Advertisements

Ochall et al., v. McNamer et al., 2016-Ohio-8493; 2016 Ohio App. LEXIS 5337

Ochall et al., v. McNamer et al., 2016-Ohio-8493; 2016 Ohio App. LEXIS 5337

Andrea Ochall et al., Plaintiffs-Appellants/Cross-Appellees, v. William M. McNamer et al., Defendants-Appellees, Mark McMillen et al., Defendants-Appellees/Cross-Appellants.

No. 15AP-772

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

2016-Ohio-8493; 2016 Ohio App. LEXIS 5337

December 29, 2016, Rendered

PRIOR HISTORY:  [**1] APPEAL from the Franklin County Court of Common Pleas. (C.P.C. No. 14CV-5498).

DISPOSITION: Judgment affirmed.

COUNSEL: On brief: Kitrick, Lewis & Harris, Co. LPA, Mark Lewis, Mark Kitrick, and Elizabeth Mote, for appellants. Argued: Mark Lewis.

On brief: The Carr Law Office, LLC, Adam E. Carr, and Eric K. Grinnell, for appellees William M. and Elizabeth McNamer. Argued: Adam E. Carr.

On brief: Lane Alton, Joseph A. Gerling, and Monica L. Waller, for appellees/cross-appellants Sharon and Mark McMillen. Argued: Monica L. Waller.

On brief: Hollern & Associates, and Edwin J. Hollern, for appellees James Porter and Jane Doe # 1. Argued: Edwin J. Hollern.

JUDGES: KLATT, J. SADLER, J., concurs. DORRIAN, P.J., concurs in and part dissents in part.

OPINION BY: KLATT

OPINION

(REGULAR CALENDAR)

DECISION

KLATT, J.

[*P1]  Plaintiffs-appellants, Andrea Ochall, her husband Robert Ochall, and their two minor children, appeal from a judgment of the Franklin County Court of Common Pleas, granting the motions for summary judgment of defendants-appellees, Sharon and Mark McMillen, James Porter and his minor daughter, Jane Doe, and William and Elizabeth McNamer (“Liz”). For the reasons which follow, we affirm.

I. FACTS AND PROCEDURAL HISTORY

[*P2]  On May 23, 2014, appellants [**2]  filed a complaint against the McNamers, the McMillens, Porter, Doe, McMillen Paving and Sealing, Inc. (“MP&S”), and McMillen Paving, Inc. The complaint asserted claims for negligence, recklessness, negligent and/or reckless design, construction, operation and maintenance, failure to warn or instruct, negligent infliction of emotional distress, negligent entrustment, negligent supervision, vicarious liability, and loss of consortium. The events giving rise to the complaint occurred on September 20, 2013, when Mrs. Ochall was seriously injured while watching a go-kart race on the McMillens’ property.

[*P3]  On the day of the incident, the McNamers had invited the Ochalls to their home in Hilliard, Ohio, for the purpose of using the go-kart track located on the McMillens’ property. The McNamers and the McMillens are next-door neighbors and very good friends. Liz McNamer and Robert Ochall are co-workers, and Liz McNamer had previously invited the Ochalls over to use the McMillens go-kart track in 2011. The Ochall family, both the adults and their two children, drove go-karts on the McMillens’ track during their visit in 2011. The Ochalls, however, had never met the McMillens before filing the [**3]  present lawsuit.

[*P4]  The McMillens’ son, Brian McMillen, with assistance from his younger brother Scott, constructed the go-kart track in the McMillens’ backyard between 1994-1995, when Brian was between the ages of 18 and 19-years-old. The McMillens own and operate a paving and sealing company, MP&S. Brian is now the vice president of MP&S, but was not when he originally constructed the track.

[*P5]  Brian and his brother built the track in their spare time, and used some company equipment to build it. The McMillens routinely used company equipment on their home projects. Brian explained that the track “basically is a twisted up driveway.” (Jan. 5, 2015 Brian McMillen Dep. at 62.) The McMillens have never charged anyone money to use the track and they do not operate the track commercially, it is something they simply use “to [their] liking.” Id. at 88.

[*P6]  Although the McNamers and the McMillens are close frends, the McNamers would always ask the McMillens for permission before bringing guests over to use the track. Thus, prior to the Ochalls’ 2013 visit, Liz McNamer asked the McMillens if they could bring the Ochalls over to use the track. The McMillens said yes, and Mark McMillen opened the McMillens’ [**4]  barn and prepared the go-karts for the group’s use.

[*P7]  The McMillens own five go-karts and the McNamers own one go-kart, but the go-karts are all the same make and model. Brian McMillen purchased all the go-karts from the same vendor shortly after he constructed the track, and the McNamers paid the McMillens directly for their one go-kart. Brian explained that he selected these specific go-karts because he “didn’t want to go so fast out there” so that people would “need helmets.” Id. at 109. Brian noted that the go-karts have “a bumper, * * * a full harness and had a roll cage,” and could reach a maximum speed of 28 miles per hour. Id. Brian also noted that he could not “recall whether or not we actually got a manual for the karts,” noting that he did not “remember even seeing a manual.” Id. at 115. The go-karts all have stickers on the back which advise the drivers that there is no bumping.

[*P8]  The McMillens store their go-karts in their barn, and there is a paved driveway which connects the barn to the track. The driveway connects with the track at the track’s start/finish line. Porter explained that people would generally congregate on the paved area next to the start/finish line in order “to trade positions [**5]  with the drivers or to watch people driving by.” (Dec. 30, 2014 James J. Porter Dep. at 41.) Liz McNamer stated that she “always stood” on the paved area near the start/finish line when she was at the track. (Feb. 10, 2015 Elizabeth G. McNamer Dep. at 56-57.) Mrs. Ochall stated that, during her visit in 2011, she was “instructed to stand in that — that particular area” by Liz McNamer. (Dec. 4, 2014 Andrea L. Ochall Dep. at 29.) No one told Mrs. Ochall where to stand during the 2013 visit. Id. at 135-36.

[*P9]  Brian McMillen testified that he designed the track “not to have any spectators.” (B. McMillen Dep. at 168.) Brian explained that, when he took “people out there, that’s part of my deal: Stay up in the barn until you come up and get in a kart.” Id. at 175. He also noted that anyone at the track had to “be aware. You’ve got cars going around the track. You have to be aware that that’s an issue.” Id. Mark McMillen had placed a bench at the back edge of that paved area next to the start/finish line. Brian explained that the bench was “by no means a bleacher,” as it was there simply for drivers to rest on between and after races. Id. at 170-71.

[*P10]  There are no barriers around the McMillens’ go-kart track, only painted edge lines. [**6]  Brian McMillen explained that he purposely did not construct barriers because barriers “would just be something for a kart to hit,” and would “give a much greater probability of making a car go airborn and possible flipping.” Id. at 168, 232. Accordingly, when driving on the McMillens’ go-kart track, “there are times you go off the track on a turn or you veer off for some reason or another. * * * And that happens regularly.” (J. Porter Dep. at 38.) Liz McNamer noted that she “went off into the grass” the first time she drove on the track. (L. McNamer Dep. at 40, 42.) She explained that it was “safe” for a driver to “go off the track and come back on.” Id. at 108-09. Porter noted that he had seen go-karts go off the track on the “big turns, * * * on the little turns, * * * on the straightaways,” and specifically stated that he had seen go-karts go off the track “coming out that final turn into the start/stop” area. (J. Porter Dep. at 38-39; 45-46.)

[*P11]  On the day of the incident, the Ochalls arrived with their two minor children, and two of their children’s friends. The McNamers’ son-in-law, Porter, was also present with his daughter, and the McNamers’ granddaughter, Doe. Doe was 11 years old; the Ochall children [**7]  and their friends were all 13 years old. The group met at the McNamers’ house, and walked through the adjoining backyards to the McMillens’ go-kart track. The McMillens were not present at the track; Sharon McMillen was at the grocery store and Mark McMillen was inside his home watching a football game.

[*P12]  Liz McNamer gave the group instructions regarding how to operate the go-karts, telling them, “the gas was on one side, the brake was on the other, the steering wheel.” (L. McNamer Dep. at 103.) Liz McNamer observed the children as they drove, noting that “[t]hey seemed to be doing pretty well. They seemed like they were able to manage going around the track.” Id. at 106. Liz McNamer noted that she watched the children driving to make sure that no one was “at risk,” and noted that she “didn’t see that.” Id. at 117.

[*P13]  There were more people than go-karts during the 2013 event, so both the adults and the children rotated using the go-karts throughout the day. As was typical at the McMillens’ track, multiple drivers drove off the track that day. Doe’s go-kart came all the way off the track and went into the grass, and Porter’s go-kart came partially off the track. One of the Ochall children drove off the track, “[a]ll [**8]  four wheels were off the track,” and Porter “had to push him out.” (J. Porter Dep. at 93, 95-96.) Liz McNamer stated that she “observed that day each child went off the track at some capacity.” (L. McNamer Dep. at 109.) Liz McNamer testified that, when Doe’s go-kart left the track earlier in the day, she spoke to her granddaughter and “cautioned her and advised her just to be careful. The ground was pretty saturated. * * * There was water standing, so I just wanted her to be aware and, you know, just cautioned her.” (L. McNamer Dep. at 129.)

[*P14]  Mrs. Ochall was aware that there were “no barriers, there’s no safety barriers” around the track. (A. Ochall Dep. at 137.) Mrs. Ochall also witnessed go-karts driving off the track on the day of the incident, and admitted that she knew “that [a go-kart] could come off the track.” Id. at 139. Indeed, two photographs Mrs. Ochall took that day depict go-karts which had driven partially and completely off the track. (See A. Ochall Dep; Defs.’ Exs. 3 and 4.) However, Mrs. Ochall believed that the paved area next to the start/finish line was “a safe environment. That is a safe zone.” (A. Ochall Dep. at 137.) No one ever told Mrs. Ochall that the paved area was [**9]  a safe zone. (See Dec. 4, 2014 Robert W. Ochall Dep. at 13; A. Ochall Dep. at 191.)

[*P15]  Mrs. Ochall drove a go-kart on the day of the incident. After driving, she stood around the track taking pictures. Mrs. Ochall’s camera had a telephoto lens, and there was a cup she had to put her eye up to in order to use the camera. Because she was taking pictures “one right after the other,” Mrs. Ochall admitted that she was “[n]ot always” able to see what was going on around her. Id. at 139-40. She admitted that her vision was “[p]robably” obstructed by her camera. Id. at 140.

[*P16]  After one to two hours at the track, the group decided they would hold one last race. Porter, Mr. and Mrs. Ochall, Mr. and Mrs. McNamer, and an Ochall child were all standing in the paved area adjoining the track near the start/finish line; the others participated in the race. During the second lap of the race, as Doe came into the turn which approached the start/finish area, “her hair band went over her eyes. She had grabbed it and thrown it off to get better vision. So as she grabbed it and thrown it off, * * * she went straight through” the paved area next to the track and struck Mrs. Ochall. (J. Porter Dep. at 117.) Mrs. Ochall was standing “10-12 feet to [**10]  the south of the painted edge line which delineated the marked boundary of the track surface” when the accident occurred. (Pls.’ Ex. C., Apr. 9, 2013 Choya R. Hawn Acc. Reconstruction Report at 8.) Porter noted that, the cars are “hard to steer with one hand,” so when Doe threw her headband “she kind of jerked as well,” which caused her to veer off the track. (J. Porter Dep. at 117.) Doe confirmed these events and told her father immediately after the incident that her “headband slipped over her eyes, and she threw it out and lost control.” Id. at 130.

[*P17]  Doe’s go-kart struck Mrs. Ochall directly and flung her into the air. When Mrs. Ochall landed, she suffered a serious spinal cord injury. The last photograph Mrs. Ochall took that day depicts Doe throwing her headband. (See A. Ochall Dep.; Defs.’ Ex. 5.) Prior to Mrs. Ochall’s injury, no one had ever been injured at the McMillens’ go-kart track. (L. McNamer Dep. at 44-45.)

[*P18]  Although each defendant filed separate motions for summary judgment, all defendants alleged that the doctrine of primary assumption of risk barred appellants’ negligence claims, and that there was no evidence of reckless or intentional misconduct. The McMillens further asserted [**11]  that, as they did not invite the Ochalls to their property, they could not be considered the social hosts of the Ochalls. The McNamers asserted that, as they were not the property owners, they could not be held liable for any condition on the McMillens property. MP&S and McMillen Paving, Inc. argued that McMillen Paving, Inc. was a shell corporation with no assets, and that MP&S did not design or construct the track.

[*P19]  Appellants filed a memorandum contra the defendants’ motions for summary judgment, asserting that “[n]othing occurred to alert [Mrs. Ochall] to any danger of go-karts driving into spectators in the seating area.” (Apr. 14, 2015 Pls.’ Memo. Contra at 8.) Appellants argued that primary assumption of the risk did not apply to the facts of this case, because the track was designed defectively and because all of the defendants had acted recklessly.

[*P20]  Appellants supported their memorandum contra with the report of their accident reconstruction expert, Choya Hawn. Hawn observed that, “[i]n the absence of any persons afoot the original track design was in [his] opinion reasonably safe for the ‘go-kart operators.'” (Emphasis sic.) (Acc. Reconstruction Report at 13.) Hawn stated that a “reasonable [**12]  solution to the safety issue for persons afoot” was to construct “a small elevated wooden platform (~7-8 inches in height) on the infield side of the start/finish/staging area.” Id. at 16. Hawn concluded that the “failure to either provide a safe observation location or to otherwise dictate, communicate and enforce safety rules to protect guests from the potential hazard associated with spectating was unreasonable and made this an unsafe environment for persons afoot.” Id. at 16, 18.

[*P21]  On May 6, 2015, the court issued a decision and entry denying the McMillens’ motion for summary judgment, in part, and granting the business entities’ motion for summary judgment. The court concluded that, as the McNamers had asked the McMillens if they could bring the Ochalls to the McMillens property, and the McMillens had granted the McNamers permission to do so, “an implied invitation between the McMillens and Plaintiffs occurred.” (May 6, 2015 Decision & Entry at 4.) As such, the court concluded that the Ochalls were the social guests of the McMillens. Regarding the entities, the court determined that McMillen Paving, Inc. had “never performed any business nor held assets, and never acted in the creation of the go-kart [**13]  track,” such that the company was an “inappropriate party to the suit.” Id. at 5. Regarding MP&S, the court concluded that the company “was not employed to create or maintain the go-kart track,” and that Brian McMillen was not acting in his capacity as an employee of the company when he constructed the track. Id.

[*P22]  On July 31, 2015, the trial court issued a decision and entry granting the McMillens’, the McNamers’, and Porter’s and Doe’s motions for summary judgment. The court observed that go-karting is a recreational activity, and concluded that, “[s]ince the risk of being injured by a go-kart leaving the track [was] a foreseeable risk of go-kart racing on the McMillen track,” the risk was “inherent to go-kart racing on a private, barrier-less backyard track.” (July 31, 2015 Decision & Entry at 7-8.) As such, the court concluded that primary assumption of the risk applied to bar appellants’ negligence claims, and that appellants could only recover if the defendants acted intentionally or recklessly to cause Mrs. Ochall’s injuries.

[*P23]  The “parties agree[d] that no one acted intentionally to injure Andrea Ochall on that day.” Id. at 8. Accordingly, the court addressed whether any of the defendants engaged in reckless [**14]  misconduct. Appellants argued that the defendants were reckless because they failed to enforce Brian McMillen’s no-spectator rule. The court observed that, while Brian McMillen had a no-spectator rule when he was at the track, Brian was not the property owner, and neither the McMillens nor Brian McMillen acknowledged Brian’s personal rule as a track rule. As such, the court concluded that “not allowing adult spectators at or near the track for races [was] not a rule, regulation, custom, or common practice of the track or races conducted at the McMillen track.” Id. at 11. The court also addressed appellants’ argument that the defendants were reckless because they had not read or implemented safety guidelines from the go-kart manufacturer’s or owner’s manuals. The court concluded that no defendant had a duty to inform appellants about those safety guidelines.

[*P24]  Regarding the McMillens, the court noted that, as the property owners, the McMillens had no duty to improve their track, as they only had a duty to “exercise ordinary care to prepare the property for social guests.” Id. at 12. Accordingly, the McMillens did not have “a duty to instruct guests on how to go-kart race or to implement any rules other [**15]  than those which the family uses on their land.” Id. at 14. The court observed that the McMillens merely allowed their neighbors and their neighbor’s guests to use their go-kart track. As such, the court did not find any evidence of reckless conduct by the McMillens.

[*P25]  Regarding the McNamers, the court noted that the McNamers similarly “did not have a duty to instruct guests on how to drive a go-kart.” Id. at 16. Regarding the McNamers supervision of Doe, the court noted that Liz McNamer told her granddaughter once to slow down. The court observed that “[a] single admonishment by a grandparent in the presence of the child’s parent” was “not sufficient evidence of recklessness.” Id. at 19. As there was no evidence indicating that the McNamers told appellants “they ‘had to’ stand on the adjacent asphalt area,” and as Liz McNamer also stood on the adjacent asphalt area, the court could not find that the “McNamer’s action of standing on the adjacent area rose to the level of reckless required by the theory of primary assumption of the risk.” Id. at 20.

[*P26]  Regarding Doe, the court concluded that Doe was not reckless, “because removing a hand from the steering wheel to clear one’s vision is the lesser of two evils. * * * [Doe] [**16]  did not intentionally drive into the spectator area, but was unable to correct her kart’s path in time to not strike Plaintiff.” Id. at 21. Regarding appellants claim that Porter was reckless by not removing Doe from the track earlier in the day, the court concluded that, as there was no evidence demonstrating that Doe was driving recklessly throughout the day, there was no reason why Porter should have removed Doe from the track.

[*P27]  Accordingly, the court concluded that primary assumption of the risk applied to the case, and that there was no evidence of reckless or intentional misconduct. As such, the court found the defendants entitled to summary judgment as a matter of law.

II. ASSIGNMENTS OF ERROR

[*P28]  Appellants appeal, assigning the following two assignments of error for our review:

1. THE TRIAL COURT ERRED APPLYING PRIMARY ASSUMPTION OF THE RISK TO HOLD THAT DEFENDANTS-APPELLEES WERE ENTITLED TO JUDGMENT AS A MATTER OF LAW.

2. THE TRIAL COURT ERRED IN HOLDING THAT THERE EXISTED NO GENUINE ISSUES OF MATERIAL FACT CONCERNING DEFENDANTS-APPELLEES’ RECKLESS-NESS, THUS ENTITLING THEM TO JUDGMENT AS A MATTER OF LAW.

The McMillens have also filed a contingent cross-appeal, asserting the following sole, [**17]  assignment of error:

The Trial Court erred in denying in part the Motion for Summary Judgment of Appellees/Cross-Appellants Sharon McMillen and Mark McMillen and concluding that Appellants were social guests of the McMillens rather than licensees. The McMillens’ assignment of error is conditional upon the Courts’ ruling on the assignment of error of Appellants. If the Court overrules Appellants’ assignment of error, the McMillens will withdraw the cross-appeal.

III. STANDARD OF REVIEW

[*P29]   [HN1] Appellate review of summary judgment motions is de novo. Helton v. Scioto County Bd. of Comm’rs, 123 Ohio App. 3d 158, 162, 703 N.E.2d 841 (4th Dist.1997). “When reviewing a trial court’s ruling on summary judgment, the court of appeals conducts an independent review of the record and stands in the shoes of the trial court.” Mergenthal v. Star Banc Corp., 122 Ohio App. 3d 100, 103, 701 N.E.2d 383 (12th Dist.1997). We must affirm the trial court’s judgment if any of the grounds raised by the movant at the trial court are found to support it, even if the trial court failed to consider those grounds. Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41-42, 654 N.E.2d 1327 (9th Dist.1995).

[*P30]   [HN2] Summary judgment is proper only when the party moving for summary judgment demonstrates that: (1) no genuine issue of material fact exists, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds could come to but one conclusion and that conclusion is adverse [**18]  to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence most strongly construed in that party’s favor. Civ.R. 56(C); State ex rel. Grady v. State Emp. Rels. Bd., 78 Ohio St. 3d 181, 183, 1997 Ohio 221, 677 N.E.2d 343 (1997).

[*P31]   [HN3] When seeking summary judgment on the ground that the nonmoving party cannot prove its case, the moving party bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on an essential element of the nonmoving party’s claims. Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996 Ohio 107, 662 N.E.2d 264 (1996). A moving party does not discharge this initial burden under Civ.R. 56 by simply making a conclusory allegation that the nonmoving party has no evidence to prove its case. Id. Rather, the moving party must affirmatively demonstrate by affidavit or other evidence allowed by Civ.R. 56(C) that the nonmoving party has no evidence to support its claims. Id. If the moving party meets this initial burden, then the nonmoving party has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial and, if the nonmoving party does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party. Id.

IV. FIRST ASSIGNMENT OF [**19]  ERROR — PRIMARY ASSUMPTION OF RISK

[*P32]  Appellants’ first assignment of error asserts that the trial court erred by applying the doctrine of primary assumption of the risk to the instant dispute. Appellants asserted various negligence claims against the defendants, and  [HN4] “in order to establish actionable negligence, one seeking recovery must show the existence of a duty, the breach of the duty, and injury resulting proximately therefrom.” Strother v. Hutchinson, 67 Ohio St.2d 282, 285, 423 N.E.2d 467 (1981), citing Feldman v. Howard, 10 Ohio St.2d 189, 193, 226 N.E.2d 564 (1967). “[A] successful primary assumption of risk defense means that the duty element of negligence is not established as a matter of law.” Wolfe v. Bison Baseball, Inc., 10th Dist. No. 09AP-905, 2010-Ohio-1390, ¶ 21, quoting Gallagher v. Cleveland Browns Football Co., 74 Ohio St.3d 427, 432, 1996 Ohio 320, 659 N.E.2d 1232 (1996).

[*P33]  [HN5]  “Ohio law recognizes three categories of assumption of the risk as defenses to a negligence claim: express, primary, and implied or secondary.” Schnetz v. Ohio Dep’t of Rehab. & Corr., 195 Ohio App. 3d 207, 959 N.E.2d 554, 2011-Ohio-3927, ¶ 21 (10th Dist.), citing Crace v. Kent State Univ., 185 Ohio App.3d 534, 2009-Ohio-6898, ¶ 10, 924 N.E.2d 906 (10th Dist.). “Express assumption of the risk applies when parties expressly agree to release liability.” Crace at ¶ 11. “Implied assumption of risk is defined as plaintiff’s consent to or acquiescence in an appreciated, known or obvious risk to plaintiff’s safety.” Collier v. Northland Swim Club, 35 Ohio App.3d 35, 37, 518 N.E.2d 1226 (10th Dist.1987). “Under this approach to assumption of risk, defendant owes to plaintiff some duty, but it is plaintiff’s acquiescence in or appreciation of a [**20]  known risk that acts as a defense to plaintiff’s action.” Id.

[*P34]  [HN6]  “Under the doctrine of primary assumption of the risk, a plaintiff who voluntarily engages in a recreational activity or sporting event assumes the inherent risks of that activity and cannot recover for injuries sustained in engaging in the activity unless the defendant acted recklessly or intentionally in causing the injuries.” Morgan v. Ohio Conference of the United Church of Christ, 10th Dist. No. 11AP-405, 2012-Ohio-453, ¶ 13, citing Crace at ¶ 13, citing Santho v. Boy Scouts of Am., 168 Ohio App.3d 27, 2006-Ohio-3656, ¶ 12, 857 N.E.2d 1255 (10th Dist.). See also Marchetti v. Kalish, 53 Ohio St.3d 95, 559 N.E.2d 699 (1990), paragraph one of the syllabus. “The rationale is that certain risks are so inherent in some activities that the risk of injury is unavoidable.” Crace at ¶ 13, citing Collier at 37. By participating in an activity, the plaintiff “tacitly consent[s]” to the risk of injury inherent in the activity. Id. The test requires that: “(1) the danger is ordinary to the game, (2) it is common knowledge that the danger exists; and (3) the injury occurs as a result of the danger during the course of the game.” Santho at ¶ 12.

[*P35]  Thus,  [HN7] courts apply the doctrine of primary assumption of the risk to cases involving sporting events and recreational activities, and generally extend the doctrine to relieve liability of [**21]  owners, operators, and sponsors of recreational activities. Crace at ¶ 12, 20. The doctrine applies regardless of whether the activity was engaged in by children or adults, or was organized, unorganized, supervised, or unsupervised. Gentry v. Craycraft, 101 Ohio St.3d 141, 2004-Ohio-379, ¶ 8, 802 N.E.2d 1116. The doctrine also applies to spectators and participants alike. Id. at ¶ 10.

[*P36]  Furthermore,  [HN8] when considering primary assumption of the risk, “the injured plaintiff’s subjective consent to and appreciation for the inherent risks are immaterial to the analysis.” Crace at ¶ 16, citing Gentry at ¶ 9. See also Foggin v. Fire Protection Specialists, Inc., 10th Dist. No. 12AP-1078, 2013-Ohio-5541, ¶ 10 (noting that the plaintiff’s subjective consent to the inherent risks of an activity are immaterial, because “[t]hose entirely ignorant of the risks of the activity, still assume the risk by participating in the activity”). Indeed, “primary assumption of risk requires an examination of the activity itself and not plaintiff’s conduct.” Gehri v. Capital Racing Club, Inc., 10th Dist. No. 96APE10-1307, 1997 Ohio App. LEXIS 2527 (June 12, 1997). See Rees v. Cleveland Indians Baseball Co., 8th Dist. No. 84183, 2004-Ohio-6112, ¶ 20, quoting Gum v. Cleveland Elec. Illuminating Co., 8th Dist. No. 70833, 1997 Ohio App. LEXIS 503 (Feb. 13, 1997) (explaining that “‘the baseball fan assumes the risk of being hit by a foul ball when [**22]  he takes his place in the stands, not at the moment the foul ball comes flying his way'”). Accordingly, Mrs. Ochall’s personal belief that the paved area next to the track was a safe zone is irrelevant to the primary assumption of the risk analysis.

[*P37]  [HN9]  “‘[O]nly those risks directly associated with the activity in question are within the scope of primary assumption of risk.'” Horvath v. Ish, 134 Ohio St.3d 48, 2012-Ohio-5333, ¶ 19, 979 N.E.2d 1246, quoting Gallagher at 432. “The affirmative defense of primary assumption of the risk completely negates a negligence claim because the defendant owes no duty to protect the plaintiff against the inherent risks of the recreational activity in which the plaintiff engages.” Morgan at ¶ 14, citing Crace at ¶ 15. See also Pope v. Willey, 12th Dist. No. CA2004-10-077, 2005-Ohio-4744, ¶ 11. “Because of the great impact a ruling in favor of a defendant on primary assumption of risk grounds carries, a trial court must proceed with caution when contemplating whether primary assumption of risk completely bars a plaintiff’s recovery.” Gallagher at 432.

[*P38]   [HN10] The “goal” of the primary assumption of the risk doctrine “is to strike a balance between encouraging vigorous and free participation in recreational or sports activities, while ensuring the safety of the players.” Marchetti at 99. See also Ferrari v. Grand Canyon Dories, 38 Cal. Rptr. 2d 65, 32 Cal. App. 4th 248, 253 (observing [**23]  that the “overriding consideration in the application of primary assumption of risk is to avoid imposing a duty which might chill vigorous participation in the implicated activity and thereby alter its fundamental nature”); Yancey v. Superior Court, 33 Cal. Rptr. 2d 777, 28 Cal. App. 4th 558, 565 (noting that “[d]uty is constricted in such settings because the activity involves inherent risks which cannot be eliminated without destroying the sport itself”).

[*P39]   [HN11] Whether to apply the affirmative defense of primary assumption of the risk presents an issue of law for the court to determine. Crace at ¶ 12, citing Gallagher at 435. We therefore review the trial court’s application of the doctrine de novo. Id.

[*P40]  Appellants contend that the trial court disregarded relevant authority when it “looked only to ‘foreseeable’ and ‘common’ risks to invoke the doctrine.” (Appellant’s brief, at 16.) Appellants assert that the trial court “misunderstood and misapplied Ohio law” when it held that the risks which are foreseeable and common in the course of a sport or activity are the inherent risks of the activity. Id. at 16-17. The trial court observed that “[a] risk is found to be ordinary or inherent to the recreational activity when it arises from conduct that is ‘a foreseeable, customary part of the activity.'” [**24]  (Decision & Entry at 4, quoting Gentry at 144.)

[*P41]  In Gentry the Supreme Court of Ohio held that  [HN12] “where injuries stem from ‘conduct that is a foreseeable, customary’ part of the activity, the defendant ‘cannot be held liable for negligence because no duty is owed to protect the victim from that conduct.'” Id. at ¶ 10, quoting Thompson v. McNeill, 53 Ohio St.3d 102, 104, 559 N.E.2d 705 (1990), modified on other grounds by Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266. The court in Gentry noted that, “[o]bviously,” in Thompson, the court had “applied ‘primary’ assumption-of-risk principles in limiting the defendant’s liability.” Id. at ¶ 11. See Thompson at 106 (noting that, because “[s]hanking the ball is a foreseeable and not uncommon occurrence in the game of golf,” the plaintiff primarily assumed the risk of being hit by a golf ball by playing the game of golf).

[*P42]  [HN13]  Under the three-part test, a danger ordinary to a game is a danger which is customary to the game. See Santho at ¶ 13 (observing that “[f]alling is an ordinary danger of ice-skating,” and that “[c]olliding with the perimeter boards is an ordinary danger of ice rink skating”). When a danger is a foreseeable part of a game, there will be common knowledge that the danger exists. See id. (noting that it is “foreseeable that any time an individual, regardless of skill, steps onto ice, they risk falling or coming into contact with [**25]  the barriers that set the perimeter of the skating surface”); Cincinnati Base Ball Club Co. v. Eno, 112 Ohio St. 175, 180-81, 3 Ohio Law Abs. 164, 147 N.E. 86 (1925) (noting that it is “common knowledge that in baseball games hard balls are thrown and batted with great swiftness, that they are liable to be thrown or batted outside the lines of the diamond, and that spectators in positions which may be reached by such balls assume the risk thereof”).

[*P43]  Thus, [HN14]  for primary assumption of the risk purposes, the risks inherent in an activity are the foreseeable, common, and customary risks of the activity. See also Foggin v. Fire Protection Specialists, Inc., 10th Dist. No. 12AP-1078, 2013-Ohio-5541, ¶ 9 (noting that the “types of risks associated with the activity are those that are foreseeable and customary risks of the activity”); Deutsch v. Birk, 189 Ohio App.3d 129, 2010-Ohio-3564, ¶ 13, 937 N.E.2d 638 (12th Dist.). Accordingly, the trial court did not err by concluding that the foreseeable and cutomary risks of an activity are the inherent risks of the activity. See Gentry at ¶ 10, quoting Thompson at 104 (primary assumption of the risk applies to “‘conduct that is a foreseeable, customary part’ of the activity”).

[*P44]  Appellants further contend that the the “trial court improperly applied the doctrine when it failed to analyze whether the risks that injured Plaintiff-Appellant were inherent, necessary or unavoidable, [**26]  i.e., whether they could be eliminated.” (Appellant’s brief, at 17.) Appellants assert that the trial court “ignored” the “various ways” the danger to spectators “could have been eliminated.” Id. at 23. Relying on the accident reconstruction report, appellants assert that “the ‘potential’ danger to spectators could have been easily eliminated by (1) moving the spectator area, (2) elevating the spectator area by wooden deck, (3) installing simple barriers between the track and spectators, or (4) warning guests about the no-spectator rule.” Id. Appellants, however, misconstrue the meaning of risks which “cannot be eliminated.”

[*P45]   [HN15] The Supreme Court of Ohio has held that “‘[t]o be covered under the doctrine, the risk must be one that is so inherent to the sport or activity that it cannot be eliminated.'” Horvath at ¶ 19, quoting Konesky v. Wood Cty. Agricultural Soc., 164 Ohio App.3d 839, 2005-Ohio-7009, ¶ 19, 844 N.E.2d 408 (6th Dist.). In Horvath, the court observed that “collisions between skiers are an inherent risk of skiing,” as “‘other skiers are as much a part of the risk in downhill skiing, if not more so than the snow and ice, elevation, contour, speed and weather conditions.'” Id. at ¶ 20, quoting Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 511, 762 A.2d 339 (2000). See also Morgan v. Kent State Univ., 2016-Ohio-3303, 54 N.E.3d 1284, ¶ 25 (noting that, “by its very nature, karate, [**27]  as a martial art, is an inherently dangerous activity from which the risk of harm cannot be eliminated”). To determine the risks which are so inherent in an activity that they cannot be eliminated, a court must “focus[] exclusively upon the activity itself.” Schnetz at ¶ 28. See also Crace at ¶ 25.

[*P46]  For example, in Brumage v. Green, 2d Dist. No. 2014-CA-7, 2014-Ohio-2552, the court observed that “‘[l]osing control and flipping an ATV is a foreseeable and customary risk associated with the activity of driving or riding on an ATV.'” Id. at ¶ 14, quoting Curtis v. Schmid, 5th Dist. No. 07 CAE 11 0065, 2008-Ohio-5239, ¶ 56. The plaintiff argued that certain factors specific to the incident, including that he was driving the ATV on a public roadway, made the risks he faced “greater than are customary in the recreational activity of riding ATVs.” Id. at ¶ 15. The court refused to address the plaintiff’s incident specific arguments, because “flipping off an ATV and getting injured is a risk that is inherent in the recreational activity of riding an ATV.” Id. at ¶ 16. The Brumage court observed that, “‘[w]hat causes the driver to lose control is better addressed when determining whether the driver acted intentionally, [or] recklessly.'” Id. at ¶ 16, quoting West v. Devendra, 7th [**28]  Dist. No. 11 BE 35, 2012-Ohio-6092, ¶ 26, 985 N.E.2d 558. See also Morgan v. Kent State Univ. at ¶ 22, 25.

[*P47]  Accordingly, in analyzing the risks inherent to go-karting, we must focus exclusively on the activity of go-karting, and not on the actions or omissions of the defendants in this case. See Crace at ¶ 25 (observing that, if the law treated participants differently from nonparticipants, the primary assumption of the risk analysis would shift “away from the activity and its inherent risks,” and would “unnecessarily focus upon the extent of the defendant’s involvement and the defendant’s classification as a participant, non-participant, * * * sponsor, provider, or otherwise,* * * with no regard for the inherent risks of the activity”). Appellants’ contentions regarding the things the defendants could have done to alter the McMillens’ track for the benefit of spectators essentially amount to claims that the various defendants were reckless. See Morgan v. Church of Christ at ¶ 16.

[*P48]  Additionally, appellants’ arguments regarding the “risks to spectators” at the McMillens’ track improperly attempts to shift the focus of the analysis away from the risks inherent in the activity. (Appellant’s brief, at 20.) [HN16]  Because the primary assumption [**29]  of the risk analysis focuses on the risks inherent in the activity at issue, spectators and participants are treated the same. Indeed, “spectators as well as participants ‘must accept from a participant conduct associated with that sport’ or activity.” Gentry at ¶ 10, quoting Thompson at 104. See also Taylor v. Mathys, 3rd Dist. No. 14-04-32, 2005-Ohio-150, ¶ 10, citing Gentry at ¶ 6 (noting that primary assumption of the risk’s “limitation on liability extends to the spectators of a recreational activity as well as the participants”); Crace at ¶ 25. “‘[T]hose entirely ignorant of the risks of a sport, still assume the risk * * * by participating in a sport or simply by attending the game.'” Gentry at ¶ 12, quoting Gilles, From Baseball Parks to the Public Arena: Assumption of the Risk in Tort Law and Constitutional Libel Law, 75 Temple L.Rev. 231, 236 (2002).

[*P49]  Focusing on the activity at issue herein, we observe that go-karting is a recreational activity involving motorized go-karts which are propelled forward around a racetrack by a driver. During a race, a go-kart driver will attempt to drive their go-kart past the other go-karts in the race in order to be the first go-kart to cross the finish line. The joy of go-karting derives from attempting to maintain control over one’s go-kart while maneuvering, [**30]  at speed, around the go-kart track and the other go-karts present on the track. Accordingly, [HN17]  the inherent risks of go-karting include running into other go-karts on the track, or deviating from the track and running into any object present around the track. See Loewenthal v. Catskill Funland, 237 A.D.2d 262, 263, 654 N.Y.S.2d 169 (1997) (where the plaintiff’s “go-kart veered off its intended course, striking the wall in the pit area head on,” the court observed that, “[i]n riding the go-cart, the plaintiff * * * assumed the risks inherent in the activity,” which included that the “go-cart would bump into objects”); Garnett v. Strike Holdings LLC, 131 A.D.3d 817, 820, 15 N.Y.S.3d 786 (2015) (noting that “the operator of the track does not have a duty to protect the go-kart rider from the inherent and foreseeable risk of being bumped by another go-kart”). Compare Jussila v. United States Snowmobile Ass’n, 556 N.W.2d 234, 237 (Minn.App.1996) (noting that “a snowmobile takes on a more dangerous character when operated on a racetrack by competitors attempting to win races”).

[*P50]  Accordingly, [HN18]  the risk that a go-kart may veer off the track and strike any object present nearby is a risk inherent to go-karting. As such, Mrs. Ochall assumed that risk in the primary sense when she stood 10 to 12 feet away from the McMillens’ go-kart track while a go-kart race was in process.

[*P51]  Appellants [**31]  assert that the trial court erred “by conflating the duty analysis under primary assumption of the risk with the social host duty of care in premises liability cases.” (Appellant’s brief, at 27.) The trial court noted appellants’ argument that “a risk is not inherent if it can be eliminated with due care,” but concluded that, because “[d]efendants, as social hosts, did not have an additional duty to make adjustments to the private, residential track, * * * the risk in question [was] a risk inherent to go-kart racing on a private, barrier-less backyard track.” (Decision & Entry at 5, 7-8.) Appellants contend that the trial court’s analysis improperly mixed “duty with breach.” (Appellant’s brief, at 27.) We agree.

[*P52]  The trial court erred in its primary assumption of the risk analysis because it failed to ascertain the risks inherent in the activity of go-karting. Instead, the trial court wrongly focused on the defendants, and the duty they owed to appellants, rather than focusing on the activity at issue. See Schnetz at ¶ 30 (finding that the trial court erred by concluding that primary assumption of the risk did not apply “to inmate claims against a prison because a prison owes a duty of care to inmates in its custody and [**32]  control,” as such a “holding shift[ed] the focus of the analysis away from the activity and its inherent risks and improperly focuse[d] upon the extent of the defendant’s involvement and the defendant’s classification”).

[*P53]  Although the trial court erred by considering the defendants’ duty under the primary assumption of the risk analysis, this error does not amount to reversible error. Pursuant to our de novo review, we have determined that an inherent risk of go-karting is the risk that a go-kart will deviate from its intended course upon the track and strike any object which may be present around the track. As such, absent evidence of reckless or intentional conduct, primary assumption of the risk applies to the facts of this case and defeats appellants’ negligence claims. Accordingly, we have reached the same result as the trial court, albeit for different reasons. See Phillips v. Dayton Power & Light Co., 93 Ohio App.3d 111, 115, 637 N.E.2d 963 (2d Dist.1994) (noting that, since the reviewing court must independently determine, as a matter of law, whether summary judgment was properly granted, “[a] summary judgment based on a legally erroneous analysis of the issues must be affirmed if the appellate court independently determines that upon the record summary judgment should have been rendered [**33]  as a matter of law, albeit for different reasons”).

[*P54]  Appellants assert that the trial court disregarded the two Ohio go-karting cases, Goffe v. Mower, 2d Dist. No. 98-CA-49, 1999 Ohio App. LEXIS 308 (Feb. 5, 1999) and Reed v. Cassidy, 3d Dist. No. 2-01-36, 2002-Ohio-1672 (Apr. 10, 2002), in reaching its summary judgment decision. The trial court noted the cases, but correctly found the cases inapplicable to the present dispute. (See Decision & Entry at 5-6.)

[*P55]  In Reed the plaintiff was injured at a charity go-kart race being held on city streets. The race organizers had placed a four-foot high fence and bales of hay around the race perimeter to separate the sidewalk from the racetrack. The plaintiff was “initially watching the race from a spectator area,” but had moved to another area to watch the race, which was still “protected by the orange fencing” but had “fewer hay bales.” Id. Two go-kart drivers collided during the race, causing one go-kart to veer off the track and strike the plaintiff. The court stated that it was “not convinced that injury to a spectator [was] the kind of risk so inherent to the sport of go-kart racing that the appellant could be deemed to have consented to it.” Id. The court noted that the plaintiff “testified that she observed [**34]  other accidents during go-kart races and that there had, in fact, been several other accidents on the day she was hit.” Id. The court concluded that simply observing other go-karts run into each other did “not mean that injury to spectators as a result of karts leaving the track [was] inherent to racing,” but stated that it “raise[d] a question of fact as to whether such risk was obvious to appellant.” Id.

[*P56]  As Reed is a decision from the Third District Court of Appeals, it holds no precedential value in this district. Furthermore, as the Reed court failed to engage in a proper primary assumption of the risk analysis, we do not find the decision persuasive. Reed did not attempt to ascertain the risks inherent to the activity of go-karting. Instead, the court simply concluded that injury to spectators was not an inherent risk of go-karting. In so concluding, the court treated spectators differently from participants, in violation of Gentry. The Reed court also inappropriately considered the plaintiff’s subjective understanding of the risk, in further violation of Gentry.

[*P57]  Unlike the present case which concerns a private, free, backyard go-kart track, in Goffe the plaintiff was a business invitee [**35]  at a commercial go-kart track. The plaintiff was injured exiting her go-kart at the end of the ride when another driver accidently accelerated and “struck a parked go-cart in the off-loading area of the track,” which then “struck Ms. Goffe in the leg.” Id. The plaintiff alleged defective design had caused her injury because, at the end of the ride, a gate would funnel the go-karts “into a confined pit area so that a runaway go-cart had no option but to strike go-carts in the unloading area.” Id. The court observed that “[o]ne who rides an amusement device assumes the ordinary risks inherent in the ride, insofar as those risks are obvious and necessary, but only so long as the device is properly designed and the operator has used proper care in its construction and operation.” Id., citing Pierce v. Gooding Amusement Co., 55 Ohio Law Abs. 556, 90 N.E.2d 585 (1949). The court concluded that the business had breached its “duty of ordinary care to Ms. Goffe by desiging an amusement ride which created an unreasonable danger that the rider would be injured while exiting the ride but before reaching a place of safety.” Id.

[*P58]  Relying on Goffe, appellants contend that primary assumption of the risk cannot apply in this matter, because defendants “enhanced the unusual risk [**36]  to spectators by operating a defective track.” (Appellant’s brief, at 23.) Appellants assert that defendants “failed to design, build and operate the track to account for spectator safety by, among other steps, moving the spectator area inside the track and elevating it.” Id. at 24. Appellants argue that the track was defective because defendants “built and maintained a ‘short chute’ at the final high-banked turn to create faster go-kart speeds approaching the spectator area.” Id. However, there is no evidence in the record indicating that either the short-chute or the high-banked turn created faster go-kart speeds, or that these aspects of the track caused the accident.

[*P59]  Brian McMillen explained that, in 2010-11, he “raised the elevation” on the curve approaching that start/finish area in order to “control flooding from the pond and the ground water.” (B. McMillen Dep. at 135.) The alteration resulted in the track “dropping three or four inches over that 30-40 feet” as a kart approached the straightaway into the start/finish line. Id. at 149. Brian referred to the straightaway as a “short chute,” explaining that a “short chute” is just a “small piece of straightaway between two turns.” Id. at 150. Notably, Brian [**37]  confirmed that this alteration did not affect a driver’s “ability to change speed or how they had to maneuver that part of the track.” Id. at 149.

[*P60]  Hawn concluded that “it was mathematically possible for a kart to be driven successfully through the high-banked curve at the south end of the track” approaching the start/finish area “at full (maximum) speed,” and explained that “[t]he laws of Newtonian physics dictate that if a kart were to exceed the critical speed of the high-banked curve or fail to maintain a traversable line through the curve, the kart will break tracation and likely slide towards the outside of the curve beyond the apex.” (Acc. Reconstruction Report at 10, 13. ) Hawn stated that Doe’s go-kart was travelling between 18 to 25 miles per hour when it struck Mrs. Ochall, “which was consistent with the critical speed calculations for the kart traversing the high-banked curve.” Id. at 11. Thus, Doe did not exceed the critical speed of the high-banked curve. Although Hawn referred to the high-banked curve as the “fastest curve of the track,” he did not find that the curve created unreasonably fast go-kart speeds or that the curve would cause a driver to lose control of their go-kart. Id. at 13.

[*P61]  Indeed, Hawn [**38]  concluded that the “design, layout, construction and overall environment of the track facility (with the generous clear zone) was reasonably safe for the ‘operators of the karts.'” Id. at 17. Hawn also stated that the “the original track design was in [his] opinion reasonably safe for the ‘go-kart operators.'” (Emphasis sic.) Id. at 15. Thus, appellants own expert concluded that the design of the track was safe. Appellants have failed to demonstrate a genuine issue of material fact regarding whether the track was designed defectively.

[*P62]  Appellants’ contention that the McMillens’ track was defectively designed because there was no infield, elevated, spectator platform, does not amount to an argument that the track was designed defectively. An elevated viewing platform would not be part of the track itself; rather, it would be a separate structure near the track. Appellants’ contention that defendants should have constructed a viewing platform for spectators, or taken other actions for spectators, do not allege that the track itself was designed defectively, but are essentially claims that the defendants were reckless by failing to build a spectator platform.

[*P63]  Based on the foregoing, we find that Mrs. Ochall [**39]  primarily assumed the risk of injury when she stood 10 to 12 feet away from the McMillens’ go-kart track. Appellants’ first assignment of error is overruled.

V. SECOND ASSIGNMENT OF ERROR – RECKLESSNESS

[*P64]  Appellants’ second assignment of error asserts that the trial court erred in finding no genuine issues of material fact regarding defendants’ recklessness.

[*P65]  [HN19]  An actor’s conduct is reckless when the actor “‘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.'” Marchetti at 96, fn. 2, quoting 2 Restatement of the Law 2d, Torts, Section 500, at 587 (1965). “What constitutes an unreasonable risk under the circumstances of a sporting event must be delineated with reference to the way the particular game is played, i.e., the rules and customs that shape the participants’ ideas of foreseeable conduct in the course of a game.” Thompson at 105.

[*P66]  Thus, “[i]f the rules of a sport allow conduct intended to harm another player, as they do in boxing or football, for example, [**40]  it follows that those same rules allow behavior that would otherwise give rise to liability for recklessness.” Id. Conversley, “any conduct which is characterized by the strong probability of harm that recklessness entails, and which occurs outside the normal conduct and customs of the sport, may give rise to liability.” Id. In assessing recklessness, courts must recognize the “inverse relationship between duty and dangerousness,” as the “‘quid pro quo of an “assumed greater risk” is a diminished duty.'” Id., quoting Hanson v. Kynast, 38 Ohio App. 3d 58, 64, 526 N.E.2d 327 (5th Dist.1987).

[*P67]  Appellants assert that the trial court “wrongly construed evidence regarding Defendants’ failure to warn Andrea Ochall about the track builder Brian McMillen’s design and rule prohibiting spectators in a light most favorable to [plaintiffs].” (Appellant’s brief, at 34.) Appellants assert that, construing the evidence in their favor, there are genuine issues of material fact regarding whether McMillens and/or McNamers disregarded Brian McMillen’s rule and “knowingly failed to warn or inform Andrea Ochall about the Brian McMillen’s design and policy.” Id. at 38.

[*P68]  As noted above, Brian McMillen testified that he did not design the track to account for spectators. (B. McMillen Dep. [**41]  169.) Brian explained that he “rarely” had spectators at the track, but that when he did, he told them to “[s]tay up in the barn.” Id. at 172, 175. However, Brian also did not enforce his no-spectator rule when he was at the track. Brian noted that when the track was first built his “dad may come out or one of [his] friends may come out and stand somewhere in that vicinity,” of the paved area next to the start/finish line, “and watch us turn a couple laps.” Id. at 172. Brian stated that he had never kicked any spectator of the paved area next to the start/finish line. Id. at 182-83.

[*P69]  Sharon McMillen noted that Brian told her “[a] couple of years ago” that he had a no-spectator rule when he was at the track, but she clarified that he never told her that the track wasn’t designed for spectators. (Feb. 10, 2015 Sharon McMillen Dep. at 104-05. Sharon noted that, when she was out at the track, she would stand “[u]sually in the grass out by the corner where the bench sits,” explaining that’s “just where we stand.” Id. at 100, 102. Sharon stated that she previously stood on the paved area next to the start/finish line when Brian was also present at the track, and that he never told her to move from that location. Id. at 130.

[*P70]  Indeed, for adult spectators at the McMillens’ [**42]  go-kart track, there “was no rule” regarding where they had to stand. Id. at 108-09. Sharon McMillen noted, “[t]here’s seven acres they can stand on. They can stand anywhere.” (S. McMillen Depo. 108.) Sharon believed it was safe for people to stand on the paved area next to the start/finish line at the track, “[a]s long as they’re watching what’s going on.” Id. at 102, 108.

[*P71]  The McMillens, as the property owners who granted the McNamers permission to bring the Ochalls upon their land, were the implied social hosts of the Ochalls. See Estill v. Waltz, 10th Dist. No. 02AP-83, 2002-Ohio-5004, ¶ 32 (noting that,  [HN20] to be classified as a social guest, “the evidence must show the host extended to the guest an actual invitation, express or implied”). As social hosts, the McMillens owed their guests the following duties: (1) to exercise ordinary care not to cause injury to their guests by any act of the host or by any activities carried on by the host while the guest is on the premises, and (2) to warn the guest of any condition of the premises which is known to the host and which one of ordinary prudence and foresight in the position of the host should reasonably consider dangerous, if the host has reason to believe that the guest does not know and will [**43]  not discover such dangerous condition. Scheibel v. Lipton, 156 Ohio St. 308, 102 N.E.2d 453 (1951), paragraph three of the syllabus. Accordingly, the McMillens had a duty to warn the Ochalls of any dangerous condition on their premises which the McMillens had reason to believe the Ochalls did not know about and could not discover.

[*P72]  As the lack of barriers around the McMillens’ track was readily apparent, there was no dangerous condition about the track which the McMillens should have had any reason to believe the Ochalls did not know about or could not discover. Indeed, Mrs. Ochall saw go-karts driving off the track throughout the day, and admitted that she knew that there “was no barrier in front of [her] * * * to protect [her] from getting hit by a car if it left the track.” (A. Ochall Dep. at 172-73.) Accordingly, the McMillens had no duty to warn appellants about Brian McMillen’s personal track rule. As such, viewing the evidence in a light most favorable to the Ochalls, we are unable to find a genuine issue of material fact regarding whether the McMillens intentionally failed to inform the Ochalls about Brian’s rule when they had a duty to do so. Marchetti at 96, fn. 2, quoting 2 Restatement of the Law 2d, Section 500, at 587 (1965). As such, the McMillens were not reckless by failing to inform [**44]  appellants about Brian’s rule.

[*P73]  Regarding the McNamers, appellants assert that the McNamers were reckless because they “knew of [Brian McMillen’s] prohibition and failed to inform guests.” (Appellant’s brief, at 36.) Liz McNamer stated that she could not recall if Brian McMillen ever told her about his no-spectator rule, noting that “[h]e could have told [her] husband, but * * * [she didn’t] recall.” (L. McNamer Dep. at 66.)

[*P74]  During Brian McMillen’s deposition, counsel asked him if he ever told “people, including the McNamers or anybody, that if you’re not driving a go-kart, then you better not be standing anywhere on this track, whether it’s the access road, sitting on that bench, anywhere on this asphalt period?” (B. McMillen Dep. at 175.) Brian responded, stating:

Absolutely. Absolutely we’ve talked about that with the McNamers, with Michael, their son, with my brother, myself, my dad, we’ve all discussed the common sense rules of the road that we’re going to follow out here on this go-kart track. Absolutely.

* * *

And, again, you know, it’s not like we sat down and said, hey, let’s write a rule book for the track. I’m talking about general guys hanging out in the garage, garage talk, hey, [**45]  these are the rules of the road we’re going to follow. Again, we’re not putting together a commercial facility here. We’re going — we’re putting together a little backyard toy here.

Id. at 175-76.

[*P75]  When asked if he told the McNamers that he “didn’t build this track for there to be any bystanders. And that if you’re not racing, no one is allowed to be standing around watching people racing or in go-karts going around the track on any part of this asphalt,” Brian stated “[t]hat’s just generally speaking what we have always gone with.” Id. at 177.

[*P76]  Liz explained that everytime she had ever been to the track people would be standing in the paved area adjacent to the start/finish line. (L. McNamer Dep. at 67.) Liz also always stood in that area and believed it was safe to stand there as long as “you’re observing and — and paying attention and watching what’s occurring.” Id. at 56-57. Porter similarly testified that whenever he had been to the track, people always stood on the asphalt near the start/finish line. (J. Porter Dep. at 44.)

[*P77]  To determine whether the McNamewrs were reckless in failing to inform the Ochalls about Brian McMillen’s personal track rule, we ask whether the McNamers intentionally failed to inform the Ochalls about [**46]  Brian’s rule when they had a duty to do so. Marchetti at 96, fn. 2, quoting 2 Restatement of the Law 2d, Torts, Section 500, at 587 (1965). As noted, [HN21]  primary assumption of the risk “‘relieves a recreation provider from any duty to eliminate the risks that are inherent in the activity.'” Lykins v. Fun Spot Trampolines, 172 Ohio App.3d 226, 2007-Ohio-1800, ¶ 34, 874 N.E.2d 811 (10th Dist.), quoting Whisman v. Gator Invest. Properties, Inc., 149 Ohio App.3d 225, 236, 2002 Ohio 1850, 776 N.E.2d 1126 (1st Dist.2002).

[*P78]  The parties do not direct us, and our independent research has failed to produce, an Ohio case delineating the duty which a non-landowner, sponsor or organizer of a free activity owes to the participants of the activity.  [HN22] Courts from other jurisdictions, however, have held that “operators, sponsors and instructors in recereational activities posing inherent risks of injury have no duty to eliminate those risks, but do owe participants the duty not to unreasonably increase the risks of injury beyond those inherent in the activity.” Nalwa v. Cedar Fair, L.P., 55 Cal. 4th 1148, 1162, 150 Cal. Rptr. 3d 551, 290 P.3d 1158 (2012).1 See also Saville v. Sierra College, 36 Cal. Rptr. 3d 515, 133 Cal. App. 4th 857 (2005) (noting that an “organizer of an activity is under a duty not to increase the risk of injury inherent in the activity”); Estate of McNeil v. FreestyleMX.com, Inc., 177 F.Supp.3d 1260 (S.D.Cal. 2016) (noting that the “organizer and promoter of the freestyle motocross event” owed the plaintiff a limited duty of care, “breached only if they increased the risk beyond that which is inherent to the activity itself”); Amezcua v. Los Angeles Harley-Davidson, Inc., 132 Cal. Rptr. 3d 567, 200 Cal. App. 4th 217 (2011) (concluding that the sponsor of the activity, had not “increased the inherent danger [**47]  of riding in an organized motorcycle ride,” because “traffic slowing and other drivers not paying attention are inherent risks of riding in an organized motorcycle ride on public highways,” and to close down the freeway in order to eliminate these risks “would alter the parade-like nature of riding in a motorcycle procession on a public highway”).

1 In Nalwa the plaintiff argued that sponsors of recreational activities should owe a greater duty to participants. The court disagreed, holding as follows:

 [HN23] A rule imposing negligence duties on sponsors, organizers and operators of recreational activities would encompass not only commercial companies like defendant but also noncommercial organizations without extensive budgets or paid staff. Such groups might not easily afford insurance to cover injuries that are inherent risks of the activity; nor could they readily collect large fees from participants to cover that cost. The primary assumption of risk doctrine helps ensure that the threat of litigation and liability does not cause such recreational activities to be abandoned or fundamentally altered in an effort to eliminate or minimize inherent risks of injury.

Nalwa at 1162.

 [*P79]  Accordingly, as the organizer of the go-karting event that day, the McNamers owed appellants the duty to not increase the risk of harm beyond the risks inherent in the activity. [**48]  Failing to inform appellants about Brian McMillen’s rule did not increase the risks inherent in the activity of go-karting, as it did not increase the risk that go-karts would crash into one another, or that a driver would lose control of their go-kart and deviate from the track. Accordingly, the McNamers did not have a duty to inform the Ochalls about Brian McMillen’s rule. Construing the evidence in appellants favor, we find no evidence demonstrating that the McNamers intentionally failed to inform the Ochalls about Brian’s rule when they had a duty to do so. Accordingly, appellants have failed to demonstrate that the McNamers were reckless by failing to inform the Ochalls about Brian McMillen’s rule.

[*P80]  Appellants next assert that the trial court “ignored factual issues regarding Defendants’ concealing the danger from Andrea Ochall by installing a bench to entice her to congregate on the paved area next to the track not designed for spectators.” (Appellants’ brief, at 38-39.) Mr. McMillen had placed a light, moveable, park style bench on the back of the paved area adjoining the start/finish line. (S. McMillen dep. at 106.) Brian McMillen explained that the bench was for drivers to [**49]  sit on following a race, noting that, after a race, “you’re tired, your back hurts, your legs are sore, you’re sweating. * * * A guy will sit on that bench and relax for a minute.” (B. McMillen Dep. at 170.)

[*P81]  Sharon McMillen agreed with counsel that someone might think “if there’s a bench around, that that may be a safe place to be because there’s a bench where you could sit.” (S. McMillen Dep. at 106.) However, there is no evidence indicating that the McMillens placed the bench there to “entice” people to congregate in that area. More importantly, the bench did not conceal any danger from appellants. The bench did not obscure appellants’ ability to see the barrier-less nature of the track or the go-karts driving off the track. There also was no evidence indicating that Mrs. Ochall ever sat on the bench; rather, the evidence indicated that Mrs. Ochall “moved around quite a bit to take photographs.” (J. Porter Dep. at 107.) Compare Kacsmarik v. Lakefront Lines Arena, 8th Dist. No. 95981, 2011-Ohio-2553, ¶ 10, 13 (concluding that the “bench was not the proximate cause of [plaintiff’s] injuries,” as the plaintiff was not “sitting on the bench when she was injured” as she had “left the bench, [and] opened the ice rink door”).

[*P82]  Construing the evidence in appellants’ favor, [**50]  we cannot find that the McMillens knew or had reason to know of facts which would have lead them to realize that placing a bench near their go-kart track created an unreasonable risk of physical harm to another, or amounted to conduct substantially greater than negligent conduct. Simply placing a bench by the track did not create an unreasonable risk of physical harm to others, as the bench did not obsecure anyone’s ability to appreciate the barrier-less nature of the go-kart track.

[*P83]  Appellants also state that Hawn concluded that Brian McMillen’s 2010-11 alteration to the track, “enhanced the danger to spectators by creating greater risk go-karts would lose control.” (Acc. Reconstruction Report at 13-14.) (Appellant’s brief, at 41.) Appellants assert that “[t]his remodeling and the enhanced risk were not known to Andrea Ochall, whereas McMillens knew that they had made the track faster for go-karts approaching the spectator area where they had placed the bench.” (Appellant’s brief, at 41.) Although appellants do not directly argue that the McMillens acted recklessly by altering their track, we observe that the McMillens were not reckless in this regard, as there is no evidence linking the [**51]  2010-11 alteration to an increased risk that a driver would lose control of their go-kart.

[*P84]  Hawn stated that the paved area next to the start/finish line, and “just beyond the exit to the fastest curve of the track,” would be a danger zone to persons afoot, but only “if a driver should experience such a loss of control and deviate from the track.” (Acc. Reconstruction Report at 13.) Similarly, Hawn stated that the paved area next to the track was dangerous for spectators, but only in the event that “a kart deviated from the track, at speed, due to driver loss of control in the curve.” Id. at 14. Thus, Hawn’s opinion that the paved area next to the start/finish line was unsafe for spectators was based on if a driver should lose control of their go-kart. Hawn did not find that the elevation of the curve, or that the straightaway itself, would cause a driver to lose control of their go-kart. Brian confirmed that the 2010-11 alteration did not affect a driver’s “ability to change speed or how they had to maneuver that part of the track.” (B. McMillen Dep. at 149.)

[*P85]  Furthermore, Hawn opined, and the record supports, that it was Doe’s act of “discarding an unwanted headband” which caused her to fail [**52]  to “maintain steering control [which] was a significant causative factor” of the accident. (Acc. Reconstruction Report, 14-15.) Thus, it was Doe’s act of removing her hand from the steering wheel to remove her headband from her face, and not the elevation of the high-banked curve, which caused the accident.

[*P86]  Appellants also state that “an easy, inexpensive precaution” for the McMillens was to “relocate the spectator area to the inside of the track and raise the elevation where their guests stood.” (Appellant’s brief, at 41.) Appellants do not directly assert that the McMillens acted recklessly by failing to construct an elevated spectator platform. Regardless, the McMillens were not reckless by failing to construct a spectator platform, because they had no duty to do so.  [HN24] “‘There is no duty on the part of the host to reconstruct or improve the premises for the purpose of making his house more convenient or more safe for those accepting his hospitality, gratuitously extended. The guest assumes the ordinary risks which attach to the premises.'” Scheibel at 315, quoting 38 American Jurisprudence 778, Section 117.

[*P87]  Appellants next assert that defendants concealed the “danger by failing to educate themselves about [**53]  safety or warn guests of known danger.” (Appellant’s brief, at 43.) Appellants observe that Sharon McMillen instructed drivers, “don’t be bumping into anybody,” but assert that she was reckless because she did not know how fast the go-karts traveled, wasn’t aware of the go-kart’s maintenance schedule, and did not follow the go-kart manufacturer’s height or age restrictions. Id. at 44-45. Appellants similarly assert that Liz McNamer was reckless because she did not know the make or model of the go-karts, did not know the go-kart manufacturer’s age or height restrictions, and did not know how fast the go-karts traveled. Id. at 45-46.

[*P88]  Appellants, however, fail to explain what any of these facts have to do with the accident. The accident did not result from unsafe go-kart operation; it occurred because Doe’s headband slipped into her eyes. See Thompson v. Park River Corp., 161 Ohio App.3d 502, 2005-Ohio-2855 (1st Dist.), ¶ 43, 830 N.E.2d 1252 (observing that, although the plaintiffs “presented evidence that the handrail was deteriorating and that a 1 to 50 instructor-to-student ratio was too high to be considered safe, they presented no evidence that either of these factors played even the slightest role in causing Eric’s injury”). Appellants fail to establish a genuine issue of material fact regarding whether [**54]  the defendants intentionally failed to educate themselves about go-kart safety when they had a duty to do so, or that they intentionally failed to warn appellants about the dangers of go-karting when they had a duty to do so. Marchetti at 96, fn. 2, quoting 2 Restatement of the Law 2d, Torts, Section 500, at 587 (1965). Accordingly, the record fails to demonstrate that any of the defendants acted recklessly by failing to educate themselves about safe go-kart operation or by failing to warn guests of the dangers of go-karting.

[*P89]  Appellants lastly assert that the trial court “construed evidence regarding [Doe’s] driving and supervision of her by Liz McNamer and James Porter in a light most favorable to Defendants.” (Appellant’s brief, at 48.) Appellants note that, earlier in the day before the accident, Doe drove off the track, and that “[o]ther children came partially off the track as well.” Id. at 48. McNamer went and spoke to Doe after she drove off the track, and “cautioned her and advised her to be careful.” (L. McNamer Dep. at 129.) McNamer explained that “all the children had went off” the track that day, but that she only spoke to Doe because she was Doe’s “grandparent.” Id. at 131. McNamer noted that, “[n]o one else said anything to me that anyone was driving reckless or [**55]  that [Doe] wasn’t in control.” Id. Porter testified that Doe’s driving that day was “[t]ypical for past driving and typical of the driving of all of the other children who were racing that day.” (J. Porter Dep. at 105.) Porter stated that he never told his daughter, or anyone, to slow down. Id. at 152.

[*P90]  Mrs. Ochall testified that Doe “had been asked numerous times to slow down and watch her speed. * * * She was warned by her father, by Liz.” (A. Ochall Dep. at 27.) Mrs. Ochall characterized Doe’s driving as “out of control,” because she had “gotten off the track” and “was just driving aggressively.” Id. at 45-46. Mr. Ochall stated that Doe was “driving aggressively,” by “[p]assing other cars.” (R. Ochall Dep. at 53.) However, Mrs. Ochall explained that she took no precautions for her own personal safety in light of Doe’s allegedly aggressive driving, because she “felt that [Doe’s] grandmother and father addressed the behavior with [Doe].” (A. Ochall Dep. at 48.)

[*P91]  Accordingly, construing the evidence in appellants’ favor, Porter and McNamer watched the children driving, all the children drove off the track that day, and McNamer and Porter cautioned Doe about her driving. Although Mrs. Ochall characterized Doe’s driving as aggressive, [**56]  she felt that McNamer and Porter adequately addressed Doe’s behavior by speaking to her. Appellants fail to demonstrate how Porter or McNamer engaged in conduct which was substantially greater than negligent conduct by keeping an eye on Doe and cautioning her.

[*P92]  Appellants assert that the trial court “ignored the Ochalls’ testimony that [Doe] was driving aggressively.” (Appellant’s brief, at 50.) The trial court, however, did not ignore this evidence. The court noted appellants’ contention that Doe was driving aggressively by “passing other karts and veering off the track.” (Decision & Entry at 20.) The trial court observed that Mr. Ochall admitted that “he passed other karts while driving on the track that day,” and that Doe “was not the only child to veer off the track that day, as one of [apppellants’] children also veered off the track while driving.” Id. at 21. The court concluded that there was no evidence that Doe’s “actions prior to the accident amounted to aggressive driving.” Id.

[*P93]  Indeed, appellants fail to make any connection between Doe’s allegedly aggressive driving and the accident. The record indicates only that it was an unfortunate slip of Doe’s headband, and Doe’s attendant need to remove her hand [**57]  from the wheel in order to remove the headband from her face, which caused the accident. There is nothing in the record indicating that Doe’s alleged aggressive driving caused the accident. See Thompson v. Park River Corp., 161 Ohio App.3d 502, 2005-Ohio-2855, ¶ 43, 830 N.E.2d 1252 (1st Dist.).

[*P94]  Finally, Doe’s act of removing her headband from her line of vision did not amount to reckless conduct. Doe did not remove the headband with any conscious choice of action, or with knowledge that doing so would cause her go-kart to jerk, veer off the track, and strike Mrs. Ochall. See West v. Devendra, 7th Dist. No. 11 BE 35, 2012-Ohio-6092, ¶ 37, 985 N.E.2d 558, quoting 2 Restatement of the Law 2d, Torts, Section 500, Comment g (1965) (noting that  [HN25] “reckless misconduct requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man”).

[*P95]  Because appellants fail to establish any genuine issues of material fact regarding whether the defendants engaged in reckless misconduct, appellants’ second assignment of error is overruled.

VI. CONCLUSION

[*P96]  The incident at the McMillens’ go-kart track which caused Mrs. Ochall’s injury was, unquestionably, a terrible and tragic accident. However, every tragic accident does not result in tort liability. Because Mrs. Ochall [**58]  primarily assumed the risk of injury when she stood 10 to 12 feet away from the McMillens’ go-kart track, and no defendant engaged in reckless or intentional misconduct, the trial court properly granted the defendants’ motions for summary judgment. Having overruled appellants’ first and second assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas. As we have overruled the appellants’ assignments of error, the McMillens withdraw their assignment of error on cross-appeal.

Judgment affirmed.

SADLER, J., concurs.

DORRIAN, P.J., concurs in and part dissents in part.

CONCUR BY: DORRIAN (In Part)

DISSENT BY: DORRIAN (In Part)

DISSENT

DORRIAN, P.J., concurring in part and dissenting in part

[*P97]  I respectfully concur in part and dissent in part.

[*P98]  I concur with the majority that primary assumption of the risk requires an examination of the recreational activity or sport itself. For this reason, and pursuant to Gentry v. Craycraft, 101 Ohio St.3d 141, 2004-Ohio-379, ¶ 10, 802 N.E.2d 1116, I also agree with the majority that spectators and participants are to be treated the same and appellants’ arguments regarding the “risks to spectators” improperly attempt to shift the focus of the analysis away from the risks inherent in the activity. (Lead opinion at ¶ 48.) Consistent with [**59]  this, I concur with the majority and am not persuaded by the Third District Court of Appeals’ decision in Reed v. Cassidy, 3d Dist. No. 2-01-36, 2002-Ohio-1672 (Apr. 10, 2002).

[*P99]  I concur with the majority that the trial court erred when it conflated the duty analysis under primary assumption of the risk with the social host duty of care under premises liability.

[*P100]  I concur with the majority that the trial court did not err when it observed that “[a] risk is found to be ordinary or inherent to the recreational activity when it arises from conduct that is ‘a foreseeable, customary part[‘] of the activity.” (Emphasis added.) (July 31, 2015 Decision at 4, quoting Gentry at ¶ 10.) (Lead opinion at ¶ 43.) However, I would find further, notwithstanding the trial court’s correct legal statement, that the trial court erred by concluding that “foreseeable risks are inherent risks of recreational activities” and in not conducting the additional analysis of whether the risk is ordinary or customary to the game. (July 31, 2015 Decision at 7.) Given this court’s three part test in Santho v. Boy Scouts of Am., 168 Ohio App.3d 27, 2006-Ohio-3656, 857 N.E.2d 1255 (10th Dist.), which requires that in order to be considered inherent, a risk be both ordinary and foreseeable, I would interpret the term “customary” [**60]  in this context as “ordinary.” To interpret “customary” as “common” or “foreseeable” would merge the doctrines of primary and implied assumption of the risk.

[*P101]  I concur with the majority that the Supreme Court of Ohio has held that “‘[t]o be covered under the * * * doctrine, the risk must be one that is so inherent to the sport or activity that it cannot be eliminated.'” Horvath v. Ish, 134 Ohio St.3d 48, 2012-Ohio-5333, ¶ 19, 979 N.E.2d 1246, quoting Knoesky v. Wood Cty. Agricultural Soc., 164 Ohio App.3d 839, 2005-Ohio-7009, ¶ 19, 844 N.E.2d 408 (6th Dist.). (Lead opinion at ¶ 45.) I would note further that contrary to appellees’ suggestion that courts do not typically conduct a detailed analysis of whether a risk cannot be eliminated, a survey of Tenth District case law reveals that this court adheres to this requirement. “If the activity is one that is inherently dangerous and from which the risks cannot be eliminated, then a finding of primary assumption of risk is appropriate.” Gehri v. Capital Racing Club, Inc., 10th Dist. No. 96APE10-1307, 1997 Ohio App. LEXIS 2527 (June 12, 1997) (finding the plaintiff’s “injuries occurred as a result of a commonly known danger ordinary to the sport of thoroughbred horse racing”). See also Morgan v. Kent State Univ., 2016-Ohio-3303, 54 N.E.3d 1284, ¶ 13, 15, 25 (noting that, “by its very nature, karate, as a martial art, is an inherently dangerous activity from which [**61]  the risk of harm cannot be eliminated”); Crace v. Kent State Univ., 185 Ohio App.3d 534, 2009-Ohio-6898, ¶ 35, 924 N.E.2d 906 (10th Dist.) (noting that in cheerleading, “the risk [of injury] is forever present and may only be reduced to manageable levels. Manageable risks are nevertheless risks. It necessarily follows that the risk of injury is incapable of being completely eliminated”); Morgan v. Ohio Conference of the United Church of Christ, 10th Dist. No. 11AP-405, 2012-Ohio-453, ¶ 16 (affirming the trial court’s finding “that hiking is a recreational activity to which the doctrine [of primary assumption of the risk] applies, and hiking contains an inherent risk of slipping, tripping or falling that cannot be eliminated, even more so with hiking at night”); Main v. Gym X-Treme, 10th Dist. No. 11AP-643, 2012-Ohio-1315, ¶ 9, 12-13 (noting “[t]he rationale behind the doctrine [of primary assumption of the risk] is that certain risks are so intrinsic in some activities that the risk of injury is unavoidable,” and finding that “tripping, slipping, and falling are all normal inherent risks” with “‘play time and gymnastic activities'”); Schnetz v. Ohio Dep’t of Rehab. & Corr., 195 Ohio App. 3d 207, 959 N.E.2d 554, 2011-Ohio-3927, ¶ 30, 49 (10th Dist.) (noting that “[i]f that activity is one that is inherently dangerous and from which the risks cannot be eliminated, a finding of primary assumption of the risk is appropriate” and finding that “[i]njury resulting [**62]  from colliding with another player on the field of play, even accidentally, is an ordinary danger of the sport of football”).

[*P102]  I concur with the majority that to determine the risks that are so inherent in an activity that they cannot be eliminated, a court must “‘focus[] exclusively upon the activity itself.'” (Lead opinion at ¶ 45, quoting Schnetz at ¶ 28.) I would clarify further that the contention that a risk must be one that is so inherent to the sport or activity that it cannot be eliminated is appropriately considered in the context of the ordinary or customary analysis. I would also suggest that in determining the same, a court should consider the goal of the primary assumption of the risk doctrine as discussed by the majority: “‘to strike a balance between encouraging vigorous and free participation in recreational or sports activities, while ensuring the safety of the players.'” (Lead opinion at ¶ 38, quoting Marchetti v. Kalish, 53 Ohio St.3d 95, 99, 559 N.E.2d 699 (1990), and Ferrari v. Grand Canyon Dories, 32 Cal.App.4th 248, 253, 38 Cal. Rptr. 2d 65 (3d Dist.1995) (observing that the “overriding consideration in the application of primary assumption of the risk is to avoid imposing a duty which might chill vigorous participation in the implicated activity and thereby alter its fundamental nature”); Yancey v. Superior Court, 28 Cal.App.4th 558, 565, 33 Cal. Rptr. 2d 777 (5th Dist.1994) (noting that “[d]uty is constricted [**63]  in such settings because the activity involves inherent risks which cannot be eliminated without destroying the sport itself”).)

[*P103]  Finally, I concur with the majority’s ultimate conclusion that the trial court erred in its primary assumption of the risk analysis because it failed to ascertain the risks inherent in the activity of go-karting. I dissent, however, with the majority’s consideration and determination, in the first instance, of the same.

[*P104]  Because the Supreme Court in Gallagher v. Cleveland Browns Football Co., 74 Ohio St.3d 427, 432, 1996 Ohio 320, 659 N.E.2d 1232 (1996), instructs that courts must proceed with caution when contemplating whether primary assumption of the risk completely bars a plaintiff’s recovery and because of the great impact a ruling in favor of a defendant would have, I would not determine the issue in the first instance on appeal. Rather, I would remand this case to the trial court with instructions to consider whether the risk of a go-kart veering off the track and striking objects/persons in its path meets the criteria that “(1) the danger is ordinary to the game; (2) it is common knowledge that the danger exists; and (3) the injury occurs as a result of the danger during the course of the game.” (Emphasis added.) Santho at ¶ 12. In considering whether [**64]  such risk is ordinary to the game, I would instruct the court to (1) focus on the activity of go-karting itself; and (2) consider whether such risk can be eliminated without inhibiting vigorous and free participation, fundamentally changing or destroying the activity of go-karting. Such consideration necessarily involves an examination of the nature of the activity, the purpose or goals of the activity, and the rules or customs of the activity, where applicable.

[*P105]  Finally, I dissent from the majority’s consideration of the second assignment of error. Because I would reverse and remand this case for the trial court to determine, in the first instance, whether primary assumption of the risk applies, I would find to be moot the second assignment of error regarding whether the trial court erred in holding appellees did not act recklessly.2

2 I would note that appellants’ argument, pursuant to Goffe v. Mower, 2d Dist. No. 98-CA-49, 1999 Ohio App. LEXIS 308 (Feb. 5, 1999), that primary assumption of the risk cannot apply because appellees “enhanced” the risk by defective design or operation, would be appropriately addressed when considering whether the exception of recklessness or willfull or wanton conduct applies to application of primary assumption of the risk.

Advertisements

Moore v. Waller, et al., 930 A.2d 176; 2007 D.C. App. LEXIS 476

Moore v. Waller, et al., 930 A.2d 176; 2007 D.C. App. LEXIS 476

Richard J. Moore, Appellant, v. Terrell Waller and Square 345 Limited Partnership T/A Grand Hyatt Hotel, Appellees.

No. 05-CV-695

DISTRICT OF COLUMBIA COURT OF APPEALS

930 A.2d 176; 2007 D.C. App. LEXIS 476

June 20, 2006, Argued

August 2, 2007, Decided

PRIOR HISTORY:  [**1]

Appeal from the Superior Court of the District of Columbia. (CA-1522-04). (Hon. Michael L. Rankin, Trial Judge).

COUNSEL: John P. Fatherree for appellant.

Terrell Waller, Pro se.

Rocco P. Porreco for appellee, Square 345 Limited Partnership.

JUDGES: Before GLICKMAN, KRAMER, and FISHER, Associate Judges.

OPINION BY: FISHER

OPINION

[*177]  FISHER, Associate Judge: Appellant Richard Moore claims that he was injured on February 26, 2001, while participating in a demonstration of kick boxing at Club Fitness, which is operated by the appellee, Square 345 Limited Partnership (hereinafter Grand Hyatt). Relying on a waiver and release of liability Moore signed when he joined the fitness center, the Superior Court granted summary judgment, first for Grand Hyatt and then for Terrell Waller, the instructor who allegedly injured Moore. We affirm.

I.

Plaintiff Moore alleged that he had gone to the fitness center on February 26, 2001, to exercise. Although “he was not participating in the kick boxing classes, the instructor [*178]  , defendant Waller, asked [Moore] to hold . . . a detached Everlast body bag, so [Mr.] Waller could demonstrate a kick to his class.” According to Mr. Moore, he “reluctantly agreed, saying to [Mr. Waller], ‘Not hard.’ Defendant  [**2] Waller showed [Mr. Moore] how to hold the bag, braced against his body, and then kicked the bag five times, in rapid succession, with great force.” He claims that when Waller finished, “he was out of breath from the strenuous effort, and commented with obvious sarcasm and irony, ‘That wasn’t hard, was it.'” Moore states that he “immediately felt trauma to his body,” felt “stiff and achy” the next day, and consulted a physician about one month later. Mr. Moore asserts that “[h]e has been diagnosed as having torn ligaments and tendons from the trauma of the injury, and may have neurological damage, as well.” The resulting limitations on his physical activity allegedly have diminished the quality of his life in specified ways.

Mr. Moore had joined the fitness center on January 16, 2001, signing a membership agreement and initialing that portion of the agreement that purports to be a waiver and release of liability.

Article V – WAIVER AND LIABILITY

Section 1. The Member hereby acknowledges that attendance at or use of the Club or participation in any of the Club’s activities or programs by such Member, including without limitation, the use of the Club’s equipment and facilities, . . . exercises  [**3] (including the use of the weights, cardiovascular equipment, and apparatus designed for exercising), [and] selection of exercise programs, methods, and types of equipment, . . . could cause injury to the Member or damage to the Member’s personal property. As a material consideration for the Club to enter into this Agreement, to grant membership privileges hereunder and to permit the Member and the Member’s guests to use the Club and its facilities, the Member, on its own behalf and on behalf of the Member’s guests, agrees to assume any and all liabilities associated with the personal injury, death, property loss or other damages which may result from or arise out of attendance at or use of the Club or participation in any of the Club’s programs or activities, notwithstanding any consultation on any exercise programs which may be provided by employees of the Club.

By signing this Agreement, the Member understands that the foregoing waiver of liability on its behalf and on the behalf of the Member’s guests will apply to any and all claims against the Club and/or its owners, shareholders, officers, directors, employees, agents or affiliates . . . for any such claims, demands, personal  [**4] injuries, costs, property loss or other damages resulting from or arising out of any of foregoing risks at the Club, the condominium or the associated premises.

The Member hereby, on behalf of itself and the Member’s heirs, executors, administrators, guests and assigns, fully and forever releases and discharges the Club and the Club affiliates, and each of them, from any and all claims, damages, demands, rights of action or causes of action, present or future, known or unknown, anticipated or unanticipated resulting from or arising out of the attendance at or use of the Club or their participation in any of the Club’s activities or programs by such Member, including those which arise out of the negligence of the Club and/or the Club and the Club affiliates from any and all liability for any loss, or theft of, or damage to personal property, including, without limitation, automobiles and the contents of lockers.

 [*179]  THE MEMBER, BY INITIALING BELOW, ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS WAIVER AND RELEASE AND FULLY UNDERSTANDS THAT IT IS A WAIVER AND RELEASE OF LIABILITY, AND ASSUMES THE RESPONSIBILITY TO INFORM HIS/HER GUESTS OF THE PROVISIONS OF THIS AGREEMENT.

If effective,  [**5] this provision waives and releases not only claims against the Club but also claims against its “employees [and] agents.” 1

1 We assume for purposes of analysis that the Grand Hyatt is responsible for the conduct of Mr. Waller at issue here, but we need not determine whether he was an employee or an independent contractor.

Ruling on Grand Hyatt’s motion for summary judgment, the trial court concluded:

The Waiver and Liability section of the contract . . . expresses a full and complete release of all liability for personal injury occurring in the fitness center. Moore signed an acknowledgment indicating that [he] had read and understood that he was releasing Grand Hyatt from all liability for personal injuries that he might sustain. Furthermore, there is no allegation of fraud or overreaching in the amended complaint. In the circumstances, the court finds that the waiver and release is valid and enforceable and is a complete defense for Grand Hyatt in this action.

The court later held “that the terms of the waiver . . . apply equally to defendant Terrell Waller….”

II.

This court has not often addressed the validity of exculpatory clauses in contracts. We have enforced them, however. For  [**6] example, “[i]t is well settled in this jurisdiction that a provision in a bailment contract limiting the bailee’s liability will be upheld in the absence of gross negligence, willful act, or fraud.” Houston v. Security Storage Co., 474 A.2d 143, 144 (D.C. 1984). Accord, Julius Garfinckel & Co. v. Firemen’s Insurance Co., 288 A.2d 662, 665 (D.C. 1972) (“gross negligence or willful misconduct”); Manhattan Co. v. Goldberg, 38 A.2d 172, 174 (D.C. 1944) (“a bailee may limit his liability except for gross negligence”). We recently considered such a clause contained in a home inspection contract and concluded that it would be sufficient to waive or limit liability for negligence. Carleton v. Winter, 901 A.2d 174, 181-82 (D.C. 2006). However, after surveying “leading authorities” and cases from other jurisdictions, we recognized that “courts have not generally enforced exculpatory clauses to the extent that they limited a party’s liability for gross negligence, recklessness or intentional torts.” Id. at 181. See also Wolf v. Ford, 335 Md. 525, 644 A.2d 522, 525 (Md. 1994) ( [HN1] “a party will not be permitted to excuse its liability for intentional harms or for the more extreme forms of negligence, i.e., reckless,  [**7] wanton, or gross”); Seigneur v. National Fitness Institute, Inc., 132 Md. App. 271, 752 A.2d 631, 638 (Md. Ct. Spec. App. 2000) (exculpatory clause will not be enforced “when the party protected by the clause intentionally causes harm or engages in acts of reckless, wanton, or gross negligence”). In Carleton, the court remanded for further proceedings to determine whether the conduct of the defendants “was not just simple negligence, but rather gross negligence.” 901 A.2d at 182.

As Moore’s counsel conceded at oral argument, he does not claim that Waller intentionally or purposefully injured  [*180]  him. The complaint does allege reckless conduct, however, 2 and he argued to the trial court, as he does to us, that the fitness center could not exempt itself from liability for reckless or wanton behavior or gross negligence. Nevertheless, the defendants had moved for summary judgment, and  [HN2] “[m]ere conclusory allegations on the part of the non-moving party are insufficient to stave off the entry of summary judgment.” Musa v. Continental Insurance Co., 644 A.2d 999, 1002 (D.C. 1994); see also Super. Ct. Civ. R. 56 (e) (“the . . . response, by affidavits or as otherwise provided in this Rule, must set forth specific  [**8] facts showing that there is a genuine issue for trial”). “‘[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.'” Brown v. George Washington Univ., 802 A.2d 382, 385 (D.C. 2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). “‘The mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party].'” LaPrade v. Rosinsky, 882 A.2d 192, 196 (D.C. 2005) (quoting Liberty Lobby, 477 U.S. at 252).

2 In his second amended complaint, Moore alleged that “defendant Waller recklessly disregarded [his] duty of due care [and] acted with deliberate indifference to the likelihood that his action would injure the plaintiff. Defendant Waller’s reckless action was the direct and proximate cause of plaintiff’s injuries.” He also alleged that the Grand Hyatt was responsible for Waller’s actions.

Nothing Moore presented in opposition to summary judgment would be sufficient to prove gross negligence or reckless conduct. Indeed, in one of his affidavits Mr. Moore stated that “as I was shown by defendant  [**9] Waller exactly how to hold the body bag while he demonstrated his kick(s), the purpose of his directions as communicated to me as to how to hold the bag were plainly for safety.” Such concern for safety is inconsistent with recklessness or gross negligence. See generally In re Romansky, 825 A.2d 311, 316 (D.C. 2003) (defining “recklessness”); District of Columbia v. Walker, 689 A.2d 40, 44 (D.C. 1997) (defining “gross negligence” for purposes of D.C. Code § 2-412 (2001) (formerly D.C.Code § 1-1212 (1981)). Moreover, Moore did not allege that defendant Waller kicked an unprotected portion of his body. Nor did he proffer expert testimony suggesting that the demonstration was so hazardous that it was reckless to undertake it, even with the protection of the Everlast body bag.

Because there is no viable claim for gross negligence, recklessness, or an intentional tort, we turn to the question of whether this particular contractual provision is sufficient to bar claims for negligence. 3 Although this is a suit for personal [*181]  injury, not merely for economic damage, the same principles of law apply. See Wright v. Sony Pictures Entertainment, Inc., 394 F. Supp. 2d 27, 34 (D.D.C. 2005) (“by voluntarily  [**10] signing the Contestant Release Form, plaintiff waived his right to bring any claims for negligently caused personal injury”; applying District of Columbia law). This court has not previously considered the effect of an exculpatory clause in a membership agreement with a health club or fitness center, but many jurisdictions have done so. After surveying the legal landscape, the Maryland Court of Special Appeals concluded that most courts hold “that  [HN3] health clubs, in their membership agreements, may limit their liability for future negligence if they do so unambiguously.” Seigneur, 752 A.2d at 636. We have found the analysis in Seigneur to be very helpful.

3 Appellant’s brief explains that he “claims damages from Waller based upon negligent infliction of injury, and against Square 345 Limited Partnership based upon respondeat superior and upon apparent agency and authority, as well as negligent failure to properly select, train and supervise a person whose services were retained to provide lessons in an activity which would certainly be dangerous if not expertly and responsibly performed.” He later elaborates: “While kick boxing is an inherently dangerous activity, had the demonstration  [**11] been conducted in a responsible, non-negligent way, it would not have been dangerous.” The words “strict liability” appear under the caption of the second amended complaint, but appellant has not cited any statute or regulation that purports to impose strict liability on demonstrations of kick boxing, nor has he alleged the common law elements of strict liability in tort. See Word v. Potomac Electric Power Co., 742 A.2d 452, 459 (D.C. 1999). Neither has he proffered facts which would support such a theory. In sum, the waiver is sufficient to cover any theory of liability which is supported by more than conclusory allegations.

 [HN4] A fundamental requirement of any exculpatory provision is that it be clear and unambiguous. Maiatico v. Hot Shoppes, Inc., 109 U.S. App. D.C. 310, 312, 287 F.2d 349, 351 (1961) (“exculpation must be spelled out with such clarity that the intent to negate the usual consequences of tortious conduct is made plain”; also recognizing that in most circumstances modern law “permit[s] a person to exculpate himself by contract from the legal consequences of his negligence”). Cf. Adloo v. H.T. Brown Real Estate, Inc., 344 Md. 254, 686 A.2d 298, 305 (Md. 1996) (“Because it does not clearly,  [**12] unequivocally, specifically, and unmistakably express the parties’ intention to exculpate the respondent from liability resulting from its own negligence, the clause is insufficient for that purpose.”). The provision at issue here meets the requirement of clarity. Article V is entitled, in capital letters, “WAIVER AND LIABILITY.” The Article ends with a prominent “box” containing a sentence typed in capital letters. Appellant Moore initialed that box, verifying that he had “carefully read this waiver and release and fully understands that it is a waiver and release of liability . . . .” By accepting the terms of membership, Moore “agree[d] to assume any and all liabilities associated with the personal injury, death, property loss or other damages which may result from or arise out of attendance at or use of the Club or participation in any of the Club’s programs or activities . . . .” He understood that this waiver of liability would “apply to any and all claims against the Club and/or its owners, shareholders, officers, directors, employees, agents or affiliates . . . for any . . . personal injuries . . . resulting from or arising out of any of [the] foregoing risks at the Club .  [**13] . . .” He “release[d] and discharge[d] the Club . . . from any and all claims, damages, demands, rights of action or causes of action…, including those which arise out of the negligence of the Club . . . .” This release is conspicuous and unambiguous, and it is clearly recognizable as a release from liability. Moreover, the injuries alleged here were reasonably within the contemplation of the parties. “Because  [HN5] the parties expressed a clear intention to release liability and because that release clearly included liability for negligence, that intention should be enforced.” Anderson v. McOskar Enterprises, Inc., 712 N.W.2d 796, 801 (Minn. Ct. App. 2006) (health and fitness club). 4

4 Because this waiver expressly refers to “claims . . . which arise out of the negligence of the Club,” its effect is clear. We have held, however, that it is not always necessary to use the word “negligence” in order to relieve a party of liability for such conduct. See Princemont Construction Corp. v. Baltimore & Ohio R.R. Co. 131 A.2d 877, 878 (D.C. 1957) (“the terms of an indemnity agreement may be so broad and comprehensive that although it contains no express stipulation indemnifying against a party’s  [**14] own negligence, it accomplishes the same purpose”); see also Avant v. Community Hospital, 826 N.E.2d 7, 12 (Ind. Ct. App. 2005)( [HN6] “an exculpatory clause need not include the word ‘negligence’ so long as it conveys the concept specifically and explicitly through other language”).

 [*182]  Appellant protests that the waiver provisions are so broad that they could be construed to exempt the Club from liability for harm caused by intentional torts or by reckless or grossly negligent conduct. Because such provisions are unenforceable, he argues that the entire release is invalid. We disagree. “‘A better interpretation of the law is that  [HN7] any “term” in a contract which attempts to exempt a party from liability for gross negligence or wanton conduct is unenforceable, not the entire [contract].'” Anderson, 712 N.W.2d at 801 (quoting Wolfgang v. Mid-American Motorsports, Inc., 898 F. Supp. 783, 788 (D. Kan. 1995) (which in turn quotes RESTATEMENT (SECOND) OF CONTRACTS § 195(1) (1981) (“A term exempting a party from tort liability for harm caused intentionally or recklessly is unenforceable on grounds of public policy.” (emphasis added))). See Ellis v. James V. Hurson Associates, Inc., 565 A.2d 615, 617 (D.C. 1989)  [**15] (“The Restatement sets forth the relevant principles. Where less than all of an agreement is unenforceable on public policy grounds, a court may nevertheless enforce the rest of the agreement ‘in favor of a party who did not engage in serious misconduct.'” (quoting RESTATEMENT (SECOND) OF CONTRACTS § 184(1) (1981))).

Nor is Article V (the waiver and release) unenforceable due to unequal bargaining power, as Mr. Moore asserts. We do not suppose that the parties in fact had equal power, but Moore does not meet the criteria for invalidating a contract on the grounds he invokes. He does not invite our attention to any evidence that he objected to the waiver provision or attempted to bargain for different terms. Nor has he shown that the contract involved a necessary service.

 [HN8] Even though a contract is on a printed form and offered on a “take it or leave it” basis, those facts alone do not cause it to be an adhesion contract. There must be a showing that the parties were greatly disparate in bargaining power, that there was no opportunity for negotiation and that the services could not be obtained elsewhere.

Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 924-25 (Minn. 1982) (emphasis in  [**16] original). “Health clubs do not provide essential services[,]” Shields v. Sta-Fit, Inc., 79 Wn. App. 584, 903 P.2d 525, 528 (Wash. Ct. App. 1995), and “[t]he Washington metropolitan area . . . is home to many exercise and fitness clubs.” Seigneur, 752 A.2d at 639 (rejecting argument that patron’s bargaining position was grossly disproportionate to that of the fitness club).

We, of course, would not enforce such a release if doing so would be against public policy. See Godette v. Estate of Cox, 592 A.2d 1028, 1034 (D.C. 1991) ( [HN9] “An exculpatory clause [in a will] that excuses self-dealing [by the personal representative] or attempts to limit liability for breaches of duty committed in bad faith, intentionally, or with reckless indifference to the interest of the beneficiary, is generally considered to be against public policy.”); George Washington Univ. v. Weintraub, 458 A.2d 43, 47 (D.C. 1983) (exculpatory clause in lease was ineffective to waive tenants’ rights under implied warranty of habitability); see also Wolf v. Ford, 335 Md. 525, 644 A.2d 522, 526 (Md. 1994) (public policy will not permit exculpatory agreements in certain transactions affecting the performance of a public service obligation or “so important [*183]   [**17] to the public good that an exculpatory clause would be patently offensive”). However, we agree with the Maryland Court of Special Appeals and with numerous other courts which have held that it does not violate public policy to enforce exculpatory clauses contained in membership contracts of health clubs and fitness centers. Seigneur, 752 A.2d at 640-41 (and cases cited therein); see also, e.g., Schlobohm, 326 N.W.2d at 926 (“the exculpatory clause in the contract before us was not against the public interest”); Ciofalo v. Vic Tanney Gyms, Inc., 10 N.Y.2d 294, 177 N.E.2d 925, 927, 220 N.Y.S.2d 962 (N.Y. 1961) (“there is no special legal relationship and no overriding public interest which demand that this contract provision, voluntarily entered into by competent parties, should be rendered ineffectual”); Massengill v. S.M.A.R.T. Sports Medicine Clinic, P.C., 996 P.2d 1132 (Wyo. 2000). 5

5 The Supreme Court of Wisconsin refused to enforce one such clause on grounds of public policy. Atkins v. Swimwest Family Fitness Center, 2005 WI 4, 277 Wis. 2d 303, 691 N.W.2d 334 (Wis. 2005). That decision was based on several factors, however, and we do not understand the court to have announced a categorical rule. See id. at 340-42 (waiver was “overly broad  [**18] and all-inclusive,” the word “negligence” was not included, the provision was not “sufficiently highlight[ed],” and there was “no opportunity to bargain”).

The trial court properly held that “the waiver and release is valid and enforceable and is a complete defense for Grand Hyatt [and Mr. Waller] in this action.” The judgment of the Superior Court is hereby

Affirmed.

 


Hiett v. Lake Barcroft Community Association, Inc., et al., 244 Va. 191; 418 S.E.2d 894; 1992 Va. LEXIS 69; 8 Va. Law Rep. 3381

Hiett v. Lake Barcroft Community Association, Inc., et al., 244 Va. 191; 418 S.E.2d 894; 1992 Va. LEXIS 69; 8 Va. Law Rep. 3381

Robert David Hiett v. Lake Barcroft Community Association, Inc., et al.

Record No. 911395

Supreme Court of Virginia

244 Va. 191; 418 S.E.2d 894; 1992 Va. LEXIS 69; 8 Va. Law Rep. 3381

June 5, 1992

COUNSEL: Bernard S. Cohen (Sandra M. Rohrstaff; Cohen, Dunn & Sinclair, on brief), for appellant.

Joseph D. Roberts (Slenker, Brandt, Jennings & Johnson, on brief), for appellees.

JUDGES: Justice Keenan delivered the opinion of the Court.

OPINION BY: KEENAN

OPINION

[*192]   [**894]  The primary issue in this appeal is whether a pre-injury release from liability for negligence is void as being against public policy.

Robert D. Hiett sustained an injury which rendered him a quadriplegic while participating in the “Teflon Man Triathlon” (the triathlon) sponsored by the Lake Barcroft  [**895]  Community Association, Inc. (LABARCA).  The injury occurred at the start of the swimming event when Hiett waded into Lake Barcroft to a point where the water reachedhis [***2]  thighs, dove into the water, and struck his head on either the lake bottom or an object beneath the water surface.

Thomas M. Penland, Jr., a resident of Lake Barcroft, organized and directed the triathlon. He drafted the entry form which all participants were required to sign.  The first sentence of the form provided:

In consideration of this entry being accept[ed] to participate in the Lake Barcroft Teflon Man Triathlon I hereby, for myself, my heirs, and executors waive, release and forever discharge any and all rights and claims for damages which I may have or  [*193]  m[a]y hereafter accrue to me against the organizers and sponsors and their representatives, successors, and assigns, for any and all injuries suffered by me in said event.

Evelyn Novins, a homeowner in the Lake Barcroft subdivision, asked Hiett to participate in the swimming portion of the triathlon. She and Hiett were both teachers at a school for learning-disabled children.  Novins invited Hiett to participate as a member of one of two teams of fellow teachers she was organizing.  During a break between classes, Novins presented Hiett with the entry form and he signed it.

Hiett alleged inhis [***3]  third amended motion for judgment that LABARCA, Penland, and Novins had failed to ensure that the lake was reasonably safe, properly supervise the swimming event, advise the participants of the risk of injury, and train them how to avoid such injuries.  Hiett also alleged that Penland and Novins were agents of LABARCA and that Novins’s failure to direct his attention to the release clause in the entry form constituted constructive fraud and misrepresentation.

In a preliminary ruling, the trial court held that, absent fraud, misrepresentation, duress, illiteracy, or the denial of an opportunity to read the form, the entry form was a valid contract and that the pre-injury release language in the contract released the defendants from liability for negligence.  The trial court also ruled that such a release was prohibited as a matter of public policy only when it was included: (1) in a common carrier’s contract of carriage; (2) in the contract of a public utility under a duty to furnish telephone service; or (3) as a condition of employment set forth in an employment contract.

Pursuant to an agreement between the parties, the trial court conducted an evidentiary hearing in whichit determined [***4]  that there was sufficient evidence to present to a jury on the issue of constructive fraud and misrepresentation. Additionally, the trial court ruled that as a matter of law Novins was not an agent of LABARCA, and it dismissed her from the case.

The remaining parties proceeded to trial solely on the issue whether there was constructive fraud and misrepresentation by the defendants such as would invalidate the waiver-release language in the entry form.  After Hiett had rested his case, the trial court granted the defendants’ motion to strike the evidence.  This appeal followed.

[*194]  Hiett first argues that the trial court erred in ruling that the pre-injury release provision in the entry form did not violate public policy. He contends that since the decision of this Court in Johnson’s Adm’x v. Richmond and Danville R.R. Co., 86 Va. 975, 11 S.E. 829 (1890), the law in Virginia has been settled that an agreement entered into prior to any injury, releasing a tortfeasor from liability for negligence resulting in personal injury, is void because it violates public policy. Hiett asserts that the later cases of this Court have addressed only therelease of liability [***5]  from property damage or indemnification against liability to third parties. Thus, he contends that the holding in Johnson remains unchanged.  In response, LABARCA and Novins argue that the decisions of this Court since Johnson have established  [**896]  that pre-injury release agreements such as the one before us do not violate public policy. We disagree with LABARCA and Novins.

The case law in this Commonwealth over the past one hundred years has not altered the holding in Johnson.  In Johnson, this Court addressed the validity of a pre-injury release of liability for future negligent acts.  There, the decedent was a member of a firm of quarry workers which had entered into an agreement with a railroad company to remove a granite bluff located on the company’s right of way.  The agreement specified that the railroad would not be liable for any injuries or death sustained by any members of the firm, or its employees, occurring from any cause whatsoever.

The decedent was killed while attempting to warn one of his employees of a fast-approaching train. The evidence showed that the train was moving at a speed of not less than 25 miles per hour, notwithstanding the [***6]  railroad company’s agreement that all trains would pass by the work site at speeds not exceeding six miles per hour.

[1] In holding that the release language was invalid because it violated public policy, this Court stated:

[T]o hold that it was competent for one party to put the other parties to the contract at the mercy of its own misconduct . . . can never be lawfully done where an enlightened system of jurisprudence prevails.  Public policy forbids it, and contracts against public policy are void.

 [*195]  86 Va. at 978, 11 S.E. at 829. This Court emphasized that its holding was not based on the fact that the railroad company was a common carrier.  Rather, this Court found that such  [HN1] provisions for release from liability for personal injury which may be caused by future acts of negligence are prohibited “universally.” 86 Va. at 978, 11 S.E. at 830.

[2] As noted by Hiett, the cases following Johnson have not eroded this principle.  Instead, this Court’s decisions after Johnson have been limited to upholding theright to contract for the release of liability for property damage, as well as indemnification from liability to [***7]  third parties for such damage.

[3] In C. & O. Ry. Co. v. Telephone Co., 216 Va. 858, 224 S.E.2d 317 (1976), this Court upheld a provision in an agreement entered into by the parties to allow the telephone company to place underground cables under a certain railway overpass.  In the agreement, the telephone company agreed to release the C & O Railway Company from any damage to the wire line crossing and appurtenances.  In upholding this property damage stipulation, this Court found that public policy considerations were not implicated.  216 Va. at 865-66, 224 S.E. at 322.

This Court upheld another property damage release provision in Nido v. Ocean Owners’ Council, 237 Va. 664, 378 S.E.2d 837 (1989). There, a condominium unit owner filed suit against the owners’ council of the condominium for property damage to his unit resulting from a defect in the common area of the condominium. This Court held that, under the applicable condominium by-laws, each unit owner had voluntarily waived his right to bring an action againstthe owners’ council for such property damage. 237 Va. at 667, 378 S.E.2d at 838. 1

1 Although the by-law at issue attempted to release the owners’ council for injury to both persons and property, the issue before the Court involved only the property damage portion of the clause.

 [***8]  [4] Other cases decided by this Court since Johnson have upheld provisions for indemnification against future property damage claims.  In none of these cases, however, did the Court address the issue whether an indemnification provision would be valid against a claim for personal injury.

In Richardson – Wayland v. VEPCO, 219 Va. 198, 247 S.E.2d 465 (1978), the disputed claim involved property damage only, although  [**897]  the contract provided that VEPCO would be indemnified against both property damage and personal injury claims.  This  [*196]  Court held that the provision for indemnification against property damage did not violate public policy. In so holding, this Court emphasizedthe fact that the contract was not between VEPCO and a consumer but, rather, that it was a contract made by VEPCO with a private company for certain repairs to its premises.  219 Va. at 202-03, 247 S.E.2d at 468.

This Court also addressed an indemnification clause covering liability for both personal injury and property damage in Appalachian Power Co. v. Sanders, 232 Va. 189, 349 S.E.2d 101 (1986). However, this Court was not required [***9]  to rule on the validity of the clause with respect to a claim for personal injury, based on its holding that the party asserting indemnification was not guilty of actionable negligence.  232 Va. at 196, 349 S.E. at 106.

Finally, in Kitchin v. Gary Steel Corp., 196 Va. 259, 83 S.E.2d 348 (1954), this Court found that an indemnification agreement between a prime contractor and its subcontractor was not predicated on negligence.  For this reason, this Court held that there was no merit in the subcontractor’s claim that the agreement violated public policy as set forth in Johnson.  196 Va. at 265, 83 S.E.2d at 351.

[5] We agree with Hiett that the above cases have notmodified or altered the holding in Johnson.  Therefore, we conclude here, based on Johnson, that the pre-injury release provision signed by Hiett is prohibited by public policy and, thus, it is void. Johnson, 86 Va. at 978, 11 S.E. at 829.

[6] Since we have held that the pre-injury release agreement signed by Hiett is void, the issue whether Novins acted as LABARCA’s agent in procuring Hiett’s signature will not be before the trial court in [***10]  the retrial of this case.  Nevertheless, Hiett argues that, irrespective of any agency relationship, Novins had a common law duty to warn Hiett of the dangerous condition of the uneven lake bottom. We disagree.

[7] The record before us shows that Lake Barcroft is owned by Barcroft Beach, Incorporated, and it is operated and controlled by Barcroft Lake Management Association, Incorporated.  Further, it is undisputed that the individual landowners in the Lake Barcroft subdivision have no ownership interest in the Lake. Since Novins had no ownership interest in or control over the operation of Lake Barcroft, she had no duty to warn Hiett of any dangerous condition therein.  See Busch v. Gaglio, 207 Va. 343, 348, 150 S.E.2d 110, 114 (1966).Therefore, Hiett’s assertion that Novins had a duty to warn him of the condition of the lake bottom, fails as a matter of  [*197]  law, and we conclude that the trial court did not err in dismissing Novins from the case.

Accordingly, we will affirm in part and reverse in part the judgment of the trial court, and we will remand this case for further proceedings consistent with the principles expressed in this opinion. 2

2 Based on our decision here, we do not reach the questions raised by the remaining assignments of error.

[***11]  Affirmed in part, reversed in part, and remanded.

 


Melendez v. Happy Trails and Riding Center, Inc., 2016 U.S. Dist. LEXIS 131576

Melendez v. Happy Trails and Riding Center, Inc., 2016 U.S. Dist. LEXIS 131576

Wilberto Melendez, Plaintiff, v. Happy Trails and Riding Center, Inc., Defendant.

3:14-CV-1894

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

2016 U.S. Dist. LEXIS 131576

September 26, 2016, Decided

September 26, 2016, Filed

CORE TERMS: trail, summary judgment, exculpatory, recklessness, equine, stirrup, stable, immunity, genuine, horse, horseback riding, recreational, animal, material fact, skiing, ride, assumption of risk, faulty, broken, ski, rider, inherent risk, exculpatory clause, riding, sport, skier, enumerate, counter, rental, entity

COUNSEL:  [*1] For Wilberto Melendez, Plaintiff, Counterclaim Defendant: Robin A. Feeney, LEAD ATTORNEY, FINE & STAUD LLP, PHILADELPHIA, PA.

For Happy Trails and Riding Center, Incorporated, Defendant, Counterclaim Plaintiff: Dennis M. Marconi, Barnaba & Marconi, LLP, Trenton, NJ.

JUDGES: Robert D. Mariani, United States District Judge.

OPINION BY: Robert D. Mariani

OPINION

MEMORANDUM OPINION

I. Introduction and Procedural History

On September 30, 2014, Plaintiff, Wilberto Melendez, filled a one count Complaint with this Court against Defendant, Happy Trails and Riding Center, lnc.1 (Doc. 1). The Complaint alleges that Plaintiff suffered injury as a result of Defendant’s negligence in its operation of a business which rented horses and equipment to the public for recreational horseback riding. After the conclusion of fact discovery, Defendant filed a Motion for Summary Judgment (Doc. 19) and supporting brief (Doc. 20) on October 29, 2015. Plaintiff filed a Brief in Opposition (Doc. 22) and Defendant filed a Reply. (Doc. 23). Oral argument on the matter was held on April 4, 2016.

1 Defendant points out that the business is owned and operated by Randolph Bennett, d/b/a Happy Trails Stables, and was incorrectly pleaded as Happy Trails Riding [*2]  Center, Inc. For the purposes of this motion, the error, if any, is immaterial and the opinion will refer to Defendant as “Defendant” or “Happy Trails.”

The motion is now ripe for decision. For the reasons set forth below the Court will deny Defendant’s motion in its entirety.

II. Statement of Undisputed Facts

In accordance with Local Rule 56.1, Defendant submitted a Statement of Material Facts in Support of its Motion for Summary Judgment, (Doc. 20), as to which it contends that there is no genuine dispute for trial. Plaintiff submitted a response, a Counter Statement of Facts, (Doc. 22), with the result being that the following facts have been admitted, except as specifically noted:

Plaintiff, Wilberto Melendez, went to Defendant’s stable on May 31, 2014, for the purpose of going horseback riding. (Doc. 20, ¶¶ 1, 2). After his group arrived, Plaintiff went into the stable’s office to register. (Id. at ¶ 5). Plaintiff was presented with a form (the “agreement”), which stated, in pertinent part:

AGREEMENT FOR PARTICIPATION AND\OR VOLUNTEERS [sic] I RELEASE AND DISCHARGE, ACCEPTANCE OF RESPONSIBILITY AND ACKNOWLEDGE [sic] OF RISK:

IN CONDERATION [sic] FOR BEING PERMITTED TO UTILIZE THE FACILITIES AND EQUIPMENT [*3]  OF HAPPY TRAILS RIDING STABLES AND TO ENGAGE IN HORSEBACK RIDING, AND ALL RELATED ACTIVITIES.

….

1. I understand and acknowledge that the activity I am voluntarily engage [sic] in as a participant and/or [sic] bears certain know [sic] risk [sic] and unanticipated risks which could result in jury, [sic] death, illness, or disease, physical or mental, or damage to myself, to my property, or to spectators or other third parties. I understand and acknowledge those risk [sic] may result in personal claims against “HAPPY TRAILS STABLES” or claims against me by spectators or other third parties.

1. [sic] The nature of the activity itself, including the possible risks to you the rider.

A. The animal may be startled by unforeseen or unexpected noises from other animals, people, vehicles, activities and as a result you the rider may be hurt or injured should the animal react to said noises or activity, by running, bucking, rolling, or kicking, etc.

B. That you as the rider realizes [sic] that the animal is reacting to your physical instructions, conduct, and verbal instructions and commands, and therefore, the animal will respond in accordance with your reactions or commands. However, there are [*4]  times when the animal may be confused or distracted during course [sic] of your instructions and/or commands.

C. You the rider understands [sic] that an animal may kick or bite you the rider, or you the pedestrian, and that other animals which may be on tour, could kick or bite you the rider and/or pedestrian.

D. You the rider are aware that physical conditions of the trails may cause injury or risk to you, should these physical conditions such as low tree limbs, bushes, or other type of natural growth come in contact with animal [sic] or yourself.

2. I hereby release and discharge Happy Trails Stables, instructors, trail guides, stable managers, employees, owners of the horses and related equipment and land utilized for Happy Trails Stables activities, hereinafter referred to as the “Released Parties,” from any and all claims, demands, or cause of action that I, or any of my heirs, successors or assigns, [sic] may hereafter have for injuries and/or damages arising out of my participation in Happy Trails activities, including but not limited to, loses caused by negligence of the released parties.

3. I further agree that I, my heirs, successors, or assigns, [sic] will not sue or make claim [*5]  against the Released Parties for damage or other loses sustained as a result of my participation in Happy Trails activities.

….

4. I understand and acknowledge that Happy Trails activities have inherent dangers that no amount of cares, [sic] caution, instruction, or expertise can eliminate and I expressly and voluntarily assume all risk of personal injury or death sustained while participating in “Happy Trails Stables” activities weather [sic] or not caused by negligence of the Released Parties ….

….

6. I hereby expressly recognize that this Agreement and Release of Liability is a contract pursuant to which I have released any and all claims against the Released Parties resulting from my participation in Happy Trails activities including any claims caused by negligence of the Released Parties. I also assume the risk of the equine activities pursuant to the [sic] Pennsylvania law.

(Id. at ¶¶ 5, 11; Doc. 20-7) (emphasis original). An employee of Happy Trails informed Plaintiff that Plaintiff must sign the agreement in order to go horseback riding. (Doc. 20, 5). Plaintiff signed the agreement. (Id. at ¶ 8). In addition to the agreement, there were signs posted inside the office, outside [*6]  the office, and by the stable which read “You assume the risk of equine activities pursuant to Pennsylvania Law.” (See id. at ¶¶ 12-15; Doc. 20-8).

After completing the agreement, Plaintiff waited while a Happy Trails employee saddled up a horse. (Doc. 20, ¶ 17). Plaintiff then mounted the horse and participated in a guided group horseback ride for the next forty-five minutes without incident. (Id. at ¶¶ 19, 21). On several occasions during the ride, Plaintiff requested permission from the guide to gallop the horse. (Id. at ¶¶ 22, 23). Plaintiff was told it was too dangerous to do on the trail. (Id.). At the end of the ride, one of the guides brought Plaintiff away from the group so that Plaintiff could canter the horse. (Id. at ¶ 26). Plaintiff then put the horse into a gallop and, while rounding a turn, a stirrup broke and Plaintiff fell from the animal. (id. at ¶¶ 27-29).

Plaintiff maintains that the stirrup Defendant provided him was faulty or defective and that this was the cause of his fall. (Doc. 22 at 1). Plaintiff further maintains that this fall resulted in fractured ribs and pneumothorax. (Id. at 3).

III. Standard of Review

Through summary adjudication, the court may dispose of those [*7]  claims that do not present a “genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a). “As to materiality, ….[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

The party moving for summary judgment bears the burden of showing the absence of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Once such a showing has been made, the non-moving party must offer specific facts contradicting those averred by the movant to establish a genuine issue of material fact. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990). Therefore, the non-moving party may not oppose summary judgment simply on the basis of the pleadings, or on conclusory statements that a factual issue exists. Anderson, 477 U.S. at 248. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record…or showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A)-(B). In evaluating whether summary judgment should be granted, “[t]he court need consider only the cited materials, but it may consider other materials in the record.” Fed. R. Civ. P. 56(c)(3). “Inferences [*8]  should be drawn in the light most favorable to the non-moving party, and where the non-moving party’s evidence contradicts the movant’s, then the non-movant’s must be taken as true.” Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied 507 U.S. 912, 113 S. Ct. 1262, 122 L. Ed. 2d 659 (1993).

However, “facts must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007). If a party has carried its burden under the summary judgment rule,

its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.

Id. (internal quotations, citations, and alterations omitted).

IV. Analysis [*9]

Plaintiffs complaint alleges that Defendant was negligent in providing broken or defective equipment–the stirrup–to Plaintiff, which directly resulted in his injury. (Doc. 1, ¶ 20). Defendant puts forth two arguments that it maintains are separate and independent grounds for summary judgment. First, Defendant argues that the agreement that Plaintiff signed prior to the horseback ride insulates Defendant from liability under these facts. (Doc. 20 at 9). Second, Defendant argues that, pursuant to 4 P.S. §§ 601-606 (hereinafter “Equine Activities Immunity Act,” “EAIA,” or “the Act”), Happy Trails is immune from liability as a provider of equine activities. (Id.).

A. Exculpatory Agreement

An exculpatory clause is valid if (1) the clause does “not contravene public policy”; (2) the contract is “between persons relating entirely to their own private affairs”; and (3) each party is “a free bargaining agent to the agreement so that the contract is not one of adhesion.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1189 (Pa. 2010) (quoting Topp Copy Prods., Inc. v. Singletary, 533 Pa. 468, 626 A.2d 98, 99 (Pa. 1993)). However, a valid exculpatory clause will nevertheless be unenforceable “unless the language of the parties is clear that a person is being relieved of liability for his own acts of negligence.” Id. (quoting Topp Copy Prods., 626 A.2d at 99). Contracts immunizing a [*10]  party against liability for negligence are not favored by law and therefore established standards must be “met before an exculpatory provision will be interpreted and construed to relieve a person of liability for his own or his servants’ acts of negligence.” Dilks v. Flohr Chevrolet, Inc., 411 Pa. 425, 192 A.2d 682, 687 (Pa. 1963). Thus, Pennsylvania courts have established several standards governing the enforceability of exculpatory clauses:

1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing immunity is upon the party invoking protection under the clause.

Tayar v. Camelback Ski Corp., 616 Pa. 385, 47 A.3d 1190, 1196 (Pa. 2012) (quoting Topp Copy Prods., 626 A.2d at 99). Further, exculpatory clauses may not immunize a party for intentional or reckless behavior. Id. at 1202-03.

Defendant contends that the agreement Plaintiff signed is valid, enforceable, and encompasses broken equipment. (Doc. 20 at 13-16). Therefore, Defendant argues, Plaintiffs negligence [*11]  claim is barred and Happy Trails is entitled to summary judgment. (Id. at 16).

Plaintiff does not appear to argue that the agreement is not valid on its face. Nor should he, considering that the agreement easily satisfies the validity requirements under Chepkevich. First, the agreement does not violate any public policy of Pennsylvania. In light of the Equine Activities Immunity Act–discussed in the next section–and similar statutes addressing other recreational activities, it is the policy of the state to encourage participation in those activities, despite their inherent danger, and assign the risk of loss to those who choose to participate in them. Cf. Chepkevich, 2 A.3d at 1191 (finding that, in light of a statute that preserves the assumption of risk defense in the context of downhill skiing, it is “the clear policy of this Commonwealth . . .to encourage the sport and to place the risks of skiing squarely on the skier.”). Further, Pennsylvania courts have held as valid similar exculpatory agreements in the context of a variety of other inherently dangerous recreational activities. See, e.g., id. (downhill skiing); Wang v. Whitetail Mountain Resort, 2007 PA Super 283, 933 A.2d 110, 113-14 (Pa. Super. Ct. 2007) (snow tubing); Valeo v. Pocono Int’l Raceway, Inc., 347 Pa. Super. 230, 500 A.2d 492, 492-93 (Pa. Super. Ct. 1985) (auto racing); Nissley v. Candytown Motorcycle Club, Inc., 2006 PA Super 349, 913 A.2d 887, 889-91(Pa. Super. Ct. 2006) (motorcycle riding).

Second, the agreement was between two private [*12]  parties, Happy Trails and Mr. Melendez, concerning the purely private matter of renting a horse for recreational purposes. Finally, this is not a contract of adhesion. See Chepkevich, 2 A.3d at 1190-91 (“The signer I is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential services, but merely governs a voluntary recreational activity.”). Thus, the agreement is facially valid.

Turning to enforceability, Plaintiff contends that Defendant has failed to meet its burden to show either that defective equipment is an inherent risk of horseback riding, or that the language of the agreement shows that Plaintiff expressly assumed the risk of defective equipment. (Doc. 22 at 11). Plaintiff points out that the agreement does not enumerate defective equipment as a risk. (Id.). Further, Plaintiff argues that a broken stirrup is not an inherent risk of horseback riding as demonstrated by the testimony of both Happy Trails’ owner and a Happy Trails’ employee who both stated they had never seen a stirrup break before. (Id. at 12-13). Thus, Plaintiff argues, because the risk was not foreseeable and was not expressly in the agreement, Plaintiff could [*13]  not appreciate the risk and could therefore not assume it. (Id. at 13).

Plaintiffs argument essentially states that the second element from Tayar –that “the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties”–is not met in this case because the agreement did not specifically enumerate the risk of defective equipment. Pennsylvania courts, however, have rejected this argument before. See Chepkevich, 2 A.3d at 1193-94.

In Chepkevich, a skier, Lori Chepkevich, sued a ski resort after she fell from a ski lift and was injured. Id. at 1175-76. She claimed her injury occurred because an employee promised to stop the ski lift briefly to allow Chepkevich to help a child board the lift and then the employee failed to do so. Id. Prior to the accident, Chepkevich had signed a document titled “RELEASE FROM LIABILITY” which stated, in pertinent part,

Skiing, Snowboarding, and Snowblading, including the use of lifts, is a dangerous sport with inherent and other risks which include but are not limited to [certain enumerated risks]…. I agree to accept all these risks and agree not to sue Hidden Valley [*14]  Resort or their employees if injured while using their facilities regardless of any negligence on their part.

Id. at 1176. The Pennsylvania Supreme Court first rejected Chepkevich’s argument that she did not assume the specific risk that caused her injury and instead found that a fall from a ski lift was an inherent risk in the sport of skiing. Id. at 1188. Therefore, the Court found that the suit was barred by the Skier’s Responsibility Act, 42 PA. Cons. Stat. Ann. § 7102(c), which preserves the common law assumption of the risk defense in the context of downhill skiing. Chepkevich, 2 A.3d at 1187-88.

Turning to an alternative ground for summary judgment–the release–the Chepkevich Court held that the term “negligence” did not require any definition or illustration to be given effect. Id. at 1193. Indeed, reversing the court below on that point, the Court found “no reason to require the drafters of exculpatory releases to provide definitions and context for commonly used terms such as ‘negligence.”‘ Id. The Court then found that the plain language of the release encompassed Chepkevich’s claim for negligence and therefore barred the claim. Id. at 1194-95. Because the Court had already found that the risk involved was inherent, the Court found it unnecessary to address the merits of Chepkevich’s [*15]  final argument “that the Release exempted Hidden Valley from liability only when its negligence gave rise to a risk otherwise inherent to the sport of skiing.” Id. at 1193-94.

Concerning the case at hand, while this Court agrees with Plaintiff that the provision of defective equipment is not an inherent risk in the sport of horseback riding, this point is not dispositive. As one Pennsylvania court explained, “the assumption of the risk doctrine bars a plaintiff from recovering in tort for risks inherent to a certain activity. In contrast, the explicit, broad, and valid language of the exculpatory clause bars all claims, regardless of whether they arise from an inherent risk.” Nissley, 913 A.2d at 892 (footnote and internal citations omitted). Thus, as long as the language of the exculpatory agreement applies, any inherent risk analysis is superfluous. The fact that the court in Chepkevich found it unnecessary to its holding to address the plaintiffs argument that non-inherent risks cannot be released in exculpatory agreements does not affect this analysis. As that court saw no need to overturn the language in Nissley, this Court sees no reason not to follow it.

As for enforceability of the agreement, in the realm of recreational [*16]  activities, Pennsylvania has upheld expansive language in exculpatory agreements. See, e.g., Nissley, 913 A.2d at 890-91 (upholding motor cycle club’s exculpatory agreement in a negligence action when the release stated that plaintiff “hereby give[s] up all my rights to sue or make claim”); Zimmer v. Mitchell & Ness, 385 A.2d 437, 440 (Pa. Super. Ct. 1978), aff’d per curiam, 416 A.2d 1010 (1980) (upholding ski rental shop’s exculpatory agreement in a negligence action when the release stated that skier released defendant from “any liability”); Valeo, 500 A.2d at 492-93 (upholding race track’s exculpatory agreement in a negligence action where race car driver signed an agreement releasing “defendants ‘from all liability …for all loss or damage'”).

Here, Plaintiff signed an agreement that he knew to be a waiver. (Doc. 20-2 at 51-53; Doc. 20-7). Paragraph two of the agreement stated that Plaintiff released Happy Trails “from any and all claims, demands, or cause of action that I…may hereafter have for injuries and/or damages arising out of my participation in Happy Trails activities, including but not limited to, loses caused by negligence.” Further, paragraph six states that Plaintiff “hereby expressly recognize[s] that this Agreement and Release of Liability is a contract pursuant to which I have released any and all claims against the [*17]  Released Parties resulting from my participation in Happy Trails activities including any claims caused by negligence.” Plaintiff has alleged that Defendant was negligent in providing him defective equipment during his trail ride. The plain language of the agreement signed by Plaintiff releases Defendant from “all claims” including those “caused by negligence.” Thus, Plaintiffs claim, in as much as it is alleging that Defendant acted negligently, is encompassed by the exculpatory language of the agreement and therefore barred.2

2 This Court notes that there is some language in Chepkevich that seems to support Plaintiffs argument. As an aside, the Chepkevich Court states that “the risk [in this case] was not so unexpected, or brought about in so strange a manner, as to justify placing this injury beyond the reach of the plain language of the Release.” Chepkevich, 2 A.3d at 1194. Plaintiff has pointed out that a broken stirrup is a very uncommon, and therefore unexpected, occurrence. (Doc. 22 at 12-13). Nevertheless, because Chepkevich does not give any standards for what type of risks fall beyond the realm of the plain language of an exculpatory agreement, this Court must turn to other cases. This Court finds  [*18]  Zimmer v. Mitchell and Ness  instructive.

In Zimmer, a skier, Joseph Zimmer, sued a ski rental company after the bindings on the skis he rented failed to release as they were supposed to during a fall, causing him substantial injury. Zimmer, 385 A.2d at 438. Zimmer argued that the rental company was negligent in renting him skis without testing and fitting the bindings. Id. at 440. The court granted the ski rental company’s motion for summary judgment based on an exculpatory agreement that Zimmer signed when he rented the skis that released the rental company “from any liability for damage and injury to myself or to any person or property resulting from the use of this equipment.” Id.

Thus, while the specific issue of a broken stirrup may be very uncommon, Pennsylvania courts have enforced exculpatory agreements in the case of a released party negligently providing the releasing party with defective or broken equipment.

Plaintiff advances a more narrow reading of the agreement and argues that because the agreement does not enumerate defective equipment as a risk, he did not expressly assume it. The Chepkevich Court, however, was clear that no illustrations or examples are required to give common terms effect in an exculpatory [*19]  agreement. See Chepkevich, 2 A.3d at 1193. “All claims” and “negligence” are commonly used terms and Pennsylvania law does not require drafters of exculpatory clauses to enumerate every possible contingency that is included in broader language they choose to use. Plaintiff agreed to release Defendant from “all claims” including those that arose from Defendant’s negligence. Plaintiff cannot now protest that he did not know what “all claims” included.3

3 At oral argument, Plaintiff advanced a slightly different argument. Plaintiff argued, in effect, that because paragraph one of the agreement enumerates risks associated with horseback riding, the rest of the agreement is limited to those enumerated lists. This argument was also advanced in Chepkevich. See Chepkevich, 2 A.3d at 1194. There, the court rejected the plaintiff’s argument that “by enumerating risks inherent to downhill skiing and then requiring the skier to accept those risks, the Release only bars suits that arise out of the listed risks.” Id. The court found that the release, which stated that skiing “is a dangerous sport with inherent and other risks,” was not limited to the enumerated the risks, but clearly included “other risks.” Here, as in Chepkevich, Plaintiff’s argument [*20]  fails on textual grounds. It is true that the agreement, in paragraph one, lists some risks inherent to horseback riding. However, in paragraph two and six, the agreement states that Plaintiff relinquishes “any and all claims.” There is no limiting language in paragraph two or six that would indicate that Plaintiff was only relinquishing claims arising out of the enumerated risks in paragraph one.

Plaintiff finally argues that Defendant’s conduct amounts to recklessness and exculpatory agreements cannot immunize reckless conduct. (Doc. 22 at 14); see Tayar, 47 A.3d at 1202-03. Defendant concedes that the agreement only releases it from suits for negligence, not recklessness, and counters that its “conduct at most amounts to ordinary negligence.” (Doc. 23 at 10). “Recklessness is distinguishable from negligence on the basis that recklessness requires conscious action or inaction which creates a substantial risk of harm to others, whereas negligence suggests unconscious inadvertence.” Tayar, 47 A.3d at 1200.

The actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable [*21]  man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.

Id. at 1200-01 (quoting Restatement (Second) of Torts § 500).

Defendant’s bare assertion that its actions do not rise to the level of recklessness does not satisfy its burden to show that there is no genuine dispute as to a material fact. The record shows that Happy Trails provided a saddle for Plaintiffs ride, that a stirrup on that saddle broke during the ride, and that Plaintiff fell from a horse when the stirrup broke. (Doc. 22-5 at 35-36, 39-40). It was the responsibility of Happy Trails, not the customer, to inspect the equipment, but no records of inspections or repairs were kept, nor was the Happy Trails’ owner able to say if any inspection of the specific stirrup occurred on the day of the accident. (Id. at 13, 53-55, 58, 60). Happy Trails’ owner testified that he bought used saddles on the internet and also from individuals who walk into his business. (Id. at 18). He was unable to say where he procured the saddle in question, how long he had had it, or how old it was. (Id. at 18-19, 58, 60). Additionally, Happy Trails’ owner displayed a somewhat cavalier attitude towards [*22]  safety, asserting that customers assume all risks associated with the activity, including equipment breaking, staff failing to put equipment on the horses correctly, and even staff failing to provide basic equipment like stirrups or a bridal. (Id. at 32-33). Viewing the record in a light most favorable to Plaintiff, a question of fact therefore remains as to whether Defendant’s action rose to the level of recklessness.

Defendant goes on to argue that Plaintiff failed to plead recklessness and that if “recklessness is the standard to apply in this case, plaintiffs compliant must be dismissed with prejudice.” (Doc. 23 at 10). This argument, however, runs counter to the holding in Archibald v. Kemble, 2009 PA Super 79, 971 A.2d 513 (Pa. Super. Ct. 2009).

Archibald involved a lawsuit stemming from Robert Archibald’s participation in a “no-check” adult hockey league. Id. at 515. In his complaint, Archibald alleged that another player, Cody Kemble, checked him into the boards of the ice hockey rink. Id. The complaint went on to say that

Cody Kemble’s negligence consisted of the following:

a. failing to assure that Robert Archibald was aware and/or warned that the check was going to be attempted before checking him into the boards;

b. failing to assure that Robert Archibald was willing [*23]  to be checked;

c. checking Robert Archibald when not safe to do so;

d. failing to understand and learn the rules, prohibition and limitation on any checking prior to participating in the non-checking league and game.

Id. at 516. First determining that Archibald would only be able to recover if he showed that Kemble acted recklessly, the Court went on to hold that recklessness “may be averred generally.” Id. at 517, 519. Thus, “merely determining the degree of care is recklessness does not give rise to a separate tort that must have been pled within the applicable statute of limitations.” Id. at 519. Instead, “Archibalds’ cause of action was…subsumed within the negligence count pled in their Complaint.” Id.; see also M.U. v. Downingtown High Sch. E., 103 F. Supp. 3d 612, 629 (E.D. Pa. 2015) (construing a separately pleaded recklessness claim “simply as a mechanism to recover punitive damages under [the] negligence claim” because “[t]here is no cause of action for recklessness under Pennsylvania law” and “recklessness is a heightened standard of care required to potentially recover punitive damages”).

Consequently, under Archibald, the fact that Plaintiff did not specifically plead recklessness in his Complaint is not fatal to his claim. In his Complaint, Plaintiff alleged that, among other things, [*24]  Defendant “provid[ed] equipment or tack that defendant knew or should have known was faulty.” This statement encompasses the allegation that Defendant recklessly provided Plaintiff with defective or faulty equipment. The fact that Plaintiffs Complaint does not contain the word “reckless” is immaterial.

In sum, because the agreement that Plaintiff signed is only enforceable to immunize Defendant for its negligence, and not for its recklessness, and because there is a genuine dispute as to the material fact of whether Defendant acted recklessly in this case, the Court finds that the agreement is not a sufficient basis for summary judgment.

B. Equine Activities Immunity Act

Defendant next points to the Equine Activities Immunity Act, 4 P.S. §§ 601-606, as an alternative, independent basis for summary judgment. The EAIA limits the liability of certain providers of equine activities if specific requirements are met. Defendant argues that, as a provider of a qualifying equine activity who has complied with the EAIA’s statutory requirements, it is entitled to immunity from suit. (Doc. 20 at 10-11). Plaintiff counters that Defendant’s negligent provision of defective or faulty equipment puts the suit outside of the EAIA’s [*25]  protections. (Doc. 22 at 4).

The issue of whether a covered entity is immunized from liability under the EAIA for providing defective or faulty equipment is a question of first impression. As such, this Court must engage in statutory interpretation. For this Court to interpret state law, it “must determine how the highest court of the State would decide an issue.” Baker ex rel. Thomas v. Gen. Motors Corp., 522 U.S. 222, 249, 118 S. Ct. 657, 139 L. Ed. 2d 580 (1998). Pennsylvania interprets statutes according to the Statutory Construction Act of 1972, 1 Pa.Cons. Stat. Ann. §§ 1501-1991. “When interpreting statutory language, the Pennsylvania Supreme Court is guided by the ‘plain meaning’ rule of construction.” Hofkin v. Provident Life & Accident Ins. Co., 81 F.3d 365, 371 (3d Cir. 1996) (citing Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583, 587 (Pa. 1982)). “The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.” 1 Pa. Cons. Stat. Ann. § 1921(a). “When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” Id. at § 1921(b).

The EAIA provides immunity for “an individual, group, club or business entity that sponsors, organizes, conducts or provides the facilities for an equine activity” including “[r]ecreational rides or drives which involve riding or other activity [*26]  involving the use of an equine.” 4 P.S. §§ 601, 602(b)(6). The EAIA, however, only provides immunity where signs of at least a certain size are “conspicuously posted on the premises…in two or more locations, which states the following: You assume the risk of equine activities pursuant to Pennsylvania law.” Id. at § 603. For covered entities in compliance with the signs requirement, “liability for negligence shall only be barred where the doctrine of knowing voluntary assumption of risk is proven with respect to damages due to injuries or death to an adult participant resulting from equine activities.” Id. at § 602(a). Finally, the Act is clear that “[t]he immunity provided for by this act shall be narrowly construed.” Id. at § 606.

Plaintiff does not argue that Defendant, as a provider of recreational horseback riding activities, is not a covered entity under the statute. Additionally, Plaintiff does not argue that Defendant did not have the appropriate signs as prescribed under the EAIA. Plaintiffs sole argument is that the Act does not bar actions for the negligent provision of faulty or defective equipment. (Doc. 22 at 6). Stated otherwise, Plaintiff argues that because he did not know he might be given defective or faulty [*27]  equipment, he could not knowingly assume the risk of such. Defendant counters that “[o]nce plaintiff entered the stables property and took part in recreational horse riding, he assumed the risk of harm associated with such activities.” (Doc. 20 at 11).

The EAIA states that “liability for negligence shall only be barred where the doctrine of knowing voluntary assumption of risk is proven.” 4 P.S. § 602(a). The Act, therefore, appears to preserve the common law assumption of risk doctrine in the context of equine activities. In delineating the contours of this doctrine, the Pennsylvania Supreme Court has looked to the Restatement Second of Torts. See Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 762 A.2d 339, 341-42 (Pa. 2000). The Restatement outlines four varieties of the doctrine, the first two of which are of interest in this case. See Restatement (second) of Torts § 496A cmt. c. The first, express assumption of risk occurs when lithe plaintiff has given his express consent to relieve the defendant of an obligation to exercise care for his protection, and agrees to take his chances as to injury from a known or possible risk.” Id. (emphasis added). This is the type of assumption of risk examined above in respect to the agreement signed by Plaintiff. The second, implied assumption of risk, occurs when lithe plaintiff has [*28]  entered voluntarily into some relation with the defendant which he knows to involve the risk, and so is regarded as tacitly or impliedly agreeing to relieve the defendant of responsibility, and to take his own chances.” Id. (emphasis added).

It is self-evident that a person “cannot be found to have implicitly assumed a risk of which he had no knowledge.” Rutter v. Ne. Beaver Cty. Sch. Dist., 496 Pa. 590, 437 A.2d 1198, 1204 (Pa. 1981) (plurality opinion). As such, lithe defense of assumption of the risk requires that the defendant show that the plaintiff was subjectively aware of the facts which created the danger and…must have appreciated the danger itself and the nature, character and extent which made it unreasonable.”‘ Berman v. Radnor Rolls, Inc., 374 Pa. Super. 118, 542 A.2d 525, 532 (Pa. Super. Ct. 1988) (alteration in original) (quoting Crance v. Sohanic, 344 Pa. Super. 526, 496 A.2d 1230, 1232 (Pa. Super. Ct. 1985)); See also Restatement (second) of Torts § 496D.4 Thus, for a defendant to prevail on a summary judgment motion based on the assumption of risk defense, it must be “beyond question that the plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous condition.” Barrett v. Fredavid Builders, Inc., 454 Pa. Super. 162, 685 A.2d 129, 131 (Pa. Super. Ct. 1996) (citing Struble v. Valley Forge Military Acad., 445 Pa. Super. 224, 665 A.2d 4 (Pa. Super. Ct. 1995)). Finally, “[t]he mere fact one engages in activity that has some inherent danger does not mean that one cannot recover from a negligent party when injury is subsequently sustained.” Bullman v. Giuntoli, 2000 PA Super 284, 761 A.2d 566, 572 (Pa. Super. Ct. 2000).

4 Of course, a plaintiff’s own assertion about whether he knew of and understood [*29]  the risk is not conclusive.

There are some risks as to which no adult will be believed if he says that he did not know or understand them. Thus an adult who knowingly comes in contact with a fire will not be believed if he says that he was unaware of the risk that he might be burned by it; and the same is true of such risks as those of drowning in water or falling from a height, in the absence of any special circumstances which may conceal or appear to minimize the danger.

Restatement (Second) of Torts §496D cmt. d.

In short, to preclude Plaintiffs negligence action under the EAIA, Defendant must show that Plaintiff knew that the equipment he was provided with might break and voluntarily continued with the horseback ride in spite of that knowledge. Only then can Plaintiff be said to knowingly assume the risk. Defendant, however, has made no such showing. Defendant has failed to point to anything in the record to show that Plaintiff decided to use the equipment with the knowledge that the stirrup or any other equipment Plaintiff was provided with might break. Nor is this a case where the risk is so obvious that the knowledge could be inferred. The owner of Happy Trails testified that, in the approximately ten years he operated [*30]  the stable, he never remembered a single stirrup breaking. (Doc. 20-3 at 20-21). Given that it is not a common occurrence, it strains credibility to argue that a recreational participant would know that being provided broken equipment was likely.

Therefore, because there has been no showing that Plaintiff knew of the risk and voluntarily disregarded it, the EAIA provides no relief for Defendant.5

5 At oral argument, counsel for the Defendant conceded that, even under the broad interpretation of the Act that Defendant argued for, the Act would not immunize a covered entity for acts of recklessness or gross negligence. As this Court has already found that there is a genuine dispute as to the material fact of whether the Defendant acted recklessly, this provides an alternative ground for the finding that the Act does not provide immunity under these facts.

V. Conclusion

For the reasons stated above, the Court will deny Defendant’s Motion for Summary Judgment (Doc. 19). A separate Order follows.

/s/ Robert D. Mariani

Robert D. Mariani

United States District Judge

ORDER

AND NOW, THIS 26th DAY OF SEPTEMBER, 2016, upon consideration of Defendant’s Motion for Summary Judgment (Doc. 19), IT IS HEREBY ORDERED [*31]  THAT:

1. Defendant’s Motion for Summary Judgment (Doc. 19) is DENIED.

2. A telephone scheduling conference will be held on Wednesday, October 5, 2016, at 4:00 p.m. Counsel for Plaintiff is responsible for arranging the call to (570) 207-5750, and all parties should be ready to proceed before the undersigned is contacted.

/s/ Robert D. Mariani

Robert D. Mariani

United States District Judge

 


Schorpp et al., Respondents, v Oak Mountain, LLC, et al., 143 A.D.3d 1136; 39 N.Y.S.3d 296; 2016 N.Y. App. Div. LEXIS 6784; 2016 NY Slip Op 06932

Schorpp et al., Respondents, v Oak Mountain, LLC, et al., 143 A.D.3d 1136; 39 N.Y.S.3d 296; 2016 N.Y. App. Div. LEXIS 6784; 2016 NY Slip Op 06932

Ron W. Schorpp et al., Respondents, v Oak Mountain, LLC, et al., Appellants.

522405

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT

143 A.D.3d 1136; 39 N.Y.S.3d 296; 2016 N.Y. App. Div. LEXIS 6784; 2016 NY Slip Op 06932

October 20, 2016, Decided

October 20, 2016, Entered

COUNSEL:  [***1] Roemer Wallens Gold & Mineaux LLP, Albany (Matthew J. Kelly of counsel), for appellants.

Horigan, Horigan & Lombardo, PC, Amsterdam (Peter M. Califano of counsel), for respondents.

JUDGES: Before: Peters, P.J., McCarthy, Garry, Clark and Aarons, JJ. Peters, P.J., McCarthy, Garry and Clark, JJ., concur.

OPINION BY: Aarons

OPINION

[*1136]  [**296]   Aarons, J.

MEMORANDUM AND ORDER

Appeal from an order of the Supreme Court (Sise, J.), entered November 5, 2015 in Fulton County, which denied defendants’ motion for summary judgment dismissing the complaint.

Plaintiff Ron W. Schorpp, a self-described “expert skier,” was  [*1137]  injured while skiing down a trail at defendant Oak Mountain Ski Center (hereinafter Oak Mountain), which is operated by defendant Oak Mountain, LLC in the Village of Speculator, Hamilton County. Schorpp testified that an Oak Mountain employee recommended  [**297]  a black-diamond trail to him. Schorpp and his daughter planned to ski down this trail and meet his wife and other children at a subsequent juncture of trails. Approximately three quarters of the way down the trail, Schorpp skied into a “depression” that was filled with snow. The skis got caught in the depression causing Schorpp to flip over and fall out of his skis. Schorpp, and [***2]  his wife derivatively, subsequently commenced this negligence action against defendants. Following joinder of issue and discovery, defendants moved for summary judgment. Supreme Court denied the motion and defendants now appeal. We reverse.

Under the assumption of risk doctrine, a person who elects to engage in a sport or recreational activity “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” (Morgan v State of New York, 90 NY2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421 [1997]; see Martin v State of New York, 64 AD3d 62, 63-64, 878 N.Y.S.2d 823 [2009], lv denied 13 NY3d 706, 915 N.E.2d 1181, 887 N.Y.S.2d 3 [2009]; Youmans v Maple Ski Ridge, Inc., 53 AD3d 957, 958, 862 N.Y.S.2d 626 [2008]). Regarding downhill skiing, an individual “assumes the inherent risk of personal injury  caused by ruts, bumps or variations in the conditions of the skiing terrain” (Ruepp v West Experience, 272 AD2d 673, 674, 706 N.Y.S.2d 787 [2000]; see General Obligations Law § 18-101; Hyland v State of New York, 300 AD2d 794, 794-795, 752 N.Y.S.2d 113 [2002], lv denied 100 NY2d 504, 793 N.E.2d 411, 762 N.Y.S.2d 874 [2003]; Dicruttalo v Blaise Enters., 211 AD2d 858, 859, 621 N.Y.S.2d 199 [1995]). The application of the assumption of risk doctrine must be measured “against the background of the skill and experience of the particular plaintiff” (Maddox v City of New York, 66 NY2d 270, 278, 487 N.E.2d 553, 496 N.Y.S.2d 726 [1985]; see Sharrow v New York State Olympic Regional Dev. Auth., 307 AD2d 605, 607, 762 N.Y.S.2d 703 [2003]).

We conclude that defendants satisfied their moving burden by demonstrating that Schorpp assumed the risk of injury associated with downhill skiing (see Jordan v Maple Ski Ridge, 229 AD2d 756, 757, 645 N.Y.S.2d 598 [1996]). Although this was his first time on the particular black-diamond trail, Schorpp had “decades of skiing experience” and had skied at Oak Mountain on a weekly basis prior to his accident. [***3]  Taking into account his experience and skill level, Schorpp was aware of the risk of injury that could be caused by the depression on the ski slope (see Painter v Peek’N Peak Recreation, 2 AD3d 1289, 1289-1290, 769 N.Y.S.2d 678 [2003]; Ruepp v West Experience, 272 AD2d at 674; Giordano v Shanty  [*1138]  Hollow Corp., 209 AD2d 760, 761, 617 N.Y.S.2d 984 [1994], lv denied 85 NY2d 802, 648 N.E.2d 792, 624 N.Y.S.2d 372 [1995]; Calabro v Plattekill Mt. Ski Ctr., 197 AD2d 558, 559, 602 N.Y.S.2d 655 [1993], lv denied 83 NY2d 754, 634 N.E.2d 979, 612 N.Y.S.2d 378 [1994]). In opposition, plaintiffs failed to raise an issue of fact as to whether defendants concealed or unreasonably increased the risks to which Schorpp was exposed (see Sontag v Holiday Val., Inc., 38 AD3d 1350, 1351, 832 N.Y.S.2d 705 [2007]; Ruepp v West Experience, 272 AD2d at 674). Accordingly, Supreme Court erred in denying defendants’ motion for summary judgment.

Peters, P.J., McCarthy, Garry and Clark, JJ., concur.

ORDERED that the order is reversed, on the law, with costs, and motion granted.

 


DiFrancesco v. Win-Sum Ski Corp., Holiday Valley, Inc., 2017 U.S. Dist. LEXIS 39695

DiFrancesco v. Win-Sum Ski Corp., Holiday Valley, Inc., 2017 U.S. Dist. LEXIS 39695

Bryan DiFrancesco as father and natural guardian of the infant minor, LD, Plaintiffs, v. Win-Sum Ski Corp., Holiday Valley, Inc., Defendants.

13CV148

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK

2017 U.S. Dist. LEXIS 39695

March 20, 2017, Decided

March 20, 2017, Filed

PRIOR HISTORY: DiFrancesco v. Win-Sum Ski Corp., 2017 U.S. Dist. LEXIS 24784 (W.D.N.Y., Feb. 22, 2017)

COUNSEL:  [*1] For Bryan DiFrancesco, as father and natural guardian of the infant minor, LD, Bryan DiFrancesco, Individually, Plaintiffs: Philip L. Rimmler, LEAD ATTORNEY, Russell T. Quinlan, Paul William Beltz, P.C., Buffalo, NY.

For Win-Sum Ski Corp, Holiday Valley, Inc., Defendants: Maryjo C. Zweig, Steven M. Zweig, LEAD ATTORNEYS, Cheroutes Zweig, PC, Hamburg, NY.

JUDGES: Hon. Hugh B. Scott, United States Magistrate Judge.

OPINION BY: Hugh B. Scott

OPINION

CONSENT

Order

The parties then consented to proceed before the undersigned as Magistrate Judge, including presiding over a jury trial (Docket No. 37). Presently before the Court are the parties’ first round of motions in limine in preparation for a jury trial. Defendants first submitted their motion in limine (Docket No. 53). Plaintiffs’ then filed their motion in limine (Docket No. 56). Defendants then supplemented their motion in limine (Docket No. 58). As scheduled in the Final Pretrial Order (Docket No. 40), these initial motions in limine were due by January 3, 2017 (id.), later extended at the parties’ request to January 6, 2017 (Docket No. 42); responses initially were due by January 17, 2017, and they were to be argued with the Final Pretrial Conference on January 18, [*2]  2017, and then be deemed submitted (Docket No. 40). Responses to these motions were postponed then and were due by February 3, 2017 (Docket No. 63), which defendants submitted (Docket No. 65) and plaintiffs submitted (Docket No. 66); and reply by February 10, 2017 (Docket No. 63), which defendants submitted (Docket No. 67) and plaintiffs submitted (Docket No. 68); and argument was held on February 16, 2017 (Docket Nos. 63, 69 (minutes)). These motions were deemed submitted at the conclusion of oral argument. During that argument, scheduling for the Pretrial Conference and jury selection and trial were discussed with the trial reset for July 17, 2017 (Docket No. 69; see Docket Nos. 70, 71). The jury selection and trial of this case was scheduled for February 1, 2017 (Docket No. 40, Final Pretrial Order), but was later adjourned (Docket Nos. 63, 64).

Separately, this Court addressed plaintiffs’ motion for a protective Order and to quash two subpoenas (Docket Nos. 43 (motion), 70, Order of February 22, 2017), familiarity with which is presumed.

BACKGROUND

This is a diversity personal injury action. Plaintiffs are a Canadian father and daughter, while defendants are New York corporations [*3]  which operate Holiday Valley. Plaintiff LD (hereinafter “LD,” cf. Fed. R. Civ. P. 5.2) was a five-year-old in 2010 who skied at Holiday Valley. Plaintiffs allege that LD was injured falling when from a chairlift at Holiday Valley (Docket No. 1, Compl.; see Docket No. 43, Pls. Atty. Decl. ¶ 3, Ex. B).

According to plaintiffs’ earlier motion, LD was participating in a ski lesson at Holiday Valley on February 15, 2010, under the supervision of defendants’ employee, a ski instructor, when she fell from the chairlift sustaining injuries to her left leg and left hip. Plaintiffs allege negligent instruction and supervision during the course of that lesson resulting in LD’s fall. (Docket No. 43, Pls. Atty. Decl. ¶¶ 3, 9, Ex. E; see id., Pls. Memo. at 1-2.)

The Scheduling Order (after extensions, see Docket Nos. 14-15, 20, 23, 25, 27) in this case had discovery conclude on April 30, 2015 (Docket No. 27; see Docket No. 43, Pls. Atty. Decl. Ex. D). No motions to compel were filed and the parties reported on October 5, 2015, readiness for trial (Docket No. 30). Plaintiffs’ motion to quash subpoenas and for a protective Order led to the parties exchanging supplemental discovery, which was to be completed by April 5, [*4]  2017 (Docket No. 70, Order of Feb. 22, 2017, at 21, 22). Defendants’ First Motion in Limine (Docket No. 53)

Pursuant to the Final Pretrial Order (Docket No. 40), defendants filed their motion in limine, seeking preclusion of portions of the opinions of plaintiffs’ expert, Dick Penniman; evidence of defendants’ subsequent remediation; and evidence of prior and subsequent incidents similar to the accident at issue (Docket No. 53). Plaintiffs’ response and defendants’ reply will be addressed below at each particular item. Plaintiffs’ Motion in Limine (Docket No. 56)

Plaintiffs also filed their timely motion in limine (Docket No. 56), seeking to preclude evidence that infant LD assumed the risk of riding the chairlift, evidence from LD’s injury at Holimont in 2015, and evidence of a disclaimer that plaintiffs argue is against public policy (id.).

Defendants argue that plaintiffs’ motion in limine is in fact an untimely motion for summary judgment and that issues of fact exist, hence there is no basis to preclude evidence as to plaintiffs’ assumption of the risk or comparative negligence (Docket No. 65, Defs. Memo. at 5-6). They contend that the registration form with the release signed by [*5]  LD’s uncle is admissible because the release tracks the “Warning to Skiers” required by New York General Obligations Law § 18-106(1)(a) and regulations under 12 N.Y.C.R.R. § 54.5(l)(1) (id. at 7). They fault plaintiffs for not addressing Vanderwall v. Troser Management, Inc., 244 A.D.2d 982, 665 N.Y.S.2d 492 (4th Dep’t 1997), leave to appeal denied, 91 N.Y.2d 811, 694 N.E.2d 883, 671 N.Y.S.2d 714 (1998) (id.). That case charged the jury there with express assumption of the risk for exposure to drainage ditches even though those risks were not enumerated in “Warning to Skiers,” Vanderwall, supra, 244 A.D.2d at 982, 665 N.Y.S.2d at 493 (id.). Defendants’ Supplemental Motion in Limine (Docket No. 58)

Defendants later supplemented their motion in limine seeking preclusion of undisclosed expert testimony and to limit as expert testimony from LD’s parents as to her treatment (both past and future) and LD’s physical therapist testifying as to causation and diagnosis (Docket No. 58).

Plaintiffs’ respond that they did provide disclosure of future medical expenses; alternatively, they contend that defendants waived any objection to an omitted response by not moving to compel or for preclusion (Docket No. 66, Pls. Memo. at 16-18).

During oral argument of plaintiffs’ motion for a protective Order and to quash the two subpoenas (Docket No. 69), the parties submitted on their respective papers for these motions in limine (id.). They also discussed the need to supplement [*6]  their disclosure, especially LD’s future medical treatment and needs (id.).

DISCUSSION

I. Applicable Standards

In a diversity jurisdiction action, this Court initially must apply the substantive law of our forum state, New York, see Erie R.R. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1983); Ocean Ships, Inc. v. Stiles, 315 F.3d 111, 116 n.4 (2d Cir. 2002), including its choice of law regime, Klaxon v. Stentor, 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477 (1941). This Court has to apply New York law as construed by the highest court of the state, the New York State Court of Appeals, not the local intermediate appellate court. When the New York State Court of Appeals has not ruled on the particular question, this Court then has to predict the direction the Court of Appeals would go if given that issue, see Gasperini v. Center for Humanities, Inc., 66 F.3d 427, 430 (2d Cir. 1995).

In personal injury actions, New York generally applies the law of the jurisdiction in which the injury occurred. See Cooney v. Osgood Machinery, Inc., 81 N.Y.2d 66, 612 N.E.2d 277, 595 N.Y.S.2d 919 (1993); Neumeier v. Kuehner, 31 N.Y.2d 121, 286 N.E.2d 454, 335 N.Y.S.2d 64 (1972). “New York’s current choice-of-law rules require the court to consider the following three elements: the domicile of the plaintiff, the domicile of the defendant, and the place where the injury occurred.” Lucas v. Lalime, 998 F. Supp. 263, 267 (W.D.N.Y. 1998) (Heckman, Mag. J., R&R, adopted by Arcara, J.). Where more than one element is in the same state, that state’s law should apply. Id.; Datskow v. Teledyne Continental Motors, 807 F. Supp. 941, 943 (W.D.N.Y. 1992) (Larimer, J.). Under these choice of law rules “the first step in any case presenting a potential choice of law is to [*7]  determine whether there is an actual conflict between the laws of the jurisdiction involved.” Matter of Allstate Ins. Co. (Stolarz), 81 N.Y.2d 219, 223, 613 N.E.2d 936, 597 N.Y.S.2d 904, 905 (1993).

Here, the accident and defendants are in New York, plaintiffs are from Ontario. As a second1 Neumeier situation, New York law would apply, Neumeier, supra, 31 N.Y.2d at 128, 335 N.Y.S.2d at 70; Cooney v. Osgood Machinery, Inc., 81 N.Y.2d 66, 72, 612 N.E.2d 277, 595 N.Y.S.2d 919, 922 (1993) (conduct-regulating laws, the law of the jurisdiction where the tort occurs applies while loss allocation laws have additional factors to determine which jurisdiction applies, citations omitted). In addition, the parties in effect have stipulated to apply forum (New York) law to this case. Both sides cite New York law and made no reference to any other jurisdiction’s law having application. Neither side has presented any law that conflict with New York law. New York courts enforce stipulations to choice of law, see Hamilton v. Accu-Tek, 47 F. Supp.2d 330, 343 (E.D.N.Y. 1999) (citing, among other cases, Tehran-Berkeley Civil & Envtl. Eng’rs v. Tippetts-Abett-McCarthy-Stratton, 888 F.2d 239, 242 (2d Cir. 1989) (parties briefed New York law, court applies New York law based upon implied consent of parties)); Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832, 834 n.2 (2d Cir. 1967) (Friendly, J.); Klein v. Jostens, Inc., No. 83 Civ. 5351, 1985 U.S. Dist. LEXIS 18115, at *6 n.1 (S.D.N.Y. July 9, 1985). As a result New York law applies and the legal issues surrounding these evidentiary disputes will be resolved under New York law.

1 The second Neumeier situation is the defendant is from state A, plaintiff from state B, state A is where tort occurs; state A allows recovery, defendant cannot invoke state B’s law, similarly if state A does not allow recovery, defendant is not liable, thus state A’s law applies; or, as stated in New York Jurisprudence Conflict of Laws § 57, 19A N.Y. Jur., where local law favors respective domiciliary, the law of the place of injury generally applies, Neumeier, supra, 31 N.Y.2d at 128, 335 N.Y.S.2d at 70.

II. Application

A. Plaintiffs’ Motion in Limine, Docket No. 56

1. Preclude Evidence of LD’s Assumption of Risk

The heart of [*8]  this case is whether this five-year-old child can assume the risk inherent with riding and dismounting from a chairlift under New York law. Cases from New York State courts leave as an issue of fact for the jury whether a particular infant (regardless of the child’s age) was capable of assuming the risk of his or her activities. New York courts do not create a bright line rule that minors at five years or older are incapable of assuming risk, but cf. Smith v. Sapienza, 115 A.D.2d 723, 496 N.Y.S.2d 538 (2d Dep’t 1985) (holding, as matter of law, that three and a half year old child victim of dog attack was incapable of being held responsible for his actions for contributory negligence). New York common law “has long disclaimed any per se rule with regard to the age at which a child cannot legally assume a risk and thereby not be responsible for comparative fault for his or her injury,” Clark v. Interlaken Owners, Inc., 2 A.D.3d 338, 340, 770 N.Y.S.2d 58, 60 (1st Dep’t 2003) (Tom, J., dissent). The majority of Clark court held that assumption of risk doctrine did not apply to a five-year-old playing around exposed construction equipment, “where the danger was even more accessible [than another case cited] and the risk at least as unappreciated by this five-year-old plaintiff,” 2 A.D.3d at 340, 770 N.Y.S.2d at 60 (emphasis supplied), citing Roberts v. New York City Hous. Auth., 257 A.D.2d 550, 685 N.Y.S.2d 23 (1st Dep’t), leave to appeal denied, 93 N.Y.2d 811, 716 N.E.2d 698, 694 N.Y.S.2d 633 (1999), concluding [*9]  that instructing the jury on assumption of the risk was error as a matter of law, Clark, supra, 2 A.D.3d at 340, 770 N.Y.S.2d at 60. In Roberts, the Appellate Division held a “six-year old under these circumstances” that is, a child exposed to a steam line fenced off by an easily breached fence next to the lawn where children played, did not have the doctrine of assumption of risk apply, 257 A.D.2d at 550, 685 N.Y.S.2d 23, 23. Roberts provided an opportunity for establishing an age-based bright line rule but the court decided on the specific facts of that case; hence the standard plaintiffs are in effect arguing was not adopted by New York courts.

Plaintiff argues that LD was just days away from being one year older than the non sui juris status of age four and being incapable as a matter of law being culpable (Docket No. 66, Pls. Opp. Memo. at 4-5). Assumption of risk is a distinct defense from contributory negligence, see Arbegast v. Board of Educ. of S. New Berlin Cent. School, 65 N.Y.2d 161, 165, 480 N.E.2d 365, 490 N.Y.S.2d 751, 754-55 (1985), but both defenses are subject to the doctrine of non sui juris, see M.F. v. Delaney, 37 A.D.3d 1103, 1104-05, 830 N.Y.S.2d 412, 414 (4th Dep’t 2007) (assumption of risk and culpable conduct by plaintiffs should have been dismissed because plaintiffs were 2 and 3 years old and hence were non sui juris). Plaintiffs point to the concept of non sui juris that absolves children of a certain age or younger from culpability since (as [*10]  a matter of law) they are incapable of comprehending danger to be negligent or responsible for her actions, Republic Ins. Co. v. Michel, 885 F. Supp. 426, 432-33 (E.D.N.Y. 1995) (Azrack, Mag. J.). Over the age of four, the status of a child is a question of fact regarding the particular child’s ability to comprehend danger and care for herself, id. at 432; younger than four years of age, “an infant . . . may be so young that he is unable to apprehend the existence of danger, take precautions against it and exercise any degree of care for his own safety. The law calls such a child, non sui juris,” id. at 433; see also id. at 433 n.8 (literal translation of Latin phrase is “not his own master,” quoting Black’s Law Dictionary 1058 (6th ed. 1990)). The non sui juris child is incapable of committing negligence, id. at 433. “Where an infant is older than four years of age, the status of that child as sui juris or non sui juris is to be determined by the trier of fact,” id. (citing cases), with factors of the child’s intelligence and maturity dictating that status, id. One federal court, applying New York contributory negligence doctrines, held that the status of a child over the age of four was a question of fact addressing “the particular child’s ability to comprehend danger and care for himself,” [*11]  Republic Ins. Co., supra, 885 F. Supp. at 432 (see Docket No. 67, Defs. Reply Memo. at 5-6). If there is a bright-line rule under New York law, the age is four years old, not five as was LD when she was injured.

The age of the plaintiff is a factor in determining whether they are capable of assuming risk of their actions, see Trupia v. Lake George Cent. Sch. Dist., 14 N.Y.3d 392, 396, 927 N.E.2d 547, 901 N.Y.S.2d 127, 130 (2010); Clark, supra, 2 A.D.3d at 340, 770 N.Y.S.2d at 60 (error to instruct on assumption of risk for five-year-old on construction vehicle) (Docket No. 54, Pls. Tr. Memo. at 6); Roberts, supra, 257 A.D.2d 550, 685 N.Y.S.2d at 24; Trippy v. Basile, 44 A.D.2d 759, 354 N.Y.S.2d 235, 236 (4th Dep’t 1974) (error to instruct jury that five and half year old child contributorily negligent, and could be so charged only if he had the age, experience, intelligence development and mental capacity to understand the meaning of the statute violated and to comply therewith) (Docket No. 54, Pls. Tr. Memo. at 5-6). As noted by the Court of Appeals in Trupia, supra, 14 N.Y.3d at 396, 901 N.Y.S.2d at 130, in an almost 12-year-old child’s claim from sliding down a bannister, that court states that children often act impulsively or without good judgment, “they do not thereby consent to assume the consequently arising dangers” for assumption of risk. Plaintiffs distinguish DeLacy v. Catamount Dev. Corp., 302 A.D.2d 735, 755 N.Y.S.2d 484 (3d Dep’t 2003), due to the plaintiffs in that case being two years older than LD was in 2010 (Docket No. 68, Pls. Reply Memo. at 5; see also Docket No. 66, Pls. Memo. at 4; but cf. Docket No. [*12]  65, Defs. Memo. at 5-6). But the New York Court of Appeals has not ruled on this question, but the consensus of other New York courts do not recognize a bright line rule that at age five or six a child is incapable of having the requisite knowledge and maturity to assume the risks of their actions; non sui juris status is applicable to four years old and that age or older is an issue of fact.

Courts in New York have concluded that assumption of the risk is a question of fact for the jury, Moore v. Hoffman, 114 A.D.3d 1265, 1266, 980 N.Y.S.2d 684, 685 (4th Dep’t 2014), in particular, riding and dismounting a chairlift has risks that raises questions of fact, DeLacy, supra, 302 A.D.2d at 736, 755 N.Y.S.2d at 486 (questions of fact whether a seven-year-old novice skier fully appreciated the risks associated with using a chairlift) (Docket No. 65, Defs. Memo. at 6). One factual element in this case is the maturity and knowledge of LD as to whether she assumed the risk of riding the chairlift here despite being five years old. LD testified at her deposition that prior to the 2010 incident she rode chairlifts two or three other times, each time with her father plaintiff Bryan DiFrancesco who assisted her getting on and off the lift (Docket No. 56, Pls. Atty. Decl. ¶ 18, Ex. C, LD EBT Tr. at 9), even to having Bryan hold [*13]  his ski pole over LD’s lap until it was time to get off the chairlift (id., Tr. at 9). Whether LD in her circumstances could assume the risk of riding and disembarking from the chairlift by herself is an issue of fact and evidence regarding her maturity, age, experience, intelligence, literacy, and mental capacity to understand the risks she faced is relevant and admissible. As a result, plaintiffs’ motion precluding evidence of LD assuming the risk is denied.

This is notwithstanding defendants’ argument that plaintiffs’ motion in limine here is in fact an untimely motion for summary judgment (Docket No. 65, Defs. Memo. at 5-6; Docket No. 67, Defs. Reply Memo. at 2-3). As plaintiffs rebut (Docket No. 68, Pls. Reply at 2-4), they are not seeking entry of judgment to dismiss a defense, instead they properly seek preclusion of evidence. But the factual issues in this case under New York law require production of evidence of LD’s capacity to assume risk.

2. Preclude Evidence of LD’s 2015 Snowboarding Incident

Plaintiffs next seek excluded evidence from an accident LD had at Holimont in 2015 resulting in injuries to her clavicle, contending that the evidence is prejudicial and would be admitted [*14]  to show her to be accident prone (Docket No. 56, Pls. Memo. at 7-10). LD’s injuries in 2010 were to her left leg and hip and not to her clavicle (id. at 8). As argued in the motion to quash the subpoena to Holimont (Docket No. 43, Pls. Memo. at 7), LD did not waive the physician-patient privilege for LD’s treatment of the 2015 injuries (Docket No. 56, Pls. Memo. at 8, 9-10). Plaintiffs conclude that LD’s subsequent snowboarding accident is not relevant to her 2010 injuries (id. at 9).

Defendants contend that LD’s injuries are not limited to her leg and hip, but also include loss of enjoyment of life and emotional injuries (Docket No. 65, Defs. Memo. at 12, citing Docket No. 56, Pls. Atty. Decl., Ex. H, Response to Defs. Interrog. No. 1). Again, as argued to defend the subpoena upon Holimont, defendants contend that Second Department law provides that LD put her physical condition at issue, justifying admissibility of her 2015 injuries (Docket No. 65, Defs. Memo. at 13).

But as noted in deciding plaintiffs’ earlier motion (Docket No. 43), this Court in diversity is bound by the common law of New York as settled by the New York State Court of Appeals or this Court’s prediction of how the New York Court [*15]  of Appeals would decide the issue if brought to it (see Docket No. 70, Order of February 22, 2017, at 13). This Court has held that the Court of Appeals, if it addressed the waiver of physician-patient privilege, would limit that waiver to so much of LD’s physical or mental condition placed in controversy here (id. at 17; see id. at 16-17 (holding that plaintiffs have standing to object to the subpoena based upon the unwaived privilege)). This case is about LD’s injuries from the 2010 incident, with physical injuries to her lower body. Discussion of LD’s accident five years later and to an unrelated body part is not relevant to her claims and would prejudice plaintiffs, see Fed. R. Evid. 403. Admitting evidence of the 2015 accident would introduce character evidence that LD acted in accordance with a particular trait (clumsiness), see Fed. R. Evid. 404(a)(1). Defendants have other means of establishing the limits on LD’s loss enjoyment of life and limitations on her activities after the 2010 accident (such as her father’s deposition testimony as to her activities, see Docket No. 43, Pls. Atty. Decl., Ex. C, Bryan DiFrancesco EBT Tr.10-21, 23, 95-96)).

This Court ordered plaintiffs to produce for in camera inspection the Holimont medical records [*16]  from the 2015 incident for this Court to determine if there is anything applicable to this case, such as distinguishing 2010-caused injuries from 2015 injuries or the effects of the 2015 incident on LD’s 2010 injuries (Docket No. 70, Order of Feb. 22, 2017, at 17-18). This in camera inspection was for this Court to determine if there is anything applicable to this case, such as discussion of LD’s 2010 injuries or distinguishing 2010-caused injuries from 2015 injuries or the effects of the 2015 incident had on LD’s 2010 injuries (Docket No. 70, Order of Feb. 22, 2017, at 17-18). This Court received those in camera medical records (received March 6, 2017)2 and reviewed them and find that the following documents should be produced and those that should not. Below is Table 1, a spreadsheet listing the reviewed documents and their production status.

2 These documents were not Bates numbered or otherwise identified or paginated. Thus, this Court described the reviewed documents by their date and generic type, to avoid disclosure of contents.

[Chart Removed because it would not format for this site]

The documents ordered to be produced are those relevant to LD’s 2010 injuries, namely to her left leg and hips. Excluded are those documents that refer only to her 2015 clavicle injury. The documents that plaintiffs are to produce are the April 1, 2017, memorandum; the January 4, 2015, consultation report; notes from July 30, 2015; and the July 30, 2015, notes from Hamilton Health Sciences. The remaining documents exclusive involve the 2015 incident and injury and there was not connection made to LD’s 2010 injuries.

Thus, so much of plaintiffs’ motion (Docket No. 56) to preclude evidence from LD’s 2015 Holimont accident is granted in part, denied in part, with plaintiffs only to produce the documents identified above.

3. Preclude [*18]  Evidence as Against Public Policy

Plaintiffs point to General Obligations Law § 5-326 that render defendants’ disclaimers as the operator of a place of amusement void as against public policy (Docket No. 56, Pls. Memo. at 4-5), see Rogowicki v. Troser Mgmt., 212 A.D.2d 1035, 623 N.Y.S.2d 47 (4th Dep’t 1995). Defendants counter that the statutory and regulatory scheme under the Safety in Skiing Code, N.Y. Gen. Oblig. L. § 18-106; Labor Law §§ 202-c (use of ski tows), 867 (Safety in Skiing Code), authorized the release warning given in the form signed by LD’s uncle (Docket No. 65, Defs. Memo. at 7), see Vanderwall, supra, 244 A.D.2d at 982, 665 N.Y.S.2d at 493.

Plaintiffs also argue that any release here would be ineffective as to LD since she never read or signed it, hence it could not serve as a waiver of liability for her injuries (Docket No. 56, Pls. Memo. at 5), see Franco v. Neglia, 3 Misc. 3d 15, 776 N.Y.S.2d 690 (N.Y. App. Term 2004) (release invalid against 14-year-old participant, who signed release, in first kickboxing class); Kaufman v. American Youth Hostels, Inc., 6 A.D.2d 223, 229, 177 N.Y.S.2d 587, 593 (2d Dep’t 1958) (release signed by father invalid for child’s injuries) (id.). Plaintiffs’ reply that defendants fail to address how LD’s uncle can bind LD on the registration form waiver (Docket No. 68, Pls. Reply Memo. at 4), by not distinguishing Franco, supra, 3 Misc. 3d 15, 776 N.Y.S.2d 690 (N.Y. App. Term 2004), or Kaufman, supra, 6 A.D.2d 223, 229, 177 N.Y.S.2d 587, 593 (2d Dep’t 1958) (id.). They note that General Obligations Law § 18-106(1)(a) lists the risks inherent in skiing but do not mention the risks inherent in riding a chairlift (id.). Specifically, [*19]  none of those risks include having a second child obey a sign to open the chairlift bar prematurely and the negligent location of that sign (see id. at 4-5). Plaintiffs argue that assumption of risk is not automatic for every personal injury case that a novice (regardless of their age) cannot as a matter of law assume a risk (id. at 6, citing Corrigan v. Musclemakers Inc., 258 A.D.2d 861, 863, 686 N.Y.S.2d 143, 145 (3d Dep’t 1999) (injured 49-year-old woman who never been on treadmill)).

But in Franco the infant fourteen-year-old plaintiff signed the release, 3 Misc. 3d at 16, 776 N.Y.S.2d at 691. The Supreme Court, Appellate Term, held that an infant is not bound by releases which exculpate defendants from damages for personal injury “since they lack the capacity to enter into such agreements,” id., at 16, 776 N.Y.S.2d at 691 (citing Kaufman, supra, 6 A.D.2d 223, 177 N.Y.S.2d 587). The plaintiff’s decedent fifteen-year-old child in Kaufman, supra, 6 A.D.2d at 229, 225, 177 N.Y.S.2d at 593, 589, signed the release with her father. The Appellate Division, applying Oregon law, see id. at 225, 177 N.Y.S.2d at 589, held that the effect of the father’s signature was ambiguous, id. at 229, 225, 177 N.Y.S.2d at 593, 589. The decedent’s capacity there to sign the release by reason of her infancy “was effectively exercised by [her] by the act of commencing this action,” id., at 229, 177 N.Y.S.2d at 593. The Appellate Division upheld striking the defense of decedent’s release because she disaffirmed “the agreement by reason of her infancy” exercised by her father’s commencement [*20]  of this action but reversed regarding striking that defense for the father’s separate action against the hostel, id. at 229, 177 N.Y.S.2d at 593. Neither case held that the signature of the parent or guardian alone of a release was binding upon the infant for whom the guardian signed. Thus, these cases do not go as far as plaintiffs contend to render ineffective a release signed by a guardian on behalf of an infant participating in a risky activity.

a. Infant Disaffirmance of Release

“A minor is not bound by a release executed by his parent,” Alexander v. Kendall Cent. Sch. Dist., 221 A.D.2d 898, 899, 634 N.Y.S.2d 318, 319 (4th Dep’t 1995); I.C. ex rel. Solovsky v. Delta Galil USA, 135 F. Supp. 3d 196, 209 (S.D.N.Y. 2015); Shields v. Gross, 58 N.Y.2d 338, 344, 448 N.E.2d 108, 461 N.Y.S.2d 254, 257 (conceding that infant, Brooke Shields, could under common law disaffirm consent executed by another on her behalf), rehearing denied, 59 N.Y.2d 762, 450 N.E.2d 254, 463 N.Y.S.2d 1030 (1983). The exception from this common law power of the infant to disaffirm written consents made on her behalf is where the New York State Legislature either abrogates this common law right or makes particular infant agreements binding upon the infant, Shields, supra, 58 N.Y.2d at 344-45, 461 N.Y.S.2d at 257.

While conceding that at common law an infant could disaffirm written consent made for her, the Court of Appeals in Shields recognized that the State Legislature could abrogate that right or create a right upon infants to enter into binding contracts, id., 58 N.Y.2d at 344, 461 N.Y.S.2d at 257. “Where a statute expressly permits a [*21]  certain class of agreements to be made by infants, that settles the question and makes the agreement valid and enforceable,” id., 58 N.Y.2d at 344, 461 N.Y.S.2d at 257, with that statute being construed strictly, id., 58 N.Y.2d at 344, 461 N.Y.S.2d at 257 (citing McKinney’s Consol. Laws of N.Y., Book 1, Statutes § 301(b)).

Here, the Safety in Skiing Code had as part of its legislative purpose

“(3) that it is appropriate, as well as in the public interest, to take such steps as are necessary to help reduce the risk of injury to downhill skiers from undue, unnecessary and unreasonable hazards; and (4) that it is also necessary and appropriate that skiers become apprised of, and understand, the risks inherent in the sport of skiing so that they may make an informed decision of whether or not to participate in skiing notwithstanding the risks. Therefore, the purpose and intent of this article is to establish a code of conduct for downhill skiers and ski area operators to minimize the risk of injury to persons engaged in the sport of downhill skiing and to promote safety in the downhill ski industry,”

N.Y. Gen. Oblig. L. § 18-101. The act establishing this Code empowered the New York State Commissioner of Labor to promulgate “any and all rules and regulations necessary to the timely implementation [*22]  of the provisions of this act,” 1988 N.Y. Laws ch. 711, § 4. These regulations “applies to all skiers and ski areas” and owners and operators of ski areas to which the Code applied to, N.Y. Comp. Codes R. & R. tit. 12, § 54.1 (2017) (hereinafter cited as “12 N.Y.C.R.R.”), without special provision or exception for juvenile skiers. That same act authorized the Commissioner of Labor to make rules to guard “against personal injuries to employees and the public in the use and operation of ski tows, other passenger tramways and downhill ski areas,” N.Y. Labor Law § 202-c.

The Code also imposed on skiers the additional duties “to enable them to make informed decisions as to the advisability of their participation in the sport,” to

“seek out, read, review and understand, in advance of skiing, a ‘Warning to Skiers’ as shall be defined pursuant to subdivision five of section eight hundred sixty-seven of the labor law [N.Y. Labor L. § 867(5)], which shall be displayed and provided pursuant to paragraph a of subdivision one of this section [N.Y. Gen. Oblig. L. § 18-106(1)(a)]; and . . . to obtain such education in the sport of skiing as the individual skier shall deem appropriate to his or her level of ability, including the familiarization with skills and duties necessary to reduce [*23]  the risk of injury in such sport,”

N.Y. Gen. Oblig. L. § 18-106(2), (a), (b); see N.Y. Labor Law § 867(5); 12 N.Y.C.R.R. §§ 54.5(l)(1), 54.4(c)(1); see also N.Y. Gen. Oblig. L. § 18-106(1)(a) (ski are operator’s duty to post conspicuously “Warning to Skiers”). “Unless otherwise specifically provided in this article, the duties of skiers, passengers, and ski area operators shall be governed by common law,” N.Y. Gen. Oblig. L. § 18-107.

The Safety in Skiing Code and its regulations provide an abrogation of the common law right of an infant skier to disaffirm the release signed on her behalf. First, the State Legislature used the term “skier” without expressly distinguishing the age of skier. Second, the State Legislature authorized and directed the Commissioner of Labor to enact necessary rules and regulations. Pursuant to that authority, the Commissioner enacted 12 N.Y.C.R.R. § 54.1 to have the regulations under the Safety in Skiing Code apply to “all skiers,” again without distinction due to the age of the skier. The definitions under these regulations for “skier,” 12 N.Y.C.R.R. § 54.3(h) (“Skier means any person wearing a ski or skis and any person actually on a ski slope or trail located at a ski area, for the purpose of skiing”), or “passenger,” 12 N.Y.C.R.R. § 54.3(d) (“Passenger means a person in or on or being transported by a tramway”), riding a “passenger tramway,” see 12 N.Y.C.R.R. § 54.3(e) (“Passenger [*24]  tramway means a mechanical device intended to transport skiers for the purpose of providing access to ski slopes and trails as defined by the Commissioner of Labor pursuant to Section two hundred two-c or eight hundred sixty-seven of the Labor Law [N.Y. Labor Law §§ 202-c, 267]”), also do not create a separate infant category. Although the Court of Appeals refers to the State Legislature either abrogating the infant’s common law right of disaffirmance or conferring upon the infant a recognized right to make binding contracts, Shields, supra, 58 N.Y.2d at 344, 461 N.Y.S.2d at 257, the State Legislature here enacted the code that delegated to the Commissioner of Labor the authority to enact rules and regulations necessary to implement the Code. The Commissioner, by requiring regulations to apply to “all skiers” either abrogated an infant’s common law right of disaffirmance or authorized infant skiers to enter into binding contracts with ski area operators, including the warning and release to authorize the infant skier to engage in the risky activities of skiing and the related, risky activities leading up to skiing.

The Safety in Skiing Code statutory and regulatory scheme including “all skiers” makes releases signed by adults bind infant skiers and removes the [*25]  infants’ common law right to disaffirm the releases executed in their minority. On this basis, plaintiffs’ motion in limine to exclude the Holiday Valley release (Docket No. 56) is denied.

b. Effect of General Obligations Law § 5-326

As an alternative grounds for its decision, the Appellate Division, Fourth Department in Vanderwall, supra, 244 A.D.2d at 982-83, 665 N.Y.S.2d at 493, narrowed the scope of the general provisions for amusement or recreation sites under General Obligations Law § 5-326 to exclude ski resorts from that statute, with those resorts being governed by the Safety in Skiing Code and its Warning to Skiers codified in General Obligations Law § 18-106(1)(a) (Docket No. 65, Defs. Memo. at 7), see also N.Y. Gen. Oblig. Law § 18-107 (“unless otherwise specifically provide in this article, the duties of skiers, passengers, and ski area operators shall be governed by common law”). Part of the Safety in Skiing Code includes use of a ski tow, N.Y. Labor Law § 202-c.

The Holiday Valley registration form (Docket No. 56, Pls. Atty. Decl. Ex. G) signed by LD’s uncle, Dean DiFrancesco, had the adult signer agree that he acknowledged (among other things)

“that I have read and understand the information contained in the brochure for the Holiday Valley Mountain Adventure Children’s Ski and Snowboard Program, and also understand [*26]  and am aware that there are inherent and other risks involved in participating in ski and snowboard lessons, skiing/riding, and use of lifts, which could cause death or serious injury to the registrant(s). This includes use of chairlifts and or tows or boardwalks with or without an instructor.

“[C]hildren may be required to ride chairlifts with other children in the class, ski patrol/hosts, or other persons in the lift line while loading assistance may be given by chairlift attendants. Riding a chairlift can be a hazardous activity for your child(ren). By allowing the registrant(s) to ride a chair lift, you acknowledge the dangers involved and accept any and all risks of injury to the registrant(s). Other risks include, but are not limited to, . . . boarding, riding and disembarking from moving chairlifts, rope tows or boardwalks. With full knowledge of the danger involved, I voluntarily request that the registrant(s) participate in the program. I have read this agreement to the registrant(s) and he/she has acknowledged that he/she understands its contents. On behalf of the registrant(s) and myself, I expressly assume all risks inherent in the sport of skiing and riding and any and all damages, [*27]  injury, illness, or harm which may result directly or indirectly from said risks.”

(Id., paragraphs 5, 6, emphasis added.) This release itself raises factual issues, such as whether Uncle Dean DiFrancesco actually read the release to LD and whether she understood its contents, including the risks stated therein (particularly, the risks in riding and dismounting a chairlift).

The statutory scheme for ski resorts provided in the Safety in Skiing Code provides a more specific regime that the General Obligations Law § 5-326 for other recreational facilities including the basis for the release executed by LD’s uncle. New York public policy carved out ski resorts from the general ban on releases by recreational facility operators. On this alternative ground, plaintiffs’ motion to exclude that release (Docket No. 56) is denied.

B. Defense Motions in Limine, Docket Nos. 53, 58

1. Excluding Evidence of Subsequent Remediation

In their initial motion in limine, defendants seek to exclude evidence of their subsequent remediation in changing signage at the chairlift (Docket No. 53, Defs. Memo. at 2-4). Federal Rule of Evidence 407 precludes admission of evidence of subsequent remedial measures to prove negligence, culpable conduct, or [*28]  a need for a warning (id. at 2). They also contend that evidence as a warning should be excluded under Rule 403 since the probative value is exceeded by its prejudice to them (id.). Plaintiffs counter that this evidence is admissible for impeachment or to contest the feasibility of relocating the sign to a safer location (Docket No. 66, Pls. Memo. at 1-3; see also Docket No. 68, Pls. Reply Memo. at 8), see Fed. R. Evid. 407; Pitasi v. Stratton Corp., 968 F.2d 1558 (2d Cir. 1992). Defendants reply that the impeachment exception to Federal Rule of Evidence 407 should be narrowly read, that it could only be used to avoid the jury being misled (Docket No. 67, Defs. Reply Memo. at 8-9). They conclude that plaintiffs also should be precluded from introducing evidence regarding the red light/green light system used by another ski resort, Holimont, arguing that Holimont installed this system four years after the 2010 incident at issue here (id. at 10; see also Docket No. 53, Defs. Memo. at 3-4; Docket No. 53, Defs. Atty. Decl., Ex. C).

The questions here under Rule 407 are at what point (if ever) may plaintiffs impeach defendants with the change in the sign location, and whether the sign location can be introduced by them as to feasibility. As for impeachment, whether plaintiffs can discuss relocation of the sign will depend [*29]  upon what defense witnesses testify about to the warnings provided on site on the chairlift. Rulings on this point will await trial testimony.

As for feasibility, plaintiffs may introduce sign location and alternative locations if defendants’ witnesses testify as to the feasible location for warning signs.

As to the probative/prejudice balance under Rule 403, evidence inadmissible under Rule 407 “would also likely lead to prejudice and confusion under Rule 403,” Bak v. Metro North R.R., No. 12 Civ. 3220 (TPG), 2015 U.S. Dist. LEXIS 60736, at *7 (S.D.N.Y. May 8, 2015), but remedial evidence may be admitted for rebuttal or impeachment evidence, id., without affecting the probative/prejudice balance of Rule 403.

Finally, Holimont currently uses a red light/green light on its chairlifts to advise skiers when to disembark from the chairlift. But that system was implemented years after this incident (Docket No. 53, Defs. Atty. Decl. Ex. C, Aff. of David Riley ¶¶ 1, 4-8 (Holimont general manager); Docket No. 53, Defs. Memo. 3-4). Holimont general manager David Riley stated that he had not seen this light warning system in United States slopes prior to his tour of Europe in 2014 (Docket No. 53, Defs. Atty. Decl. Ex. C, Riley Aff. ¶ 8). Thus, it was not feasible in 2010 to have such a light warning system and admission of evidence [*30]  of the Holimont lighting system would be prejudicial. Plaintiffs are precluded from introducing evidence of this system as a feasible alternative.

Defendants’ motion in limine (Docket No. 53) on this ground is granted in part, with some issues to be decided at trial upon the proffer or introduction of evidence at issue.

2. Prohibit Plaintiffs’ Liability Expert, Dick Penniman,

Defendants next seek to preclude testimony from plaintiffs’ expert, Dick Penniman, on various subjects. Plaintiffs globally respond that Penniman is a forty-year veteran of the ski industry, performing various duties as a member of ski patrol, lift operator, ski lift maintenance man, and “mountain manager/assistant operations manager” of a number of ski areas (Docket No. 66, Pls. Memo. at 11; Docket No. 66, Pls. Atty. Decl. ¶¶ 27-29, Ex. Q (Penniman curriculum vitae)). Penniman testified as an expert in Whitford v. Mt. Baker Ski Area, Inc., Case No. C11099112RSM, 2012 U.S. Dist. LEXIS 40166 (W.D. Wash. Mar. 23, 2012) (Docket No. 66, Pls. Memo. at 11), opining in that case about the lift attendant’s duties and whether a catch net used at that resort was adequate, id., 2012 U.S. Dist. LEXIS 40166, at *4. Plaintiffs conclude that defense objections to Penniman goes to the weight, not the admissibility, [*31]  of his expert testimony (id. at 10, 11). Plaintiffs do not provide a point-for-point refutation of defense objections to Penniman as an expert.

As noted by the court in Whitford, supra, 2012 U.S. Dist. LEXIS 40166, at *3, “the trial court must act as a ‘gatekeeper’ to ensure that proffered expert testimony is both relevant and reliable,” id. citing Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 147, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999). Where expert testimony is technical rather than purely scientific, “the Court must ensure that it ‘rests on a reliable foundation and is relevant to the task at hand,'” id. (quoting United States v. Hermanek, 289 F.3d 1076, 1093 (9th Cir. 2002) (quoting in turn Daubert v. Merrel Dow Pharmaceuticals, Inc., 509 U.S. 579, 597, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993))). As gatekeeper, this Court has to “make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterize the practice of an expert in the relevant field,” Kumho, supra, 526 U.S. at 152; Whitford, supra, 2012 U.S. Dist. LEXIS 40166, at *3-4. The Whitford court, in considering testimony for other specialized knowledge, construed Federal Rule of Evidence 702 liberally, 2012 U.S. Dist. LEXIS 40166, at *4 (citing 9 th Circuit case and Fed. R. Evid. 702 advisory committee note, 2000 amendment, rejection of an expert is the exception rather than the rule).

From Penniman’s curriculum vitae (Docket No. 66, Pls. Atty. Decl. Ex. Q), his expertise is ski patrol (including lift operation and hazard evaluation and mitigation), avalanche safety, and slope preparation. [*32]  He worked for two years supervising lift operations in Chile (id.). Since 1983, Penniman has been a consultant and expert witness; he was qualified as an expert in safe skiing including lift operations and ski instruction (id.). As a threshold matter, Penniman’s expert testimony comes from decades of performing various tasks at several ski resorts and evaluating skiing hazards.

Next, this Court turns to the specific defense objections to Penniman’s expert testimony.

a. Prohibit Penniman from Opining Regarding Relocation of Unload Sign

First, defendants seek to bar Penniman’s opinion about the proper location of signage for unloading or discharging skiers from the chairlift (the “unload/open restraint bar”) and changes in the text of the registration form (Docket No. 53, Defs. Memo. at 4-5, 6-7). As for Penniman opining on sign location, his expertise as a ski lift operator and evaluator of skiing accidents informs his opinions about such things. Penniman lists in his curriculum vitae experience in signage at two ski resorts (Docket No. 66, Pls. Ex. Q), but does not specify if this includes the location of chairlift instructions or warning signage. The bulk of his stated expertise and [*33]  experience involves avalanches, so the signage Penniman is familiar with appears to be for ski trails. In his deposition regarding signage, Penniman testified that applicable New York State regulations when the Creekside lift was erected in 2003 were based on the American National Standards Institute (“ANSI”) standards from 19993 , with a 20064 amendment of ANSI standards expressly calling for sign placement (Docket No. 53, Defs. Ex. F, Penniman EBT Tr. at 23). The 2006 ANSI amendments grandfathered pre-2006 construction to be governed by earlier standards (id., Tr. at 25), but the 2006 standard for sign location called for signs to be ahead of the off load point (id., Tr. at 25-26), while the 1999 standard did not require signage at all (id., Tr. at 24, 39). Penniman noted that one ski resort, White Pine, had its raise bar signs in front of shacks near the unload points (id., Tr. at 28), while at other resorts, Penniman observed these signs either on chairlift towers 20-30 feet before the unload area or as close to the unload area as possible (id., Tr. at 32-34; Docket No. 66, Pls. Ex. P, Tr. at 33-34). Penniman concluded that defendants violated New York State standards for the location [*34]  of Holiday Valley’s signs, violating ANSI 1999 and 2003 standards that signage be ahead of the offload area (Docket No. 53, Defs. Ex. F, Tr. at 37-38). Penniman did not know if New York State inspected the location of these signs (id., Tr. at 40-41). Penniman noted that New York law also required use of the restraint bar on chairlifts; requiring a rider to not use a restraint bar for 50 yards, Penniman opined, would require the rider to violate New York law (id., Tr. at 38).

3 Pls. Ex. 67.

4 Pls. Ex. 68; Defs. Exs. 56, 65.

From review of Penniman’s deposition testimony, the issue is whether placement of the offload warning sign should be at the offload area or in advance of that area (e.g., id., Tr. at 39). Penniman’s experience seems to be from his observations at various resorts, without knowing the written policies for sign placement at those areas. A foundation, therefore, will need to be established that Penniman has sufficient expertise in sign location of chairlift instructions to credit Penniman’s opinion as an expert. Penniman’s testimony also is limited regarding subsequent changes in the sign location, as indicated above. Defendants’ motion in limine (Docket No 53) on these grounds is granted.

b. Prohibit Plaintiffs’ Expert [*35]  Penniman from Opining on Risk of Chairlift Not Being Inherent to Skiing

Next, defendants seek to preclude Penniman’s opinion on the risk of using a chairlift not being inherent to skiing (Docket No. 53, Defs. Memo. at 5-6). Plaintiffs argue that the New York Court of Appeals decision in Trupia, supra, 14 N.Y.3d 392, 901 N.Y.S.2d 127, changed the standards for primary assumption of the risk that coincides with Penniman’s opinion that use of a chairlift is distinct from the sport of skiing (Docket No. 66, Pls. Memo. at 6-7).

There is a preliminary question whether this is an evidentiary issue or a matter requiring an expert opinion at all. New York cases recognize that use of a chairlift is an inherent part of skiing, with distinct risks from the sport of skiing. There are separate, but related, duties of care with operating a chairlift and downhill skiing, Morgan v. Ski Roundtop, Inc., 290 A.D.2d 618, 620, 736 N.Y.S.2d 135, 137 (3d Dep’t 2002) (hereinafter “Ski Roundtop”) (inherent risk in skiing and “some risk of injury inherent in entering, riding and exiting from a chairlift”); see Morgan v. New York State, 90 N.Y.2d 471, 485, 685 N.E.2d 202, 662 N.Y.S.2d 421, 427 (1997); Miller v. Holiday Valley, Inc., 85 A.D.3d 1706, 1707, 925 N.Y.S.2d 785, 787-88 (4th Dep’t 2011); see also Tone v. Song Mtn. Ski Ctr., 113 A.D.3d 1126, 1127, 977 N.Y.S.2d 857, 858 (4th Dep’t 2014) (claim from chairlift, assumption of risk applied for “athletic activity,” quoting Ski Roundtop, supra, 290 A.D.2d at 620, 736 N.Y.S.2d at 137). As defendants note (Docket No. 67, Defs. Reply Memo. at 4), riding and disembarking a chairlift is inherent in Alpine downhill skiing, [*36]  see also Litz v. Clinton Cent. Sch. Dist., 126 A.D.3d 1306, 5 N.Y.S.3d 636 (4th Dep’t 2015) (assumption of risk for playing hockey applied to injury suffered in rink locker room).

Factually, Trupia involved horseplay on a bannister by a twelve-year-old, rather than engaging in a sporting activity or the steps leading to that activity (with the inherent risks of those steps), supra, 14 N.Y.3d at 393, 396, 901 N.Y.S.2d at 128, 129. Again, this is more akin to the ancillary dangers in the locker room preparing for participation in a sport, e.g., Litz, supra, 126 A.D.3d 1306, 5 N.Y.S.3d 636; but for the sporting activity, a participant would not be injured in the locker room or on the chairlift, each is necessary to prelude to athletic participation. This participant is only in these places to engage in a sport with its own inherent dangers and risks.

As noted in Whitford, supra, 2012 U.S. Dist. LEXIS 40166, at *9, wherein Penniman was accepted as an expert, he “is not required to be an expert in the law; he is only required to be an expert in the subject matter of his testimony,” id. Thus, as a matter of law, there are risks, distinct from those in alpine skiing, to riding a chairlift that are related to those of skiing. This does not require an expert opinion one way or the other. Defense motion in limine on this point (Docket No. 53) is granted.

c. Prohibit Penniman from Opining on the Registration Form

Defendants [*37]  next contend that Penniman lacked any foundation to make an opinion about the registration form used by Holiday Valley (Docket No. 53, Defs. Memo. at 6-7; Docket No. 53, Defs. Atty. Decl. Ex. E, Penniman’s Supp’al Expert Report at 5; see Docket No. 66, Pls. Atty. Decl., Ex. L, at 5). They object to Penniman’s supplemental opinion that noted defendants’ changes to the registration form to require a parent to initial the form at paragraph 6 on chairlift use (Docket No. 53, Defs. Memo. at 4-5; Docket No. 53, Defs. Atty. Decl. Ex. E, at 5; see Docket No. 66, Pls. Atty. Decl., Ex. L, at 5). Plaintiffs do not respond specifically to this objection. Penniman opined that the sentence about a child riding the chairlift without adult supervision was vaguely written (Docket No. 53, Defs. Atty. Decl. Ex. E, at 5; see Docket No. 66, Pls. Atty. Decl. Ex. L, at 5; Docket No. 53, Defs. Memo. at 6).

Again, looking at the actual registration form quoted above (at pages 19-20, supra), participants are warned that children may ride with other children on the chairlift, followed by a warning that riding the chairlift “can be a hazardous activity for your child(ren)” (Docket No. 56, Pls. Atty. Decl. Ex. [*38]  G, paragraph 6). That text implies that children may ride together without an adult. As noted in detail by defendants (Docket No. 53, Defs. Memo. at 7), Penniman lacks expertise in developing ski school policies, drafting registration forms, or have expertise in human factors, engineering, or psychology. Thus, his opinion on the text of the registration form is a little more informed than that of a layperson. Penniman’s opinion in this area is excluded; defendants’ motion in limine (Docket No. 53) on this ground is granted.

As for Penniman’s observation of the post-accident changes in the form (Docket No. 53, Defs. Ex. E, at 5; Docket No. 66, Pls. Ex. L, at 5), this also goes to proof of subsequent remediation and, unlike the impeachment use plaintiffs propose for the relocation of signs or feasibility of change, Penniman’s opinion on the changes in the registration form would only come as part of his direct testimony. Such introduction violates Rule 407 and its prejudice outweighs its probative value under Rule 403. Defendants’ motion in limine (Docket No. 53) as to Penniman’s opinion in this area is granted.

d. Prohibit Penniman from Opining on Human Factor

Defendants next argue that Penniman lacks [*39]  the qualifications to opine on the impact of the human factor in this incident (Docket No. 53, Defs. Memo. at 7-8). Penniman testified that generally an infant should have been accompanied by an adult on a chairlift based on “best practices.” Penniman based these best practices on his experience, observations, and involvement in ski schools and he concludes that a majority of ski areas “are concerned about small children riding up chairs alone, or with other kids without an adult accompanying them. There are some I have observed where they don’t care. But the majority do, and I call that best practices.” (Docket No. 53, Defs. Ex. F, Penniman EBT Tr. at 65-67, 66; Docket No. 66, Pls. Ex. P, excerpts of Penniman EBT Tr. at 65-67, 66.) Penniman testified that, from the age of 8, he had observed ski schools recruit adults to ride up with unaccompanied children, that the “vast majority [of resorts] do,” or so Penniman found (Docket No. 53, Defs. Ex. F, Tr. at 67; Docket No. 66, Pls. Ex. P, Tr. at 67). He noted that other ski areas do not let small children on chairlifts and “the majority of ski resorts, when it’s not an instruction situation, leave that decision up to the parents” (Docket [*40]  No. 53, Defs. Ex. F, Tr. at 67; Docket No. 66, Ex. P, Tr. at 67). But Penniman had not investigated the policies of individual ski resorts in New York whether they require adult accompaniment on chairlifts and he could not testify to written policies of ski resorts (Docket No. 53, Defs. Ex. F, Tr. at 67; Docket No. 66, Ex. P, Tr. at 67). Penniman, however, admitted that he was not familiar with Holimont’s policies regarding adult accompaniment or the policies of other Western New York ski resorts on this issue (Docket No. 53, Defs. Ex. F, Tr. at 18-19).

Penniman’s opinion on how small children react on chairlifts may be informed by his experience operating ski lifts, observing at ski resorts, and investigating skiing accidents, but this expertise does not rise to the level that it should be credited as an expert. Similar to the registration form objection, Penniman’s expertise is in ski resort operations and not on how patrons will react. Defendants’ motion in limine (Docket No. 53) on this ground is granted.

e. Prohibit Penniman from Opining about the Operation of a Ski School

Defendants contend that Penniman cannot render an opinion about how to operate a ski school due to lack of qualifications [*41]  on how to operate such a program and not knowing Holiday Valley’s policies (Docket No. 53, Defs. Memo. at 9). Defendants point out that Penniman testified that he was only at level one (of three levels) as a certified ski instructor by the Professional Ski Instructors of America (or “PSIA”) (id.; Docket No. 53, Defs. Ex. F, at 11) and that Penniman was never employed as a ski instructor at any resort where he worked (Docket No. 53, Defs. Ex. F, at 12), but he later stated that he taught skiing informally and once at a resort as a ski patroller (id. at 41-42). Penniman also admitted that he never developed policies for a ski school (Docket No. 53, Defs. Ex. F, at 13). According to plaintiffs’ retort, Penniman performed several different tasks in the ski industry for forty years (Docket No. 66, Pls. Memo. at 10-11), including experiences with ski schools and policies of the White Pine Ski Area related to children riding chairlifts (Docket No. 66, Pls. Atty. Decl. ¶ 29.d., Ex. P, Penniman EBT Tr. at 19-20 (being familiar with policies of resorts regarding children on chairlifts), membership in the PSIA (id., Ex. Q), and as a private ski instructor (id., ¶ 29.e., Ex. P, Penniman EBT Tr. at 42-44). [*42]  He was qualified as an expert on skiing safety including chairlift operations and ski instruction (id.).

Reviewing his experience and stated expertise, Penniman essentially provided private ski lessons, “step[ped] in once at White Pine” ski resort as an instructor while a ski patroller and provided instruction, and instructed ski patrollers (Docket No. 53, Ex. F, at 42-43). He admits to never developing policies for a ski school. Given that the focus of Penniman’s expertise is more on trails (such as avalanches); his experience is only slightly more than a layperson regarding ski school policies. This is despite the fact that Penniman has testified as an expert in Whitford (but cf. Docket No. 66, Pls. Memo. at 11); in that case he testified about the lift attendant’s duties and the adequacy of the chairlift’s safety netting, supra, 2012 U.S. Dist. LEXIS 40166, at *4. Penniman there was not asked to opine on ski school policies (see Docket No. 67, Defs. Reply Memo. at 7).

Thus, defendants’ motion in limine (Docket No. 53) on Penniman rendering his opinion on ski school policies is granted.

f. Prohibit Penniman from Opining on the Custom for Chairlift Signage

Defendants next argue that Penniman should not be allowed to testify about customary [*43]  chairlift signage or sign location (Docket No. 53, Defs. Memo. at 9-10). Again, plaintiffs apparently rely upon Penniman’s forty years of experience operating ski lifts and in the ski industry generally and do not point to specifics as to his expertise regarding the customary location of warning signage (see Docket No. 66, Pls. Atty. Decl. ¶ 29.e., h., Ex. P, Penniman EBT Tr. at 33-34, 68-69). Penniman’s experience as to the location of unloading signage is at three North America ski areas and his 40 years of seeing where signs have been located at those and other ski resorts (Docket No. 66, Pls. Atty. Decl. ¶ 29, e. h.). Again, Penniman lists experience in “signing” at two ski resorts (Docket No. 66, Pls. Ex. Q) without specifying what signage he positioned. Continuing to review Penniman’s stated experience, most of his training focused on ski patrol, avalanches, and ski safety, with attendance at a congress for transportation by wire rope in 1999 and ski lift maintenance. He is affiliated with the International Society of Skiing Safety and the PSIA. These could be sources for Penniman’s opinion about the national or continental safety standards, but a foundation needs to be established [*44]  to confirm this before Penniman’s opinion on this subject is admissible. As noted above, the basis for Penniman’s opinions are from his observation of practices at ski areas and what he believes to be best practices. But he extrapolates this experience to conclude continental practices regarding where these signs are placed and should be placed without additional foundation. Absent such a foundation for a broader opinion, Penniman can only testify to his observations of what he observed at other ski resorts. Defendants’ motion in limine (Docket No. 56) on this issue is granted in part.

3. Exclude Prior and Subsequent Incidents at Holiday Valley

Finally in the initial motion in limine, defendants argue that evidence of prior and subsequent incidents of youths falling from chairlifts at Holiday Valley should not be admitted (Docket No. 53, Defs. Memo. at 10-17; Docket No. 56, sealed Exs. G-S). They argue that introducing all of these incidents would be prejudicial to them, Fed. R. Evid. 403 (Docket No. 53, Defs. Memo. at 15, 11-15). Defendants argue that the Creekside open restraint bar sign was moved to Tower 6 after LD’s accident. Therefore, subsequent incidents would allow plaintiffs, by the [*45]  “back door,” to introduce evidence of subsequent remediation (id. at 16). Further, only one incident (Docket No. 56, Defs. Ex. Q) involved Creekside chairlift, while other post-2010 incidents (id., Defs. Exs. R-S) are not substantially similar to LD’s incident (see Docket No. 53, Defs. Memo. at 16).

Plaintiffs argue that defendants did not cite federal cases on the admissibility of subsequent accidents (Docket No. 66, Pls. Memo. at 14). They claim one subsequent incident was similar (id. at 15; Docket No. 66, Pls. Atty. Decl. ¶ 35, Ex. X) (four-year-old fell from Mardi Gras chairlift on February 26, 2012).

Plaintiffs argue that evidence of prior incidents is admissible under Federal Rule of Evidence 401 to show the existence and notice of the dangerous condition (Docket No. 66, Pls. Memo. at 12). They also claim that proof of subsequent accidents also is admissible to show the existence of the dangerous condition (id.). They reviewed defendants’ reports of similar incidents both before and after LD’s 2010 accident and argue that several of them are admissible since they present examples of youth slightly older than five-year-old LD (ages six to ten years old before the 2010 accident, and a four-year-old after5) opening the restraining [*46]  bar prematurely due to the location of the signs instructing them to open that bar (id. at 12-14; Docket No. 66, Pls. Atty. Decl. ¶ 34, Exs. S, T, U, V, W; ¶ 35, Ex. X). Plaintiffs argue that pictures after 2010 showing relocation of the signs would be admissible only to rebut testimony regarding feasibility, impeaching the defense of culpable conduct (id. at 14). Their claim is that “very young children were needlessly exposed to serious injury by having the ‘open restraint bar’ sign posted too far away from the unload point, and resulting in the restraint bar being lifted at a point when the chairlift is too far above the ground,” hence it was unnecessary for plaintiffs to allege that the chairlift itself was defective (id. at 15); if there was any defect, it was in the location of the signage relative to the height of the chairlift.

5 According to the report for that accident, Feb. 26, 2012, the injured four-year-old was sitting next to his father on the chairlift when he fell, Docket No. 66, Pls. Atty. Decl. ¶ 35.a., Ex. X.

a. Prior Incidents

As for prior incidents at Holiday Valley, they are admissible in this case provided they are “substantially similar” to the 2010 accident on trial here, Bellinger v. Deere & Co., 881 F. Supp. 813, 817 (N.D.N.Y. 1995) (case citations omitted); see Sawyer v. Dreis & Krump Mfg. Co., 67 N.Y.2d 328, 336, 493 N.E.2d 920, 502 N.Y.S.2d 696, 701 (1986) (under New York law, similar prior accidents are admissible to show dangerousness of conditions and notice) (Docket No. 53, Defs. Memo. at 11). Defendants note (id.) that New York [*47]  law allows admission of proof of similar incidents to show dangerousness of conditions and notice, Sawyer, supra, 67 N.Y.2d at 336, 502 N.Y.S.2d at 701. The parties differ here on whether the prior incidents are substantially similar to LD’s 2010 accident. As defendants concede that one incident of the eleven prior incidents at Holiday Valley identified by defendants is substantially similar to LD’s situation (id.; see Docket No. 53, Defs. Atty. Decl. Ex. A, Pls.’ Response to Interrogatories, Interrogatory No. 11), that a five-year-old novice skier riding a chairlift unaccompanied by an adult fell between Towers 5 and 6 of the Creekside chairlift. The conceded incident is admissible. The ten other prior incidents (Docket No. 56, Defs. Atty. Exs. G-P) had one or two distinguishing facts that defendants conclude makes them not sufficiently similar to be admissible.

Table 2 below lists the factors defendants argue distinguish these ten prior incidents from LD’s 2010 incident, listing the youths as they were identified by defendants (Docket No. 53, Defs. Memo. at 12-15), cf. Fed. R. Civ. P. 5.2.

[Chart Removed because it would not format for this site]

 6 Injured youth #3 rode with a brother whose name was redacted by defendants, Docket No. 53, Defs. Memo. at 12; Docket No. 56, Ex. I. The report does not give the brother’s age; thus, it is presumed that he is a minor as well.

7 Defendants claim that this incident occurred at Creekside, Docket No. 56, Defs. Ex. H; see Docket No. 66, Pls. Ex. S, but defendants argue that it did not occur at a similar location, Docket No. 53, Defs. Memo. at 12. They distinguish this incident since there is no reference to use of a restraint bar, Docket No. 67, Defs. Reply Memo. at 11. The lift operator’s description of that incident, however, said that the restraint bar was up, Docket No. 56, Ex. H, at 2.

Two of the prior incidents are also distinct due to the greater expertise of the youth skier (#8, Docket No. 53, Defs. Memo. at 14-15; Docket No. 56, Defs. Ex. N) and the age of the skier as compared with LD’s age in 2010 (#10, 16 year old, Docket No. 56, Defs. Ex. P) who was involved in horseplay that led to the fall (Docket No. 53, Defs. Memo. at 15; Docket No. 56, Defs. Ex. P).

Plaintiffs argue that whether these prior incidents were during a ski lesson is immaterial to whether they are similar to LD’s 2010 experience (Docket No. 66, Pls. Memo. at 12). But one factor here is that LD was a relative novice in 2010 and had not ridden on a chairlift unaccompanied by an adult. Also, plaintiffs’ claim is for inadequate supervision by the ski instructor while LD was on the chairlift (Docket No. 1, Compl. ¶ 15); that inadequacy would not occur in prior incidents that were not ski lessons. Therefore, to be sufficiently similar to LD’s circumstances, the prior instances must factor in the experience of the youth involved, shown by defendants from whether the incidents [*49]  occurred during a ski lesson (as was for LD) as well as a review of the incident reports showing whether these youths were identified as being “novices” in the ability and days skied portions of the Holiday Valley incident reports.

To plaintiffs, “the similar circumstances at issue in this case are a very young child falling off a chair lift when the restraint bar was lifted at the point indicated by the ‘open restraint bar’ sign” (Docket No. 66, Pls. Memo. at 13). The prior incidents occurred at various chairlifts at Holiday Valley and the records for each incident does not indicate either where the “open restraint bar” signs were relative to where the youths fell or the distance they were from the appropriate discharge point. At least one youth, #3 (Docket No. 56, Defs. Ex. I) appears to have fallen shortly after boarding the chairlift. Another prior incident occurred at Tower 4 of School House chairlift, well before Towers 5 and 6 of Creekside where LD fell (Incident #5, Docket No. 56, Ex. K). Thus, it is difficult to determine if these falls at other chairlifts were similar to LD’s fall at Creekside.

Plaintiffs next point to five prior instances that they claim were substantially [*50]  similar to LD’s in which the restraint bar was opened prematurely and each child fell (Docket No. 66, Pls. Memo. at 13-14; Incident #2, 4, 6, 7, 9 (Docket No. 56, Defs. Ex. H, J, L, M, O; see also Docket No. 66, Pls. Atty. Decl. Exs. S, T, U, V, W). Defendants reply that plaintiffs’ parsing of these prior incidents focus on singular favorable points and did not meet the burden of establishing that any of these incidents were substantially similar to LD’s 2010 incident (Docket No. 67, Defs. Reply Memo. at 10-11). They again distinguish these five incidents from the 2010 incident (id. at 11-12).

Incidents where the child was riding with a parent or other adult are not substantially similar to LD riding without an adult. The location of the fall also has to be similar to the 2010 Creekside incident; one of the issues is the location of the warning signage and where the restraining bar was lifted or the youth attempted to dismount (see also Docket No. 67, Defs. Reply Memo. at 11, on Incident #4, Docket No. 56, Defs. Ex. J; Docket No. 66, Pls. Ex. T). While not considered by the parties, the age as well as the experience of the youth involved (shown by whether use of the lift was during a ski lesson [*51]  and the identified skiing ability on the Holiday Valley incident reports) is an important factor to determine if a prior incident was substantially similar to LD’s incident.

The next table (Table 3) lists the prior incidents at issue, the defense and plaintiffs’ exhibits identifications, the age of the youth, and their skiing experience (novice or not).

[Chart Removed because it would not format for this site]

Reviewing these prior incidents, the five identified by plaintiffs are not sufficiently similar to LD’s 2010 experience to admit them into evidence. These incidents each had an adult present (#2, 4, 7, 9, Docket No. 56, Defs. Exs. H, J, M, O; Docket No. 66, Pls. Exs. S, T, V, W); or were not during a ski lesson (#2, 4, 6, 7, 9, Docket No. 56, Defs. Exs. H, J, L, M, O; Docket No. 66, Pls. Exs. S, T, U, V, W); or were not at the Creekside chairlift or the youths did not fall at a point similar to where LD fell from the Creekside chairlift [*52]  (id.). But the child in Incident #9 was a six-year-old novice who skied for two days, describing the incident as lifting the safety bar “at prescribed point” (rather than earlier), slipped forward and left the lift (#9, Docket No. 56, Defs. Ex. O; Docket No. 66, Pls. Ex. W). Finally, LD is younger than any of the youth in the prior incidents.

One incident defendants attempt to distinguish, Incident #2, involves a fall by a seven-year-old novice skier (with two to nine days skied) at Creekside where the chairlift stopped thirty feet from the unloading ramp and the lift operator reported that the restraint bar was up (Docket No. 56, Defs. Ex. H; Docket No. 66, Pls. Ex. S). The lift operator went to the child and “waited for parents” prior to ski patrol arriving (Docket No. 56, Defs. Ex. H, at 2; Docket No. 66, Pls. Ex. S, at 3). It is unclear where defendants got the impression that the parents were with that child on the chairlift. This incident is similar to LD’s experience and thus is admissible.

Therefore, Incident #2 (Docket No. 56, Defs. Ex. H; Docket No. 66, Pls. Ex. S), and the incident conceded by defendants to be similar are admissible, but the other prior incidents identified [*53]  by defendants are not similar and are inadmissible. Defendants’ motion in limine (Docket No. 53) as to the admission of evidence of prior incidents substantially similar to LD’s 2010 incident is granted in part, save for the conceded prior incident.

b. Subsequent Incidents

As for subsequent incidents (Docket No. 56, Defs. Exs. Q-S; Docket No. 66, Pls. Ex. X (Feb. 26, 2012, incident), Table 4 lists these incidents, with this Court continuing the incident numbering scheme the parties used for the prior incidents.

[Chart Removed because it would not format for this site]

Plaintiffs argue that one incident, #13 (Docket No. 56, Defs. Ex. S; Docket No. 66, Pls. Ex. X) is similar to LD’s 2010 (Docket No. 66, Pls. Atty. Decl. ¶ 35). There, a four-year-old youth was riding with his father on February 26, 2012, and was on a different chairlift, Mardi Gras, approximately 32 yards from the bull wheel (Docket No. 56, Defs. Ex. S; Docket No. 66, Pls. Ex. X). According to the eight-year-old sister of that youth, that child wiggled in the chairlift seat and fell from it (id.). These differences [*54]  distinguish this incident from LD’s by the later child riding with a parent and no mention of the restraint bar having a role in the incident. This incident is distinct from LD’s.

As for the other two incidents, the youths were older than LD and had more skiing experience. Incident #11 (Docket No. 56, Defs. Ex. Q) is the closest to LD’s 2010 experience; that incident had a 6 1/2 year old youth fall from the Creekside chairlift 62 feet above Tower 5. That youth claimed he “never really got on chair” and the chair stopped and he fell (id. at 1). Witnesses reported that the restraint bar was down as other skiers held the youth until losing their grip (id. at 7). But this incident is sufficiently distinct from what LD experienced to not admit that subsequent incident into evidence.

Thus, the subsequent incidents are inadmissible. Defendants’ motion in limine on this ground (Docket No. 53) is granted as discussed above.

4. Defense Supplemental Motion (Docket No. 58), Exclude Non-Disclosed Expert Testimony

In their supplemental motion in limine (Docket No. 58), defendants next ask that undisclosed plaintiffs’ expert testimony be excluded (id., Defs. Memo. at 2-3). Plaintiffs contend that they did disclose regarding [*55]  future medical expenses; alternatively, they argue that defendants waived any objection to that disclosure by not moving to compel further disclosure (Docket No. 66, Pls. Memo. at 16-18; see also Docket No. 68, Pls. Atty. Reply Decl.¶ 3, Ex. A (supplementing plaintiffs’ discovery). Plaintiffs also argue that defendants overstate the scope of the witnesses defendants claim are plaintiffs’ experts (plaintiff Bryan DiFrancesco, wife Natascha DiFrancesco, and brother Dean DiFrancesco); for example, uncle Dean DiFrancesco would not testify as an expert regarding inadequate supervision but would testify as to his expectation regarding supervision of youth (Docket No. 66, Pls. Atty. Decl. ¶ 36). During oral argument, plaintiffs offered to supplement evidence of LD’s future medical requirements (see Docket No. 69). The parties reserved the right to file a new round of motions in limine regarding this supplementation (as well as other supplemented discovery).

Plaintiffs do not list the DiFrancescos as expert witnesses in their pretrial submissions (see Docket No. 54, Pls. Pretrial Memo. at 14-15), only expressly identifying Penniman as their expert witness (id. at 21). Defendants’ supplemental motion [*56]  in limine (Docket No. 58) on this ground is deemed moot, but subject to renewal upon receipt of the supplemental discovery.

5. LD’s Mother Is Not Qualified as an Expert to Opine on LD’s Future Treatment

Defendants next contend that LD’s mother, Natascha DiFrancesco is not qualified as an expert to render an opinion as to LD’s need for future treatments (Docket No. 58, Defs. Memo. Supp’al Motion at 3), since Mrs. DiFrancesco has degrees in sociology and physical therapy and lacks the medical qualification to opine as to LD’s physical care needs (id. at 3; id., Defs. Atty. Decl. ¶ 3, Ex. C, EBT Tr. Natascha DiFrancesco).

Plaintiffs respond that the parents would testify to medical expenses incurred but health care provider witnesses would testify to the medical necessity for future treatment of LD (Docket No. 66, Pls. Atty. Decl. ¶ 37). They also point out Dr. Bryan and Natascha DiFrancesco are both “health care professionals and have had extensive contact and conversations with the infant plaintiff’s health care providers, an understanding of immediate health care surveillance she requires and the fact that they have been informed that the infant plaintiff is a candidate for require [sic] future [*57]  medical surveillance, treatment, injections, surgery and imaging” (id.). Both parents discussed LD’s care and future medical needs with treating orthopedic surgeon, Dr. Devin Peterson (id. ¶¶ 40, 41).

Plaintiff Bryan and Natascha DiFrancesco can testify to the facts of LD’s past treatment and the recommended follow up, with health care providers testifying as to the necessity of future medical care. Plaintiffs, however, are not holding them out as “experts,” they claim that Natascha DiFrancesco would testify as to the necessity for LD having future medical care (see Docket No. 54, Pls. Trial Memo. at 15). Thus, they cannot invoke Dr. and Mrs. DiFrancesco’s respective experience in health care professions (according to defense moving papers, Natascha DiFrancesco has degrees in occupational therapy and sociology, Docket No. 58, Defs. Atty. Decl. ¶ 8) to bolster their factual testimony as to LD’s care that any other layperson could testify to their injured daughter or son. As refined, defendants’ supplemental motion (Docket No. 58) is granted in part.

6. Physical Therapist Emily Wray Cannot Offer an Expert Opinion on Causation or Diagnosis

Defendants caution that plaintiffs’ physical therapist, [*58]  Emily Wray, is not an expert as to the cause or diagnosis for LD’s injuries (Docket No. 58, Defs. Memo. Supp’al Motion at 3-4). Defendants produced a copy of plaintiff Bryan DiFrancesco’s business website for the Active Body Clinic. This website listed among the staff of that clinic Ms. Wray (Docket No. 58, Defs. Atty. Decl., Ex. B). Plaintiffs, however, offer Ms. Wray’s testimony as to her observations in treating LD in 2015 (Docket No. 66, Pls. Atty. Decl. ¶ 38, Ex. AA; see also Docket No. 54, Pls. Memo. at 23-24). Thus, she is being called as a treating witness rather than an expert. This Court notes that Wray’s employment with Bryan’s Active Body Clinic raises issues of bias but this goes to her ultimate credibility and not to the admissibility of her testimony. Again, as modified to restrict her testimony to her factual observations, defendants’ motion (Docket No. 58) is granted.

7. Plaintiff Father Dr. Bryan DiFrancesco Cannot Opine on Fractures, Surgical Procedures on LD

Finally, defendants move to preclude plaintiff Dr. Bryan DiFrancesco from testifying as an expert on LD’s fractures and surgical procedures (Docket No. 58, Defs. Memo. Supp’al Motion at 4). Defendants contend [*59]  that plaintiff Bryan DiFrancesco is a chiropractor, acupuncturist, and physical therapist and thus lacks the expertise to render an opinion as to LD’s treatment of her fractured femur (id.; Docket No. 58, Defs. Atty. Decl. ¶¶ 3, 8, Ex. B). Defendants point out that plaintiffs have not provided disclosure of the nature and extend of future treatments that LD requires (Docket No. 58, Defs. Memo. Supp’al Motion at 4).

Again, plaintiffs are not holding Dr. Bryan out as an “expert,” his anticipated testimony is regarding LD’s condition before and after the accident, including the necessity for future treatment (Docket No. 54, Pls. Trial Memo. at 14); thus, they cannot invoke his expertise in health care professions as a chiropractor, acupuncturist and physical therapist to bolster factual testimony as to LD’s care that any other parent not in a health care profession could testify for their injured daughter or son. It is unclear in this record the extend of Dr. Bryan DiFrancesco’s medical training that he received in obtaining his chiropractic and physical therapy degrees in Canada. As refined, defendants’ supplemental motion (Docket No. 58) is granted in part.

CONCLUSION

For the reasons stated [*60]  above, plaintiffs’ motion in limine (Docket No. 56) is granted in part, denied in part as specified above. Plaintiffs’ motion to exclude evidence of infant LD’s assumption of the risk is denied, as well as evidence of the release (as being contrary to New York State public policy) is denied but on different grounds; their motion to preclude evidence of LD’s 2015 clavicle injury at Holimont is granted in part with medical records first subject to this Court’s in camera review.

Defendants’ first motion in limine (Docket No. 53) is granted in part, denied in part as provided in detail above. Their supplemental motion in limine (Docket No. 58) is granted in part, denied in part as specified above.

Jury selection and trial is set for Monday, July 17, 2017, commencing at 9:30 am (Docket Nos. 69, 71), with a Final Pretrial Conference to be scheduled and a further Pretrial Order to be separately issued. The Interim Pretrial Conference (Docket Nos. 71, 63), remains set for Wednesday, April 19, 2017, 10:30 am (Docket No. 72).

So Ordered.

/s/ Hugh B. Scott

Hon. Hugh B. Scott

United States Magistrate Judge

Dated: Buffalo, New York

March 20, 2017

 


The Estate of Joseph R. Kane, v. Epley’s Inc., 2017 U.S. Dist. LEXIS 48179

The Estate of Joseph R. Kane, v. Epley’s Inc., 2017 U.S. Dist. LEXIS 48179

The Estate of Joseph R. Kane, deceased; Stacie Kane, individually, and as guardian of Joseph P. Kane; and Thomas Kane, individually, Plaintiffs, vs. Epley’s Inc., an Idaho corporation, Defendant.

Case No.: 3:15-cv-00105-EJL-REB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

2017 U.S. Dist. LEXIS 48179

March 28, 2017, Decided

March 28, 2017, Filed

PRIOR HISTORY: Estate of Kane v. Epley’s Inc., 2016 U.S. Dist. LEXIS 170316 (D. Idaho, Dec. 5, 2016)

COUNSEL:  [*1] For Estate of Joseph R Kane, deceased, Stacie Kane, individually, and as guardian of Joseph P Kane, Joseph P Kane, Thomas Kane, individually, Plaintiffs: Theron A Buck, LEAD ATTORNEY, Frey Buck, P.S., Seattle, WA; Thomas Daniel Frey, LEAD ATTORNEY, PRO HAC VICE, Frey Buck, P.S., Seattle, WA.

For Epley’s, Inc., an Idaho corporation, Defendant: Caitlin Elizabeth O’Brien, LEAD ATTORNEY, Winston & Cashatt, Lawyers, Coeur d’Alene, ID; Patrick J Cronin, LEAD ATTORNEY, Winston & Cashatt, Lawyers, Spokane, WA.

JUDGES: Honorable Ronald E. Bush, Chief United States Magistrate Judge.

OPINION BY: Ronald E. Bush

OPINION

MEMORANDUM DECISION AND ORDER RE:

PLAINTIFFS’ MOTION TO AMEND COMPLAINT TO ASSERT PUNITIVE DAMAGE CLAIM

(Docket No. 17)

 

PLAINTIFFS’ MOTION TO STRIKE DEFENDANT’S “SUR REPLY” TO PLAINTIFFS’ MOTION TO AMEND COMPLAINT TO ADD PUNITIVE DAMAGES

(Docket No. 39)

Now pending before the Court is Plaintiffs’ (1) Motion to Amend Complaint to Assert Punitive Damage Claim (Docket No. 17), and (2) Motion to Strike Defendant’s “Sur Reply” to Plaintiffs’ Motion to Amend Complaint to Add Punitive Damages (Docket No. 39). Having carefully considered the record, heard oral argument, and otherwise being fully advised, the Court enters the [*2]  following Memorandum Decision and Order:

I. BACKGROUND

Joseph R. Kane died after being ejected from a raft on a section of the Lower Salmon River known as “Slide Rapid.” Mr. Kane was part of a Boy Scouts of America (“BSA”) group, composed of minors and other adults — the majority of whom had no “whitewater” experience whatsoever. The group booked their trip with Defendant Epley’s Inc. (“Epley’s”), a licensed outfitter in the state of Idaho that offers guided rafting tours on the Salmon River and Snake River.

Through this action, Plaintiffs (to include the estate of Mr. Kane, his wife Stacie Kane, and sons Thomas and Joseph P. Kane) claim that Epley’s conduct — in particular, its decision to run the Slide Rapid at flows above 23,000 cubic feet per second (“cfs”) — breached the standard of care applicable to outfitters and guides under chapter 12, Title 6, Idaho Code and that said breach was a direct and proximate result of Mr. Kane’s death. See generally Pls.’ Compl., ¶¶ 4.1-4.12 (Docket No. 1). Plaintiffs specifically allege:

Defendant’s conduct was wrongful and otherwise breached its standard of care by taking Joseph R. and Thomas down the river and through the Slide when they knew or [*3]  should have known that the river’s flow was in excess of 23,500 cfs, and knowing that these extreme conditions would produce incredibly dangerous Class V or Class VI rapids. Defendant’s guides’ decision to run these rapids not only ignored the rafter’s inexperience, it was also contrary to the express written recommendations of the BLM’s published handbook for rafting the Lower Salmon River. Defendant’s actions were wrongful in the face of a known, significant risk that was unknown to the Plaintiffs.

Id. at ¶ 4.5. Since the action’s inception, the above-referenced breach-of-the-standard-of-care allegations have further evolved into the bases for Plaintiff’s at-issue Motion to Amend Complaint to Assert Punitive Damage Claim.1

1 Even so, these allegations were preliminarily tested in the context of Defendant’s intervening Motion for Summary Judgment. See MSJ (Docket No. 16). U.S. District Judge Edward J. Lodge denied that Motion, concluding that questions of fact populated the interwoven issues of (1) the proper standard of care involved, (2) whether Defendant breached such standard of care, and (3) whether Defendant’s conduct proximately caused Plaintiffs’ injury and/or any actual loss or damage. See generally 12/6/16 MDO, pp. 16-30 (Docket No. 44).

According to Plaintiffs, Epley’s not only ignored and misrepresented to the group the extreme risks presented by the water levels forecasted to be encountered at Slide Rapid on June 27, 2014 (thus permitting the trip’s June 24, 2014 launch in the first instance), its later decision to actually continue through Slide Rapid on June 27, 2014 at flows in excess of 23,500 cfs represented an extreme deviation from industry standards. See generally Mem. in [*4]  Supp. of Mot. to Am., pp. 5-17 (Docket No. 17, Att. 1). Plaintiffs argue:

Despite the dangerous conditions produced by the high flow levels, Defendant authorized the trip to commence as planned on June 24, 2014. Defendant’s manager [(Blackner)] admits that he told the group that the river level would slacken by the time they reached the Slide on the fourth day of the trip, a fact admitted by Blackner and reflected in pre-trip emails by group members. Notably, Blackner told the group he expected the river would be down to 17,000 cfs by the time they hit the Slide. Blackner asserts he was relying on on-line river forecasts by the National Weather Service (“NWS”) vis-a-vis [National Oceanic and Atmospheric Administration] (“NOAA”) and [U.S. Geological Survey] (“USGS”), in making this claim.

In fact, however, the water level forecasted by the NWS model as of the morning of the trip launch (June 24) for June 27 — the day the group was scheduled to hit the Slide — was not 17,000; it was approximately 21,000 cfs, Class V-VI water. Moreover, while earlier forecast modeling had predicted that the flow levels might recede below 20,000 cfs, the actual flow measurements taken by the . . . USGS show [*5]  that the river had remained steadily above 23,000 cfs for the four days before launch date, flatly belying the earlier forecast models. Defendant’s manager and guides were aware of this flow before the trip began. Moreover, rain was forecast for the area during the trip. In short, there was no earthly reason to believe the water level would decrease significantly from the 23,400 cfs level on launch date by the time the Boy Scouts hit the Slide; all extant evidence and forecasts unequivocally established the Slide would be Class V water on June 27. Notwithstanding the extreme water level, the inexperienced, unfit passengers and the want of cause to believe the river volume would drop, Defendant launched the excursion.

Prior to launch, the Defendant prepared no plan whatsoever to avoid or safely transit the Slid should the water level remain at ClassV level. There were several options available. Defendant could have arranged to take the group off the river at Eagle Creek, the last overnight stop before the Slide. It could have arranged for a larger, motorized raft to transit the group. It could have arranged for jet boat transit at the Slide. Defendant took none of these prudent steps. [*6]

On June 26,2014, the scout group landed and took out at Eagle Creek to spend the night. This was the group’s last overnight location before reaching the Slide. Eagle Creek was also the last place where the group could have readily exited the river on land. The guides were aware that the river had not changed appreciably since the launch level of 23,400 cfs. Indeed, on the morning of June 27, after spending the night at Eagle Creek, Epley’s guides could see with the naked eye that the river flow had actually increased overnight. Defendant’s guides knew that these extreme flows would produce Class V or VI rapids at the Slide. Despite this knowledge, prior to and after reaching Eagle Creek, the Defendant’s agents made no plan to avoid the Slide in the event the water level did not recede, no plan to remove the group at Eagle Creek, and no plan to bring extra assets to the area of the Slide to relieve the obvious risk posed by the rapid. The guides had access to a satellite phone, but they opted to not use it to verify water levels or explore options for avoiding the Slide, notwithstanding that it had “constantly” rained following the June 24 launch. . . . .

Id. at pp. 5-6 (internal citations omitted, [*7]  italics in original, underlining added); see also id. at pp. 14, 16 (“Based on the evidence presented here, it can be inferred that Blackner intentionally or with gross negligence misled the group (and possibly his lead guide) to believe the Slide would be safely navigable by June 27. . . . . There [was] no rational justification for allowing this group to launch on June 24, other than for financial gain.”); id. at p. 16 (“Simply put, once the group left on June 24, Epley’s plan was to send the group through the Slide regardless of conditions, risk of injury or death to riders, or industry standards. . . . . The decision by the guides to authorize the trip to continue through the Slide after reaching Eagle Creek on June 26 also constitutes an extreme deviation from industry standards. The trip should have unquestionably been terminated when the guides recognized that the flows had not dropped since June 24.”).2

2 Plaintiffs also claims that Epley’s use of inexperienced and inadequately trained guides contributes to the milieu of conduct auguring in favor of a punitive damages claim against Epley’s. See Mem. in Supp. of Mot. to Am., pp. 14, 16 (Docket No. 17, Att. 1) (“There is no dispute that the guides selected by lead boatman Mike Cornforth for the trip had never transited the Slide at levels near 23,000 cfs. Accordingly, they lacked any training or experience whatsoever to manage the extreme conditions presented by the Slide at that level. . . . . Epley’s decision to permit commencement of the trip on June 24, with minors as young as 14 and unfit 50-year-olds, at flows in excess of 23,000 cfs, under the supervision of inexperienced and unqualified guides, with no alternative safety plan in place, constituted an extreme deviation from the standard of care.”).

Epley’s disputes these claims outright, but alternatively argues that, even if true, they operate only to support claims that it was grossly negligent or reckless. See generally Opp. to Mot. to Am., pp. 12-19 (Docket No. 22). In short, attacking the quantum of Plaintiffs’ proffered evidence, Epley’s argues [*8]  that, “[t]he mere fact of a tragic death during a high risk recreational activity does not create the necessary fraud, malice, outrage, or oppression” to warrant a claim for punitive damages. Id. at p. 12; see also id. at p. 15 (“Ultimately, even Plaintiffs’ evidence regarding the water levels do not rise to any necessary level of proof that Epley’s acted maliciously, outrageously, fraudulently, or oppressively.”); id. at p. 17 (“The Plaintiffs’ evidence fails to rise to the level of reasonable likelihood of proving fraud, oppression, malice, or outrage.”); id. at p. 19 (“[Plaintiffs’] evidence in this motion at best claims that [Epley’s] was grossly negligent or reckless, but nowhere explains or establishes fraud, oppression, malice, or outrage necessary to amend to add punitives.”).

II. DISCUSSION

A. Punitive Damages: Legal Standard

Claims for punitive damages are governed by Idaho Code § 6-1604, which provides:

In any action seeking recovery of punitive damages, the claimant must prove, by clear and convincing evidence, oppressive, fraudulent, malicious or outrageous conduct by the party against whom the claim for punitive damages is asserted.

I.C. § 6-1604(1).

Whether to allow a claim of punitive damages is a substantive question controlled by Idaho law. See Windsor v. Guarantee Trust Life Ins. Co., 684 F. Supp. 630, 633 (D. Idaho 1988). Ultimately, [*9]  an award of punitive damages requires a bad act and a bad state of mind. See Todd v. Sullivan Const. LLC, 146 Idaho 118, 191 P.3d 196, 201 (Idaho 2008). The defendant must (1) act in a manner that was an extreme deviation from reasonable standards of conduct with an understanding of — or disregard for — the likely consequences, and must (2) act with an extremely harmful state of mind, described variously as with malice, oppression, fraud, or outrageousness. See Myers v. Workmen’s Auto Ins. Co., 140 Idaho 495, 95 P.3d 977, 983 (Idaho 2004); see also I.C. § 6-1604.3

3 The Idaho Supreme Court has recognized that, since the enactment of Idaho Code § 6-1604 in 1987, gross negligence or deliberate or willful conduct is not sufficient for an award of punitive damages. See Cummings v. Stephens, 157 Idaho 348, 336 P.3d 281, 296, n.5 (Idaho 2014) (“Since the enactment of the statute, gross negligence or deliberate or willful conduct is not sufficient for an award of punitive damages.”). Accordingly, the undersigned disagrees with Plaintiffs’ to the extent they ask the Court to infer that a harmful state of mind can be satisfied by a defendant’s gross negligence. See, e.g., Mem. in Supp. of Mot. to Am., p. 10 (Docket no. 17, Att. 1); compare with Opp. to Mot. to Am., p. 10 (Docket No. 22) (“A party seeking punitive damages must prove defendant’s action constituted an extreme deviation from reasonable standards of conduct, which was done with knowledge of the likely consequences, and an ‘extremely harmful state of mind.’ However, that ‘extremely harmful state’ can no longer be termed gross negligence or recklessness.”) (internal citations omitted, emphasis in original).

At trial, the party alleging punitive damages must satisfy this standard by clear and convincing evidence. See I.C. § 6-1604(1). However, for purposes of a motion to amend, the party seeking to add a claim for punitive damages does not need to meet this high burden; rather, the party need only show “a reasonable likelihood of proving facts at trial sufficient to support an award of punitive damages.” See I.C. § 6-1604(2). Therefore, although FRCP 15(a) encourages the trial court to liberally grant motions to amend pleadings, this policy is substantially tempered by the requirements under Idaho law. That is, plaintiff may add a claim for punitive damages only if they establish a reasonable likelihood of proving, by clear and convincing evidence, that the defendant’s conduct was oppressive, fraudulent, [*10]  malicious, or outrageous.

Since plaintiffs are only required to demonstrate a “reasonable likelihood” of establishing their entitlement to punitive damages, on motions to amend to assert a claim for punitive damages under Idaho Code § 6-1604(2), courts apply the same standard it would apply in resolving an FRCP 50 motion at the close of plaintiffs’ case. See Bryant v. Colonial Sur. Co., 2016 U.S. Dist. LEXIS 22414, 2016 WL 707339, *3 (D. Idaho 2016). That is, evidence is viewed in the light most favorable to plaintiffs, with the benefit of all legitimate inferences without assessing credibility. See id. (citing E.E.O.C. v. Go Daddy Software, Inc., 581 F.3d 951, 961 (9th Cir. 2009)).

It is in the trial court’s discretion to decide whether to submit the punitive damages issue to the jury. See Manning v. Twin Falls Clinic & Hosp., Inc., 122 Idaho 47, 830 P.2d 1185, 1190 (Idaho 1992). As a matter of substantive law, it is well established in Idaho that punitive damages are not favored and should be awarded only in the most unusual and compelling circumstances, and are to be awarded cautiously and within narrow limits. See id. at 1185; see also Jones v. Panhandle Distribs., Inc., 117 Idaho 750, 792 P.2d 315 (Idaho 1990); Soria v. Sierra Pac. Airlines, Inc., 111 Idaho 594, 726 P.2d 706 (Idaho 1986); Cheney v. Palos Verdes Inv. Corp., 104 Idaho 897, 665 P.2d 661 (Idaho 1983); Linscott v. Rainier Nat’l Life Ins. Co., 100 Idaho 854, 606 P.2d 958 (Idaho 1980).

B. Plaintiffs May Assert a Claim for Punitive Damages Against Epley’s

This lawsuit and the instant Motion to Amend are focused on the decisions surrounding the events leading up to June 27, 2014 — the day Mr. Kane, his son, and the rest of the rafters in their group encountered Slide Rapid. The evidentiary record about such decisions [*11]  (viewed in light most favorable to Plaintiffs), gives rise to a reasonable likelihood of proving, by clear and convincing evidence, that Epley’s engaged in a bad act, with a bad state of mind, so as to warrant a claim for punitive damages.

1. Bad Act: Extreme Deviation From Reasonable Standards of Conduct

Plaintiffs point out that, in the days leading up to, and including, the June 24, 2014 launch, Defendant’s manager and guides were aware that water levels on the Salmon River consistently measured higher than 23,000 cfs and that, on June 24, 2014, the water level forecasted for June 27, 2014 (the day the group was scheduled to reach Slide Rapid) was approximately 21,000 cfs. See Mem. in Supp. of Mot. to Am., pp. 2-6, 11, 14 (Docket No. 17, Att. 1) (citing Ex. D (Blackner Dep. at p. 96) to Frey Decl. (Docket No. 17, Att. 3); Ex. F (Cornforth Dep. at p. 21) to Frey Decl. (Docket No. 17, Att. 3); Ex. L (USGS Discharge Data), to Frey Decl. (Docket No. 17, Att. 4); Ex. M (Northwest River Forecast Center (“NWRFC”) River Flow Forecast), to Frey Decl. (Docket No. 24)).4 Still, Epley’s decided to proceed with the trip and, according to Plaintiffs, did so with “no plan whatsoever” to address the [*12]  anticipated flow levels at Slide Rapid in the event water flow volumes remained dangerously high. See Mem. in Supp. of Mot. to Am., pp. 6-7, 15-16 (Docket No. 17, Att. 1) (citing Ex. D (Blackner Dep. at pp. 107-08) to Frey Decl. (Docket No. 17, Att. 3)).5

4 It is undisputed that, at levels over 20,000 cfs, Slide Rapid represents either Class V (expert) or Class VI (extreme and exploratory) waters. See Mem. in Supp. of Mot. to Am., pp. 4, 7, 14 (Docket No. 17, Att. 1) (citing Ex. B (BLM Guide) to Frey Decl. (Docket No. 17, Att. 3); Ex. D (Blackner Dep. at p. 86) to Frey Decl. (Docket No. 17, Att. 3); Ex. Q (Ranck Dep. at pp. 16-17) to Frey Decl. (Docket No. 17, Att. 6); Ex. E (Estes Dep. at pp. 18-19) to Frey Decl. (Docket No. 17, Att. 3)).

5 According to Defendant’s lead guide, Mr. Cornforth, “regardless of the height of the river when [the party] got to Slide [Rapid],” his only plan was “to try to stay river left and go through it.” Ex. F (Cornforth Dep. at p. 22) to Frey Decl. (Docket No. 17, Att. 3).

Flow levels did not appreciably change over the course of the trip and, on the morning of June 27, 2014, Defendant’s guides could see that the river flow had actually increased overnight as the party camped at Eagle Creek (the last overnight location before reaching Slide Rapid). See Mem. in Supp. of Mot. to Am., p. 7 (Docket No. 17, Att. 1) (citing Ex. F (Cornforth Dep. at pp. 59-60) to Frey Decl. (Docket No. 17, Att. 3); Ex. G (Sharp Dep. at pp. 34-36) to Frey Decl. (Docket No. 17, Att. 4); Ex. P (Sharp Witness Statement) to Frey Decl. (Docket No. 17, Att. 6)). Still, Defendant decided to proceed through Slide Rapid with allegedly unqualified guides, foregoing options to use an available satellite phone to discuss potentially safer options for the relatively inexperienced group, portage around Slide Rapid,6 or altogether exit the river on land at Eagle Creek (the last place where the group could have readily done so). See Mem. in [*13]  Supp. of Mot. to Am., pp. 6-7, 15-16 (Docket No. 17, Att. 1) (citing Ex. D (Blackner Dep. at p. 154) to Frey Decl. (Docket No. 17, Att. 3; Ex. F (Cornforth Dep. at pp. 22, 29-30) to Frey Decl. (Docket No. 17, Att. 3); Ex. O (Sears Expert Report, p. 6) to Frey Decl. (Docket No. 17, Att. 6); Ex. W (Nicolazzo Report, p. 3), to Frey Decl. (Docket No. 17, Att. ).

6 Plaintiffs claim that another outfitter, Exodus River Adventures, ran the Lower Salmon River during the same time frame and, on June 26, 2014, portaged around Slide Rapid rather than running it at similar flows. See Mem. in Supp. of Mot. to Am., p. 7 (Docket No. 17, Att. 1) (citing Ex. D (Blackner Dep. at p. 154) to Frey Decl. (Docket No. 17, Att. 3)); but see Ex. Q (Ranck Dep. at p. 30) to Frey Decl. (Docket No. 17, Att. 6) (testifying that portaging Slide Rapid was not a viable option: “It is a steep slope with sharp rocks. Lots of ledges. Loose rocks. Having middle-aged parents. Some of which were overweight. They would have been more than capable to do so on maybe a beach or a smaller rock outcropping. But they wouldn’t have been able to get safely over that rock slide by themselves. Especially carrying gear.”).

For its part, Epley’s disputes Plaintiffs’ contentions about forecasted flows for Slide Rapid in the days leading up to June 27, 2014, believing them to be lower. See Opp. to Mot. to Am., pp. 4-5, 14 (Docket No. 22) (“Despite Plaintiffs’ incorrect assertions, the Northwest River Forecast website continued to predict that the Lower Salmon River water level would drop to below 20,000 cfs by the time the group was to reach the Slide.”) (citing Ex. L (National Oceanic and Atmospheric Administration’s National Weather Service, Northwest River Forecast Center River Flow and Stage Forecasts) to Cronin Decl. (Docket No. 22, Att. 3). Consistent with this, the BLM officials present at the launch site on June 24, 2014, neither warned the group not to go, nor stated any concern about the water levels whatsoever. See Opp. to Mot. to Am., [*14]  p. 6 (Docket No. 22) (citing Ex. A (Blackner Dep. at p. 113) to Cronin Decl. (Docket No. 22, Att. 2). And, as to precautions taken before hitting Slide Rapid itself, Epley’s notes that its guides (who it contends were state-licensed and experienced) conducted a safety talk on the morning of June 27, 2014 and, before reaching the rapids, pulled the group’s rafts to shore to scout and pick the safest line to run — the “Sneak” down the left bank, with identified spots to “eddy out” at the bottom of the run “in case any individuals fell out during the rapid and they needed to perform a rescue.” Opp. to Mot. to Am., pp. 6, 15-17 (Docket No. 22) (citing Ex. P (Ranck Dep. at pp. 29-31) to Cronin Decl. (Docket No. 22, Att. 3)).

The extent to which the parties’ above-referenced arguments define the standard of care orbiting Defendant’s actions leading up to Mr. Kane’s death is clearly disputed. Judge Lodge stated as much when considering Defendant’s Motion for Summary Judgment, discussing the relevant standard of care as follows:

A question of fact exists, however, concerning what the standard of care is in this case; i.e., what ordinary care Epley’s, as an outfitter, owed to Plaintiffs, as its [*15]  customers/participants. The parties dispute the testimony of the expert witnesses offered to opine regarding the standards of the profession and the use/relevance of certain public information and industry publications to define the standard of care — in particular the standard of care in the profession for outfitters running the Slide Rapid above 20,000 cfs.

Each sides’ expert witnesses offer differing opinions concerning the standard of care applicable to the circumstances presented in this case. In his report, the Defendant’s expert, Gary Lane, states that he used a 25,000 cfs cut-off for running commercial trips at the Slide Rapid but that “it has long been the standard practice and is the practice today for commercial outfitters on the Lower Salmon River to take commercial trips down the Lower Salmon, including the Slide Rapid, at flows up to and exceeding 25,000 cfs” and concludes that Epley’s conformed to the standard of care expected of outfitters and guides rafter the Lower Salmon at the Slide Rapid with this group, gear, and at water levels higher than 20,000 cfs. Plaintiffs’ expert, on the other hand, conclude the Defendant violated the standard of care with regard to running [*16]  the Slide Rapid above 20,000 cfs under the circumstances of this case. Resolving the disputed questions presented by the experts’ testimonies requires the weighing of evidence and credibility determinations which must be done at trial.

12/6/16 MDO, pp. 19-20 (Docket No. 44) (internal citations omitted).7 And, whether these same arguments reflect Defendant’s breach of any duty owed to Plaintiffs is also disputed, with Judge Lodge similarly ruling:

For the same reasons discussed above with regard to duty, the Court finds a genuine issue of material fact exists as to whether Defendant breached the standard of care applicable in this case. This case presents the classic example of a battle of experts where both sides have presented contradicting testimony from experts concerning whether the Defendant breached a duty of care owed to Plaintiffs. Further, the facts surrounding events in question relevant to the breach issue are in dispute. For instance, the conditions presented on the day in question; what the guides knew regarding the water flow level of the Slide Rapid; whether there was a rescue plan and if that plan was followed; and any safety procedures in place and used by the guides. [*17]  The jury, as the finder of fact, must consider all of the disputed facts, the credibility of the witnesses, and the weight of the evidence in order to determine whether Defendant breached its duty. Therefore, summary judgment is denied on this question.

Id. at p. 23.

7 Judge Lodge also considered the “public information and industry publications” for the purposes of determining the appropriate standard of care for Idaho outfitters running commercial trips on the Lower Salmon River generally, and when Slide Rapid experiences high flows. See 12/6/16 MDO, pp. 20-22 (Docket No. 44). This examination included the BLM’s Lower Salmon River Boater’s Guide, the American Whitewater Safety Code, outfitter websites, and industry blogs (including one by Defendant’s expert, Gary Lane). However, they also didn’t highlight the standard of care as a matter of law. See id. at p. 22 (“While these materials do not, in and of themselves, define the standard of care, and their admissibility and/or use at trial is not decided here, the materials do show a genuine issue of material fact is present in this case concerning the applicable standard of care.”).

Viewing the evidence in the light most favorable to Plaintiffs, and giving Plaintiff the benefit of all legitimate inferences without assessing credibility, Plaintiffs have established a reasonable likelihood of proving by clear and convincing evidence that Defendant acted in a manner that was an extreme deviation from reasonable standards of conduct with an understanding (as an experienced outfitter) of — or disregard for — the likely consequences of those actions. See, e.g., Morningstar Holding Corp. v. G2, LLC, 2012 U.S. Dist. LEXIS 12355, 2012 WL 287517, at *14 (D. Idaho 2012) (“It is true that ‘[w]here evidence is conflicting, and where it can be said that if one theory of the case is correct there may be ground for the imposition of exemplary damages, the matter is properly submitted to the jury’ to determine the correct theory.”) (quoting Williams v. Bone, 74 Idaho 185, 259 P.2d 810, 813 (Idaho 1953)). As already indicated by Judge Lodge, it will be for the jury to resolve the issue of the actual standard of care involved and, relatedly, whether Epley’s breached [*18]  that same standard in the days and moments leading up to Mr. Kane’s death. See supra.

2. Bad State of Mind: Acting With An Extremely Harmful State of Mind

Plaintiffs assert that Epley’s, through its manager, Mr. Blackner, told Marelene Schaefer, who organized the event for the BSA, that (1) Defendant followed “BLM criteria” in determining whether to launch on the Lower Salmon Rive, and (2) they would not launch if the water was above 20,000 cfs. See Reply in Supp. of Mot. to Am., p. 2 (Docket No. 27) (citing Ex. B (Schaefer Dep. at pp. 25-28, 30) to Buck Decl. (Docket No. 21, Att. 3)). Plaintiffs also contend that Mr. Blackner assured Ms. Schaefer that he was monitoring river flows, even expressing concern that they might not be able to launch on the date planned and that they may have to “take an alternative trip if the water was over 20,000 cfs.” See Reply in Supp. of Mot. to Am., p. 2 (Docket No. 27) (citing Ex. B (Schaefer Dep. at pp. 27-29) to Buck Decl. (Docket No. 21, Att. 3)).

But, according to Plaintiffs, at the June 24, 2014 launch Mr. Blackner did not tell Ms. Schaefer (who was also present with the inspection team at the launch) that the water level was above 23,000 cfs, but [*19]  did say that the water levels would be dropping to 17,000 cfs at Slide Rapid and, if they did not drop in time, they could alter the plan and take out at Eagle Creek or run a different route. See Reply in Supp. of Mot. to Am., p. 2 (Docket No. 27) (citing Ex. B (Schaefer Dep. at p. 46) to Buck Decl. (Docket No. 21, Att. 3);8 Ex. D (Blackner Dep. at pp. 91- 93) to Frey Decl. (Docket No. 17, Att. 3)). Mr. Blackner allegedly made these representations despite the fact that river level forecasts for June 27, 2014 (the day the group was scheduled to reach Slide Rapid) was, in reality, approximately 21,000 cfs. See Reply in Supp. of Mot. to Am., pp. 2-3 (Docket No. 27) (“Blackner admitted that he checked the USGS website that provided actual and forecasted river levels; consequently, he knew his statement that the river would be at 17,000 cfs by June 27 was false.”) (citing Ex. D (Blackner Dep. at pp. 91-93) to Frey Decl. (Docket No. 17, Att. 3); Ex. M (NWRFC River Flow Forecast), to Frey Decl. (Docket No. 24)). In other words, Plaintiffs argue that Mr. Blackner purposely misled Ms. Schaefer and, thus, the group by failing to inform them of actual (as of the June 24, 2014 launch date) and [*20]  projected (for the anticipated encounter with Slide Rapid on June 27, 2014) river flows — that is, it was fraudulent and outrageous for Mr. Blackner to say that the forecasted flow for Slide Rapid on June 27, 2014 was 17,000 cfs, when, in actuality, it was much higher.

8 Whether Ms. Schaefer actually understood if Defendant would either take out at Eagle Creek or cancel the as-planned trip altogether is unclear, with Ms. Schaefer testifying:

Q: Okay. And that if [the river levels did not drop], according to what you’ve testified earlier, they could alter the plan and take out before they got to the Slide?

A: Yes.

Q: Okay.

A: Well, their alternate plan was to run a different route, not to pull out before the Slide. There’s a place to pull out I think.

Ex. B (Schaefer Dep. at p. 46) to Buck Decl. (Docket No. 21, Att. 3). Even so, the gist of this testimony is that Ms. Schaefer understood that, at certain flows, there would be no launch. See id. at p. 63 (“Well, I’m saying you saw where [Mr. Blackner] had an alternative if they could not launch and run the river the way that we had planned.”). The Court understands that the alternative trip was from Vinegar Creek to Pine Bar. See Ex. D (Blackner Dep. at pp. 92-93) to Frey Decl. (Docket No. 17, Att. 3).

Again, Epley’s takes issue with Plaintiffs’ representation of what was actually forecasted for Slide Rapid as of June 24, 2014. See supra. Epley’s does acknowledge the dueling factual accounts of what was said between Mr. Blackner and Ms. Schaefer surrounding the circumstances in which the group would (or would not) proceed with the as-planned trip, in the face of dangerous high river flow levels. See Reply in Supp. of MSJ, p. 3 (Docket No. 25) (“While it is disputed what Roger Blackner may have told Marlene Schaefer regarding what level he would run the Slide Rapid at prior to the June 24, 2014 trip, nothing [*21]  that the Plaintiffs cite establishes that Roger, or any other Epley’s personnel, testified the water was over the Epley’s limit, or the industry standard.”).

And, as before, such evidence and inferences must be viewed to Plaintiffs’ benefit when considering Plaintiffs’ efforts to amend their Complaint to assert a claim for punitive damages. When doing so, Plaintiffs have established a reasonable likelihood of proving by clear and convincing evidence that Epley’s not only acted in a manner that was an extreme deviation from reasonable standards of conduct with an understanding of — or disregard for — the likely consequences of those actions (see supra), but also did so with a harmful state of mind when viewing Mr. Blackner’s statements to Ms. Schaefer as fraudulent and/or outrageous. See Morningstar, 2012 U.S. Dist. LEXIS 12355, 2012 WL 287517 at *14 (discussing role of jury to resolve conflicting evidence in context of exemplary damages). Whether Epley’s actually acted with such a harmful state of to support an award of punitive damages is therefore a question for the jury, and not the subject of this Memorandum Decision and Order.9

9 To be clear, the undersigned is granting Plaintiffs’ Motion to Amend Complaint to Assert Punitive Damages Claim. However, the fact of doing so does not guarantee the claim will go to the jury. Judge Lodge will preside over the trial of the case and it will be within Judge Lodge’s province to decide, after hearing the evidence, whether the jury should decide the issue of punitive damages at trial. See, e.g., Clark v. Podesta, 2016 U.S. Dist. LEXIS 103637, 2016 WL 4179851, at *8 (D. Idaho 2016) (Judge Lodge stating on that facts of that case: “It is premature for the Court to make a binding decision on punitive damages until the close of evidence. Only then can the Court determine if evidence has been presented that Podesta acted with the requisite state of mind to allow punitive damages to be considered by the jury. Accordingly, the Court will allow the motion to amend the Complaint but will reserve ruling on whether such claim will be decided by the jury. . . .”).

III. ORDER

Based on the foregoing, IT IS HEREBY ORDERED that:

1. Plaintiffs’ Motion to Amend Complaint to [*22]  Assert Punitive Damage Claim (Docket No. 17) is GRANTED; and

2. Plaintiffs’ Motion to Strike Defendant’s “Sur Reply” to Plaintiffs’ Motion to Amend Complaint to Add Punitive Damages (Docket No. 39) is DENIED as moot.

DATED: March 28, 2017

/s/ Ronald E. Bush

Honorable Ronald E. Bush

Chief U. S. Magistrate Judge