaffe, J.

By notice of motion, defendants Northern New Jersey Council, Inc., Boy Scouts of America (Council) and Boy Scout Troop 141 (troop) (collectively, defendants) move pursuant to CPLR 3212 for an order granting them summary dismissal of the complaint against them. Plaintiff opposes.

I. PERTINENT BACKGROUND

By decision and order dated October 8, 2013 (NYSCEF 110), I granted defendant Boy Scouts of America’s (BSA) motion for an order summarily dismissing the complaint against it. As set forth therein, the background of the case is as follows:

On July 24, 2005, plaintiff, then a 13-year-old Boy Scout, was participating in a Boy Scout excursion at Floodwood Mountain Scout Reservation in the Adirondacks. Plaintiff was a member of Boy Scout Troop 141. He and other scouts were accompanied by volunteer [**2] adult leaders. Near or in the shower house at the Reservation, plaintiff sustained head injuries.

In accident and witness reports created after the accident, the other scouts who were at the showers [*2] at the time of plaintiff’s accident stated that they saw plaintiff run from the shower area and discovered him lying prone on the ground and bleeding. None of them saw him fall.

In his amended complaint, plaintiff alleges that as he was walking along the common area and/or grassy area at or near the showers, he fell due to defendants’ failure to keep the area safe, in good repair, well-lit and free from obstruction or defect and supervise him and the other scouts.

In plaintiff’s supplemental verified bill of particulars, he describes the dangerous condition which caused his fall as follows: “that the area in front of the showers where the [ ] accident occurred was not lit, and/or was poorly lit, and/or was inadequately lit; was raised and un-leveled, and had rocks and/or tree limbs/branches strewn about it,” all of which defendants had constructive notice.

At an examination before trial held on December 16, 2011, plaintiff testified that he did not recall his accident or what had caused his fall, and that his last memory before falling was of walking to the showers. At the time of his accident, it was dark outside and there was no lighting outside the showers, although it was lit inside, [*3] and he noticed that there were many rocks on the ground around the shower house. He was wearing a working head lamp as he approached the showers.

(NYSCEF 110).

On this motion, the following relevant facts are undisputed:

(1)Council owns and operates Floodwood and Troop made reservations to attend camp there;

(2)plaintiff had been a scout for several years and had attended previous camping trips;

(3)defendants Lopes and Figueiredo were the two adult Troop leaders in charge of plaintiff’s troop at Floodwood;

(4)the night of plaintiff’s accident, he and the other Troop members were told to put equipment into the Troop’s van and take showers at the camp’s shower house;

(5)of the five other Troop members that accompanied plaintiff to the shower house that night, one was 14 years old, one was 15 years old, and three were 16 years [**3] old;

(6)the adult leaders did not accompany them to the van or the shower house;

(7)the shower house was used by both female and males at alternating hours, and the Troop members had to wait until 10 pm to use it; and

(8)there had been no prior incidents of misbehavior during the trip or among the Troop members.

(NYSCEF 151).

The New York State Department of Health (DOH) promulgates [*4] specific rules for children’s camps. (10 NYCRR § 7-2 et al.). As pertinent here, the regulations require adequate supervision, and that “as a minimum . . . there shall exist visual or verbal communications capabilities between camper and counselor during activities and a method of accounting for the camper’s whereabouts at all times.” (10 NYCRR § 7-2.5[o]).

Council’s written plan for Floodwood requires that supervision of campers “be maintained for the duration (24/7) of their stay at the camp.” (NYSCEF 174). Council’s Leaders Guide for Floodwood provides that “running and horseplay have no place at Scout Camps,” and all scout units must have two adult leaders with the unit at all times. (NYSCEF 175).

At a deposition held on December 16, 2011, plaintiff testified that he had been a scout since age nine, and that while a scout he participated in monthly weekend scout camping trips. During the trips, the Troop leaders would show the scouts how to use tools, and gather firewood; when gathering firewood, the scouts would go into the woods using the buddy system, which requires that scouts be accompanied by at least one other scout. When the scouts went to the bathroom, they also used the buddy system. At a camp attended [*5] by the Troop the week before the one at Floodwood, plaintiff visited the shower facilities using the buddy system or with several scouts. At Floodwood too, the buddy system was used. (NYSCEF 162).

According to plaintiff, the main purpose of the trip to Floodwood was to take a 15-mile canoe trip. On the day of the accident, the scouts and the Troop leaders spent time outside in their campsite within the camp, where “there was a little bit of horsing around,” “a little bit of pushing, playing around,” and all of the scouts were pushing and shoving each other during and after a game of touch football, which the leaders told them to stop. As he walked to the shower house the night of his accident, plaintiff wore a functioning headlamp; the area around the shower house was dark. He does not recall what happened from the time the group walked to the shower house to when he regained consciousness on the ground, bleeding from his head. (NYSCEF 162).

It is undisputed that other scouts reported that while they were in the shower house, plaintiff took a water pump from the wall and squirted water on them. When one of the scouts told him to stop, plaintiff ran out of the shower house and fell to [*6] the ground. None of the scouts knew what had caused the fall. (NYSCEF 167-171, 176).

Pictures taken by the parties at Floodwood after the accident depict the shower house as a building stationed in a large clearing or space in front of a wooded area. (NYSCEF 161; 192).

According to the Troop leaders present that day, it was not scouts’ practice to have adult leaders accompany scouts to camp showers. Both leaders testified that they had known plaintiff and the other scouts for several years, had been with them at another camp the week before they went to Floodwood, and had had no disciplinary issues or previous incidents of misbehavior between them. The leaders testified that Scout protocol differentiated between active activities, such as swimming or rock climbing, and passive activities, such as going to shower or the bathroom or retrieving firewood, and that active activities required adults to be present while passive activities did not necessarily require an adult presence. (NYSCEF 163, 164).

Lopes testified that they defined supervision as permitting the scouts to travel throughout the camp as long as the leaders knew their whereabouts, and that he believed that Scout guidelines [*7] prohibited the leaders from walking the scouts to the shower house and waiting outside while they showered in order to avoid any appearance of impropriety. He testified that it was a three to five-minute walk from the Troop’s campsite to the shower house. (NYSCEF 164).

Figueiredo testified that the Troop’s campsite was located approximately a three-minute walk from the parking lot, that the shower house was located in the general camp, and that it was a three to four-minute walk from the Troop’s campsite to the shower house. He found out about plaintiff’s accident when two of the scouts found him at their campsite, and when he arrived at the shower house, he found plaintiff sitting on the ground in front of the shower house. He investigated the incident by interviewing the other scouts, and concluded that the other scouts were inside the shower house when plaintiff fell outside the shower house. (NYSCEF 163).

Figueiredo testified that although they did not accompany the scouts to the bathroom or shower, they had them use the buddy system and knew their whereabouts and when to expect them to return, which he defined as their supervision of the scouts:

[t]hey were not in a vast wilderness, they [*8] were in a camp. So there are other people in camp, so they’re within earshot of a number of people that are in camp. It is not like . . . I sent them out into the African plains; there were other people around. They were reasonably within earshot to a bunch of people and I knew their whereabouts.

(NYSCEF 163).

At an examination before trial held on March 16, 2012, Grey Rolland, Council’s director of support services, testified, as pertinent here, that he was unaware of any other injuries to scouts at Floodwood before or after plaintiff’s accident, and that plaintiff and the other scouts used the buddy system, which Rolland considers adequate. He did not believe that the adult Troop leaders should have accompanied the scouts to the shower house given the BSA prohibition against permitting adults and youths in shower houses together, and he asserted that it would not be considered “appropriate” for the adults to escort the scouts to the shower house. He acknowledged that if a Troop leader observed scouts running around or engaging in horseplay, it was incumbent upon the leader to tell them to stop. (NYSCEF 165).

Richard Saunders testified at an EBT that at the time of plaintiff’s accident, [*9] he was 18 years old and employed at Floodwood as a camp health officer. He described Floodwood as a “high-adventure base” for scouts older than 13 to do back-country exploring. After the accident, he completed a form as required by the DOH, on which he noted, under the category “Supervision During Incident,” that the “activity was inadequately addressed in the written plan,” by which he intended to convey that he had reviewed the scout’s written plan for the trip and saw [**4] nothing therein related to supervision of the scouts while in the shower house. He also wrote that no camp staff was present when the accident occurred. Although Saunders had first written that the supervision was “adequate,” he changed it to “inadequate” based on the absence of an adult when plaintiff was injured. Saunders had never before filled out such a form, nor was it part of his job.

Saunders described Floodwood as consisting of a main camp area, which includes the buildings where food is organized and meetings occur, and the individual campsites which are approximately a five-minute walk away. The shower house was located between the campsites and the camp buildings. He estimated that the shower house was [*10] a two-minute walk from the Troop’s campsite and in “an area where boys don’t want to have adults and it would be illegal to have them being watched while showering.” As a scout and troop member attending camps like Floodwood, Saunders recalled that adult leaders did not escort scouts to the showers or stand outside while the scouts showered. (NYSCEF 166).

DOH investigated the incident, after which it and Council entered into a stipulation providing that DOH had alleged that Council had violated various camp regulations, including those relating to the supervision of scouts, and that the parties were thereby settling the matter by Council agreeing not to contest it, paying a fine, and submitting a revised camp safety plan. Additionally, by its terms, the stipulation is

not intended for use in any other forum, tribunal or court, including any civil or criminal proceeding in which the issues or burden of proof may differ, and is made without prejudice to [Council’s] rights, defenses and/or claims in any other matter, proceeding, action, hearing or litigation not involving [DOH] [and] is not intended to be dispositive of any allegations of negligence that may be made in a civil action for [*11] monetary damages.

(NYSCEF 177).

By affidavit dated August 3, 2015, Michael J. Peterson states that he is an expert on camp and conference center management, and opines, based on his experience and review of relevant documentation in this case, that defendants violated the DOH regulation which requires, at a minimum, visual or verbal communications capabilities between a camper and a counselor, and that plaintiff’s accident was reasonably foreseeable as the scouts were allowed to remain “totally unsupervised and unregulated for a lengthy period of time in a potentially dangerous/hazardous environment.” He also posits that if the Troop leaders had accompanied the scouts to the shower house, “the level of horse play outside the shower house would have been minimal to non-existent, the boys would have taken their showers without incident, and safely returned to their camp site.” He also states that the defendants should have provided adequate lighting around the shower house. (NYSCEF 193).

II. CONTENTIONS

Defendants deny that they were negligent in any manner related to the physical conditions outside the shower house as they were the ordinary and expected conditions present in a wooded camp. [*12] Troop denies having had any obligation to maintain the area. Defendants also deny having breached a duty to supervise plaintiff absent any prior incidents between plaintiff and any [**5] other Troop member that would have put them on notice of the need to supervise them more closely, and argue that plaintiff’s injury or misbehavior was not reasonably foreseeable. They observe that plaintiff cannot remember how he was injured or whether his injuries were caused by a premises condition or an assault by another scout, and deny having had notice of any prior incidents or accidents around the shower house. (NYSCEF 151).

Plaintiff argues that his inability to remember the accident permits a relaxed standard of proof on summary judgment, and contends that there are two possible explanations for his accident: (1) that he was struck over the head with a blunt object by a fellow scout, or (2) that he tripped and fell while running over the uneven and non-illuminated area around the shower house, and that in either scenario, the accident would not have happened if defendants had adequately supervised that night. He asserts that a jury could conclude that a reasonably prudent parent would not permit [*13] six minors “to wander around the woods at 10:00 pm, for an indefinite period of time, without any adult supervision whatsoever,” and maintains that any “horseplay” should have and would have been discouraged by the Troop leaders. He also observes that defendants violated their own policies by failing to have a troop leader with the troop “at all times” or “for the duration (24/7)” of their trip. (NYSCEF 190).

Plaintiff relies on the stipulation entered into between defendants and DOH, Saunders’s conclusion that factors contributing to the incident included inadequate supervision, and Peterson’s opinion, to demonstrate the lack of adequate supervision. He also argues that Council had a duty to illuminate the area around the shower house, which he characterizes as a “rugged” and “uneven and unpaved camp area containing, inter alia, grass, dirt, rocks, trees, and tree roots.” (Id.).

In reply, defendants maintain that they established, prima facie, their lack of prior knowledge or notice of any scout misbehavior at the camp or any dangerous condition around the shower house. They deny that plaintiff offers evidence that he suffers from any medical condition causing a failure of memory, and [*14] assert that his inability to remember the incident does not warrant relieving him of his burden of proof. They also dispute that the scouts were “traipsing or wandering” through the woods, observing that both Troop leaders testified that they were within the camp, not the woods, where they were within earshot, and were directed to go to the shower house, which they did. (NYSCEF 200).

Defendants also contend that Peterson’s expert affidavit is based on speculation, and that his reliance on the DOH requirement of visual or verbal communication capabilities during “activities” is inapplicable as showering or walking to the shower house is not an activity within the meaning of the rule. They observe that Peterson cites no regulations that defendants allegedly violated relating to the lighting around the shower house, that Peterson never inspected the area, and that in any event, the conditions alleged are ordinary elements of a wooded area. They also deny that Saunders’s statements in the DOH form constitute party admissions, as his completion of the form was not within the scope of his authority at Floodwood. (Id.).

III. ANALYSIS

“The proponent of a summary judgment motion must make a prima [*15] facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact.” (Ayotte v Gervasio, 81 NY2d 1062, 1062, 619 N.E.2d 400, 601 N.Y.S.2d 463 [1993] [citation [**6] omitted]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 476 N.E.2d 642, 487 N.Y.S.2d 316 [1985]). “Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers.” (Winegrad, 64 NY2d at 853; see also Lesocovich v 180 Madison Ave. Corp., 81 NY2d 982, 985, 615 N.E.2d 1010, 599 N.Y.S.2d 526 [1993]).

Once the proponent’s prima facie burden is satisfied, the opposing party bears the burden of presenting evidentiary facts sufficient to raise triable issues of fact. (Zuckerman v City of New York, 49 NY2d 557, 562, 404 N.E.2d 718, 427 N.Y.S.2d 595 [1980]; CitiFinancial Co. [DE] v McKinney, 27 AD3d 224, 226, 811 N.Y.S.2d 359 [1st Dept 2006]). Summary judgment may be granted only when it is clear that no triable issues of fact exist (Alvarez v Prospect Hosp., 68 NY2d 320, 324, 501 N.E.2d 572, 508 N.Y.S.2d 923 [1986]), and “should not be granted where there is any doubt as to the existence of a triable issue” of fact (Am. Home Assur. Co. v Amerford Intl. Corp., 200 AD2d 472, 473, 606 N.Y.S.2d 229 [1st Dept 1994]; see also Color by Pergament, Inc. v Pergament, 241 AD2d 418, 420, 660 N.Y.S.2d 431 [1st Dept 1997] [“Summary judgment is an exercise in issue-finding, not issue determination, and may not be granted when material and triable issues of fact are presented”]). The court must examine the evidence in a light most favorable to the party opposing the motion. (Martin v Briggs, 235 AD2d 192, 196, 663 N.Y.S.2d 184 [1st Dept 1997]).

A plaintiff who, due to a failure of memory, cannot describe what led to his injury is not held to as high a degree of proof on his or her cause of action. (Noseworthy v City of New York, 298 NY 76, 80 N.E.2d 744 [1948]; see Bah v Benton, 92 AD3d 133, 936 N.Y.S.2d 181 [1st Dept 2012] [plaintiff who presented medical evidence establishing loss of memory due [*16] to accident at issue entitled to lesser standard of proof applicable to party unable to present party’s version of facts]). However, even when a plaintiff suffers from amnesia, he is not relieved of the obligation to provide “some proof from which negligence can be reasonably inferred.” (Alotta v Diaz, 130 AD3d 660, 11 N.Y.S.3d 868 [2d Dept 2015]; see Schechter v Klanfer, 28 NY2d 228, 269 N.E.2d 812, 321 N.Y.S.2d 99 [1971] [even if amnesiac plaintiff is held to lesser degree of proof, it does not “shift the burden of proof or eliminate the need for plaintiffs to introduce evidence of a prima facie case”]; Santiago v Quattrociocchi, 91 AD3d 747, 937 N.Y.S.2d 119 [2d Dept 2012] [same]).

A. Did defendants breach their duty to supervise plaintiff?

A person, other than a parent, who undertakes to control, care for, or supervise an infant, is required to use reasonable care to protect the infant . . . Such a person may be liable for any injury sustained by the infant which was proximately caused by his or her negligence. While a person caring for entrusted children is not cast in the role of an insurer, such an individual is obligated to provide adequate supervision and may be held liable for foreseeable injuries proximately resulting from the negligent failure to do so.

(Alotta v Diaz, 130 AD3d 660, 11 N.Y.S.3d 868 [2d Dept 2015], quoting Appell v Mandel, 296 AD2d 514, 745 N.Y.S.2d 491 [2d Dept 2002]).

A “summer camp is duty-bound to supervise its campers as would a parent of ordinary prudence in comparable [*17] circumstances.” (Phelps v Boy Scouts of Am., 305 AD2d 335, 762 N.Y.S.2d 32 [1st Dept 2003]). And, while the degree of supervision required depends on the surrounding circumstances, “constant supervision in a camp setting is neither feasible nor desirable.” (Id. at 335-6).

The standard for determining whether a duty to supervise a minor has been breached is “whether a parent of ordinary prudence placed in the identical situation and armed with the same [**7] information would invariably have provided greater supervision.” (Mayo v New York City Tr. Auth., 124 AD3d 606, 3 N.Y.S.3d 36 [2d Dept 2015], quoting Mary KK v Jack LL, 203 AD2d 840, 611 N.Y.S.2d 347 [3d Dept 1994]).

Moreover, “in determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow [campers], it must be established that [camp] authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused the injury, that is, that the third-party acts could reasonably have been anticipated.” (Ragusa v Town of Huntington, 54 AD3d 743, 864 N.Y.S.2d 441 [2d Dept 2008], quoting Mirand v City of New York, 84 NY2d 44, 637 N.E.2d 263, 614 N.Y.S.2d 372 [1994]). Although if an accident occurs in “so short a span in time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the . . . defendants is warranted.'” (Atehortua v Lewin, 90 AD3d 794, 935 N.Y.S.2d 102 [2d Dept 2011], quoting Nash v Port Wash. Union Free School Dist., 83 AD3d 136, 922 N.Y.S.2d 408 [2d Dept 2011]).

1. Was the supervision adequate?

Even though plaintiff does not remember the accident, the [*18] other boys’ versions of it are consistent and uniform, and present the following picture: Plaintiff and the other scouts walked to the shower house and went inside without incident, whereupon plaintiff obtained a water pump and started spraying water on them. When one of the scouts told plaintiff to stop, he ran out of the shower house, and fell.

Plaintiff’s contention is that for defendants’ supervision to have been adequate that night, the Troop leaders should have escorted or walked the scouts to the shower house, waited outside while they showered, and then walked them back to their campsite. As it is undisputed that the scouts ranged in age from 13 to 16, that they were at Floodwood to learn skills related to survival in the woods and to partake in a 15-mile canoe trip, that the scouts utilized a buddy system when at various camps and that Troop leaders never escorted them to the bathrooms or showers, that the shower house was approximately a three to five-minute walk from their campsite, and that the shower house was located within the camp area where other campers and adults were present and within earshot, defendants have demonstrated that a parent of ordinary prudence placed [*19] in the identical situation and armed with the same information would not have provided greater supervision than that provided by defendants.

Moreover, a parent who permits his or her child to attend an overnight camping trip in the woods where the child will be taught skills related to understanding and surviving outdoor conditions, is presumably aware of the hazards and risks of injury associated with such conditions, and it would be illogical for that same parent to require or believe it necessary for the child to be escorted personally to and from every area within the camp. Such a degree of supervision “in a camp setting is neither feasible nor desirable” (Phelps v Boy Scouts of Am., 305 AD2d 335, 762 N.Y.S.2d 32 [1st Dept 2003]), and camps “cannot reasonably be expected to continuously supervise and control all of [the campers] movements and activities” (Harris v Five Point Mission – Camp Olmstedt, 73 AD3d 1127, 901 N.Y.S.2d 678 [2d Dept 2010]).

On point is Kosok v Young Men’s Christian Assn. of Greater New York, where a group of boys at a summer camp injured the plaintiff while playing a prank involving attaching a pail to a fishing rod and letting it descend onto the heads of other unsuspecting boys. The group of boys, ranging in age from 12 to 15, occupied a cabin by themselves; the camp counselor did not stay [*20] in [**8] the cabin with them during the midday break. The Court dismissed the case, finding that there was no negligence by defendants in failing to supervise “the rest period of boys of high-school age for a short period.” (24 AD2d 113, 264 N.Y.S.2d 123 [1st Dept 1965], affd 19 NY2d 935, 228 N.E.2d 398, 281 N.Y.S.2d 341 [1967]). The Court observed that ” [r]emembering that this is a Summer camp, it will be seen that constant supervision is not feasible . . . Nor is it desirable. One of the benefits of such an institution is to inculcate self-reliance in the campers which an overly protective supervision would destroy.” (24 AD2d at 115; see also Gustin v Assn. of Camps Farthest Out, Inc., 267 AD2d 1001, 700 N.Y.S.2d 327 [4th Dept 1999] [same]).

Plaintiff’s reliance on Phelps v Boy Scouts of Am. is misplaced. As I held in granting summary judgment to Boy Scouts of America:

In Phelps . . . “very young campers” were placed in bunks at a camp with “much older campers,” who allegedly assaulted the young campers . . . The court also allowed that very young campers often require closer supervision than older campers, and that placing the younger campers in the bunks with the older campers was an apparent violation of camp policy.

Here, there is no issue of very young campers being unsupervised or placed in risky circumstances as plaintiff and his fellow scouts were all teenagers and there is no evidence that [*21] any camp policy was violated . . .

(305 AD2d 335, 762 N.Y.S.2d 32 [1st Dept 2003]).

Moreover, plaintiff’s reliance on Saunders’s conclusion or opinion in the DOH report that the accident was caused by inadequate supervision is not conclusive here, not only because he had no authority to bind defendants to his conclusion, but also based on the circumstances that he was an 18-year old who had never before filled out or even seen a DOH report, and who had received no training or guidance as to how it should be filled out or the meanings of the terms therein. In any event, Saunders testified that he wrote that there was inadequate supervision based only on the fact that the Troop leaders were not physically present at the time of the accident, which is an insufficient basis for the conclusion.

Plaintiff’s submission of the stipulation between DOH and defendants to establish that there was inadequate supervision is barred by the stipulation’s own terms.

Peterson’s expert opinion is based on speculation and is conclusory, and he cites no regulation or requirement that specifies that adequate supervision in this context means that the Troop leaders were required to escort the scouts to the shower house and wait outside until they finished [*22] showering. Indeed, any claim that such supervision is required in camps is undermined by the undisputed fact that at the camp that the scouts attended a week before going to Floodwood, the scouts went to the shower house unescorted and used only the buddy system. Reliance on the DOH requirement of “visual or verbal communication” between campers and counselors and Council’s plan for Floodwood which required the supervision of campers “24/7” is misplaced as neither requires that the Troop leaders be constantly present with the scouts. (See eg, Harris v Five Point Mission – Camp Olmstedt, 73 AD3d 1127, 901 N.Y.S.2d 678 [2d Dept 2010] [while expert concluded that camp was negligent in failing to provide plaintiff with shin guards during soccer game in which he was injured, he failed to allege that camps generally provide shin guards during games or that rules requiring use of shin guards in soccer leagues have been implemented by or [**9] accepted as accepted practice at camps]; Cherry v State of New York, 42 AD2d 671, 344 N.Y.S.2d 545 [4th Dept 1973], affd 34 NY2d 872, 316 N.E.2d 713, 359 N.Y.S.2d 276 [1974] [where camper was injured when nail he struck with hammer while building tent platform struck him, expert’s opinion that the camp was required to provide campers with safety goggles was expert’s personal opinion and neither statute nor regulations required goggles]). [*23]

References to the “traipsing” or “wandering” in the woods unsupervised have no basis in the record; the scouts remained in the camp and never went into the woods. Moreover, the accident did not occur in the woods, and there is no correlation between the woods and plaintiff’s accident.

In any event, whether or not defendants’ supervision of plaintiff was adequate is irrelevant if the accident was not foreseeable or was not proximately caused by the allegedly inadequate supervision.

2. Was plaintiff’s accident foreseeable?

As it is reasonably inferred that the accident occurred as described by the other scouts, there is no evidence suggesting that defendants were on notice that plaintiff and/or the scouts would engage in any dangerous conduct or misbehavior at the shower house. Moreover, even if some of the behavior was foreseeable, plaintiff’s bolting from the shower house, and subsequent fall, was not a foreseeable consequence of any misbehavior.

Kosok is again on point here, with the Court finding that “[a]ssuming that the boys were reasonably quiet – and there is no indication that they were not – no occasion for looking in on them was presented.” The Court also observed that:

[a] certain amount [*24] of horseplay is almost always to be found in gatherings of young people, and is generally associated with children’s camps. It is only to be discouraged when it becomes dangerous. Nothing in the incident itself or surrounding circumstances indicates any notice to defendant that such was likely to result here.

(24 AD2d at 115; see also Gibbud v Camp Shane, Inc., 30 AD3d 865, 817 N.Y.S.2d 435 [3d Dept 2006] [same]).

Even if plaintiff had been assaulted by a fellow scout rather than having tripped and fallen, there is no evidence that defendants were on notice of the possibility of an assault. (See eg Alvero v Allen, 262 AD2d 434, 692 N.Y.S.2d 116 [2d Dept 1999] [boy scout sued troop leader for injury caused by snowball fight; absent proof that leader had notice of ongoing and dangerous snowball fight, plaintiff could not prevail on inadequate supervision claim]; see also Osmanzai v Sports and Arts in Schools Foundation, Inc., 116 AD3d 937, 983 N.Y.S.2d 848 [2d Dept 2014] [injury caused by impulsive, unanticipated act of fellow camper ordinarily will not give rise to negligence claim absent proof of prior conduct that would have given notice to protect against injury-causing act]).

As it is undisputed that defendants had no notice of the possibility of misbehavior among the scouts, they have established that plaintiff’s accident was not foreseeable.

3. Was plaintiff’s accident proximately caused by defendants’ allegedly inadequate [*25] supervision?

Even if the Troop leaders had escorted the scouts to the shower house and stood outside while they showered, the alleged misbehavior occurred inside the shower house, and thus the leaders would neither have observed it nor been in a position to stop it. And unless the leaders blocked the entrance, they would not have been able to stop plaintiff from running out of the shower house and falling down.

Plaintiff’s and Peterson’s belief that the mere presence of the Troop leaders outside the shower house would have been sufficient to stop any horseplay from taking place inside is not only speculative, but unwarranted as the scouts had engaged in horseplay earlier that day while the leaders were with them. (See eg, Stephenson v City of New York, 85 AD3d 523, 925 N.Y.S.2d 71 [1st Dept 2011], affd 19 NY3d 1031, 978 N.E.2d 1251, 954 N.Y.S.2d 782 [2012] [suggestion that student’s assault on plaintiff would have been prevented by his mother accompanying her almost 14-year-old son to school every day did not rise above speculation]; see also Lizardo v Bd. of Educ. of City of New York, 77 AD3d 437, 908 N.Y.S.2d 395 [1st Dept 2010] [rejecting plaintiff’s expert’s assertion that collision between children would have been preventable by teacher watching play more closely, and opinion that incident might have been prevented by closer supervision valid only in retrospect]; Walsh v City School Dist. of Albany, 237 AD2d 811, 654 N.Y.S.2d 859 [3d Dept 1997] [finding unpersuasive allegation [*26] that presence of supervisor could have kept plaintiff and fellow student attentive and injury would have been prevented]).

In any event, the accident occurred too quickly to enable the Troop leaders to prevent it had they been outside the shower house. As in Kosok, “[e]ven if the cabin counsellor had been within earshot of the cabin, it is difficult to see how the accident would have been prevented.” (24 AD2d at 115; see Harris v Five Point Mission – Camp Olmstedt, 73 AD3d 1127, 901 N.Y.S.2d 678 [2d Dept 2010] [as plaintiff was injured at camp during 15-second time span, camp established that it did not negligently supervise him]; see also Jorge C. v City of New York, 128 AD3d 410, 8 N.Y.S.3d 307 [1st Dept 2015] [defendant established that student’s injury did not arise from inadequate supervision, but from impulsive and unanticipated acts of fellow student of finding balloon, filling it with water, and attempting to throw it at plaintiff, and plaintiff running away and looking backwards rather than ahead]).

Moreover, it was plaintiff’s own impulsive and reckless conduct in squirting the other scouts with the water pump and then running out of the shower house, that led to his injury. (See Gibbud v Camp Shane, Inc., 30 AD3d 865, 817 N.Y.S.2d 435 [3d Dept 2006] [plaintiff’s own impulsive and reckless act in grabbing camp counselor from behind, causing counselor to drop plaintiff and fracture plaintiff’s [*27] ankle, led to his injury]).

Thus, as the accident occurred in a very short time span and as plaintiff’s own impulsive conduct led to his injury, defendants have demonstrated that there is no proximate cause between their allegedly inadequate supervision and plaintiff’s accident.

B. Did Council breach their duty to illuminate adequately the area around the shower house?

Plaintiff has not identified what caused him to fall, whether it was part of the shower house or something on the ground, either a rock or tree branch or uneven patch of dirt. Absent any such evidence and even if plaintiff is unable to recall, there is no basis on which it may be found that plaintiff’s injury was proximately caused by the lack of lighting around the area. (See Lynn v Lynn, 216 AD2d 194, 628 N.Y.S.2d 667 [1st Dept 1995] [plaintiff’s amnesia did not reduce her burden of proving that allegedly defective condition of stairway was proximate cause of fall]).

Moreover, plaintiff was wearing a working headlamp at the time of the incident, and neither plaintiff nor his expert identified a regulation or rule requiring defendants to light the area around the shower house at all or in any particular manner.

Plaintiff was able, however, to recall the conditions outside of the [*28] shower house, which consisted of typical conditions in any wooded or camp area, i.e., rocks, dirt, branches, etc., and [**10] having been on several camp trips, was presumably aware of the existence and risks of such conditions. He did not identify or recall any unusual, unexpected, or dangerous conditions, nor have any such conditions been alleged.

In Kimbar v Estis, a young camper had wandered off a camp path at night and hit a tree. The Court found that the camp owners had no duty to illuminate the path in the absence of any particular danger on the path, finding:

We have before us a simple camper-camp relationship and the rustic, outdoor camp life that is the very raison d’e tre [sic] of summer establishments such as defendants’. There are certain risks incidental to camping, but these are part of an adventurous summer camp life, and are necessarily assumed by those who would participate therein . . .

Indeed, it is expected that a camp will have trees, that paths will lead through woods and that woods will be dark at night. It is not to be anticipated that floodlights will be supplied for campers through woodland paths. One naturally assumes many ordinary risks when in the woods and in [*29] the country trails are not smooth sidewalks, paths are not paved, trees, brush and insects are to be expected, and even snakes may appear occasionally. These and more are all a part of accepted camp life.

To hold summer camps to a duty of floodlighting woods would not only impose upon them a condition almost impracticable under many circumstances but would be unfair, as well, to the youth who seek the adventure of living closer to nature, participating in outdoor astronomical study at night or bird study before dawn, or when overnight hikes take them for study and adventure far from any source of electrical power. Such a duty, in short, would frequently compel camps to keep boys confined after dark and thereby effectively spell the end of some of the most desirable activities of real camping life.

1 NY2d 399, 135 N.E.2d 708, 153 N.Y.S.2d 197 [1956]).

Defendants thus establish that they breached no duty to illuminate the area around the shower house and that, in any event, the area did not constitute a dangerous condition for which they may be held liable. (See Torres v State of New York, 18 AD3d 739, 795 N.Y.S.2d 710 [2d Dept 2005] [park owner not liable for injury sustained when plaintiff tripped over tree stump in park; “landowners will not be held liable for injuries arising from a condition on the property [*30] that is inherent or incidental to the nature of the property, and that could be reasonably anticipated by those using it”]; Mazzola v Mazzola, 16 AD3d 629, 793 N.Y.S.2d 59 [2d Dept 2005] [dismissing claim by infant plaintiff who tripped and fell over exposed tree roots in backyard as alleged defect was inherent to nature of land]; Moriello v Stormville Airport Antique Show & Flea Market, Inc., 271 AD2d 664, 706 N.Y.S.2d 463 [2d Dept 2000] [owner of field not liable for injuries to plaintiff who tripped on flat rock while walking on unpaved roadway; rock was inherent to nature of unpaved roadway]; Csukardi v Bishop McDonnell Camp, 148 AD2d 657, 539 N.Y.S.2d 408 [2d Dept 1989] [campground owner not liable to person who tripped over grass-covered stump in wooded area, as stump was incidental to nature of campground and could be reasonably anticipated by persons traversing wooded area]; Alcantara v Fed. Girl Scout Councils of Nassau County, Inc., 24 AD2d 585, 262 N.Y.S.2d 190 [2d Dept 1965] [plaintiff could not recover for injury sustained at camp when she tripped over tree stump; [**11] defendant conducted rustic outdoor camp and paths were unpaved, and condition of premises was thus incidental to nature of camp and to be ordinarily expected by plaintiff]).

IV. CONCLUSION

For all of these reasons, it is hereby

ORDERED, that the motion of defendants Northern New Jersey Council, Inc., Boy Scouts of America and Boy Scout Troop 141 for summary judgment dismissing the action against them is granted, and the complaint is dismissed as against them, [*31] with costs and disbursements to said defendants as taxed by the Clerk upon the submission of an appropriate bill of costs, and is further

ORDERED, that the clerk is directed to enter judgment accordingly.

ENTER:

Barbara Jaffe, JSC

DATED: March 10, 2016

New York, New York


Bergin, et al., v. Wild Mountain, Inc. 2014 Minn. App. Unpub. LEXIS 212

Bergin, et al., v. Wild Mountain, Inc. 2014 Minn. App. Unpub. LEXIS 212

Lee Bergin, et al., Appellants, vs. Wild Mountain, Inc. d/b/a Wild Mountain Ski Area, Respondent.

A13-1050

COURT OF APPEALS OF MINNESOTA

2014 Minn. App. Unpub. LEXIS 212

March 17, 2014, Filed

NOTICE: THIS OPINION WILL BE UNPUBLISHED AND MAY NOT BE CITED EXCEPT AS PROVIDED BY MINNESOTA STATUTES.

PRIOR HISTORY: [*1]

Chisago County District Court File No. 13-CV-11-695.

DISPOSITION: Affirmed.

CASE SUMMARY:

COUNSEL: For Appellants: James P. Carey, Marcia K. Miller, Sieben, Grose, Von Holtum & Carey, Ltd., Minneapolis, Minnesota.

For Respondent: Brian N. Johnson, John J. Wackman, Peter Gray, Nilan Johnson Lewis, P.A., Minneapolis, Minnesota.

JUDGES: Considered and decided by Ross, Presiding Judge; Bjorkman, Judge; and Hooten, Judge.

OPINION BY: HOOTEN

OPINION

UNPUBLISHED OPINION

HOOTEN, Judge

In this personal-injury action, appellants-skiers sued respondent-ski resort for damages resulting from a skiing accident. Appellants challenge the district court’s grant of summary judgment in favor of respondent, arguing that the district court erred by (1) denying their motion to amend the complaint to add allegations of reckless, willful, or wanton conduct; (2) determining that an exculpatory clause bars their claim of ordinary negligence; and (3) applying the doctrine of primary assumption of risk to bar their claim of ordinary negligence. Because respondent’s conduct does not give rise to a claim of greater-than-ordinary negligence, and because the exculpatory clause is enforceable to bar a claim of ordinary negligence, we affirm.

FACTS

Appellants Lee and Cathy Bergin sued respondent [*2] Wild Mountain, Inc. d/b/a Wild Mountain Ski Area for injuries that Lee sustained while skiing at Wild Mountain. The Bergins sought damages for Lee’s physical injuries, loss of wages and earning ability, loss of property, and medical expenses, as well as for Cathy’s loss of services, companionship, and consortium. Following discovery, Wild Mountain moved for summary judgment. The pleadings and discovery reveal the following.

In March 2010, Robert Knight purchased over the internet 2010-2011 season passes to Wild Mountain for himself, the Bergins, and another individual. To complete the purchase, Knight agreed to a season-pass agreement which included a release of liability:

I understand and accept the fact that alpine skiing and snowboarding in its various forms is a hazardous sport that has many dangers and risks. I realize that injuries are a common and ordinary occurrence of this sport. I agree, as a condition of being allowed to use the area facility and premises, that I freely accept and voluntarily assume all risks of personal injury, death or property damage, and release Wild Mountain Ski & Snowboard Area . . . and its agents, employees, directors, officers and shareholders from [*3] any and all liability for personal injury or property damage which results in any way from negligence, conditions on or about the premises and facilities, the operations, actions or omissions of employees or agents of the area, or my participation in skiing or other activities at the area, accepting myself the full responsibility for any and all such damage of injury of any kind which may result.

In accordance with Minnesota law, nothing in this Release of Liability should be construed as releasing, discharging or waiving claims I may have for reckless, willful, wanton, or intentional acts on the part of Wild Mountain Ski & Snowboard Area, or its owners, officers, shareholders, agents or employees.

Knight [*4] did not ask Lee about the release of liability before agreeing to it. Lee wrote a check to Knight for the Bergins’ season passes. In his deposition, Lee admitted that he authorized Knight to purchase the season passes, that he had purchased season passes to Wild Mountain since 2001 and had agreed to a release of liability each year, that he understood the release of liability, and that he would have authorized Knight to purchase the season passes had he known about the release of liability.1

1 The Bergins do not appeal the district court’s determination that Lee is bound by the season-pass agreement even though he did not execute it himself.

On the morning of November 28, 2010, the Bergins arrived at Wild Mountain to pick up their season passes and ski. The season pass is a wallet-sized card with Lee’s name and picture on the front and the following language on the back:

I agree and understand that skiing and snowboarding involve the risk of personal injury and death. I agree to assume those risks. These risks include trail conditions that vary due to changing weather and skier use, ice, variations in terrain and snow, moguls, rocks, forest growth, debris, lift towers, fences, mazes, snow [*5] grooming, and snowmaking equipment, other skiers, and other man-made objects. I agree to always ski and snowboard in control and to avoid these objects and other skiers. I agree to learn and obey the skier personal responsibility code.

The Bergins and their friends skied “The Wall,” a double-black-diamond trail. At the top of The Wall, Lee observed that there were mounds of snow on the skiers’ left side of the run. Thinking that the left side was not skiable terrain, Lee skied down the right side. Then, at the bottom of the hill in the flat transition or run-out area, Lee encountered a “mound of snow” that he could not avoid. He hit the snow mound, flew up six to ten feet in the air, and landed on his back and the tails of his skis. Lee estimated that the snow mound was “maybe a little bigger” and “maybe a little taller” than a sofa, and that “there was no sharp edges defining” it. After the fall, Lee underwent surgery on his back and is partially paralyzed.

Daniel Raedeke, the president of Wild Mountain, testified by affidavit that Wild Mountain started making snow on The Wall on November 25, three days before Lee’s accident. On the morning of November 26, snowmaking ceased and The [*6] Wall was opened for skiing. According to Raedeke, “hundreds of skiers took thousands of runs down The Wall prior to” Lee’s accident. Raedeke added:

At the completion of snowmaking activities, there were some terrain variations at various points throughout the entire Wall run from top to bottom and side to side. Terrain variations from snowmaking are common at Minnesota (and Midwest) ski areas, particularly early in the season as ski areas rely on machine-made snow to get the areas open. It is very common for terrain variation to be encountered by skiers in Minnesota and elsewhere and they are generally well-liked, particularly by expert level skiers like [Lee].

Raedeke testified that “Wild Mountain received no reports of anything being hazardous or even out-of-the ordinary on The Wall.”

The Bergins submitted the affidavits of two ski-safety experts, Seth Bayer and Richard Penniman. Bayer testified that Wild Mountain “engaged in snow-making activity, intentionally created the hazard [Lee] encountered by creating large mounds of man-made snow . . . then intentionally left the snow-making mound in the run-out or transition area.” According to Bayer, Wild Mountain “knew or should have known [*7] that the snow-making mound in the transition area created a hazard and should have groomed out the mound or further identified the mound as a hazard.” He added that Wild Mountain failed to follow professional safety standards in making and grooming the snow.

Similarly, Penniman testified that complying with professional safety standards “would have entailed grooming out the snow making mounds; putting fencing around the snow making mounds; and warning skiers of the mounds with a rope barricade and caution signs.” He testified that “Wild Mountain’s failure to have a consistent and structured snow making and grooming policy, which specifically addressed the [professional safety standard], caused or contributed to the unsafe decision to leave a large mound of man-made snow in the transition area between the bottom of The Wall ski trail and the chair lift.” According to Penniman, “snow making mounds are not an inherent risk to the sport of skiing.”

Following discovery and Wild Mountain’s motion for summary judgment, the Bergins moved to amend their complaint to add a claim of greater-than-ordinary negligence. In April 2013, the district court denied the Bergins’ motion and granted summary [*8] judgment in favor of Wild Mountain. This appeal follows.

DECISION

I.

[HN1] After a responsive pleading is served, “a party may amend a pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.” Minn. R. Civ. P. 15.01. [HN2] “We review a district court’s denial of a motion to amend a complaint for an abuse of discretion.” Johnson v. Paynesville Farmers Union Co-op. Oil Co., 817 N.W.2d 693, 714 (Minn. 2012), cert. denied, 133 S. Ct. 1249, 185 L. Ed. 2d 180 (2013). [HN3] “A district court should allow amendment unless the adverse party would be prejudiced, but the court does not abuse its discretion when it disallows an amendment where the proposed amended claim could not survive summary judgment.” Id. (citations omitted).

[HN4] Summary judgment is proper “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 either party is entitled to a judgment as a matter of law.” Minn. R. Civ. P. 56.03. [HN5] A genuine issue of material fact does not exist “when the nonmoving party presents evidence which merely creates a metaphysical doubt [*9] as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.” DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997). [HN6] On appeal, “[w]e view the evidence in the light most favorable to the party against whom summary judgment was granted. We review de novo whether a genuine issue of material fact exists. We also review de novo whether the district court erred in its application of the law.” STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 76-77 (Minn. 2002) (citations omitted).

The Bergins moved to amend their complaint to add the allegation that Lee’s accident “was a result of the reckless, willful, or wanton conduct” of Wild Mountain. They assert that Wild Mountain “knew or should have known that a large, un-marked, un-groomed, mound of snow in the transition area between ‘The Wall’ and a chair lift . . . created a significant risk of physical harm to skiers.” The district court concluded that, although Wild Mountain would not be prejudiced if the motion to amend was granted,2 the motion must still be denied because the proposed claim “would not survive [*10] summary judgment, as [Wild Mountain’s] conduct does not, as a matter of law, rise to the level of reckless, willful or wanton.”

2 Wild Mountain does not challenge this finding on appeal.

The Bergins argue that the district court erred as a matter of law by “[r]equiring [them] to move to amend the [c]omplaint.” They assert that “Minnesota Rule of Civil Procedure 9.02 does not require plaintiffs to plead allegations of reckless, willful, or wanton conduct with particularity.” See Minn. R. Civ. P. 9.02 (stating that “[m]alice, intent, knowledge, and other condition of mind of a person may be averred generally”). Accordingly, they contend that the district court should have examined whether Wild Mountain committed greater-than-ordinary negligence based on the complaint and discovery.

The Bergins’ reliance on rule 9.02 is misplaced. [HN7] Although the Bergins were not required to plead a claim of greater-than-ordinary negligence with particularity under rule 9.02, they still had to plead it with “a short and plain statement . . . showing that [they are] entitled to relief” under Minn. R. Civ. P. 8.01, which they failed to do by pleading only a claim of “negligence and carelessness.” See L.K. v. Gregg, 425 N.W.2d 813, 819 (Minn. 1988) [*11] (stating that pleadings are liberally construed to “give[] adequate notice of the claim” against the defending party); cf. State v. Hayes, 244 Minn. 296, 299-300, 70 N.W.2d 110, 113 (1955) (concluding that “both at common law and by virtue of long-established usage,” the term “carelessness” in a criminal statute is “synonymous with ordinary negligence”).3

3 We also note that the district court did not require the Bergins to move to amend their complaint. Following a hearing on the summary judgment motion, the district court sent a letter to the parties, stating that “[a]t the Summary Judgment Motion Hearing, [the Bergins] moved the Court to amend the Complaint” and that “[t]he Court will leave the record open” for them to file the motion. The district court simply responded to the Bergins’ desire to amend the complaint without requiring them to do so.

Turning to the Bergins’ substantive argument, they assert that “there are questions of fact regarding whether Wild Mountain engaged in reckless or willful or wanton conduct that . . . preclude summary judgment.” [HN8] “[R]eckless conduct includes willful and wanton disregard for the safety of others . . . .” Kempa v. E.W. Coons Co., 370 N.W.2d 414, 421 (Minn. 1985).

The [*12] actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.

Restatement (Second) of Torts § 500 (1965) (emphasis added); see also 4 Minnesota Practice, CIVJIG 25.37 (2006). “Willful and wanton conduct is the failure to exercise ordinary care after discovering a person or property in a position of peril.” Beehner v. Cragun Corp., 636 N.W.2d 821, 829 (Minn. App. 2001), review denied (Minn. Feb. 28, 2002).

The Bergins argue that their expert affidavits support their claim of greater-than-ordinary negligence. We are not persuaded for three reasons.

First, [HN9] “[a]ffidavits in opposition to a motion for summary judgment do not create issues of fact if they merely recite conclusions without any specific factual support.” Grandnorthern, Inc. v. W. Mall P’ship, 359 N.W.2d 41, 44 (Minn. App. 1984). Bayer’s testimony that Wild [*13] Mountain “knew” that the snow mound was hazardous is speculation because there is no evidence that Bayer knew Wild Mountain employees’ state of mind before Lee’s fall and injury.

Second, the Bergins misunderstand the “had reason to know” standard for establishing a claim of greater-than-ordinary negligence. The Bergins contend that they need not prove knowledge to establish a claim of greater-than-ordinary negligence and that it is enough that Wild Mountain “should have known” that the snow mound was hazardous. But [HN10] knowledge separates the “had reason to know” standard from the “should have known” standard:

(1) The words “reason to know” . . . denote the fact that the actor has information from which a person of reasonable intelligence or of the superior intelligence of the actor would infer that the fact in question exists, or that such person would govern his conduct upon the assumption that such fact exists.

(2) The words “should know” . . . denote the fact that a person of reasonable prudence and intelligence or of the superior intelligence of the actor would ascertain the fact in question in the performance of his duty to another, or would govern his conduct upon the assumption that [*14] such fact exists.

Restatement (Second) of Torts § 12 (1965) (emphases added). Accordingly, Bayer’s testimony that Wild Mountain “should have known” that the snow mound was hazardous is insufficient to establish the state of mind necessary to establish a claim of greater-than-ordinary negligence.

Finally, the expert affidavits are insufficient to establish that Wild Mountain had reason to know that the snow mound was hazardous. According to Bayer and Penniman, the snow mound was hazardous because skiers do not expect a snow mound in the transition run-out area and because the lighting condition obscured the snow mound. Assuming that these alleged facts are true, nothing in the record suggests that Wild Mountain had knowledge of these facts from which to infer that the snow mound was hazardous. Rather, Raedeke’s testimony shows that Wild Mountain received no complaints from hundreds of skiers who skied The Wall before Lee’s accident. The expert affidavits are, at most, evidence that a reasonable person managing the ski operation would not have created, or would have marked, the snow mound in the run-out area. This evidence shows only ordinary negligence.

Because the evidence is insufficient [*15] to establish that Wild Mountain engaged in conduct constituting greater-than-ordinary negligence, the district court correctly determined that a claim of greater-than-ordinary negligence would not survive a motion for summary judgment. Accordingly, the district court acted within its discretion by denying the Bergins’ motion to amend their complaint to add a claim of greater-than-ordinary negligence. See Johnson, 817 N.W.2d at 714 (stating that [HN11] a district court “does not abuse its discretion when it disallows an amendment where the proposed amended claim could not survive summary judgment”).

The Bergins also argue that the district court “did not address the evidence that created questions of material fact regarding Wild Mountain’s reckless, willful, or wanton conduct.” But the district court examined Wild Mountain’s conduct and concluded that it “does not meet the standards for gross negligence, willful and wanton conduct, or reckless conduct (as defined by both parties).” The district court’s discussion of Lee’s knowledge of the inherent risks of skiing–while perhaps extraneous–does not indicate that the district court failed to analyze Wild Mountain’s conduct.

II.

The Bergins argue [*16] that the district court erred by determining that the exculpatory clause bars the Bergins’ claim of ordinary negligence. [HN12] The interpretation of a written contract is a question of law reviewed de novo. Borgersen v. Cardiovascular Sys., Inc., 729 N.W.2d 619, 625 (Minn. App. 2007). [HN13] Under certain circumstances, “parties to a contract may . . . protect themselves against liability resulting from their own negligence.” See Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 922-23 (Minn. 1982) (considering exculpatory clauses in construction contracts and commercial leases). “A clause exonerating a party from liability,” known as an exculpatory clause, is enforceable if it: (1) is “unambiguous”; (2) is “limited to a release of liability arising out of negligence only”; and (3) does not violate public policy. See id. at 923. “An exculpatory clause is ambiguous when it is susceptible to more than one reasonable construction.” Beehner, 636 N.W.2d at 827.

The district court concluded that Wild Mountain’s exculpatory clause is enforceable because it is unambiguous and bars only ordinary-negligence claims. The Bergins contend that the exculpatory clause is ambiguous because “there are questions of fact [*17] regarding whether the [season-pass card] was part of the exculpatory contract.” They assert that the exculpatory clause and the language on the season-pass card “construed together are overly broad and ambiguous” because the season-pass card contains a non-exhaustive list of risks while the season-pass agreement expressly excludes greater-than-ordinary negligence from the scope of the exculpatory clause. We are not persuaded.

Because [HN14] a contract ambiguity exists only if it is “found in the language of the document itself,” we consider whether the season-pass card is a part of the season-pass agreement between Lee and Wild Mountain. See Instrumentation Servs., Inc. v. Gen. Res. Corp., 283 N.W.2d 902, 908 (Minn. 1979). [HN15] “It is well established that where contracts relating to the same transaction are put into several instruments they will be read together and each will be construed with reference to the other.” Anchor Cas. Co. v. Bird Island Produce, Inc., 249 Minn. 137, 146, 82 N.W.2d 48, 54 (1957). Here, the contractual relationship between Lee and Wild Mountain was formed when the online season-pass agreement was executed more than eight months before Lee picked up the season-pass card. [*18] As the district court correctly concluded, the season-pass card itself is not a contract. Although the season-pass card contains language emphasizing the inherent risk of skiing, it does not contain an offer by Wild Mountain to be legally bound to any terms. See Glass Serv. Co., Inc. v. State Farm Mut. Auto. Ins. Co., 530 N.W.2d 867, 870 (Minn. App. 1995), review denied (Minn. June 29, 1995). And as a corollary, Lee could not have accepted an offer that did not exist. The season-pass card is an extrinsic document that does not create an ambiguity in the season-pass agreement.

The Bergins rely on Hackel v. Whitecap Recreations, 120 Wis. 2d 681, 357 N.W.2d 565 (Wis. Ct. App. 1984) (Westlaw). There, a skier was injured when he was “caught in a depression apparently caused by the natural drainage of water.” 120 Wis. 2d 681, at *1. The ski resort “denied liability on the basis of language printed on the lift ticket purchased by” the skier. Id. The Wisconsin Court of Appeals held that summary judgment was improper because “[w]hether the printed language on the ski ticket was part of the contractual agreement between the parties is a question of fact.” Id. Based on Hackel, the Bergins argue that “there are [*19] questions of fact regarding whether the [season-pass card] was part of the exculpatory contract.”

The Bergins’ reliance on Hackel is misplaced. As an unpublished opinion issued before 2009, Hackel has neither precedential nor persuasive value in Wisconsin. See Wis. R. App. P. 809.23(3) (Supp. 2013). Even if it were, Wisconsin’s adoption of a common-law rule is “not binding on us as authority.” See Mahowald v. Minn. Gas Co., 344 N.W.2d 856, 861 (Minn. 1984) (examining other jurisdictions’ standards of tort liability). Substantively, the questions of fact that precluded summary judgment in Hackel are absent here. In Hackel, the only language alleged to be exculpatory was printed on the back of a lift ticket, which the skier did not sign. 120 Wis. 2d 681, at *1. This language did not expressly release the ski resort from liability, but it listed the risks that the skier agreed to assume. Id. The Wisconsin court concluded that a fact issue exists as to whether the language could be construed to mean “that skiers assume inherent risks of the sport without relieving [the ski company] of its own negligence” or that “[t]he language might also be construed as an exculpatory clause.” 120 Wis. 2d 681, Id. at *2. Another [*20] question of fact that precluded summary judgment was “whether the [unsigned] ticket was intended as part of the contract.” 120 Wis. 2d 681, Id. at *1 n.1. Here, unlike in Hackel, neither the existence of an exculpatory clause nor the intention that it be a part of the contract is in question. It is undisputed that Lee agreed to the exculpatory clause in the season-pass agreement before receiving the season-pass card.

Even if the season-pass card and season-pass agreement are construed together, they do not create an ambiguity. [HN16] “Terms in a contract should be read together and harmonized where possible,” and “the specific in a writing governs over the general.” Burgi v. Eckes, 354 N.W.2d 514, 518-19 (Minn. App. 1984). Accordingly, the season-pass agreement’s specific language excluding greater-than-ordinary negligence from the scope of the exculpatory clause supersedes the season-pass card’s general language on the inherent risks of skiing. The district court correctly determined that the exculpatory clause is limited to a release of liability arising out of negligence only and granted summary judgment in favor of Wild Mountain.

Because we conclude that an unambiguous and enforceable exculpatory clause [*21] bars the Bergins’ claim of ordinary negligence, we decline to reach the issue of whether the doctrine of primary assumption of risk also bars the claim of ordinary negligence.

Affirmed.


Fleury v. IntraWest Winter Park Operations Corporation, 2016 CO 41; 2016 Colo. LEXIS 532

Fleury v. IntraWest Winter Park Operations Corporation, 2016 CO 41; 2016 Colo. LEXIS 532

Petitioner: Salynda E. Fleury, individually on behalf of Indyka Norris and Sage Norris, and as surviving spouse of Christopher H. Norris, v. Respondent: IntraWest Winter Park Operations Corporation.

Supreme Court Case No. 14SC224

SUPREME COURT OF COLORADO

2016 CO 41; 2016 Colo. LEXIS 532

May 31, 2016, Decided

NOTICE:

THIS OPINION IS NOT THE FINAL VERSION AND SUBJECT TO REVISION UPON FINAL PUBLICATION

PRIOR HISTORY: [**1] Certiorari to the Colorado Court of Appeals. Court of Appeals Case No. 13CA517.

DISPOSITION: Judgment Affirmed.

CASE SUMMARY:

OVERVIEW: HOLDINGS: [1]-The definition of “inherent dangers and risks of skiing” in Colo. Rev. Stat. § 33-44-103(3.5) (2015) of the Ski Safety Act of 1979, Colo. Rev. Stat. §§ 33-44-101 to -114 (2015), specifically included snow conditions “as they exist or may change;” [2]-This phrase encompassed an in-bounds avalanche, which was the movement, or changing condition, of snow; [3]-Although the resort was aware of avalanche warnings, the unstable snow on the run where an avalanche occurred, and the areas within the resort that were most susceptible to avalanches, and it neither closed the run nor posted signs to warn skiers of the avalanche risk, it was not liable for a skier’s death from an in-bounds avalanche, pursuant to Colo. Rev. Stat. § 33-44-112 (2015).

OUTCOME: Judgment affirmed.

CORE TERMS: snow, avalanche, skiing, skier, avalanches, ski area, inherent danger, terrain, ski, powder, in-bounds, encompass, weather, pack, ice, variations, steepness, slope, inherent risk, collisions, warning, slush, lift, natural objects, immunity, resort, packed, sport, wind, rock

LexisNexis(R) Headnotes

Torts > Negligence > Defenses > Assumption of Risk > Athletic & Recreational Activities

Governments > Legislation > Interpretation

[HN1] The definition of “inherent dangers and risks of skiing” in Colo. Rev. Stat. § 33-44-103(3.5) (2015) of the Ski Safety Act of 1979, Colo. Rev. Stat. §§ 33-44-101 to -114 (2015), specifically includes snow conditions as they exist or may change. This phrase encompasses an in-bounds avalanche, which is, at its core, the movement, or changing condition, of snow.

Torts > Negligence > Defenses > Assumption of Risk > Athletic & Recreational Activities

Governments > Legislation > Interpretation

[HN2] The statutory definition of risks of skiing specifically lists “snow conditions as they exist or may change” as an inherent danger and risk of skiing. Colo. Rev. Stat. § 33-44-103(3.5) (2015). This phrase encompasses an in-bounds avalanche, which is, at its core, the movement, or changing condition, of snow. Therefore, an in-bounds avalanche qualifies as an inherent risk of skiing under the Ski Safety Act of 1979, Colo. Rev. Stat. §§ 33-44-101 to -114 (2015).

Torts > Negligence > Defenses > Assumption of Risk > Athletic & Recreational Activities

Governments > Legislation > Interpretation

Civil Procedure > Appeals > Standards of Review > Fact & Law Issues

Civil Procedure > Appeals > Standards of Review > De Novo Review

[HN3] Whether the term “inherent dangers and risks of skiing” as defined in Colo. Rev. Stat. § 33-44-103(3.5) (2015) encompasses in-bounds avalanches is a question of statutory interpretation that is reviewed de novo.

Torts > Negligence > Defenses > Assumption of Risk > Athletic & Recreational Activities

[HN4] The the Ski Safety Act of 1979, Colo. Rev. Stat. §§ 33-44-101 to -114 (2015), recognizes that certain dangers and risks inhere in the sport of skiing, regardless of any and all reasonable safety measures which can be employed by ski area operators. Colo. Rev. Stat. § 33-44-102 (2015). It therefore provides that no skier may make any claim against or recover from any ski area operator for injury resulting from any of the inherent dangers and risks of skiing. Colo. Rev. Stat. § 33-44-112.

Torts > Negligence > Defenses > Assumption of Risk > Athletic & Recreational Activities

[HN5] The the Ski Safety Act of 1979, Colo. Rev. Stat. §§ 33-44-101 to -114 (2015), specifically defines “inherent dangers and risks of skiing” as those dangers or conditions that are part of the sport of skiing, including changing weather conditions; snow conditions as they exist or may change, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, extreme terrain, and trees, or other natural objects, and collisions with such natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, or other man-made structures and their components; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including but not limited to roads, freestyle terrain, jumps, and catwalks or other terrain modifications; collisions with other skiers; and the failure of skiers to ski within their own abilities. Colo. Rev. Stat. § 33-44-103(3.5) (2015).

Torts > Negligence > Defenses > Assumption of Risk > Athletic & Recreational Activities

[HN6] The Ski Safety Act of 1979, Colo. Rev. Stat. §§ 33-44-101 to -114 (2015), specifically excludes the negligence of a ski area operator as set forth in Colo. Rev. Stat. § 33-44-104(2) (2015) from the definition of inherent dangers and risks of skiing and does not immunize operators for injuries caused by the use or operation of ski lifts.

Governments > Legislation > Interpretation

Torts > Negligence > Defenses > Assumption of Risk > Athletic & Recreational Activities

[HN7] The term “injury” as used in the Ski Safety Act of 1979, Colo. Rev. Stat. §§ 33-44-101 to -114 (2015), includes death.

Torts > Negligence > Defenses > Assumption of Risk > Athletic & Recreational Activities

Governments > Legislation > Interpretation

[HN8] The phrase “snow conditions as they exist or may change” in Colo. Rev. Stat. § 33-44-103(3.5) (2015) encompasses avalanches that occur within the bounds of a ski resort. A “condition” is simply a mode or state of being, or more specifically, the physical state of something. A “snow condition,” therefore, is simply a mode or state of being or the physical state of snow. To put it differently, a snow condition is a description of the snow at any given time. Section 33-44-103(3.5) lists ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow as examples of snow conditions–that is, ways in which to describe the physical state of the snow at any particular time.

Torts > Negligence > Defenses > Assumption of Risk > Athletic & Recreational Activities

Governments > Legislation > Interpretation

[HN9] Colo. Rev. Stat. § 33-44-103(3.5) (2015) contemplates that the snow conditions may change. § 33-44-103(3.5) lists “snow conditions as they exist or may change” as an inherent risk of skiing. One obvious way in which a snow condition “may change” is through movement of the snow, including by wind and gravity. And at its core, an avalanche is moving snow caused by gravity. The dictionary definition of avalanche is a large mass of snow, ice, earth, rock, or other material in swift motion down a mountainside or over a precipice. Although this definition could include snowless rockslides or landslides, in practice, avalanche usually refers to the snow avalanche.

Torts > Negligence > Defenses > Assumption of Risk > Athletic & Recreational Activities

[HN10] An avalanche is one way in which snow conditions may change for purposes of the definition of inherent dangers and risks of skiing in Colo. Rev. Stat. § 33-44-103(3.5) (2015).

Torts > Negligence > Defenses > Assumption of Risk > Athletic & Recreational Activities

[HN11] Because an avalanche is, at its essence, the movement of snow, and is therefore a way in which snow conditions may change, Colo. Rev. Stat. § 33-44-103(3.5) (2015) covers in-bounds avalanches. It follows that § 33-44-112 precludes skiers from suing operators to recover for injuries resulting from in-bounds avalanches.

Governments > Legislation > Statutory Remedies & Rights

[HN12] A statute may modify or restrict a common law right only to the extent embraced by the statute.

HEADNOTES

Ski Safety Act of 1979–Statutes–Immunity Statutes–Plain Language–Plain, Ordinary, Common, or Literal Meaning–Public Amusement and Entertainment–Skiing and Snowboarding

SYLLABUS

The Colorado Supreme Court holds that an avalanche that occurs within the bounds of a ski resort qualifies as an “inherent danger[] and risk[] of skiing” under the Ski Safety Act of 1979, §§ 33-44-101 to -114, C.R.S. (2015). The definition of “inherent dangers and risks of skiing” in section 33-44-103(3.5), C.R.S. (2015), specifically includes “snow conditions as they exist or may change.” By its plain meaning, this phrase encompasses an in-bounds avalanche, which is, at its core, the movement, or changing condition, of snow. As such, section 33-44-112, C.R.S. (2015), precludes skiers from recovering for injuries resulting from in-bounds avalanches.

COUNSEL: Attorneys for Petitioner: Burg Simpson Eldredge Hersh & Jardine, PC, James G. Heckbert, Diane Vaksdal Smith, Nelson P. Boyle, Englewood, Colorado.

Attorneys for Respondent: Rietz Law Firm, LLC, Peter W. Rietz, Kimberly A. Viergever, Brian A. Birenbach, Dillon, Colorado.

Attorney for Amici Curiae Association of Professional Patrollers and Fédération Internationale [**2] des Patrouilles de Ski: Gassman Law Firm LLC and Community Legal Center, Edward C. Gassman, Loveland, Colorado.

Attorneys for Amicus Curiae Colorado Ski Country USA, Inc.: Davis Graham and Stubbs LLP, Jordan Lipp, John M. Bowlin, Denver, Colorado; Colorado Ski Country USA, Inc., Melanie Mills, Denver, Colorado.

Attorney for Amicus Curiae Colorado Trial Lawyers Association: Heideman Poor LLC, John F. Poor, Denver, Colorado.

JUDGES: JUSTICE EID delivered the Opinion of the Court. JUSTICE MÁRQUEZ dissents, and JUSTICE GABRIEL joins in the dissent.

OPINION BY: EID

OPINION

en banc

JUSTICE EID delivered the Opinion of the Court.

[*1] In this case, we determine whether an avalanche that occurs within the bounds of a ski resort qualifies as an “inherent danger[] and risk[] of skiing” under the Ski Safety Act of 1979, §§ 33-44-101 to -114, C.R.S. (2015) (the “SSA” or “Act”). If so, the statute would preclude skiers from bringing claims against ski area operators for injuries resulting from these kinds of avalanches. See § 33-44-112, C.R.S. (2015).

[*2] Here, petitioner Salynda E. Fleury brought a negligence and wrongful death suit against respondent IntraWest Winter Park Operations Corporation (“Winter Park”) after her husband was killed in an in-bounds avalanche at its resort. Fleury [**3] claims that, although Winter Park knew that avalanches were likely to occur in the area where her husband was skiing that day, it neither warned skiers about this risk nor closed the area. Winter Park filed a motion for a determination of law under C.R.C.P. 56(h) and for judgment on the pleadings under C.R.C.P. 12(c), arguing that in-bounds avalanches are an inherent risk of skiing as defined in the SSA and that the SSA therefore precluded the lawsuit. The trial court agreed and dismissed the action pursuant to section 33-44-112.

[*3] The court of appeals affirmed the dismissal in a split decision. The majority concluded that avalanches fall within the statutory meaning of the phrase “inherent dangers and risks of skiing” because they result from “snow conditions as they exist or may change,” “changing weather conditions,” and “variations of steepness or terrain,” all of which are specifically enumerated as “inherent dangers and risks” under the statutory definition. Fleury v. IntraWest Winter Park Operations Corp., 2014 COA 13, ¶¶ 15-16, ___ P.3d ___. Judge J. Jones dissented, arguing that the statute neither expressly nor by clear implication included in-bounds avalanches as an inherent risk of skiing. Id. at ¶ 29 (J. Jones, J., dissenting).

[*4] We granted certiorari and now affirm. [HN1] The definition of “inherent dangers [**4] and risks of skiing” in section 33-44-103(3.5), C.R.S. (2015), specifically includes “snow conditions as they exist or may change.” This phrase encompasses an in-bounds avalanche, which is, at its core, the movement, or changing condition, of snow. We therefore affirm the decision of the court of appeals.

I.

[*5] We accept as true the following allegations from the complaint. See Melat, Pressman & Higbie, L.L.P. v. Hannon Law Firm, L.L.C., 2012 CO 61, ¶ 7, 287 P.3d 842, 845 (citing Abts v. Bd. of Educ., 622 P.2d 518, 521 (Colo. 1980)).

[*6] On January 22, 2012, Christopher H. Norris was killed in an avalanche while skiing on the “Trestle Trees” run within the bounds of Winter Park Resort. In the days leading up to his death, the Colorado Avalanche Information Center had predicted heavy snow storms and issued an avalanche warning to last through January 23. It warned skiers to “[b]e careful near or below any slope over 30 degrees” and cautioned that “the weak snowpack will not be able to handle even [a] modest new load” of snow from the coming storms. Prior to the arrival of these storms, the existing snow base on the Trestle Trees run had grown weak and unstable, which made it prone to avalanches. Winter Park knew about the avalanche warnings, the unstable snow on the Trestle Trees run, and the areas within the resort that were most susceptible to avalanches on January 22, [**5] including Trestle Trees, but it neither closed the run nor posted signs to warn skiers of the avalanche risk.

[*7] After her husband’s death, Fleury brought negligence and wrongful death claims against Winter Park. Winter Park filed a motion for a determination of law under C.R.C.P. 56(h) and for judgment on the pleadings under C.R.C.P. 12(c), arguing that the SSA barred the lawsuit because avalanches constitute an inherent risk of skiing under the statutory definition.

[*8] The trial court granted the motion. It found that the allegations in the complaint indicated that the fatal avalanche resulted from a combination of “changing weather conditions,” “snow conditions,” and “variations in steepness or terrain” as enumerated in section 33-44-103(3.5). The court rejected Fleury’s argument that the statute needed to expressly enumerate the term “avalanches” for avalanches to be covered as an inherent risk because section 33-44-103(3.5) uses the non-exclusive term “including” before listing examples of inherent risks. As such, it dismissed the complaint with prejudice.

[*9] In a split decision, the court of appeals affirmed the dismissal. Fleury, ¶ 28. The majority agreed with the trial court that the word “including” was “illustrative and not, as Ms. Fleury argues, confined [**6] to the identified dangers” in the statute because it is “a word of extension or enlargement.” Id. at ¶ 11. It went on to conclude that avalanches result “from certain conditions of snow, and the degree of danger is affected by ‘changing weather conditions’ across ‘variations of steepness or terrain.'” Id. at ¶ 15. Consequently, the court held that the term “inherent dangers and risks of skiing” under section 33-44-103(3.5) encompasses avalanches. Id. at ¶ 16.

[*10] In dissent, Judge Jones objected that the majority “cobbl[ed] together three categories of covered dangers and risks” to conclude that avalanches are covered under the definition even though they are not expressly included in it. Id. at ¶ 38 (J. Jones, J., dissenting). He argued that this approach violated the rule that statutory grants of immunity must be strictly construed, and characterized an avalanche as an “event–one that not even necessarily involves snow,” as distinguished from “changing weather conditions,” “snow conditions,” or “variations in steepness or terrain.” Id. at ¶¶ 38, 42, 43-45. Finally, Judge Jones asserted that avalanches do not always result from the mere combination of these three factors, because other factors, including human action, [**7] can also cause them independently. Id. at ¶ 46. Thus, even if the majority was correct to aggregate the different categories under the statute, Judge Jones contended that the statute still did not unambiguously encompass avalanches. Id. at ¶ 48. For these reasons, he would have reversed the trial court. Id. at ¶ 29.

[*11] We granted certiorari to review the court of appeals’ decision and now affirm.1 [HN2] The statutory definition specifically lists “snow conditions as they exist or may change” as an “inherent danger[] and risk[] of skiing.” § 33-44-103(3.5). This phrase encompasses an in-bounds avalanche, which is, at its core, the movement, or changing condition, of snow. We therefore hold that an in-bounds avalanche qualifies as an inherent risk of skiing under the SSA.2

1 We granted certiorari to review the following issue:

Whether, for the purposes of the Ski Safety Act (“SSA”) of 1979, codified at sections C.R.S. 33-44-101 to -114 (2014), the term “inherent dangers and risks of skiing,” as defined in C.R.S. 33-44-103(3.5) (2014), encompasses avalanches that occur within the bounds of a ski resort, in areas open to skiers at the time in question.

2 Because we find that the enumerated term “snow conditions as they exist or may change” encompasses in-bounds avalanches, [**8] we do not reach the question of whether the term “including” as used in section 33-44-103(3.5) is exclusive or non-exclusive.

II.

[*12] [HN3] Whether the term “inherent dangers and risks of skiing” as defined in section 33-44-103(3.5) encompasses in-bounds avalanches is a question of statutory interpretation that we review de novo. Hunsaker v. People, 2015 CO 46, ¶ 11, 351 P.3d 388, 391.

[*13] [HN4] The SSA recognizes that certain dangers and risks “inhere in the sport of skiing, regardless of any and all reasonable safety measures which can be employed” by ski area operators. § 33-44-102, C.R.S. (2015). It therefore provides that “no skier may make any claim against or recover from any ski area operator for injury resulting from any of the inherent dangers and risks of skiing.” § 33-44-112.3 [HN5] The Act specifically defines “inherent dangers and risks of skiing” as

those dangers or conditions that are part of the sport of skiing, including changing weather conditions; snow conditions as they exist or may change, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, extreme terrain, and trees, or other natural objects, and collisions with such natural objects; impact with lift towers, [**9] signs, posts, fences or enclosures, hydrants, water pipes, or other man-made structures and their components; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including but not limited to roads, freestyle terrain, jumps, and catwalks or other terrain modifications; collisions with other skiers; and the failure of skiers to ski within their own abilities.

§ 33-44-103(3.5) (emphasis added). [HN6] The Act specifically excludes “the negligence of a ski area operator as set forth in section 33-44-104(2)” from this definition and does not immunize operators for “injur[ies] caused by the use or operation of ski lifts.” Id.

3 We have construed [HN7] the term “injury” to include death. Stamp v. Vail Corp., 172 P.3d 437, 447 (Colo. 2007).

[*14] [HN8] The phrase “snow conditions as they exist or may change” encompasses avalanches that occur within the bounds of a ski resort. A “condition” is simply a “mode or state of being,” Webster’s Third New International Dictionary 473 (2003), or more specifically, “the physical state of something,” Merriam–Webster Online Dictionary, https://perma.cc/E4DZ-9UZA . A “snow condition,” therefore, is simply a “mode or state of being” or “the physical state” of snow. To put it differently, a snow condition is a description of the snow at any [**10] given time. Section 33-44-103(3.5) lists “ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow” as examples of snow conditions–that is, ways in which to describe the physical state of the snow at any particular time.

[*15] [HN9] The statute also contemplates that the snow conditions “may change.” § 33-44-103(3.5) (listing “snow conditions as they exist or may change” as an inherent risk of skiing (emphasis added)). One obvious way in which a snow condition “may change” is through movement of the snow, including by wind and gravity. And at its core, an avalanche is moving snow caused by gravity. The dictionary definition of “avalanche” is “a large mass of snow, ice, earth, rock, or other material in swift motion down a mountainside or over a precipice.” Webster ‘s Third New Inter national Dictionary 150 (2003); see also The American Heritage Dictionary of the English Language 383 (4th ed. 2000) (defining “avalanche” as “[a] fall or slide of a large mass, as of snow or rock, down a mountainside”). Although this definition could include snowless rockslides or landslides, “[i]n practice, [‘avalanche’] usually refers to the snow avalanche.” Nat’l Oceanic and Atmospheric Admin., Avalanche [**11] , Nat’l Weather Serv. Glossary, https://perma.cc/VYR3-CXAZ ; see also Nat’l Avalanche Ctr., Avalanche, Encyclopedia, https://perma.cc/LRR7-K782 (defining “avalanche” as “[a] mass of snow sliding, tumbling, or flowing down an inclined surface” and explaining the types of avalanches, all of which involve moving snow). These sources confirm that an avalanche is most commonly understood as the movement of snow down a mountainside or other incline.

[*16] At bottom, then, [HN10] an avalanche is one way in which snow conditions may change. As alleged here, snow conditions started with fresh snow on unstable snowpack, and, within moments, changed to a mound of snow at the bottom of the incline. We therefore conclude that Norris’s death is alleged to have been caused by changing snow conditions.

[*17] Adopting the reasoning of the dissenting judge below, Fleury argues that an avalanche is “an event,” not a snow condition, and that therefore an avalanche does not fall within the statutory language. See Fleury, ¶ 42 (J. Jones, J., dissenting). This interpretation, however, ignores the fact that the language covers snow conditions as they “exist” or “may change.” [HN11] Because an avalanche is, at its essence, the movement of snow, and is therefore a way in which snow conditions may change, we hold that section 33-44-103(3.5) covers [**12] in-bounds avalanches. It follows that section 33-44-112 precludes skiers from suing operators to recover for injuries resulting from in-bounds avalanches.4

4 Because we conclude that the phrase “snow conditions as they exist or may change” encompasses in-bounds avalanches, we need not consider Fleury’s additional argument, based on the dissent, that “a statute’s grant of immunity must be strictly construed.” Fleury, ¶ 38 (J. Jones, J., dissenting); see Ryals v. St. Mary-Corwin Reg’l Med. Ctr., 10 P.3d 654, 661 (Colo. 2000) [HN12] (“A statute may modify or restrict a common law right only to the extent embraced by the statute.”).

III.

[*18] For these reasons, we affirm the decision of the court of appeals.

JUSTICE MÁRQUEZ dissents, and JUSTICE GABRIEL joins in the dissent.

DISSENT BY: MÁRQUEZ

DISSENT

JUSTICE MÁRQUEZ, dissenting.

[*19] Today the majority holds that an avalanche that kills a skier on a designated, open run at a ski area is nothing more than a “changing snow condition,” maj. op. ¶ 16, and thus one of the “inherent dangers and risks of skiing” for which ski resorts are immune from liability under the Ski Safety Act of 1979, §§ 33-44-101 to -114, C.R.S. (2015) (the “SSA”). To arrive at this conclusion, the majority construes the statutory phrase “snow conditions as they . . . may change” in section 33-44-103(3.5) to encompass the movement of snow, “including [**13] by wind and gravity,” maj. op. ¶ 15, such that an avalanche–the swift sliding or tumbling of a large mass of snow, ice, earth, rock, or other material down a mountain incline–is merely a “change” in the “condition” of the snow. Because the majority’s construction of section 33-44-103(3.5) is wholly unconvincing, I respectfully dissent.

I. Principles of Statutory Construction

[*20] We review issues of statutory interpretation de novo. Robinson v. Colo. State Lottery Div., 179 P.3d 998, 1003 (Colo. 2008). When interpreting language in a statute, courts are guided by familiar principles of statutory construction. Our aim is always to ascertain and give effect to the General Assembly’s intent. Roup v. Commercial Research, LLC, 2015 CO 38, ¶ 8, 349 P.3d 273, 275. We give words their plain and ordinary meaning, id., and we examine the statutory language in the context of the statute as a whole, Foiles v. Whittman, 233 P.3d 697, 699 (Colo. 2010). We will not read into a statute language that does not exist. Boulder Cty. Bd. of Com’rs v. HealthSouth Corp., 246 P.3d 948, 954 (Colo. 2011). Finally, “when the legislature speaks with exactitude, we must construe the statute to mean that the inclusion or specification of a particular set of conditions necessarily excludes others.” Lunsford v. W. States Life Ins., 908 P.2d 79, 84 (Colo. 1995).

II. The Ski Safety Act

[*21] The purpose of the Ski Safety Act is to define the legal responsibilities, rights, and liabilities of ski area operators and of the skiers who use their facilities. § 33-44-102, C.R.S. (2015); Bayer v. Crested Butte Mountain Resort, Inc., 960 P.2d 70, 74 (Colo. 1998). Because [**14] certain dangers “inhere in the sport of skiing,” § 33-44-102, the General Assembly has limited ski area operators’ tort liability by granting them immunity for “injury resulting from any of the inherent dangers and risks of skiing,” § 33-44-112, C.R.S. (2015). The SSA defines “inherent dangers and risks of skiing” in section 33-44-103(3.5), C.R.S. (2015), listing seven categories of hazards: (1) “changing weather conditions,” (2) “snow conditions as they exist or may change,” (3) “surface or subsurface conditions,” (4) impact with natural and man-made objects commonly encountered on the slopes, (5) “variations in steepness or terrain,” (6) “collisions with other skiers,” and (7) “the failure of skiers to ski within their own abilities.”1

1 Section 33-44-103(3.5) reads, in its entirety:

“Inherent dangers and risks of skiing” means those dangers or conditions that are part of the sport of skiing, including changing weather conditions; snow conditions as they exist or may change, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, extreme terrain, and trees, or other natural objects, and collisions with such [**15] natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, or other man-made structures and their components; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including but not limited to roads, freestyle terrain, jumps, and catwalks or other terrain modifications; collisions with other skiers; and the failure of skiers to ski within their own abilities. The term “inherent dangers and risks of skiing” does not include the negligence of a ski area operator as set forth in section 33-44-104(2). Nothing in this section shall be construed to limit the liability of the ski area operator for injury caused by the use or operation of ski lifts.

(Emphases added.)

[*22] The provision further elucidates some of these categories through examples. For instance, “surface or subsurface conditions” include “bare spots, forest growth, rocks, stumps, streambeds, cliffs, extreme terrain, and trees, or other natural objects, and collisions with such natural objects.” Id. “[V]ariations in steepness or terrain” include but are not limited to “roads, freestyle terrain, jumps, and catwalks or other terrain modifications.” Id. And the [**16] statute describes “impact” with specific objects, namely “lift towers, signs, posts, fences or enclosures, hydrants, water pipes, or other man-made structures and their components.” Id. Relevant here, “snow conditions as they exist or may change” means conditions such as “ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow.” Id. Given the extensive list of inherent dangers in section 33-44-103(3.5), skiers and snowboarders assume much of the risk of engaging in snow sports, even within the boundaries of a ski area. And yet, nowhere in the statute does the term “avalanche” appear.

[*23] The majority nevertheless concludes that the statutory phrase “snow conditions as they . . . may change” in section 33-44-103(3.5) encompasses the “movement” of snow, maj. op. ¶ 15, such that an avalanche is simply a “change” in the “condition” of the snow. This interpretation is untenable for a host of reasons.

[*24] As an initial matter, because the SSA’s grant of immunity to ski area operators abrogates remedies available at common law, we must construe the statute strictly. Henisse v. First Transit, Inc., 247 P.3d 577, 579 (Colo. 2011). Thus, “if the legislature wishes to abrogate rights that would otherwise be available under the common law, it must manifest [**17] its intent either expressly or by clear implication.” Vigil v. Franklin, 103 P.3d 322, 327 (Colo. 2004).

[*25] Although the majority does not address the issue, Winter Park contends that section 33-44-103(3.5) must be construed broadly because it introduces the categories of dangers and risks with the word “including.” Ordinarily, the word “including” is construed expansively, such that placing “including” before a list of examples does not confine the meaning of the term to the specific examples listed. Preston v. Dupont, 35 P.3d 433, 438 (Colo. 2001).

[*26] However, viewed in the context of section 33-44-103 as a whole, the use of the term “including” at the beginning of subsection (3.5) does not function to expand the list of “inherent dangers and risks of skiing” that follow; rather, it serves to limit it. Elsewhere in section 33-44-103, which provides the definitions for terms used in the SSA, the General Assembly used “including” coupled with expansive language. For example, “Freestyle terrain” “includes, but is not limited to,” terrain parks and other features. § 33-44-103(3.3). “Skiing” “includes, without limitation,” all manner of snow sports. § 33-44-103(8). A “skier” is a person who uses the facilities of a ski area, “including but not limited to” ski slopes and trails. Id. Most significantly, subsection (3.5), the provision at issue here defining the “inherent dangers and risks of skiing,” describes [**18] “variations in steepness or terrain” as “including but not limited to” various types of natural and man-made terrain. § 33-44-103(3.5). In contrast, the General Assembly omitted this expansive additional language from the term “including” at the head of subsection (3.5). Courts must presume that the legislature did not make this choice idly; instead, “the use of different terms signals an intent on the part of the General Assembly to afford those terms different meanings.” Robinson, 179 P.3d at 1010. Thus, we can infer from the language of section 33-44-103 as a whole that the term “including” as used at the beginning of subsection (3.5) was intended to limit, not expand, the list of “inherent dangers and risks of skiing” that follow.

[*27] The history of this provision confirms this legislative intent. When first introduced, the 1990 amendment that added what is now subsection (3.5) defined “inherent dangers and risks of skiing” as those dangers or conditions “including, but not limited to,” various hazards. However, in comments before the House Committee on State Affairs, Representative McInnis, a sponsor of the bill, explained that the original bill was amended to remove the phrase “but not limited to,” and that this change was intended to narrow the provision:

We have stricken the words ‘but [**19] not limited to,’ so that it simply reads, ‘the sport of skiing, including,’ and then it goes on to say, ‘changing weather conditions, snow conditions,’ and so forth. . . . It’s a slight narrowing of the amendment, and it’s a clarification that the items that follow are the inherent risks and dangers that are being referred to.

Hearing on S.B. 90-80 Before the H. Comm. on State Affairs, 57th Gen. Assemb., 2nd Sess. (March 13, 1990) (statement of Rep. McInnis) (emphases added). In short, given this legislative intent, and given that the SSA abrogates the common law, we must construe the “inherent dangers and risks” in section 33-44-103(3.5) narrowly.

[*28] Second, as a matter of statutory construction and common sense, I simply cannot agree with the majority that the phrase “snow conditions as they . . . may change” can be construed to encompass the “movement” of snow. Maj. op. ¶¶ 15-16. The majority acknowledges that the term “condition” means “simply a ‘mode or state of being,’ or more specifically, ‘the physical state of something.'” Id. at ¶ 14 (citation omitted). I agree. Logically, then, a snow “condition” refers to the physical state of snow, as illustrated by the examples listed in the statute: “ice, hard [**20] pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow.” § 33-44-103(3.5). Each example describes a physical property or quality of the snow itself. On any given day on the slopes, skiers necessarily encounter one or more of these snow conditions.

[*29] By contrast, an avalanche is “an event–one that not even necessarily involves snow.” Fleury v. IntraWest Winter Park Operations Corp., 2014 COA 13 (J. Jones, J., dissenting). In short, an avalanche is not a “physical state” of snow but a term that describes the movement of snow. Indeed, the majority recognizes that an avalanche describes an episode: a “fall or slide of a large mass . . . down a mountainside,” or a “mass of snow sliding, tumbling, or flowing down an inclined surface.” Maj. op. ¶ 15. Yet subsection (3.5) does not include the “movement” of snow among the “inherent dangers and risks” of skiing. Under the canon of statutory construction known as noscitur a sociis, “a word may be known by the company it keeps.” St. Vrain Valley Sch. Dist. RE-1J v. A.R.L., 2014 CO 33, ¶ 22, 325 P.3d 1014, 1021-22 (applying the canon by looking to the other terms grouped in a Colorado Governmental Immunity Act waiver for guidance in interpreting the term “public facility”). Here, the term “snow conditions” plainly refers to the physical state or [**21] quality of the snow itself: powder, packed powder, ice, slush, etc. Applying the canon of noscitur a sociis, a snow “condition” does not also contemplate the “movement” of snow–a wholly different concept. Indeed, in its own version of the SSA, the Idaho legislature recognized the obvious distinction between snow “conditions” and the “movement” of snow by separately providing that skiers assume the risk for both “snow or ice conditions” and “any movement of snow including, but not limited to, slides, sloughs or avalanches.” Idaho Code Ann. § 6-1106 (2015) (emphases added).

[*30] The majority nevertheless concludes that the phrase “snow conditions as they exist or may change” in subsection (3.5) encompasses the movement of snow by reasoning that the avalanche that killed Salynda Fleury’s husband was merely a “changing condition” of snow. But as discussed above, the “condition” of the snow refers to its physical quality (powder, ice, slush)–not an event, and not the snow’s location (piled on a precipice, nestled in tree branches, or lying at the base of a mountain). Consequently, a “change” in the “condition” of the snow under subsection (3.5) does not refer to a change in its location–or as the majority puts it, from “fresh snow on unstable snowpack” [**22] to “a mound of snow at bottom of the incline.” Maj. op. ¶ 16. Rather, a “change” in the “condition” of the snow simply refers to changes from one physical state or quality to another. Over the course of a few days or even a few hours, fresh “powder” can change to “packed powder.” A storm can change “hard pack” back to deep “powder.” On a spring day, “ice” can change to “hard pack,” to “slush,” and so on. But a “change” in the “condition” of snow hardly contemplates a change in the snow’s location, let alone an event like an avalanche. Accordingly, I simply cannot subscribe to the majority’s logic that the General Assembly intended “snow conditions as they exist or may change” to include avalanches.

[*31] Finally, the majority’s construction of this phrase cannot be squared with the remainder of the statute. The many hazards listed in section 33-44-103(3.5) as “inherent dangers and risks of skiing” are common, everyday conditions that any skier or snowboarder reasonably can expect to encounter on open portions of in-bounds ski areas. Importantly, each of these hazards represents dangers or risks that are either largely within a skier’s control (e.g., avoiding collisions with objects or other skiers, skiing within [**23] ability) or capable of being perceived, anticipated, assessed, and generally avoided by the skier’s choice (e.g., weather conditions, snow conditions, or terrain). See § 33-44-103(3.5).

[*32] But an avalanche is categorically different. Unlike weather, snow conditions, or terrain, the average skier lacks the training or resources to perceive and assess the risk of an avalanche on any given slope on any given day. Notably, the SSA allocates to ski area operators the risk of other hazards that fall outside of a skier’s ability to control or anticipate, but are within the ability of the ski area operator to mitigate or reasonably protect skiers therefrom. These include any “injury caused by the use or operation of ski lifts,” id., and injuries resulting from a ski area operator’s violation of SSA requirements like posting informative signage, § 33-44-106, C.R.S. (2015). Yet the majority’s construction of “snow conditions as they exist or may change” runs contrary to the rest of subsection (3.5) and allocates the risk of injury and death from an in-bounds avalanche not to ski area operators–which have the information, expertise, and resources to perceive and mitigate avalanche danger and protect skiers–but instead to the skiing public, which [**24] does not.

[*33] Perhaps the majority assumes that in-bounds avalanches can occur only on expert runs or in back bowl areas and that experienced skiers who venture onto steep, snowy slopes are knowledgeable about avalanche danger and rightly should assume the risk. However, the Trestle Trees area where Christopher Norris died was not a backcountry area but rather an open, designated run at Winter Park. Further, many expert slopes join beginner trails near the base of the mountain or have beginner-level catwalks that cross the expert runs. Under today’s holding, even a family of novice skiers traversing the mountain must be expected to look uphill, gauge the steepness of the slope, the quantity of fresh snow, and the multitude of other factors that avalanche forecasters consider, and assume the risk of being swept away by an avalanche.

[*34] Fleury alleges that Winter Park knew or should have known that the Trestle Trees area was likely to experience dangerous avalanches on the day of Norris’s death because avalanche warnings predicted heavy snows on a weak and unstable snowpack. Maj. op. ¶ 6. Despite these warnings, Winter Park neither closed the Trestle Trees nor warned skiers of the avalanche [**25] risk. Id. Certainly, ski area operators have ample incentive to mitigate the risk of avalanches and to protect skiers within their ski areas, lest the public take their ski vacations elsewhere. And without question, ski area operators go to great lengths to mitigate avalanche risk. But after today’s holding, Winter Park effectively has no duty at all to warn skiers of avalanche risk or to close a dangerous run based on such risk: the SSA does not require ski area operators to mitigate avalanches or to issue avalanche warnings, and the majority’s ruling today abrogates any common law duty of care to do so.2 In fact, under today’s holding, a ski area operator will be immune from liability for injuries from avalanches regardless of the circumstances–arguably even for avalanches triggered by the operator’s own negligent or reckless actions.3

2 The SSA does require ski area operators to print lift tickets containing a warning to skiers of the “inherent dangers and risks of skiing,” using language drawn from section 33-44-103(3.5). § 33-44-107(8)(c), C.R.S. (2015). Interestingly, this required lift ticket warning notifies skiers that they assume the risk of injury from a host of hazards, specifically: “[c]hanging weather conditions; existing and changing [**26] snow conditions; bare spots; rocks; stumps; trees; collisions with natural objects, man-made objects, or other skiers; variations in terrain; and the failure of skiers to ski within their own abilities.” Id. Like subsection (3.5), nowhere in this required warning does the term “avalanche” appear. And for the reasons stated above, I gravely doubt a skier would infer from this list that “avalanches” naturally fall under the category of “changing snow conditions.”

3 In 1996, a ski patroller threw an avalanche charge from a chairlift at Loveland Ski Area in Colorado and triggered a “massive” avalanche that uprooted trees and destroyed the patroller’s own 1986 Honda Civic, parked in a lot at the base of the mountain. See John Meyer, Loveland’s Over the Rainbow was cleared by a human-set avalanche, The Denver Post, Oct. 15, 2012, http://perma.cc/C9T4-6A28 .

[*35] I note that my view of section 33-44-103(3.5) does not lead to unlimited liability for ski area operators. A plaintiff such as Fleury still must prove Winter Park’s negligence, and it is likely that ski area operators’ mitigation efforts ordinarily would meet any reasonable duty of care. Moreover, the SSA limits ski area operators’ liability in other ways, including a two-year statute of limitations [**27] for all actions to recover damages for injury caused by the maintenance, supervision, or operation of a ski area, § 33-44-111, C.R.S. (2015), and a one-million-dollar cap on damages that may be recovered by a skier injured while using a ski area, § 33-44-113, C.R.S. (2015).

[*36] In sum, although the General Assembly easily could have added “avalanches” to its extensive list of inherent dangers and risks in subsection (3.5), it chose not to. Unlike the majority, I would not add words to that provision to create immunity where none presently exists but would instead leave that decision to the legislature.4 Because the existing statutory definition of “inherent dangers and risks of skiing” does not include avalanches, and because I cannot accept the majority’s strained logic that an avalanche is merely a “change” in the “condition” of the snow, I respectfully dissent.

4 I note that other states’ versions of the SSA expressly allocate avalanche liability between ski area operators and skiers. A previous version of Montana’s statute defined “inherent dangers and risks of skiing” as including “avalanches, except on open, designated ski trails.” Mont. Code Ann. § 23-2-702(2)(c) (2013). This section was amended in 2015 to provide that avalanches do not qualify as inherent dangers “on [**28] open, machine-groomed ski trails.” See 2015 Mont. Laws 299 (emphasis added). Alaska requires ski area operators to prepare and implement a plan of operation each ski season that includes provisions for avalanche control and rescue, Alaska Stat. § 05.45.040 (2015), and a ski area operator that violates this provision is negligent and may be held civilly liable, id. at § 05.45.020.

I am authorized to state that JUSTICE GABRIEL joins in this dissent.


Roberts v. T.H.E. Insurance Company, et al., 2016 WI 20; 2016 Wisc. LEXIS 121

Roberts v. T.H.E. Insurance Company, et al., 2016 WI 20; 2016 Wisc. LEXIS 121

Patti J. Roberts and David Roberts, Plaintiffs-Appellants-Petitioners, v. T.H.E. Insurance Company, Sundog Ballooning, LLC, Kerry M. Hanson and Jodi L. Hanson, Defendants-Respondents, Dean Health Plan, Inc., Defendant.

No. 2014AP1508

SUPREME COURT OF WISCONSIN

2016 WI 20; 2016 Wisc. LEXIS 121

December 15, 2015, Oral Argument

March 30, 2016, Filed

NOTICE:

THIS OPINION IS SUBJECT TO FURTHER EDITING AND MODIFICATION. THE FINAL VERSION WILL APPEAR IN THE BOUND VOLUME OF THE OFFICIAL REPORTS.

PRIOR HISTORY: [**1] REVIEW of a decision of the Court of Appeals. COURT: Circuit. COUNTY: Dodge. JUDGE: Joseph G. Sciascia. (L.C. No. 2013CV391).

Roberts v. T.H.E. Ins. Co., 2015 WI App 37, 363 Wis. 2d 656, 2015 Wisc. App. LEXIS 229 (2015)

DISPOSITION: Reversed and cause remanded.

COUNSEL: For the plaintiffs-appellants-petitioners, there were briefs by Timothy S. Knurr and Gruber Law Offices, LLC, Milwaukee and oral argument by Timothy S. Knurr.

For the defendants-respondents, there was a brief by Ward I. Richter, David G. Ress and Bell, Moore & Richter, S.C., Madison, WI and oral argument by David G. Ress.

JUDGES: ANN WALSH BRADLEY, J. ANNETTE KINGSLAND ZIEGLER, J. (concurring). DAVID T. PROSSER, J. (concurring in part; dissenting in part). REBECCA G. BRADLEY, J. (dissenting).

OPINION BY: ANN WALSH BRADLEY

OPINION

[*P1] ANN WALSH BRADLEY, J. Petitioners, Patti and David Roberts, seek review of an unpublished court of appeals decision that affirmed the circuit court’s order for summary judgment, dismissing their claims.1 The court of appeals determined that Wisconsin’s recreational immunity statute barred the petitioners’ claims because Patti Roberts was engaged in the recreational activity of hot air ballooning at the time she was injured.2

1 Roberts v. T.H.E. Ins. Co., No. 2014AP1508, 2015 WI App 37, 363 Wis. 2d 656, unpublished slip op., (Wis. Ct. App. Mar. 26, 2015) (affirming order of summary [**2] judgment entered by the circuit court for Dodge County, Joseph G. Sciascia, J., presiding).

2 Although Patti’s husband, David Roberts, is also a petitioner, we will refer to Patti Roberts as the lone petitioner for ease of discussion.

[*P2] Roberts argues that the respondents, Sundog Ballooning, LLC, Kerry Hanson, Jodi Hanson, and T.H.E. Insurance Company (collectively “Sundog”) are not entitled to immunity pursuant to Wis. Stat. § 895.52 because Sundog was not an owner under the statute. She contends that Sundog was neither an “occupier” of the land nor was the hot air balloon “property.”3

3 All subsequent references to the Wisconsin Statutes are to the 2013-14 version unless otherwise indicated.

[*P3] In reply, Sundog asserts that even if it were not entitled to immunity under Wis. Stat. § 895.52, Roberts’ claims are barred because she signed a waiver of liability form.

[*P4] We conclude that Sundog is not entitled to recreational immunity pursuant to Wis. Stat. § 895.52 because it is not an owner under the statute. Sundog was not an “occupier” of the land and the hot air balloon was not “property” because it was not a “structure.”4 Finally, we determine that Sundog’s waiver of liability form violates public policy and is unenforceable as a matter of law. Accordingly, [**3] we reverse the court of appeals and remand to the circuit court for further proceedings.

4 Roberts also argues that Sundog is not entitled to immunity under Wis. Stat. § 895.52 because Sundog’s negligence was not associated with a condition of the land. We need not reach this argument because we conclude that Sundog was not an owner under the statute. The issue of whether a party’s negligence is associated with a condition of the land applies only if that party is an owner under the statute. See, e.g., Linville v. City of Janesville, 184 Wis. 2d 705, 719, 516 N.W.2d 427 (1994); see also Kosky v. Int’l Ass’n of Lions Clubs, 210 Wis. 2d 463, 475, 565 N.W.2d 260 (Ct. App. 1997).

I.

[*P5] The relevant facts of this case are undisputed. Patti J. Roberts was injured at a charity event sponsored by Green Valley Enterprises (“Green Valley”). Beaver Dam Conservationists, LLC (“the Conservationists”) owned the shooting range where the charity event was held.

[*P6] Sundog Ballooning, LLC was the owner and operator of a hot air balloon providing tethered rides at the event. Kerry and Jodi Hanson, the owners of Sundog, donated hot air balloon rides to promote Green Valley’s charity event.

[*P7] On the day of the event, Sundog set up a display, a sign-up table and a waiting area for the ride. The hot air balloon was tethered to two trees and a pick-up truck. During rides, the balloon operator raised [**4] the balloon to the length of the ropes and then lowered it back to the ground.

[*P8] Patti Roberts and her family watched the balloon rides and then entered the line to take a ride. While in line, Sundog gave Roberts a waiver of liability form that she was required to sign prior to riding in the hot air balloon. Roberts signed the waiver form, but never returned it to Sundog. The signed waiver form was found on the event grounds after Roberts sustained her injuries.

[*P9] The liability waiver form states in part:

I expressly, willing, and voluntarily assume full responsibility for all risks of any and every kind involved with or arising from my participation in hot air balloon activities with Company whether during flight preparation, take-off, flight, landing, travel to or from the take-off or landing areas, or otherwise.

Without limiting the generality of the foregoing, I hereby irrevocably release Company, its employees, agents, representatives, contractors, subcontractors, successors, heirs, assigns, affiliates, and legal representatives (the “Released Parties”) from, and hold them harmless for, all claims, rights, demands or causes of action whether known or unknown, suspected or unsuspected, [**5] arising out of the ballooning activities . . . .

[*P10] After signing the form, Roberts waited in line for 20 to 30 minutes. During this time, strong winds caused one of the balloon’s tether lines to snap. As a result, the untethered balloon moved toward the spectators in line. Roberts was injured when she was struck by the balloon’s basket and knocked to the ground.

[*P11] The evidence submitted to the circuit court demonstrated that defendant Kerry Hanson, the balloon operator, had limited experience with tethered ballooning before giving rides at Green Valley’s event. Hanson testified in his deposition that he should have obtained information regarding weather fronts in the area. Had he known about the weather front on the day Roberts was injured, Hanson testified that he would have suspended the ride.

[*P12] Hot air ballooning is governed by FAA guidelines and rules. See, e.g., Fed. Aviation Admin., U.S. Dep’t. of Transp., Pub. No. FAA-H-8083-11A, Balloon Flying Handbook 7-13 (2008). The FAA’s safety recommendations instruct the balloon operator to plan for the failure of one or more of the tethered lines and have a backup plan for safety. See id. at 7-14. In addition, the operator should organize participants [**6] “far back” from the balloon and tether lines. Id. At his deposition, Hanson agreed that had he moved the sign-up table and waiting line further back from the balloon, Roberts would not have been injured.

[*P13] Roberts filed a lawsuit against Sundog, alleging that its negligence caused her injuries. Sundog moved the circuit court for summary judgment, arguing that it is entitled to immunity under Wis. Stat. § 895.52 and that Roberts’ claims were barred by the waiver of liability form that she signed.

[*P14] The circuit court granted Sundog’s summary judgment motion, dismissing Roberts’ claims and concluding that Sundog was entitled to immunity under Wis. Stat. § 895.52. It also determined that the waiver of liability form Roberts signed was valid as a matter of law, although an issue of fact remained as to whether she had accepted the terms.

[*P15] On appeal, Roberts argued that Sundog is not entitled to immunity because her injury was not related to a condition associated with the land. Roberts asserted that under Linville v. City of Janesville, 184 Wis. 2d 705, 516 N.W.2d 427 (1994) and Kosky v. Int’l Ass’n of Lions Clubs, 210 Wis. 2d 463, 565 N.W.2d 260 (Ct. App. 1997), no immunity attaches for negligent conduct unassociated with the land.

[*P16] The court of appeals rejected Roberts’ argument, determining that it was “based on a misreading of the case law . . . which has no application to the [**7] facts of this case.”5 See Roberts v. T.H.E. Ins. Co., No. 2014AP1508, 2015 WI App 37, 363 Wis. 2d 656, unpublished slip op., ¶17 (Wis. Ct. App. Mar. 26, 2015). It explained that this was “the only argument that Roberts makes directed to the application of Wis. Stat. § 895.[52].” Id., ¶22. The court of appeals did not address the validity of the liability waiver form because its decision as to immunity disposed of the appeal. Id., ¶2 n.2.

5 This Court has previously expressed its concern that the recreational immunity statue is often difficult to apply and has recommended that the legislature reexamine this statute. See, e.g., Auman v. School Dist. Of Stanley-Boyd, 2001 WI 125, ¶11, 248 Wis. 2d 548, 635 N.W.2d 762 (“This court has wrestled with applying the recreational immunity statute . . . since its enactment. . . . We continue to be frustrated in our efforts to state a test that can be applied easily because of the seeming lack of basic underlying principles in the statute.”); see also Urban v. Grasser, 2001 WI 63, ¶12, 243 Wis. 2d 673, 627 N.W.2d 511 (“Circuit courts, the court of appeals, and this court have wrestled with recreational immunity since the legislature first provided for such immunity under the law. We have all been frustrated by the seeming lack of basic underlying principles in our efforts to state a test that can be easily applied.”).

[*P17] Before this court, Roberts renews her argument [**8] that Sundog’s negligence was not connected to a condition associated with the land. Because this court ordered briefing on an additional issue, she also asserts that Sundog is not entitled to immunity under Wis. Stat. § 895.52 because it is not an owner under the statute. Roberts argues that Sundog was not an “occupier” of the land and that the hot air balloon was not “property” because it was not a “structure.” Sundog replies that even if it is not entitled to immunity under Wis. Stat. § 895.52, Roberts’ claims are barred because she signed a waiver of liability form.

II.

[*P18] In this case we are asked to review the circuit court’s grant of summary judgment. [HN1] We review grants of summary judgment applying the same methodology employed by the circuit court. Belding v. Demoulin, 2014 WI 8, ¶13, 352 Wis. 2d 359, 843 N.W.2d 373. Summary judgment is appropriate if “there is no genuine issue as to any material fact and [] the moving party is entitled to [] judgment as a matter of law.” Wis. Stat. § 802.08(2).

[*P19] Here, there is no genuine issue of material fact. Accordingly, we focus on whether the application of Wis. Stat. § 895.52 bars Roberts’ claims. [HN2] Statutory interpretation presents a question of law that we review independently of the determinations rendered by the circuit court and the court of appeals. State v. Dinkins, 2012 WI 24, ¶28, 339 Wis. 2d 78, 810 N.W.2d 787.

[*P20] [HN3] In interpreting a statute we begin [**9] by examining its language, giving words and phrases their common, ordinary, and accepted meaning. State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶¶45-46, 271 Wis. 2d 633, 681 N.W.2d 110. Statutory language must be interpreted reasonably to avoid absurd or unreasonable results. Id., ¶46.

[*P21] [HN4] When the legislature has expressly stated the purpose of a statute, the purpose is relevant to the plain meaning interpretation of the statute. See id., ¶48. “[A] plain-meaning interpretation cannot contravene a textually or contextually manifest statutory purpose.” Id., ¶49.

[*P22] [HN5] In examining an exculpatory contract, we likewise apply the same summary judgment methodology as employed by the circuit court. See Richards v. Richards, 181 Wis. 2d 1007, 1010-11, 513 N.W.2d 118 (1994) (citing Dobratz v. Thomson, 161 Wis. 2d 502, 513, 468 N.W.2d 654 (1991)). The validity of an exculpatory contract is reviewed as a matter of law. Id. at 1011.

III.

[*P23] We begin our analysis with a brief explanation of what is not in dispute. Neither party disputes that Roberts was participating in a recreational activity at the time she was injured because ballooning is listed in the statutory definition of “recreational activity.” [HN6] Wis. Stat. § 895.52(1)(g) defines “recreational activity” as: [A]ny outdoor activity undertaken for the purpose of exercise, relaxation or pleasure, including practice or instruction in any such activity. “Recreational activity” includes hunting, fishing, trapping, [**10] camping,… ballooning, hang gliding, hiking . . . .” (emphasis added).

[*P24] Furthermore, “[t]he case law is clear that a spectator who attends a recreational activity is engaged in a recreational activity.” Meyer v. School Dist. Of Colby, 226 Wis. 2d 704, 710, 595 N.W.2d 339 (1999); see also Linville, 184 Wis. 2d at 717 (concluding that preparation for a recreational activity that takes place at a recreational facility that is open for public use is a “recreational activity” as defined by Wis. Stat. § 895.52(1)(g)). Given that Roberts was on recreational land open to the public, watching the balloon rides as a spectator, and preparing for the balloon ride by waiting in line, she was engaged in a “recreational activity” as defined by Wis. Stat. § 895.52(1)(g).

A.

[*P25] Although Roberts does not dispute that she was engaged in a recreational activity, she does contest the issue of immunity. Roberts argues that Sundog is not entitled to immunity as an occupier of the property where she was engaged in a recreational activity.

[*P26] The recreational immunity statute Wis. Stat. § 895.52 provides:

(2) [HN7] NO DUTY; IMMUNITY FROM LIABILITY.

(a) Except as provided in subs. (3) to (6), no owner and no officer, employee or agent of an owner owes to any person who enters the owner’s property to engage in a recreational activity:

1. A duty to keep the property safe for recreational activities. [**11]

2. A duty to inspect the property, except as provided under s. 23.115(2).

3. A duty to give warning of an unsafe condition, use or activity on the property.

(b) Except as provided in subs. (3) to (6), no owner and no officer, employee, or agent of an owner is liable for the death of, any injury to, or any death or injury caused by, a person engaging in a recreational activity on the owner’s property . . . .

[*P27] [HN8] Wis. Stat. § 895.52(1)(d)1 defines an “owner” as “[a] person, including a governmental body or nonprofit organization, that owns leases or occupies property.” Wis. Stat. § 895.52(1)(f) further defines “property” as “real property and buildings, structures and improvements thereon . . . .”

[*P28] The legislative purpose of the recreational immunity statute is set forth in 1983 Wis. Act 418, § 1. Its stated purpose is to limit liability in order to encourage property owners to open their lands to the public:

The legislature intends by this act to limit the liability of property owners toward others who use their property for recreational activities under circumstances in which the owner does not derive more than a minimal pecuniary benefit. While it is not possible to specify in a statute every activity which might constitute a recreational activity, [**12] this act provides examples of the kinds of activities that are meant to be included, and the legislature intends that, where substantially similar circumstances or activities exist, this legislation should be liberally construed in favor of property owners to protect them from liability . . . . 1983 Wis. Act 418, § 1.

As our cases have explained, “the impetus for this law is the continual shrinkage of the public’s access to recreational land in the ever more populated modern world.” Hall v. Turtle Lake Lions Club, 146 Wis. 2d 486, 489, 431 N.W.2d 696 (Ct. App. 1988).

[*P29] In reply, Sundog argues that it is entitled to recreational immunity because Roberts was injured at an event similar to those in prior cases. Sundog asserts that it is entitled to immunity as an “occupier” of the land, for the same reasons that the producer of a fair or event qualifies for recreational immunity. Prior cases interpreting Wisconsin’s recreational immunity law have concluded that the producer of a fair or event “occupied” property. See, e.g., Id., at 490; Lee v. Elk Rod & Gun Club, Inc., 164 Wis. 2d 103, 106, 473 N.W.2d 581 (Ct. App. 1991); Weina v. Atlantic Mut. Ins. Co., 179 Wis. 2d 774, 777 n.2, 508 N.W.2d 67 (Ct. App. 1993).

[*P30] As Sundog’s counsel aptly argued, Wisconsin courts have concluded private organizations hosting an event on land they did not own are entitled to recreational immunity. In Hall, the plaintiff was injured when he stepped in a hole on the grounds of [**13] the Turtle Lake Village Park during a fair sponsored by the Turtle Lake Lions Club. 146 Wis. 2d at 487. The Lion’s Club was not the titled owner of the land on which it held the fair. Id. at 490. The court of appeals concluded that the Lions Club was entitled to recreational immunity as a “landowner” that allowed Hall entry for “recreational activity.” Id. at 487-89.

[*P31] Likewise, in Lee, the plaintiff was injured when he slipped and fell on icy ground beneath a tent erected by the Elk Rod & Gun Club for a fishing contest on Bugle Lake. 164 Wis. 2d at 105. Lee explained that “[t]he club, as an occupant of the city park land, is treated as a landowner for purposes of recreational immunity.” Id. at 107 (citing Hall, 146 Wis. 2d at 490-91).

[*P32] Again, in Weina, the plaintiff was injured playing softball at a church picnic held at a public park. 179 Wis. 2d at 776. The plaintiff sued both the church and the teammate who hit the injurious baseball. Id. Granting summary judgment in favor of the church, the circuit court denied the teammate’s motion for summary judgment. Id. at 777 n.1. The court of appeals affirmed the circuit court’s judgment that the church, as the event organizer, was entitled to immunity. Id. at 779.

[*P33] This case is different from prior cases, however, because Roberts did not bring claims against the event producer or owner of the property. Green Valley [**14] Enterprises, not Sundog, produced the charity event where Roberts was injured. The Conservationists, not Sundog, was the owner of the property where the event took place. None of the prior cases interpreting Wis. Stat. § 895.52 has granted immunity to a third party not responsible for opening up the land to the public.6

6 Wis. Stat. § 895.52(2) grants immunity to officers, employees, or agents of an owner. Because the parties in this case did not argue or brief the issue of whether Sundog was an officer, employee, or agent of either the Conservationists or Green Valley, we do not address it. [HN9] We need not address issues that have not been raised or argued by the parties. See, e.g., State v. Steffes, 2013 WI 53, ¶28, 347 Wis. 2d 683, 832 N.W.2d 101.

[*P34] The distinction between Sundog and the producer of a fair or event is supported by case law analyzing the definition of “occupy” in the context of the statute’s policy. In Doane v. Helenville Mut. Ins. Co., 216 Wis. 2d 345, 355, 575 N.W.2d 734 (Ct. App. 1998), the court of appeals held that the owner of an ice shanty was not an occupier under Wis. Stat. § 895.52. As Doane explained, [HN10] “occupy” is defined as “to take and hold possession.” Id. at 354 (citing Webster’s New Collegiate Dictionary 794 (8th ed. 1974)). The term “occupy,” as it is used in Wis. Stat. § 895.52, has been defined as “requiring a degree of permanence, as opposed to mere use.” Id. (citations ommitted).

[*P35] Underlying [**15] the Doane decision was the same statutory policy at issue here. As Doane explained, to define the owner of the ice shanty as an occupier “would not further the policy which underlies the statute, i.e., of opening as much property as possible for recreational use, because the lake was already held in trust for public recreational purposes, such as fishing.” Id. at 355. Here, as in Doane, defining Sundog as an “occupier” would not further the policy underlying the statute because the Conservationists’ property was already open for public recreational purposes.

[*P36] The Linville court also explained that we must consider whether immunity will encourage landowners to open the land for public use:

The benefits of granting immunity, i.e., encouraging landowners to open their lands to the public, comes from immunizing people or municipalities in their capacities as landowners . . . . Extending immunity to landowners for negligently performing in a capacity unrelated to the land . . . will not contribute to a landowner’s decision to open the land for public use.

184 Wis. 2d 705, 516 N.W.2d 427.

[*P37] Here, it was Green Valley and the Conservationists—- not Sundog—-that were responsible for opening the land to the public. The Conservationists [**16] allowed Green Valley to host an event on the land. Green Valley was responsible for organizing the event and bringing people onto the land. Sundog provided hot air balloon rides on land that was owned by the Conservationists and occupied by Green Valley. Immunizing Sundog would have no effect on whether the public had access to private land, because Sundog is not responsible for opening the land to the public.

[*P38] We also find Linville instructive in determining the logical stopping point for immunity. In Linville, the court analyzed whether granting immunity to city paramedics could create limitless immunity for all medical services provided for injuries sustained while recreating. 184 Wis. 2d 705, 516 N.W.2d 427. “Such services could conceivably take place days or even weeks after the recreational activity, at facilities far removed from the site of recreation, and by persons in no way connected to the land on which the accident occurred.” Id. at 720. “Such a result is absurd, leaves immunity limitless, and therefore could not have been intended by the legislature.” Id.

[*P39] [HN11] Wis. Stat. § 895.52 “was not enacted to provide indiscriminate immunity for landowners without regard to possible consequences.” Id. at 719 (quoting Ervin v. City of Kenosha, 159 Wis. 2d 464, 477, 464 N.W.2d 654 (1991)). Extending immunity to Sundog could [**17] lead to limitless immunity. Sundog is not the owner of the land. It is not occupying the land as an event organizer and is therefore not responsible for opening up the land to the public. If Sundog—-who has no connection to the land—-is granted immunity, there will be no stopping point to recreational immunity.

[*P40] For example, what if Roberts brought a claim against the manufacturer of the hot air balloon that injured her? What if the tether that broke loose was due to a fault in the manufacture of the balloon, rather than the wind? Should the balloon manufacturer, which had no connection to opening the land to the public, be immunized because ballooning is a recreational activity?

[*P41] Granting immunity to third parties that are not responsible for opening up the land to the public is unsupported by our prior case law. In addition, it would create an absurd result with no logical stopping point that does nothing to further the legislative purpose of the statute. Accordingly, we conclude that Sundog is not entitled to recreational immunity under Wis. Stat. § 895.52 because it was not an “occupier” of the land.

B.

[*P42] Next, Sundog argues that it is entitled to immunity not only as an “occupier” of real property, but [**18] also as an owner of “property” because the hot air balloon is a structure pursuant to Wis. Stat. § 895.52(1)(f). [HN12] “Property” means real property and buildings, structures and improvements thereon. Wis. Stat. § 895.52(1)(f).

[*P43] The term “structure” is not defined in Wis. Stat. § 895.52, and is therefore given its common and ordinary meaning. Peterson v. Midwest Sec. Ins. Co., 2001 WI 131, ¶16, 248 Wis. 2d 567, 636 N.W.2d 727. A “structure” is “something constructed,” or “something made up of a number of parts that are held or put together in a particular way.” Id. (citing American Heritage Dictionary of the English Language, 1782 (3d ed. 1992)). “Structure” is also defined as “[a]ny construction, or any production or piece of work artificially built up or composed of parts joined together in some definite manner.” Id. (citing Black’s Law Dictionary, 1424 (6th ed. 1991)).

[*P44] Sundog relies on Peterson, in which this court held that the owner of a tree stand was entitled to immunity as the owner of a “structure” on real property. Id., ¶4. Peterson adopted the court of appeals’ decision in Doane. Peterson, 248 Wis. 2d 567, ¶20. The Doane court identified three categories of property that qualify owners for immunity: (1) real property; (2) buildings, structures and improvements thereon; and (3) waters of the state. Doane, 216 Wis. 2d at 352. Sundog argues that like the tree stand in Peterson, the hot air balloon [**19] is a structure because it was constructed or put together in a particular way and made up of parts joined together.

[*P45] Although it may have been made up of parts joined together, the hot air balloon ride was not constructed on real property. In Peterson, the tree stand was permanent and built or constructed on the real property. See Peterson, 248 Wis. 2d 567, ¶¶5-7. The hot air balloon in this case was transient and designed to be moved at the end of the day. It was also not designed to remain in one place. The balloon was tethered to two trees and a pick-up truck because of the manner in which Sundog was using it on the day of the event. Thus, we conclude that the hot air balloon is not a structure as that term is applied in Wis. Stat. § 895.52(1)(f).

[*P46] Accordingly, we conclude that Sundog is not entitled to recreational immunity under Wis. Stat. § 895.52 because it is not an owner under the statute. Sundog was not an “occupier” of the land and the hot air balloon was not “property” because it is not a “structure.”

IV.

[*P47] Having determined that Sundog is not entitled to immunity under Wis. Stat. § 895.52, we must address whether Roberts’ claims are barred by Sundog’s exculpatory release. Sundog argues that the waiver of liability form that Roberts signed is valid under Wisconsin law. [**20]

[*P48] [HN13] Wisconsin case law does not favor exculpatory agreements. See, e.g., Atkins v. Swimwest Family Fitness Center, 2005 WI 4, ¶12, 277 Wis. 2d 303, 691 N.W.2d 334. “While this court has not held that an exculpatory clause is invalid per se, we have held that such a provision must be construed strictly against the party seeking to rely on it.” Id., ¶12 (citing Yauger v. Skiing Enters., Inc., 206 Wis. 2d 76, 81, 557 N.W.2d 60 (1996); Merten v. Nathan, 108 Wis. 2d 205, 210-11, 321 N.W.2d 173 (1982)).

[*P49] Our analysis of an exculpatory contract begins with examining the facts and circumstances of the agreement to determine if it covers the activity at issue. Atkins, 277 Wis. 2d 303, ¶13 (citing Arnold v. Shawano County Agric. Soc’y, 111 Wis. 2d 203, 211, 330 N.W.2d 773 (1983), overruled on other grounds). If the contract covers the activity, we proceed to a public policy analysis, “which remains the ‘germane analysis’ for exculpatory clauses.” Id., ¶13 (citing Yauger, 206 Wis. 2d at 86). “We generally define public policy as ‘that principle of law under which freedom of contract or private dealings is restricted by law for the good of the community.'” Id., ¶14 (quoting Merten, 108 Wis. 2d at 213).

[*P50] This court has found [HN14] an exculpatory agreement to be invalid if it contains misrepresentations, if it too broadly defines the location and actions covered, or if it is ambiguous and uncertain. See, e.g., Merten, 108 Wis. 2d at 214-15; see also Arnold, 111 Wis. 2d at 211-13; Dobratz, 161 Wis. 2d at 526. Our prior decisions have also set forth the factors to apply in analyzing whether a contract is void as a matter of law.

[*P51] In Richards, 181 Wis. 2d 1007, 513 N.W.2d 118, the plaintiff was injured while accompanying [**21] her husband on a trip. The waiver in Richards was both an application for permission to be a passenger and a release of all claims against the trucking company. Id. at 1012. Richards held that the contract was void as against public policy because: (1) the contract served two purposes which were not clearly identified or distinguished; (2) the release was extremely broad and all-inclusive; and (3) the release was in a standardized agreement printed on the Company’s form, offering little or no opportunity for negotiation or free and voluntary bargaining. Id. at 1011.

[*P52] In Yauger, 206 Wis. 2d 76, 557 N.W.2d 60, an 11-year old skier was killed when she struck a concrete ski lift tower pylon. Prior to the ski season, her father signed an “application” for a season family lift ticket. Id. at 79. The application stated: “I agree that [] [t]here are certain inherent risks in skiing and that we agree to hold [the ski resort] harmless on account of any injury incurred . . . on the [ski resort] premises.” Id. at 79. “Inherent risks” and “premises” were not defined. Id. at 84-85.

[*P53] The Yauger court unanimously concluded that the agreement was void as against public policy because: (1) it failed to clearly, unambiguously, and unmistakably explain to the signatory that he was accepting the risk [**22] of Hidden Valley’s negligence; and (2) the form when considered in its entirety failed to alert the signer to the nature and significance of the document being signed. Id. at 78.

[*P54] More recently in Atkins, this court considered the enforceability of an exculpatory agreement after a swimmer drowned in a lap pool at a fitness center. Atkins, 2005 WI 4, 277 Wis. 2d 303, 691 N.W.2d 334. As a condition of being allowed to use the center, the swimmer had to complete a guest registration and waiver release statement form. Id., ¶3. The form was preprinted on a five and one-half inch square card, and the entire card was printed in capital letters of the same size, font, and color. Id., ¶4.

[*P55] Atkins held that the waiver was invalid, noting that “Wisconsin case law does not favor [exculpatory] agreements,” and “such a provision must be construed strictly against the party seeking to rely on it.” Id., ¶12. The Atkins court adopted a combination of the Yauger and Richards factors in its decision: (1) the waiver was overly broad and all-inclusive; (2) the form served two functions and did not provide the signer adequate notification of the waiver’s nature and significance; and (3) there was little or no opportunity to bargain or negotiate in regard to the exculpatory [**23] language in question. Id., ¶18; see also Alexander T. Pendleton, Enforceable Exculpatory Agreements: Do They Still Exist?, 78 Wis. Law. 16, 46 (Aug. 2005).

[*P56] Turning to the release at issue in this case, it is undisputed that Sundog required Roberts to sign a waiver prior to riding in the hot air balloon. Roberts signed the waiver while she was waiting in line for the ride, but never returned it. The signed waiver was found on the event grounds after she was injured by the hot air balloon.

[*P57] Sundog argues that Roberts read the release, understood its importance, and understood she was waiving her right to bring a negligence claim. It also asserts that Roberts had the opportunity to bargain and ask questions, but failed to do so. Roberts counters that she never accepted the liability waiver form because she never returned it to Sundog. She also argues that the waiver is void as a matter of law because it violates public policy.

[*P58] We agree with Roberts that the waiver of liability form is unenforceable as a matter of law because it fails to satisfy the factors set forth in our prior case law. Because the waiver is void as a matter of law, we need not address the question of whether Roberts [**24] accepted the agreement.7

7 Additionally, we do not address whether the question of Roberts’ “acceptance” presents a question of fact or law here.

[*P59] First, Sundog’s exculpatory waiver is overly broad and all-inclusive. As our prior cases have explained, [HN15] an agreement cannot be so broad “that it would absolve [the defendant] from any injury to the [plaintiff] for any reason.” Richards, 181 Wis. 2d at 1015 (citing College Mobile Home Park & Sales, Inc. v. Hoffmann, 72 Wis. 2d 514, 521-22, 241 N.W.2d 174 (1976)).

[*P60] The waiver in this case would absolve Sundog for any activity for any reason, known or unknown:

I expressly, willing, and voluntarily assume full responsibility for all risks of any and every kind involved with or arising from my participation in hot air balloon activities with Company whether during flight preparation, take-off, flight, landing, travel to or from the take-off or landing areas, or otherwise.

Without limiting the generality of the foregoing, I hereby irrevocably release Company, its employees, agents, representatives, contractors, subcontractors, successors, heirs, assigns, affiliates, and legal representatives (the “Released Parties”) from, and hold them harmless for, all claims, rights, demands or causes of action whether known or unknown, suspected or unsuspected, arising out of the ballooning [**25] activities…

Not only is the waiver overly broad, it is not clear whether waiting in line for the ride is something Roberts would have contemplated as being covered by the waiver, especially because she was not required to return the waiver before she got into the line.

[*P61] Second, the release was a standard agreement printed on the company’s form, offering Roberts no opportunity to bargain or negotiate in regard to the exculpatory language in question. See Richards, 181 Wis. 2d at 1011. [HN16] “Freedom of contract is premised on a bargain freely and voluntarily made through a bargaining process that has integrity.” Id. at 1016.

[*P62] Sundog concedes that the waiver of liability was a standard form. In order to ride the balloon, Roberts was told she would have to sign “this document.” Sundog did not discuss the content of the waiver or any of the risk associated with ballooning activities or watching others ride with Roberts. There was also no pre-flight meeting as referenced in the agreement. Roberts was not asked if she had any complaints or concerns with the waiver and she did not have an opportunity to negotiate the terms of the waiver.

[*P63] Thus, the liability waiver form is void as a matter of law. It is overly broad, printed on a standard [**26] form, and Sundog did not provide Roberts with an opportunity to bargain over the terms of the contract. As our prior case law demands, [HN17] we will not uphold a waiver of liability that violates public policy.

V.

[*P64] In sum, we conclude that Sundog is not entitled to recreational immunity under Wis. Stat. § 895.52 because it is not an owner under the statute. Sundog was not an “occupier” of the land and the hot air balloon was not “property” because it was not a “structure.”

[*P65] Accordingly, we reverse the court of appeals and remand to the circuit court for further proceedings.

By the Court. — The decision of the court of appeals is reversed and the cause is remanded to the circuit court for further proceedings.

CONCUR BY: ANNETTE KINGSLAND ZIEGLER; DAVID T. PROSSER (In Part)

CONCUR

[*P66] ANNETTE KINGSLAND ZIEGLER, J. (concurring). I join the opinion of the court because I agree that Sundog is not entitled to recreational immunity under Wis. Stat. § 895.52 (2013-14) and that Sundog’s waiver of liability form is unenforceable. The court appropriately does not reach the questions of whether Roberts’ injuries arose from a condition or maintenance of the land and, if not, whether Linville v. City of Janesville, 184 Wis. 2d 705, 516 N.W.2d 427 (1994), and Kosky v. International Ass’n of Lions Clubs, 210 Wis. 2d 463, 565 N.W.2d 260 (Ct. App. 1997), preclude the attachment of immunity to Sundog under § 895.52, see majority op., ¶4 [**27] n.4, because resolution of that issue is not necessary to the disposition of this case.

[*P67] I feel compelled to comment briefly on the condition-or-maintenance issue so that the position set forth by the court of appeals below is not read as the only possible view of the matter. Simply stated, while the policy behind the statute is to encourage landowners to open their land to the public, the recreational immunity statute does not cloak a negligent actor with immunity no matter what they do.

[*P68] Unlike the court of appeals below, I conclude that there is a patent “division of functions” at play in this case. Roberts v. T.H.E. Ins. Co., No. 2014AP1508, 2015 WI App 37, 363 Wis. 2d 656, unpublished slip op., ¶20 (Wis. Ct. App. Mar. 26, 2015). Put differently, Sundog’s “immunity for its functions as [occupier] of recreational land cannot shelter its liability for negligently performing another function,” namely the operation of its hot air balloon business. Linville v. City of Janesville, 184 Wis. 2d 705, 711 516 N.W.2d 427 (1994). This conclusion is consistent with Linville, Kosky, and the recreational immunity statute.

[*P69] Wisconsin Stat. § 895.52(2)(b) states in part, “[N]o owner . . . is liable for the death of, any injury to, or any death or injury caused by, a person engaging in a recreational activity on the owner’s property . . . .” Despite [**28] the broad nature of this language, we concluded in Linville that an “owner” under the statute might sometimes function in a capacity unrelated to its ownership of land, and that the owner should not be immunized against claims that the owner engaged in negligent conduct when operating in that capacity. Linville, 184 Wis. 2d at 720-21. Hence, a municipal owner of a pond in which a four-year-old boy drowned despite the efforts of paramedics employed by the owner was immune under § 895.52 from claims that its pond was negligently maintained, but not immune from claims that it negligently performed in its capacity as provider of paramedic services. Id.

[*P70] This conclusion followed from our recognition that “[t]he policy behind the statute is to encourage property owners to open their lands for recreational activities by removing a property user’s potential cause of action against a property owner’s alleged negligence.” Id. at 715. We reasoned that Wis. Stat. § 895.52 “was not enacted to provide indiscriminate immunity for landowners without regard to possible consequences” and that “[e]xtending immunity to landowners for negligently performing in a capacity unrelated to the land . . . will not contribute to a landowner’s decision to open the land for public use.” Id. at 719 (citation [**29] omitted).

[*P71] The court of appeals applied Linville just a few years later when an individual who suffered injuries assisting in the detonation of fireworks for a display sued the owner of land on which the fireworks display occurred, alleging that the owner had negligently managed the display. Kosky v. Int’l Ass’n of Lions Clubs, 210 Wis. 2d 463, 468-70, 476-77, 565 N.W.2d 260 (Ct. App. 1997). The court of appeals concluded, relying on Linville, that the landowner—-which was an “occupie[r]” under the recreational immunity statute—-was not immune because the allegedly negligent activities of the owner and its employees related to the detonation of fireworks, not “the condition or maintenance of the land” which it owned. Id. at 468, 470 n.3, 476-77. “[R]ecreational immunity,” the court determined, “does not attach to the landowner when an act of the landowner’s officer, employee or agent that is unrelated to the condition or maintenance of the land causes injury to a recreational land user.” Id. at 475.

[*P72] In the instant case, Roberts cites Linville and Kosky and argues that Sundog’s alleged negligence—-the use of an “improper tethering system” and the decision “to proceed with a tethered balloon event in the face of a known storm/gust front”– –did not relate to a condition of the land. Therefore, Roberts argues, immunity does not attach. In dismissing [**30] this argument, the court of appeals declared: “Roberts identifies no . . . division of functions here. Rather, as stated above, Roberts sued Sundog as owner of property on which Patti Roberts was engaging in a recreational activity.” Roberts, 2015 WI App 37, 363 Wis. 2d 656, unpublished slip op., ¶20.

[*P73] This conclusion is perplexing, because there is a clear potential division of functions in this case: Sundog the property owner (occupier) and Sundog the hot air balloon company owner.1 The approach taken by the court of appeals below leads to the “indiscriminate immunity” against which we warned in Linville, upsetting the balance struck by the Legislature in both ensuring the protection of the public and incentivizing landowners to allow access to their land. Linville, 184 Wis. 2d at 719; see Ervin v. City of Kenosha, 159 Wis. 2d 464, 478, 464 N.W.2d 654 (1991).

1 The division of functions is only “potential” because, as explained, Sundog is not actually an owner under Wis. Stat. § 895.52(1)(d). See majority op. ¶4.

[*P74] Wisconsin Stat. § 895.52 protects property owners who open their land to the public, but it does not necessarily provide a shield to business owners who are negligent in the operation of their business. See § 895.52(1)(d)1. (defining “[o]wner” to mean, inter alia, “[a] person . . . that owns, leases or occupies property” (emphasis added)). Indeed, it is the partial purpose of § 895.52’s sister [**31] statute, § 895.525 (“Participation in recreational activities; restrictions on civil liability, assumption of risk”), “to help assure the continued availability in this state of enterprises that offer recreational activities to the public.” Wis. Stat. § 895.525(1) (emphasis added). These enterprises are nowhere mentioned in § 895.52, which does not pertain to them.

[*P75] The Linville and Kosky courts recognized that Wis. Stat. § 895.52 grants recreational immunity, not sovereign immunity, and that the protections offered by § 895.52 end when a landowner performs negligently in a capacity unrelated to the individual’s ownership of the land. These considerations govern here.

[*P76] A hypothetical helps illustrate. One of the many pleasant diversions included in Wis. Stat. § 895.52(1)(g)’s definition of “[r]ecreational activity” is “rock-climbing.” § 895.52(1)(g). If a landowner in northern Wisconsin owns a piece of property with a cliff on it and wishes, out of the goodness of her heart, to allow the local weekend rock-climbers’ club to use the cliff for practice, the legislature has determined via § 895.52 that she should not be penalized if, for example, an unfortunate climber plummets to his death from the cliff. This seems reasonable enough, as a grant of such immunity encourages the landowner to open the land to climbers [**32] without fear of negative repercussions. See Linville, 184 Wis. 2d at 715. On the other hand, imagine that the landowner decides to capitalize on her property’s attraction and opens an outdoor rock-climbing business, providing training, ropes, and safety equipment to climbers. Under the interpretation of the statute espoused by the court of appeals, if the landowner should decide to continue allowing the unsuspecting local club to climb for free, or opens up her land for a charity event, she can operate her business negligently with respect to the club or to the eventgoers—-snapping ropes, cracked helmets, improper training—-without fear.

[*P77] This hypothetical is not much different than the current case: in both instances there is a potential landowner/occupier who provides access to land but who also allegedly negligently provides recreational activity services on that land.

[*P78] The scope of immunity provided by this reading of Wis. Stat. § 895.52 is potentially enormous, but there is a more reasonable interpretation: the one applied in Linville and Kosky. Assuming that Sundog could be characterized as an “owner” under § 895.52(1)(d)—-and the opinion of the court correctly concludes that it can not, see majority op. ¶4—-then it is immune insofar as it [**33] is sued in its capacity as “owner” of the patch of land on which it was offering free balloon rides. It is not immune, however, insofar as it is sued in its capacity as owner of a hot air balloon company. This is the division of functions that the court of appeals found lacking. Just as holding the cliff-owner in the hypothetical liable for snapping ropes, cracked helmets, and improper training will not discourage the owner from allowing climbers to use the cliff without the involvement of her business, failing to grant Sundog immunity as a business operator will not discourage it from “opening” its land for recreational activities (that is, activities not conducted by Sundog).

[*P79] In fairness, application of the statute to facts such as these produces some cognitive dissonance, because, had Sundog been found to be an “occupie[r],” it would not really be a property owner in the sense that most people are used to thinking about that phrase. Sundog would only be a property owner under the recreational immunity statute because it “occupie[d]” the Conservationists’ land, and it was only occupying the Conservationists’ land because it wanted to offer free balloon rides. But it must be remembered that we are essentially [**34] thinking of two Sundogs for purposes of the Linville/Kosky analysis: business owner Sundog, which provides hot air balloon rides, and occupier Sundog, which stands on the sidelines and watches the eventgoers happily use “its” property free of charge.

[*P80] Importantly, and contrary to what Roberts seems to argue, this interpretation should not be misconstrued to mean that immunity under Wis. Stat. § 895.52 extends only to injuries associated with the physical land itself, e.g., injuries from holes in the ground. Wisconsin Stat. § 895.52(2)(b) provides immunity to owners for any “death of, any injury to, or any death or injury caused by, a person engaging in a recreational activity on the owner’s property.” § 895.52(2)(b) (emphases added). But the fact remains that immunity is extended to the “owner,” i.e. the property owner—-not to, for instance, a business operator also on that property. Thus, if someone is accidentally shot while hunting on a landowner’s property, the landowner is seemingly immune from suit against her as landowner (even though the bullet is not “associated” with a condition of the land). But if the landowner also operates a hunting supply shop on the land, opens the land for a charity event, and proceeds to provide negligently-maintained [**35] firearms to participants, it might be that recreational immunity would not attach to the entity in its capacity as a business owner.

[*P81] Ultimately, because Sundog is not an “owner” under Wis. Stat. § 895.52(1)(d), the question of whether it operated in two distinct capacities at the charity event is not relevant to the outcome of this case. However, the court of appeals should not be the only word on this important question, which is wisely left unanswered by the opinion of the court.2

2 Justice Prosser’s partial concurrence criticizes my post-Linville analysis through use of a pre-Linville case, Ervin v. City of Kenosha, 159 Wis. 2d 464, 464 N.W.2d 654 (1991) (and, even more daringly, through use of a pre-1983 Wis. Act 418 case, Wirth v. Ehly, 93 Wis. 2d 433, 287 N.W.2d 140 (1980)). Concurrence, ¶¶125, 127. The partial concurrence notes that the author of Linville was also the sole dissenter from Ervin. Concurrence, ¶128. If the question is whether Linville eroded any of the principles in Ervin, one would think this fact hinders rather than helps the partial concurrence’s case. Regardless, there is no need to attempt to divine the meaning of Linville’s authorship, because my analysis is not “squarely at odds” with Ervin. Concurrence, ¶125.

This is because the City of Kenosha’s (“the City”) actions in Ervin were arguably performed [**36] in its capacity as property owner rather than, for instance, in its capacity as a business owner. The facts underlying that case took place at a beach owned by the City of Kenosha and “staffed by four lifeguards employed and trained by the City.” Ervin, 159 Wis. 2d at 469-70. In the summer of 1987, two minors drowned in the water off the beach. Id. at 468-69. The City was sued, among other things, for the alleged negligence of its lifeguards and for its own allegedly negligent hiring and failure to train them. Id. at 471-72. This court held that the City was immune from such allegations under the recreational immunity statute. Id. at 469.

Returning to my earlier hypothetical, Ervin is analogous to a circumstance in which a cliff-owner (or somebody hired by the cliff-owner) stands by and watches while a climber using the cliff for free plummets to her death. Nothing in Ervin indicates that the City was stepping outside of its role as landowner (indeed, it had not formally interviewed its lifeguards or even provided its lifeguards with “skills testing [or] lifeguard, first-aid or rescue training”). Id. at 471. Put differently, although the Ervin court seemingly rejected an “active/passive negligence distinction” with respect to landowners’ negligence under [**37] the recreational immunity statute, the court said nothing about the operation of the statute when landowners act in a non-proprietary capacity. See, e.g., id., at 476-77 (“If liability were imposed on landowners for negligence in failing to provide adequate safety measures, it would encourage landowners to provide no safety measures.” (emphases added)). That came later, in Linville. As opposed to Ervin, wherein the City had “gratuitously” provided a few “lifeguards” without “skills testing [or] lifeguard, first-aid or rescue training” to stand post on the single parcel of property at issue, id., 471-77, the City of Janesville operated a team of paramedics which provided city-wide services and which had little to do with the ownership of the municipal pond in particular. See State v. Linville, 184 Wis. 2d 705, 720-21, 516 N.W.2d 427.

While I understand the partial concurrence’s reading of Linville and find it to be a reasonable one in isolation, it is at odds with a principal expositor of Linville, Kosky v. International Ass’n of Lions Clubs, 210 Wis. 2d 463, 565 N.W.2d 260 (Ct. App. 1997). Justice Prosser would need to overrule a substantial amount of law to arrive at his interpretation of the recreational immunity statute.

[*P82] For the foregoing reasons, I respectfully concur.

DISSENT BY: DAVID T. PROSSER (In Part); REBECCA G. BRADLEY

DISSENT

[*P83] DAVID T. PROSSER, J. (concurring in part; dissenting [**38] in part). This case involves an unfortunate accident that occurred at a charity event in Beaver Dam on July 30, 2011. I agree with the majority opinion that “Sundog’s waiver of liability form violates public policy and is unenforceable as a matter of law.” Majority op., ¶4. However, I also agree with the dissenting opinion of Justice Rebecca G. Bradley that “Sundog meets the statutory requirements to obtain recreational immunity because: (1) it falls within the definition of ‘owner,’ which includes ‘a person . . . that . . . occupies property;’ and (2) Patti Roberts engaged in a recreational activity on the property occupied by Sundog.” Dissent, ¶132. Consequently, I join the dissenting opinion of Justice Rebecca Bradley except for footnote 4.

[*P84] My purpose in writing is to reinforce the inexorable logic of Justice Bradley’s dissent and respond to the concurrence of Justice Ziegler.

[*P85] Wisconsin Stat. § 895.52 reads in part as follows:

(2) NO DUTY; IMMUNITY FROM LIABILITY. (a)

Except as provided in subs. (3) to (6), no owner and no officer, employee or agent of an owner owes to any person who enters the owner’s property to engage in a recreational activity:

. . . .

3. A duty to give warning of an unsafe condition, [**39] use or activity on the property.

(b) Except as provided in subs. (3) to (6), no owner and no officer, employee or agent of an owner is liable for . . . any injury to . . . a person engaging in a recreational activity on the owner’s property . . . .

[*P86] Critical to the interpretation of this statute is the definition of “owner.”

“Owner” means either of the following:

1. A person, including a governmental body or nonprofit organization, that owns, leases or occupies property.

2. A governmental body or nonprofit organization that has a recreational agreement with another owner.

Wis. Stat. § 895.52(1)(d).

[*P87] In this case, we should analyze three different entities: (1) Beaver Dam Conservationists, LLC; (2) Green Valley Enterprises; and (3) Sundog Ballooning, LLC (and its owners, Kerry M. Hanson and Jodi L. Hanson) (Sundog).

[*P88] “Beaver Dam Conservationists, LLC . . . owned the shooting range where the charity event was held.” Majority op., ¶5. The shooting club was thus an owner.

[*P89] The shooting club donated use of its property to Green Valley Enterprises, a charitable organization, which opened the property free to the public as part of a charitable fundraiser. Of course, Green Valley could not have opened up the property to the [**40] public if Beaver Dam Conservationists had not “opened up” the property for Green Valley’s charitable event.

[*P90] Green Valley was an “owner” under Wis. Stat. § 895.52(1)(d)1. because it occupied the property with the permission of an owner. In addition, it was an owner under (d)2. if it signed “a recreational agreement” with Beaver Dam Conservationists.1 Whether Green Valley actually signed a “recreational agreement” is not known.

1 “Recreational agreement” is defined in Wis. Stat. § 895.52(1)(h) to mean “a written authorization granted by an owner to a governmental body or nonprofit organization permitting public access to all or a specific part of the owner’s property for any recreational activity.”

[*P91] The principal issue in this court is whether Sundog also is an “owner” by virtue of occupying the property.

[*P92] This was not the principal issue in the circuit court. In fact, this was not an issue at all in the circuit court. In its motion for summary judgment, Sundog explained at length that it was an “owner” under the statute because it occupied the property.

[*P93] The plaintiffs did not dispute this contention. The plaintiffs instead took a different position:

The liability of the Defendant in this case has absolutely nothing to do with the condition [**41] of the land, any structures upon it, or use of the land itself by the Plaintiffs or the Defendant.

. . . .

Negligent acts or decisions not directed at the condition of the land are not entitled to immunity.

[*P94] The Dodge County Circuit Court, Joseph G. Sciascia, Judge, wrote the following: “The [plaintiffs] do not dispute that the plaintiff was on the property for a recreational purpose. The plaintiff raises the issue of whether or not the statute applies in this case because the injury was caused by an act unrelated to the condition or maintenance of the land . . . .”

[*P95] Whether Sundog occupied the property was not an issue in the court of appeals either. The court’s opinion stated:

Roberts does not contest that Sundog was occupying, and therefore was an “owner” of, “property” on which Patti Roberts was engaging in “recreational activity.” See Wis. Stat. § 895.52(1)(d), (f), (g). Roberts also does not dispute that “the activity giving rise to [Patti Roberts’] injury was a ‘recreational activity’ as defined by the statute,” that is, ballooning.

Roberts v. T.H.E. Ins. Co., No. 2014AP1508, 2015 WI App 37, 363 Wis. 2d 656, unpublished slip op., ¶16 (Wis. Ct. App. Mar. 26, 2015) (alteration in original).

[*P96] The reason why “occupies” is the principal issue in this court is because [**42] this court made it the principal issue by asking the parties to brief it. The court’s order granting review stated in part:

IT IS FURTHER ORDERED that the parties’ briefs shall address the following additional issue:

Whether the defendants/respondents Sundog Ballooning, LLC, Kerry M. Hanson, and Jodi L. Hanson, were “occupiers” of the property in question for purposes of the recreational immunity statute at the time of the accident in question. See Wis. Stat. § 895.52(1)(d); see also Doane v. Helenville Mut. Ins. Co., 216 Wis. 2d 345, 575 N.W.2d 734 (Ct. App. 1998).

[*P97] This court has broad authority to ask that additional issues be briefed, but the court should be careful not to fault a party for failing to supply complete evidence on an issue that was not contested, or chide a party for not arguing or briefing an issue that was not necessary because of the party’s success in circuit court on a more encompassing issue. See Majority op., ¶33 n.6.

[*P98] As I see it, Sundog took possession of a large, wide-open space at the recreational property of Beaver Dam Conservationists at the express invitation of Green Valley Enterprises. Its balloon was tethered to two trees and a pickup truck that was brought into and parked on the property. The two trees and truck formed a triangle with the large balloon in [**43] the middle. The Hansons flagged off the whole area. They set up a display and a sign-up table for the balloon ride, and they designated a waiting area for people to line up for a ride. In short, the Hansons completely controlled one section of the property for their ballooning operation. They “filled up” the space. They not only “used” the space but also governed the space during the time they were authorized to be there. In sum, they occupied the property.

[*P99] In Doane, the court of appeals said, “An occupant is one who has actual possession of the property, but is more transient than either a lessee or an owner with legal title.” Doane, 216 Wis. 2d at 351 (citing Hall v. Turtle Lake Lions Club, 146 Wis. 2d 486, 491, 431 N.W.2d 696 (Ct. App. 1988)). This, in essence, is the rule applied in multiple cases. There can really be no dispute that Sundog satisfied the test of “occupies” under this rule.

[*P100] The Doane court added, however, that “‘occupancy,’ in the statutory sense, signifies a degree of permanence, as opposed to the mere use of the property in question.” Id. (citing Smith v. Sno Eagles Snowmobile Club, Inc., 823 F.2d 1193, 1197 (7th Cir. 1987)). The Doane court later stated:

“Occupy” is defined as “to take and hold possession.” Webster’s New Collegiate Dictionary 794 (8th ed. 1974). That definition could imply possession for some unstated period of time or it could [**44] be understood in a way in which time is not relevant. Therefore, reasonable persons could differ in their assessments of whether Ehle “occupied” a portion of the lake with his shanty within the meaning of the statute. However, occupy, as used in § 895.52 Stats., has been defined by this court as requiring a degree of permanence, as opposed to mere use. See Hall, 146 Wis. 2d at 491, 431 N.W.2d at 698 (citing Smith, 823 F.2d at 1197).

Id. at 354 (emphasis added).

[*P101] The court of appeals reached the correct decision in Doane, but it did so, at least in part, for the wrong reason. The Hall case never discussed “a degree of permanence” because Hall never quoted that portion of the Seventh Circuit’s opinion. Hall clearly sidestepped the “permanence” part of the Seventh Circuit’s opinion and instead quoted language that the Seventh Circuit had quoted from the underlying District Court decision. The language quoted from the District Court’s decision made absolutely no reference to “permanence.” Until Doane, no Wisconsin case had ever used the phrase “degree of permanence.”

[*P102] The Hall case involved a Lions Club in Turtle Lake that sponsored a fair on the grounds of the Turtle Lake Village Park. The Village granted the Lions permission to use the park. The Hall court said: “[W]hen a third [**45] party such as the Lions Club produces a fair on the land of another, it ‘occupies’ the land within the intended definition.” Hall, 146 Wis. 2d at 490. Then the court quoted language that the Seventh Circuit had quoted from the underlying District Court decision in Smith:

[O]ccupant include[s] persons who, while not owners or tenants, have the actual use of land.. . . . While “occupant” includes [an] owner and lessee, it also means one who has the actual use of property without legal title, dominion or tenancy. In order to give meaning to [occupies], the term should be interpreted to encompass a resident of land who is more transient than either a lessee or an owner.

Id. at 491 (alterations in original)(quoting Smith, 823 F.2d at 1197, which had quoted Smith v. Sno Eagles Snowmobile Club, Inc., 625 F. Supp. 1579, 1582 (E.D. Wis. 1986)).

[*P103] If the Doane case is controlling, it substantially changed the law in Wisconsin, disregarding prior court of appeals precedent, when it quoted from the Seventh Circuit’s independent analysis in Smith, rather than language quoted from the District Court’s underlying decision.

[*P104] In the Seventh Circuit case, the losing party, Smith, relied on Labree v. Millville Manufacturing, Inc., 195 N.J. Super. 575, 481 A.2d 286 (N.J. Super. Ct. App. Div. 1984), a New Jersey case in which a contractor was sued after excavating land as part of the construction of a highway. Smith, 823 F.2d at 1196-97. “The excavation and transfer of sand and gravel resulted in [**46] the man-made creation of a twenty acre lake in which people swam on an informal basis.” Id. at 1197. David Labree later dove into the lake and hit his head, rendering him a quadriplegic. Id. The contractor, who was sued after he had left the land, claimed recreational immunity under a New Jersey statute. The New Jersey court said:

We believe use of the word “occupant” in the statute signifies an intent to provide immunity for an entity with a degree of permanence in the occupancy, not merely one who is using the property, as was the case with Gaskill. [Gaskill] “occupied” the property not really as one in occupancy but rather as one removing dirt and gravel from it.

Id. (alterations omitted)(quoting Labree, 481 A.2d at 291).

[*P105] The Seventh Circuit opinion in Smith borrowed the “degree of permanence” language from the New Jersey court and used it against the losing party. But it is very doubtful that the Seventh Circuit intended to create a “degree of permanence” test for “occupants.” Indeed, the Seventh Circuit favorably referred to the language from the underlying District Court opinion, quoted in Hall, when explaining that if the court “were to circumscribe and interpret ‘occupant’ as one in actual possession or exclusive [**47] control the term would be indistinguishable from owner.” Smith, 823 F.2d at 1198. Our court of appeals should not have embraced the phrase “degree of permanence” as established Wisconsin law to bootstrap its decision in Doane.

[*P106] This court cannot adopt the “permanence” test from the Seventh Circuit decision without overruling Hall and numerous other cases, and also effectively ruling that Green Valley Enterprises did not “occupy” the property. If a “permanence” test disqualifies Sundog, it would disqualify Green Valley Enterprises as well because Green Valley did not own or lease the property—-it occupied the property. Green Valley’s few extra hours of occupancy at the shooting range cannot realistically be viewed as being more “permanent” than Sundog’s occupancy.

[*P107] The majority’s decision to disqualify Sundog from any status as an “owner” and send this case back for trial does not end the immunity issue. If Green Valley is still considered an occupant, we must anticipate that Sundog will assert that it was Green Valley’s “agent” under Wis. Stat. § 895.52(2)(a) and (b). There is no definition of “agent” in the recreational immunity statute, meaning that the circuit court may resort to a dictionary. “Agent” is defined as (1) one that acts [**48] or has the power or authority to act, or (2) one empowered to act for or represent another. American Heritage Dictionary of the English Language 33 (3d ed. 1992).

[*P108] Kerry Hanson explained in his deposition that he and his wife lived in Rhinelander but had family ties to Beaver Dam. In fact, his sister, Kristin Hanson, was manager for agency development for Green Valley Enterprises. Kerry Hanson testified as follows:

Q. How was it that it came about that you were going to be involved in this event in the first place?

. . . .

A. –the head of the Green Valley Enterprises, a business that services special needs people, was actually in the neighborhood, saw my balloon tethered. He employs my sister, who is a marketing director for Green Valley Enterprises. He saw it and said, wow, what a cool thing; maybe we could use that at our fundraiser to increase awareness, and I believe that began the process.

Q. And eventually it was agreed that you would do that.

Correct?

A. Right.

Q. And it’s my understanding that you were donating your services that day?

A. Right.

[*P109] In other depositions, witnesses testified that Sundog’s balloon rides were advertised as an attraction for Green Valley Enterprises’ fundraising [**49] event.

[*P110] Under the circumstances, it would be rather difficult to conclude that Sundog was not an “agent” of Green Valley Enterprises if Green Valley was an “owner.”

[*P111] The “agent” of an “owner” is immune under the statute. However, the majority’s conceptual dilemma is that any “agent” in this situation is likely to be “a third party not responsible for opening up the land to the public,” Majority op., ¶33, which the majority now deems essential to qualifying for immunity: “Here . . . defining Sundog as an ‘occupier’ would not further the policy underlying the statute because the Conservationists’ property was already open for public recreational purposes.” Id., ¶35.

[*P112] The majority opinion adds, “Immunizing Sundog would have no effect on whether the public had access to private land, because Sundog is not responsible for opening the land to the public.” Id., ¶37.

[*P113] This analysis would appear to deny immunity to any “officer, employee or agent” who did not “open up the land” to the public.

[*P114] This analysis also is deficient because it ignores the fact that people often come to a property because they have been attracted by the promise of recreational activities there. Example: the Roberts family [**50] came to the shooting range, in part, because they heard there would be balloon rides. If organizations and people providing bona fide recreational activities are stripped of recreational immunity because they did not “open up the land to the public,” they will have to rethink whether they are willing to participate in such activities.

[*P115] In sum, the majority opinion seriously misinterprets the meaning of “owner” in the statute.

[*P116] As noted above, the Robertses contended at trial that recreational immunity must be linked to a “condition of the land, any structures upon it, or use of the land itself.” See supra, ¶93. Justice Ziegler’s concurrence champions this proposition by relying on Linville v. City of Janesville, 184 Wis. 2d 705, 516 N.W.2d 427 (1994), and Kosky v. International Ass’n of Lions Clubs, 210 Wis. 2d 463, 565 N.W.2d 260 (Ct. App. 1997).

[*P117] Linville is the tragic case in which a man took a mother and her four-year-old son to a city-owned pond in Janesville. The man intended to take the boy fishing, and he was checking out fishing spots for the next day. Through a series of bizarre events, the man drove his van too close to the water, got stuck in mud, then inadvertently drove the van into the water where he and the boy drowned. Plaintiffs sued the city claiming that the city’s paramedics were negligent in their rescue of the boy and negligent [**51] in providing medical services to the boy. The city defended with a claim of recreational immunity under Wis. Stat. § 895.52.

[*P118] This court first struggled with the question of whether the three people at the pond were engaging in a “recreational activity” at the time two of them died. The court said they were. But that did not settle the question of whether the city could claim recreational immunity for the alleged negligence of its paramedics in the rescue effort.

[*P119] The court determined that the city could not assert recreational immunity for the alleged negligence of its paramedics because it was virtually coincidental that the alleged negligence of the paramedics occurred at a city-owned recreational site and came after a mishap in recreational activity for which the city bore no responsibility.

[*P120] The court said: “The City’s immunity for its functions as owner of recreational land cannot shelter its liability for negligently performing another function.” Linville, 184 Wis. 2d at 711.

[*P121] In discussing this conclusion, the court observed: “We must determine whether this statute immunizes the paramedics and the City simply because the paramedics are employees of the City which owns the Pond.” Id. at 718.

[G]ranting immunity to the landowner when the landowner [**52] and the employer of the negligent employee are functioning in two different capacities and are therefore not the same entity in the eyes of the law would produce absurd consequences. . . . To interpret the language of sec. 895.52(2)(b), Stats., to include injury resulting from negligent rescue and treatment by the paramedics in this case, would produce absurd consequences.

Id. at 719. The court continued: “The paramedics provide emergency medical treatment in every part of the City, no matter the situs. Thus the City’s rescue attempts and medical treatment are separate and apart from the City’s ownership of or activities as owner of recreational land.” Id. at 721.

[*P122] The Linville court bolstered its analysis by repeated reference to the purported purpose of the recreational immunity statute, e.g., property owners should be encouraged to open up land to the public. In my view, this discussion of policy was not necessary to a limitation of immunity and is not relevant when dealing with public land that is intended for use by the public.2

2 Kosky v. International Ass’n of Lions Clubs, 210 Wis. 2d 463, 565 N.W.2d 260 (Ct. App. 1997), also is cited in Justice Ziegler’s concurrence. This case requires close examination.

Kosky involved a man whose hands were badly injured as he was participating in a three-person team detonating [**53] “explosive fireworks” at the annual Fourth of July fireworks celebration in Land O’Lakes, Wisconsin. Kosky sued the Land O’Lakes Lions Club and other sponsors of the show, as well as several co-workers. The defendants claimed recreational immunity under Wis. Stat. § 895.52.

In his brief to the court of appeals, the plaintiff asserted that the “extra-hazardous activity of detonating explosive fireworks” was not a “recreational activity” protected under Wis. Stat. § 895.52. (capitalization and title case omitted.) He also asserted that although he had ties to the area, he came from Niles, Illinois, at the specific request of the Land O’Lakes Lions Club “to perform work tasks with a team of people detonating explosive fireworks.” He declared that he personally was not engaging in recreational activity because he was working, not watching the fireworks.

The court of appeals rejected Kosky’s argument that the detonation of fireworks could not be a recreational activity because it is an inherently dangerous, extra-hazardous activity. Kosky, 210 Wis. 2d at 474. On the other hand, the court was not willing to say that the detonation of fireworks was a recreational activity in the circumstances presented. Instead, the court concluded that “recreational immunity [**54] does not attach to the landowner when an act of the landowner’s officer, employee or agent that is unrelated to the condition or maintenance of the land causes injury to a recreational land user.” Id. at 475.

The Kosky court quoted from Linville: “Extending immunity to landowners for negligently performing in a capacity unrelated to the land or to their employees whose employment activities have nothing to do with the land will not contribute to a landowner’s decision to open the land for public use.” Id. at 476 (quoting Linville, 184 Wis. 2d at 719).

To support this conclusion, Linville cited Ervin v. City of Kenosha, 159 Wis. 2d 464, 472-76, 464 N.W.2d 654 (1991), for the following proposition: “The legislature, in sec. 895.52, Stats., granted immunity to landowners with respect to the condition of the land and to the landowners’ (or its employees’) actions with respect to the land.” Linville, 184 Wis. 2d at 718.

As will be seen, this statement is not an accurate description of Ervin. Moreover, it does not take into account that lessees and occupiers and persons with a recreational agreement cannot “open the land” until the actual landowner puts them in a position to open the land. It also fails to acknowledge that public land is normally open to the public already.

[*P123] Justice Ziegler’s concurrence builds on Linville and would state the law [**55] as follows:

(1) While the policy of the recreational immunity statute encourages landowners to open their land to the public, the recreational immunity statute does not cloak negligent actors with immunity no matter what they do. Justice Ziegler’s concurrence, ¶67.

(2) A “person” who owns, leases, occupies, or has a “recreational agreement” to use recreational property is not sheltered from liability for “negligently performing” another function such as operating or otherwise participating in a “recreational activity,” as defined in Wis. Stat. § 895.52(1)(g). See id., ¶69. An “owner” under the statute “might sometimes function in a capacity unrelated to its ownership of the land, and that . . . owner should not be immunized against claims that the owner engaged in negligent conduct when operating in that capacity.” Id.

[*P124] Justice Ziegler writes that the “municipal owner of a pond in which a four-year-old boy drowned despite the efforts of paramedics employed by the owner was immune under § 895.52 from claims that its pond was negligently maintained, but not immune from claims that it negligently performed in its capacity as provider of paramedic services.” Id. (emphasis added).

[*P125] Justice Ziegler’s summary of the law is squarely [**56] at odds with the court’s discussion in Ervin v. City of Kenosha, 159 Wis. 2d 464, 464 N.W.2d 654 (1991). In that case, two youths drowned at a public beach owned and operated by the City of Kenosha. The youths’ parents sued the City for negligently hiring and failing to properly train and instruct lifeguards, and for the lifeguards’ alleged negligent performance at the time of the drownings. This court was confronted with arguments about separating the City’s ownership of the land from its operation and oversight of the beach by its lifeguards. The court concluded that “the City is immune from liability . . . for its negligence in hiring or failing to properly train the lifeguards, [and] for the lifeguards’ negligent performance.” Ervin, 159 Wis. 2d at 469.

[*P126] The Ervin court’s opinion reads in part:

The parents argue that sec. 895.52(2), Stats., does not immunize the City from liability for the lifeguards’ negligence or for its own negligent hiring and failure to train them. The parents contend that the City’s conduct represented “active” negligence, and that the statute was intended to immunize only “passive” or “condition of the premises” negligence. We disagree because: (a) the plain language of the statute does not support this contention, (b) Wisconsin case law permits immunity under [**57] the recreational use statute for both active and passive negligence, and (c) legislative intent clearly supports granting immunity for both active and passive negligence.

Id. at 472.

[*P127] The Ervin court also quoted approvingly from this court’s decision in Wirth v. Ehly, 93 Wis. 2d 433, 287 N.W.2d 140 (1980):

The statute does not contemplate that the land subject to public recreational use shall remain static. Since the purpose of the statute was to open land for recreational use, it would be inconsistent for the statute to provide protection only if the owner or occupant does not perform any potentially negligent activities on the land.

Ervin, 159 Wis. 2d at 475 (alteration omitted) (quoting Wirth, 93 Wis. 2d at 446).

[*P128] It should be noted that the only justice who dissented in Ervin was Justice William Bablitch, the author of the Linville opinion. In his dissent, Justice Bablitch wrote:

By placing unqualified lifeguards on a public beach, the City of Kenosha . . . created a trap for the unwary. The presence of the lifeguards created the perception of a safe condition that was not justified. I do not agree with the majority that the recreational use statute exempts owners of recreational property from liability when the actions of the owner create a perception of safety that does not in reality exist. [**58] The legislature could not have intended such an absurd result.

Id. at 485 (Bablitch, J., dissenting). In Justice Bablitch’s Linville opinion, the court did not overrule Ervin.

[*P129] In her concurrence, Justice Ziegler formulates a rational policy of limited recreational immunity, but that policy would require this court to overrule a number of cases including Ervin and Wirth, disregard controlling language in the statute, and clean up internal inconsistencies in her own concurring opinion. If we were to assume the correctness of a strict separation of functions analysis, that separation would apply irrespective of whether the separation affects an owner, a lessee, an occupier, a recreational agreement holder, or an officer, employee, or agent of an owner. Neither the concurrence nor the majority opinion has confronted the consequences of such a change in the law.

[*P130] I would not hesitate for a moment supporting the unfortunate victim of this balloon accident if the statute provided a reasonable means to do so. I do not hesitate now to recommend that the legislature promptly review the recreational immunity statute. I respectfully dissent, however, from any notion that the court itself should rewrite the [**59] statute to reach a desirable objective.

[*P131] I am authorized to state that Chief Justice PATIENCE DRAKE ROGGENSACK joins this opinion.

[*P132] REBECCA G. BRADLEY, J. (dissenting). I would affirm the court of appeals1 and hold that Sundog2 is immune from liability under Wisconsin’s recreational immunity statute, Wis. Stat. § 895.52(2).3 Sundog meets the statutory requirements to obtain recreational immunity because: (1) it falls within the definition of “owner,” which includes “a person . . . that . . . occupies property,” and (2) Patti Roberts engaged in a recreational activity on the property occupied by Sundog. See Wis. Stat. § 895.52(1)(d)1., (2)(b). By actually using the land during a charity event, Sundog meets the ordinary and accepted meaning of “occupies.” This conclusion comports with the legislative purpose of recreational immunity and would not, as the majority fears, result in the limitless application of the recreational immunity statute. As a result, I respectfully dissent from the majority opinion because a plain reading of the statute demonstrates Sundog is entitled to recreational immunity.4

1 Roberts v. T.H.E. Ins. Co., No. 2014AP1508, 2015 WI App 37, 363 Wis. 2d 656, unpublished slip op. (Wis. Ct. App. March 26, 2015).

2 Sundog refers to the Respondents: Sundog Ballooning, [**60] LLC, Kerry Hanson, Jodi Hanson, and T.H.E. Insurance Company. See majority op., ¶2.

3 Whether Sundog met the statutory definition of an “owner” in Wis. Stat. § 895.52(1)(d)1. was not an issue before the court of appeals. In our order granting the petition for review, this court ordered the parties to brief and address that issue.

4 Because Sundog is entitled to recreational immunity, I would not reach the issue of whether the waiver of liability violates public policy.

Similarly, because I conclude that recreational immunity applies to Sundog, it is unnecessary to decide whether Sundog qualifies for recreational immunity based on its argument that the hot air balloon constitutes “property” under Wis. Stat. § 895.52(1)(f). I disagree, however, with the majority’s conclusion that because the hot air balloon was not “constructed on real property” it fails to meet the definition of property in the statute. See majority op., ¶45. Although the majority’s structure analysis could be read to require that the structure be built or put together on site, the majority suggests that for purposes of recreational immunity, a structure must be permanently affixed to real property. This requirement is not found in the text of the recreational immunity statute, [**61] but the majority imposes the requirement based on Peterson v. Midwest Sec. Ins. Co., 2001 WI 131, ¶17, 248 Wis. 2d 567, 636 N.W.2d 727. Peterson held that a tree stand used for hunting constituted a structure within the meaning of Wis. Stat. § 895.52(1)(f). Id., ¶4. The majority asserts that unlike Sundog’s hot air balloon, “the tree stand was permanent and built or constructed on the real property.” Majority op., ¶45. This differentiation between a hot air balloon and a tree stand, however, should not determine whether Sundog’s hot air balloon meets the common and ordinary meaning of the word “structure.”

Based on the statutory language alone, Sundog’s alternative argument for recreational immunity fails because Patti Roberts did not ever enter or get on the hot air balloon, which is required by the recreational immunity statute. See Wis. Stat. § 895.52(2)(a)(making recreational immunity available to owners when a person “enters the owner’s property”); see also Wis. Stat. § 895.52(2)(b)(making recreational immunity available to owners when “a person engag[es] in a recreational activity on the owner’s property”) (emphases added).

[*P133] Subject to exceptions not applicable in this case, property “owners,” as defined by Wis. Stat. § 895.52(1)(d)1.-2., are immune from liability for injuries sustained as a result of recreational activities that occur on their property. See Wis. Stat. § 895.52(2). The parties [**62] dispute whether Sundog meets the statutory definition of an “owner” to qualify it for recreational immunity. Applicable here is § 895.52(1)(d)1., which defines an owner as: “A person, including a governmental body or nonprofit organization, that owns, leases or occupies property” (emphasis added).5 There is no assertion that Sundog owns legal title to the property or that it leased the property in question. The only way that Sundog meets the statutory definition of “owner” is if Sundog “occupies [the] property.” See § 895.52(1)(d)1.

5 It is not disputed that Sundog Ballooning, LLC qualifies as “a person” in the definition of “owner” found in Wis. Stat. § 895.52(1)(d)1.

[*P134] Unlike “owner,” the word “occupies” is not defined in the recreational immunity statute. However, the plain, ordinary, and accepted meaning of “occupies” can be readily determined by reference to the dictionary definition of an “occupant.” An occupant is “[o]ne that resides in or uses a physical space.” Occupant, The American Heritage Dictionary of the English Language 1218 (5th ed. 2015). This definition indicates that a person who occupies property is one who has actual use of the property.

[*P135] Here, Sundog donated tethered, hot air balloon rides at a charity event sponsored by Green [**63] Valley Enterprises. To provide this recreational ballooning activity, Sundog set up the tethered hot air balloon on property legally owned by Beaver Dam Conservationists, LLC. It used both ropes and flags to designate an area surrounding the hot air balloon. These facts show that Sundog actually used the property to provide a recreational activity, ballooning, (specifically mentioned by Wis. Stat. § 895.52(1)(g)) when Patti Roberts sustained injuries. This actual use of the property meets the plain, common, and ordinary meaning of “[a] person . . . that . . . occupies property.” See Wis. Stat. § 895.52(1)(d)1. Therefore, Sundog meets the definition of a statutory owner as one who occupied the property and therefore is entitled to recreational immunity.

[*P136] This conclusion is consistent with the legislative purpose of the recreational immunity statute: to “limit the liability of property owners toward others who use their property for recreational activities under circumstances in which the owner does not derive more than a minimal pecuniary benefit.” 1983 Wis. Act 418, § 1. This statement of legislative purpose is often summarized as “encourag[ing] landowners to open up their land for recreational activity.” Ervin v. City of Kenosha, 159 Wis. 2d 464, 477, 464 N.W.2d 654 (1991) (emphasis added); see majority op., ¶28. The [**64] purpose of the recreational immunity statute, however, is much broader as evidenced by the legislature’s decision to include in its definition of “owner” both lessees and occupiers of property. In interpreting the meaning of “property” defined by Wis. Stat. § 895.52(1)(f), we reached a similar conclusion: “[I]t is abundantly clear from the language of the statute and the statement of legislative intent that the purpose of the statute is broader, and recreational immunity is not in fact limited only to landowners.” Peterson v. Midwest Sec. Ins. Co., 2001 WI 131, ¶22, 248 Wis. 2d 567, 636 N.W.2d 727.

[*P137] This broad legislative purpose, evidenced by the legislative policy statement read in conjunction with the statutory text refutes the majority’s claim that “[i]mmunizing Sundog would have no effect on whether the public had access to private land, because Sundog is not responsible for opening the land to the public.” See majority op., ¶37.

[*P138] Here, Sundog provided the recreational ballooning activity free of cost to members of the public who attended the charity event. Depriving Sundog of immunity because Green Valley and the Conservationists, rather than Sundog, “opened” the land to the public, creates a distinction between Sundog on the one hand, and Green Valley and the Conservationists on the other, that is not [**65] only unsupported by the broad legislative purpose of the recreational immunity statute but wholly absent from the statutory definition of the term “owner.” Furthermore, the creation of this unsupported distinction ignores the fact that the Conservationists allowed Green Valley to hold an event that included a recreational ballooning activity provided by Sundog. Sundog’s participation in the charity event undoubtedly encouraged the public to attend the event and, in some instances, take part in the recreational ballooning activity. Declining to recognize Sundog’s statutory immunity will discourage organizations such as Sundog from donating recreational activities at charity events for fear of incurring liability, which, in turn, will reduce sponsorship of such events by organizations because they will have less recreational options—-if any at all—-to draw attendance. Ultimately, public access to private land will be reduced. This runs counter to the legislative purpose of the recreational immunity statute.

[*P139] As further support for its decision to treat Sundog differently than Green Valley and the Conservationists, the majority indicates that prior case law has not granted immunity to [**66] a “third-party” organization such as Sundog. See majority op., ¶33. Simply because the appellate courts apparently have not previously been presented with a similar fact pattern does not eliminate immunity created by the statute. Sundog satisfies the requirements of the statute and therefore is entitled to the immunity it provides.

[*P140] Further, the majority does not explain how its conclusion—-that an organization such as Sundog that did not open land to the public cannot “occupy” the property—-accounts for the plain, ordinary, and accepted meaning of the term “occupies.” See majority op., ¶41. Although the majority opinion references the “requiring a degree of permanence, as opposed to mere use” definition of “occupies” utilized by the court of appeals in Doane v. Helenville Mut. Ins. Co., 216 Wis. 2d 345, 354, 575 N.W.2d 734 (Ct. App. 1998), majority op., ¶34, it fails to apply the Doane definition to the facts of this case and fails to address the fact that the court of appeals has used differing definitions of “occupies,” as explained below, when determining whether an individual or group meets the definition of “owner” in Wis. Stat. § 895.52(1)(d)1.

[*P141] On several occasions, the court of appeals has addressed the meaning of “occupies” in the definition of “owner” under Wis. Stat. § 895.52(1)(d)1. and concluded that “occupies” [**67] requires actual use of the property. In Hall v. Turtle Lake Lions Club, 146 Wis. 2d 486, 490-91, 431 N.W.2d 696 (Ct. App. 1988), the court of appeals adopted a definition of “occupies” from a case decided by the Seventh Circuit Court of Appeals:

[O]ccupant include[s] persons who, while not owners or tenants, have the actual use of land . . . . While “occupant” includes [an] owner and lessee, it also means one who has the actual use of property without legal title, dominion or tenancy. In order to give meaning to [occupies], the term should be interpreted to encompass a resident of land who is more transient than either a lessee or an owner.

Id. at 491 (citing Smith v. Sno Eagles Snowmobile Club, Inc., 823 F.2d 1193, 1197 (7th Cir. 1987))(quoting Smith v. Sno Eagles Snowmobile Club, Inc., 625 F. Supp. 1579, 1582 (E.D. Wis. 1986)).6 Subsequent cases have cited Hall and relied on its definition of “occupies property.” See Leu v. Prince Cty. Snowmobile Trails Ass’n, Inc., 2005 WI App 81, ¶¶11-13, 280 Wis. 2d 765, 695 N.W.2d 889; Mooney v. Royal Ins. Co. of Am., 164 Wis. 2d 516, 521-22, 476 N.W.2d 287 (Ct. App. 1991); Lee v. Elk Rod & Gun Club, Inc., 164 Wis. 2d 103, 107, 473 N.W.2d 581 (Ct. App. 1991).

6 Although Smith v. Sno Eagles Snowmobile Club, Inc., 823 F.2d 1193 (7th Cir. 1987), applied Wis. Stat. § 29.68, the precursor to Wis. Stat. § 895.52, both statutes grant recreational immunity to owners, lessees, and occupants. Compare Wis. Stat. § 29.68(1)(1981-82) with Wis. Stat. § 895.52(1)(d)1. and (2) (2013-14).

[*P142] However, in Doane, the court of appeals determined that “occupies property” within the definition of “owner” under Wis. Stat. § 895.52(1)(d)1. requires some degree of permanence in addition to actual use of the property. Doane, 216 Wis. 2d at 351. The court of appeals recently applied the some degree of permanence definition of “occupies” from Doane in WEA Property & Cas. Ins. Co., 2013 WI App 139, ¶21, 352 Wis. 2d 73, 841 N.W.2d 290.

[*P143] The majority, however, fails to apply the some degree of permanence definition of Doane [**68] to the facts of this case. Instead, it compares this case to Doane by focusing on the purpose underlying the recreational immunity statute—-to open up land for recreation. Majority op., ¶35. Doane involved the owner of an ice shanty on a lake already open for public recreational purposes, who was not present at the invitation of the titled owner or lessee but who was simply using public waters as any member of the public could. See Doane, 216 Wis. 2d at 348, 353-54. An entirely different situation is presented here, where Sundog, the owner of a hot air balloon, was invited to occupy land for purposes of attracting members of the public to a charity event by offering the recreational activity of ballooning. The majority likens Sundog to the owner of the ice shanty because the Conservationists’ property, like the lake in Doane, was already open for public recreational purposes; therefore, the majority reasons, recognizing immunity “‘would not further the policy which underlies the statute, i.e., of opening as much property as possible for recreational use . . . .'” Majority op., ¶35 (citing Doane, 216 Wis. 2d at 355). The majority’s analogy fails because in Hall, 146 Wis. 2d at 487, the Turtle Lake Lions Club was immunized from liability for an injury occurring on [**69] the grounds of a public park and in Lee, 164 Wis. 2d at 107, the Elk Rod & Gun Club was considered a “landowner” under the recreational immunity statute as an occupant of a city park. The recreational immunity statute simply does not restrict immunity to occupiers of land that is not already open to the public.

[*P144] The definition of “occupies” adopted in Hall comports with the plain, ordinary, and accepted meaning of the word as well as the legislative purpose of the recreational immunity statute. There is no temporal requirement embedded in the definition of occupy. The broad definition of “owner,” which expressly encompasses a person that “occupies” property, is not limited to those who “host” or “organize” an event on the land. The recreational immunity statute immunizes a person that “owns, leases or occupies property”; the statute does not restrict immunity to only those occupiers who are event “hosts” or “organizers,” a limitation the majority invents in this case. In an apparent attempt to further narrow the scope of recreational immunity beyond the words of the statute, the majority reads into the statute language that simply is not present. Whether recreational immunity should be further limited is [**70] a policy judgment for the legislature and not this court to make.

[*P145] Furthermore, I am not persuaded by the majority’s conclusion that granting recreational immunity to Sundog would result in the limitless application of Wis. Stat. § 895.52(2). See majority op., ¶¶38-40. A plain meaning interpretation of “occupies property,” requires actual use of the land. For example, in Mooney, 164 Wis. 2d at 522-23, the court of appeals held that a snowmobile club that had left the property following the conclusion of an event did not meet the definition of an occupier and could not receive recreational immunity. The same would be true of a hot air balloon manufacturer because the manufacturer is not located on the property at the event using the land, and therefore is not an “occupier.” It should go without saying that the recreational immunity statute does not extend to the manufacturer of Sundog’s balloon yet the majority uses this example to create an unnecessary limiting principle by stirring unfounded fears that otherwise “there will be no stopping point to recreational immunity” despite statutory language that plainly restricts immunity to those who own, lease or occupy property. See majority op., ¶39. Of course, the manufacturer of Sundog’s [**71] balloon fits none of these categories. The legislature created a stopping point. It is not this court’s role to second-guess the legislature’s policy judgments by moving the mark.

[*P146] Finally, the majority relies on Linville v. City of Janesville, 184 Wis. 2d 705, 516 N.W.2d 427 (1994), to declare a new limiting principle for recreational immunity. Majority op., ¶¶38-39. In Linville, the court declined to extend immunity to city paramedics providing services for injuries sustained during a recreational activity, noting that such services could take place days or weeks after the event and away from the site of the recreational activity. Linville, 184 Wis. 2d at 711, 720. Specifically, relying on Linville, the majority asserts that Sundog has “no connection to the land” and therefore should not qualify for recreational immunity. Majority op., ¶39. The use of Linville and this particular limiting principle is perplexing in two respects. First, the majority’s reliance on Linville implicitly addresses the Roberts’s alternative argument—-that an injury must arise from a condition associated with the land—- despite the majority opinion’s pronouncement that it does not decide this issue. See majority op., ¶4 n.4. Second, not only was Sundog present on the land during the charity event, but its [**72] hot air balloon was literally connected to the land by ropes that tethered the hot air balloon to two trees (and a truck) on the property. Unlike the paramedics in Linville, Sundog was the entity actually providing the recreational activity, notably one that is specifically mentioned as a “recreational activity” in the recreational immunity statute. See 895.52(1)(g).

[*P147] I would affirm the court of appeals and hold that Sundog is entitled to recreational immunity under Wis. Stat. § 895.52.

[*P148] For the foregoing reasons, I respectfully dissent.

[*P149] I am authorized to state that Justice DAVID T. PROSSER joins this dissent except for footnote 4.


Jiminy Peak Mountain Report, LLC, v. Wiegand Sports, LLC, 2016 U.S. Dist. LEXIS 34209

Jiminy Peak Mountain Report, LLC, v. Wiegand Sports, LLC, 2016 U.S. Dist. LEXIS 34209

Jiminy Peak Mountain Report, LLC, Plaintiff, v. Wiegand Sports, LLC, and, Navigators Specialty Insurance, CO., Defendants.

Civil Action No. 14-40115-MGM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

2016 U.S. Dist. LEXIS 34209

March 16, 2016, Decided

March 16, 2016, Filed

CORE TERMS: insured, insurer, duty to defend, liability insurance, owe, cross-motions, liability claims, bodily injury’, declaratory, premium, state law, insurance policy, amount in controversy, threshold amount, principal place of business, wholly-owned subsidiary, disclosures, publicly, disputed, traded, judgment ordering, seriously injured, own expense, fully performed, negligence claim, indemnification, cross-claims, contractual, separately, asserting

COUNSEL: [*1] For Jiminy Peak Mountain Resort, LLC, Plaintiff: Jennifer C. Sheehan, Matthew D. Sweet, Richard J. Shea, Hamel, Marcin, Dunn, Reardon & Shea, P.C., Boston, MA.

For Navigators Specialty Insurance Company, Defendant: David A. Grossbaum, LEAD ATTORNEY, Matthew R. Watson, Hinshaw & Culbertson LLP, Boston, MA.

JUDGES: MARK G. MASTROIANNI, United States District Judge.

OPINION BY: MARK G. MASTROIANNI

OPINION

MEMORANDUM AND ORDER ON CROSS-MOTIONS FOR JUDGMENT ON THE PLEADINGS

(Dkt. Nos. 40 & 42)

MASTROIANNI, U.S.D.J.

I. Introduction

Plaintiff, Jiminy Peak Mountain Resort, LLC (“Jiminy”) operates a ski area in Hancock, Massachusetts. In 2005 it entered into a contract with Defendant, Wiegand Sports, LLC (“Wiegand”), to purchase a Wiegand, Alpine Coaster (the “Coaster”). The Coaster opened to the public in 2006. In August of 2012, two minors were seriously injured while riding the Coaster. The parents of the minors subsequently filed two lawsuits (together, the “Underlying Action”), each asserting claims against Jiminy and Wiegand. Jiminy subsequently filed this suit against Wiegand and Defendant, Navigators Specialty Insurance, Co. (“Navigators”), Wiegand’s insurer at the time the minors were injured, seeking a declaratory judgment [*2] ordering Wiegand and Navigators to pay the defense costs incurred by Jiminy in the Underlying Action. Before the court are cross-motions for judgment on the pleadings from Jiminy and Navigators. Jiminy and Wiegand have stipulated to the dismissal of their cross-claims, agreeing to litigate those claims in the Underlying Action, rather than in this lawsuit.

II. Jurisdiction

In this action, Jiminy seeks an order requiring Navigators to pay Jiminy’s past and future defense costs in the Underlying Action based on the terms of the contract between Jiminy and Wiegand and the insurance policy Navigators issued to Wiegand. The relief is requested pursuant to state law. Federal courts have jurisdiction over suits brought pursuant to state law where there is complete diversity of citizenship between the adversaries and the amount in controversy exceeds a threshold amount of $75,000. 28 U.S.C. § 1332; Arbaugh v. Y&H Corp., 546 U.S. 500, 513, 126 S. Ct. 1235, 163 L. Ed. 2d 1097 (2006). Based on the content of the complaint and the corporate disclosures filed by the parties (Dkt. Nos. 20, 21, 55), the court finds that (1) Jiminy is a Massachusetts limited liability company, owned by two other Massachusetts limited liability companies, which in turn are owned by members who reside in Massachusetts [*3] and (2) Navigators is incorporated in Delaware, has its principal place of business in Connecticut, and is a wholly-owned subsidiary of the publicly traded Navigators Group, Inc., less than ten percent (10%) of which is owned by any other single publicly traded corporation.1 Plaintiff asserts the amount in controversy exceeds the statutory threshold amount. In the absence of any challenge from Defendant, the court finds it has jurisdiction in this case pursuant to 28 U.S.C. § 1332.

1 Though Jiminy is no longer pursuing its claim against Wiegand, the court notes that Wiegand, as a wholly-owned subsidiary of a German entity with its principal place of business in Salt Lake City, Utah, is also diverse with respect to Jiminy. (Compl. ¶ 7, Dkt. No. 1, Corp. Disclosure, ¶ 1, Dkt. No. 19.)

III. Standard of Review

“‘A motion for judgment on the pleadings [under Rule 12(c)] is treated much like a Rule 12(b)(6) motion to dismiss,’ with the court viewing ‘the facts contained in the pleadings in the light most favorable to the nonmovant and draw[ing] all reasonable inferences therefrom.'” In re Loestrin 24 Fe Antitrust Litig., No. 14-2071, 2016 U.S. App. LEXIS 3049, 2016 WL 698077, at *8 (1st Cir. Feb. 22, 2016) (quoting Pérez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 (1st Cir. 2008)). Where, as here, the court is presented with cross-motions for judgment on the pleadings, the court’s role is [*4] “to determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed.” Curran v. Cousins, 509 F.3d 36, 44 (1st Cir. 2007) (internal citations omitted)). As in the case of a motion under Rule 12(b)(6), the court is permitted to consider documents central to the plaintiff’s claims where the authenticity of the documents is not disputed and the complaint adequately references the documents. Id. (citing Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993)).

IV. Background

In December of 2005, Jiminy and Wiegand entered into a “Consulting, Purchase, Delivery, Assembly and Inspection Contract” (the “Contract”). (Compl. ¶ 9, Dkt. No. 1.) Pursuant to this contract, Jiminy agreed to purchase the Coaster and Wiegand agreed to deliver, assemble, and inspect it. (Id.) Section 8 of the Contract, titled “Rights and Obligations of [Jiminy]” included in its final subsection, 8(j), language stating that Wiegand would purchase product liability insurance for the Coaster, but that Jiminy was required to pay a portion of the premium, the amount of which would be determined based on the purchase price of the Coaster, and Jiminy would then be listed as an additional insured. (Compl. Ex. A, Contract, § 8(j), Dkt. No. 1-1.) (Id.) The Contract did not set forth the term during which Wiegand’s product [*5] liability insurance policy would apply, but did provide that Jiminy would have the option to continue as an additional insured during subsequent periods, provided it continued to pay the “same premium ratio.” Id. The same section also provided that Jiminy would separately maintain a personal injury insurance policy “at its own expense at all times so long as [it] operates [the Coaster].” (Id.) The Complaint does not assert that Jiminy continued to pay premiums to remain an additional insured under Wiegand’s product liability insurance policy.

Separately at Section 12, titled “Indemnification,” the Contract provided that:

in the event of a product liability suit against [Wiegand], [Wiegand] “shall, at its own expense, defend any suit or proceeding brought against [Jiminy] and shall fully protect and indemnify [Jiminy] against any and all losses, liability, cost, recovery, or other expense in or resulting from such . . . suit (provided, however, [Jiminy] has fully performed all ongoing maintenance obligations).

(Id. at § 12(A)(1).)

The following paragraph then provided that Jiminy would

protect, indemnify, defend and hold [Wiegand] harmless from and against any and all losses of [Wiegand] arising out of or sustained, [*6] in each case, directly or indirectly, from . . . any default by [Jiminy] . . . including without limitation, from defective/bad maintenance and/or operation of the Alpine Coaster caused by [Jiminy’s] gross negligence or willful misconduct.

(Id. at § 12(A)(2).)

Under Section 18, the Contract is to be interpreted in accordance with Massachusetts law.

(Id. at § 18.)

The Coaster was installed and became operational in 2006. In August of 2012, two minors were seriously injured while riding the Coaster. At the time of the accident, Wiegand had a general commercial liability insurance policy with Navigators (“Policy”). (Policy, Ex. C, Dkt. No. 1-3.) The Policy Period ran from March 1, 2012 through March 1, 2013. Id. Pursuant to Section I(1)(a), the Policy provided that Navigators would “pay those sums that [Wiegand] becomes legally obligated to pay as damages because of ‘bodily injury’ . . . to which [the Policy] applies.” (Id. at Section I(1)(a).) The obligation established under Section I(1)(a) is further defined in Section I(2)(b) as excluding certain types of damages, including those assumed in a contract, unless assumed in an “insured contract.” (Id. at Section I(2)(b).) In the case of an “insured contract,” “reasonable [*7] attorney fees and necessary litigation expenses incurred by or for a party other than an insured [was] deemed to be damages because of ‘bodily injury’ . . . , provided . . . that the party’s defense [had] also been assumed in the same ‘insured contract'” and the damages arise in a suit to which the Policy applied. (Id.) An “insured contract” is defined in the Policy as including “[t]hat part of any other contract or agreement pertaining to [Wiegand’s] business . . . under which [Wiegand] assume[d] the tort liability of another party to pay for ‘bodily injury’ . . . to a third person or organization.” (Id. at Section V(9)(f)). “Tort liabililty” is, in turn, defined as “a liability that would be imposed by law in the absence of any contract or agreement.” (Id.)

The parents of the minors injured on the Coaster in August of 2012 subsequently filed the Underlying Action against Jiminy and Wiegand.2 (Compl., Ex. B, Compls. in Underlying Action, Dkt. No. 1-2.) The six-count complaints3 both include a negligence claim against Jiminy (Count I), a negligence claim against Wiegand (Count II), products liability claims against Wiegand (Counts III and IV), breach of implied warranty of merchantability claim against [*8] Wiegand (Count V), and a loss of consortium claim against Wiegand and Jiminy (Count VI). (Id.) After the Underlying Action was filed, Jiminy filed this action against Wiegand and Navigators, seeking a declaratory judgment ordering Wiegand and Navigators to pay the defense costs incurred by Jiminy in connection with the Underlying Action. (Compl., Dkt. No. 1.) As mentioned above, Jiminy and Wiegand agreed to the dismissal of Jiminy’s claim seeking declaratory judgment from Wiegand in this action and instead are litigating the issues in the Underlying Action.

2 These suits were initially filed in the Eastern District of New York, but have since been transferred to this court where they are proceeding as a consolidated case – 13-cv-30108-MGM. The claims brought on behalf of the minors have already been settled. The only remaining claims in those cases are the cross-claims between Jiminy and Wiegand.

3 In both complaints, the claims are actually labeled 1-5 and 7.

V. Discussion

Both Jiminy and Navigators have moved for judgment on the pleadings. Navigators argues that as an insurer it owes a duty to defend its insured, Wiegand, but it does not owe a direct duty to defend Jiminy because Jiminy [*9] is not an additional insured under the Policy.4 Further, the duty Navigators has under the Policy to pay defense costs to a non-insured party pursuant to a contractual liability of its insured only requires it to make payments to the insured, and only when the insured has actually requested payment. In this case, Navigators asserts that even if Wiegand is found to owe Jiminy its defense costs, it will be up to Wiegand to determine whether it wishes to pay the amount or to make a claim to Navigators. Since Navigators owes no duty directly to Jiminy and it would be up to Wiegand to determine whether to make a claim in the event judgment is entered against it with respect to Jiminy’s defense costs, Navigators argues judgment on the pleadings should enter in its favor.

4 In its filings and at oral argument, Jiminy was clear that it was not claiming to be an additional insured under the Policy.

For its part, Jiminy begins its argument with the Contract, asserting first that the language in the Contract at § 12(A)(1) clearly establishes that Wiegand has a duty to pay Jiminy’s defense costs regardless of any potential factual disputes between Jiminy and Wiegand, provided (1) the defense costs are incurred [*10] in litigation in which there is a product liability claim against Wiegand and (2) Jiminy is also a defendant named in the action.5 As the Underlying Action includes product liability claims against Wiegand, as well as other claims against Jiminy, Jiminy asserts the two requirements are met. Jiminy then turns to the Policy, arguing that the Contract is an “insured contract” for purposes of the Policy. Finally, Jiminy argues that since the Policy provides coverage for liability assumed by Wiegand in an “insured contract,” Navigator, as an insurer, is required under Massachusetts law, to pay for Jiminy’s defense, without regard to the resolution of the dispute between Wiegand and Jiminy.

5 Initially, in its memorandum in support of its motion for judgment on the pleadings, Jiminy argued that it would also be necessary to establish that there were no disputes as to whether Jiminy had “fully performed all ongoing maintenance obligations.” (Compl., Ex. B, Contract §12(A)(1).) Subsequently, in its opposition to Navigators’ motion for judgment on the pleadings, Jiminy instead argued that the requirement regarding maintenance obligations applied only to indemnification claims.

Navigators has not contested, [*11] at least relative to the purpose of the motions currently before the court, that the Contract between Jiminy and Wiegand is an “insured contract” for purposes of the Policy. Also, Navigators does not dispute or that the Underlying Action is the type of litigation covered under the Policy. The court begins its analysis by considering whether Massachusetts law allows Jiminy to compel payment from Navigators based on Navigators’ obligations to its insured, Wiegand. Massachusetts law imposes on insurers a “broad duty to defend its insured against any claims that create a potential for indemnity.” Doe v. Liberty Mut. Ins. Co., 423 Mass. 366, 667 N.E.2d 1149, 1151 (Mass. 1996). This duty is broad and attaches whenever the claims in the complaint match up with the language in the policy. See Liberty Mut. Ins. Co. v. SCA Services, Inc., 412 Mass. 330, 588 N.E.2d 1346, 1347 (Mass. 1992). However, the cases cited by the parties all involve cases in which the court discussed the duty in the context of the insured.

Jiminy has not cited any cases in which a court imposed on an insurer a duty to defend a third-party beneficiary of a policy. Instead, Jiminy argues the language of the Policy providing coverage for defense costs of a third-party pursuant to an “insured contract” shows the parties’ intention that Navigators would pay such costs and, therefore, such language [*12] should be construed to impose upon Navigators a duty to make payment directly to Jiminy. The court disagrees. As demonstrated by the provisions in the Policy that allow for the designation of an additional insured, Navigators and Wiegand knew how to extend Navigators’ duties as an insurer to other parties. Damages, including defense costs, associated with “insured contracts” were handled differently, indicating that Navigators and Wiegand did not, in fact, intend that in a case like this one Navigators would have any direct obligations to Jiminy based on the Contract. The Contract also included provisions regarding both additional insureds and “insured contracts,” suggesting that Jiminy, like Navigators and Wiegand, understood that Wiegand’s promise to pay Jiminy’s defense costs would not grant Jiminy the status of an “additional insured” with respect to Navigators.

In the absence of a contractual relationship between Navigators and Jiminy, the court finds no legal basis for ordering Navigators to pay Jiminy’s defense costs directly. Any obligation upon Navigators to pay such costs will arise only after an insured, in this case Wiegand, makes a claim for payment and then its only obligation [*13] will be to Wiegand. Judgment on the pleadings in favor of Navigators is, therefore, appropriate.

VI. Conclusion

For the Foregoing reasons, Plaintiff’s Motion for Judgment on the Pleadings is hereby DENIED and Defendant’s Motion for Judgment on the Pleadings is hereby ALLOWED.

It is So Ordered.

/s/ Mark G. Mastroianni

MARK G. MASTROIANNI

United States District Judge


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