Hoosier Mountain Bike Association, Inc., City of Indianapolis, and Indy Parks and Recreation,1 Appellants-Defendants, v. Richard Kaler, Appellee-Plaintiff.
1 On February 23, 2017, Hoosier Mountain Bike Association, Inc. filed a notice of settlement with Richard Kaler and, as part of the settlement, dismissed this appeal. Accordingly, Hoosier Mountain Bike Association, Inc. is no longer a party in this cause. We will still include facts with respect to the Hoosier Mountain Bike Association, Inc. where necessary for our decision.
Court of Appeals Case No. 49A04-1604-CT-865
COURT OF APPEALS OF INDIANA
73 N.E.3d 712; 2017 Ind. App. LEXIS 133
March 23, 2017, Decided
March 23, 2017, Filed
PRIOR HISTORY: [**1] Appeal from the Marion Superior Court. The Honorable Cynthia J. Ayers, Judge. Trial Court Cause No. 49D04-1209-CT-35642
COUNSEL: ATTORNEYS FOR APPELLANTS: Donald E. Morgan, Lynne D. Hammer, Kathryn M. Box, Office of Corporation Counsel, Indianapolis, Indiana.
ATTORNEY FOR APPELLEE: John F. Townsend, III, Townsend & Townsend, LLP, Indianapolis, Indiana.
JUDGES: Riley, Judge. Crone, J. and Altice, J. concur.
OPINION BY: Riley
[*714] Riley, Judge.
STATEMENT OF THE CASE2
2 We held oral argument in this cause on March 7, 2017, in the Indiana Court of Appeals Courtroom in Indianapolis, Indiana. We thank both counsel for their advocacy.
P1 Appellants-Defendants, the City of Indianapolis and Indy Parks and Recreation (the City),3 appeal the trial court’s denial of their motion for summary judgment with respect to Appellee-Plaintiff’s, Richard Kaler (Kaler), claims of negligence after Kaler sustained injuries in riding the City’s mountain bike trail at Town Run Trail Park.
3 For all practical purposes, Appellant is the City of Indianapolis as the City’s Indy Parks and Recreation department cannot be sued outside the Access to Public Records Act context. See City of Peru v. Lewis, 950 N.E.2d 1, 4 (Ind. Ct. App. 2011) (noting that units of local government, but not their individual departments, are suable under Indiana law), trans. denied.
P2 We reverse.
P3 The City presents us with four issues on appeal, which we consolidate and restate as follows:
(1) Whether a genuine issue of material fact precluded the entry of summary judgment on Kaler’s claim of premises liability; and
(2) Whether a genuine issue of material fact precluded the entry of summary judgment based on the City’s claim that Kaler was contributorily negligent.
FACTS AND PROCEDURAL HISTORY [**2]
P4 The City of Indianapolis owns and operates the Town Run Trail Park through its Indy Parks and Recreation department. The Hoosier Mountain Bike Association, Inc. (HMBA) is responsible for maintaining the trails, which have a difficulty rating from beginner through intermediate. In the spring of 2011, an Eagle Scout, as part of his merit badge project, built a new technical trail feature along Town Run’s mountain bike trail. The feature can best be described as a banked wooden turn, also known as a berm. A rider, approaching the berm, has three options for completing the turn. First, riders can avoid the berm by staying on the dirt path on its left side. Second, riders can elect to enter the berm and ride it on the low grade, or third, riders can negotiate the turn by riding the berm’s more challenging high grade. The entrance onto the wooden turn is fully tapered with the ground, while the exit is only partially tapered. A rider [*715] choosing the low grade would exit the berm with a “little jump” off the end of the feature. (City’s App. Vol. II, pp. 100-01). A rider exiting on the high grade would have to make a two-foot jump back down to the trail.
P5 By July 9, 2011, Kaler had been mountain [**3] biking for approximately four to five years. He described himself as an “experienced” and “better than average” bicyclist. (City’s App. Vol. II, pp. 90, 91). Although he was familiar with the trails at Town Run, he had not been on the mountain bike trail since the berm had been constructed several months earlier. “Oftentimes,” Kaler would “try to get an idea of the technical requirements of the trail” and would step off his bike, especially if he saw something within his view “as a danger.” (City’s App. Vol. II, p. 89). He understood that “on a mountain bike trail there’s multiple paths that you can take, one being more dangerous or less dangerous than another.” (City’s App. Vol. II, p. 89). In fact, Kaler had ridden a “fairly sophisticated” trail before which had a “four or five foot drop.” (City’s App. Vol. II, pp. 95, 96). While riding a mountain bike, Kaler was “never  a casual rider. [He] always enjoyed the obstacles[.]” (City’s App. Vol. II, p. 100). He “expected to get in a wreck at least every other time [he] rode, and [he] would routinely fall off the bike over obstacles.” (City’s App. Vol. II, p. 95). “[I]t was just a general consequence of the sport.” (City’s App. Vol. II, [**4] p. 95).
P6 On July 9, 2011, Kaler and his girlfriend took their first trip on the trail. The mountain bike trail is shaped as a “figure 8,” with an approximate length of 6 miles. (City’s App. Vol. II, p. 92). When he first approached the berm, Kaler “took the low grade” on the feature. (City’s App. Vol. II, p. 95). As he approached the end of the turn, Kaler could see “there was a drop” so he “pull[ed] up on the fork and [did] a little bunny hop[.]” (City’s App. Vol II, pp. 102, 101). On their second trip around the course, Kaler’s girlfriend decided to take a shorter loop back to the trailhead. She was not as “adventurous” as Kaler and was concerned about getting back to the trailhead before dusk. (City’s App. Vol II, p. 92). Despite the approaching darkness, Kaler “wanted to ride the higher grade because [he] knew it was more challenging.” (City’s App. Vol. II, p. 101). He reached the berm again around 9:30 p.m. Feeling “capable of riding that high line,” Kaler sped up and rode the berm “as high as [he] could possibly ride it with [his] skill set.” (City’s App. Vol. II, p. 101). As he was near the end of the berm’s high grade, he “just saw [him]self lose control  and just knew he was dropping.” [**5] (City’s App. Vol. II, p. 101). Kaler “didn’t see the drop, [nor] was he aware of the drop” at the end of the high grade turn, instead he “thought it tapered off.” (City’s App. Vol. II, p. 104). Due to the fall, Kaler sustained lacerations to his spleen and kidney. After calling his mother and girlfriend to inform them that he had crashed, he rode his bicycle back to the trail head. That evening, Kaler and his girlfriend went out for dinner.
P7 Around 1:30 a.m. on the following morning, Kaler went to the hospital where he was diagnosed with lacerations to his spleen and kidney. On discharge, Kaler was offered physical therapy but refused it because he “didn’t feel it was necessary.” (City’s App. Vol. II, p. 99). Kaler’s recovery did not last long and he participated in a 100-mile bicycle ride later that summer.
P8 On September 7, 2012, Kaler filed his Complaint against the City, sounding in premises liability. On August 21, 2015, the City filed its motion for summary judgment. (City’s App. Vol II, p. 46). In turn, Kaler submitted his response to the City’s motion, as well as his designation of evidence. On January 6, 2016, the trial court [*716] conducted a hearing on the City’s motion for summary [**6] judgment. On February 2, 2016, the trial court issued its Order, summarily denying the motion. The trial court certified its Order for interlocutory appeal and the City sought this court’s permission to appeal. We granted the request and accepted the interlocutory appeal on May 19, 2016.
P9 Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
P10 Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). “A fact is material if its resolution would affect the outcome of the case, and an issue is genuine if a trier of fact is required to resolve the parties’ differing accounts of the truth . . . , or if the undisputed facts support conflicting reasonable inferences.” Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009).
P11 In reviewing a trial court’s ruling on summary judgment, this court stands in the shoes of the trial court, applying the same standards in deciding whether to affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley, 891 N.E.2d 604, 607 (Ind. Ct. App. 2008), trans. denied. Thus, on appeal, we must determine whether there is a genuine issue of material fact and whether the trial court has correctly applied the law. Id. at 607-08. In doing so, we consider all of [**7] the designated evidence in the light most favorable to the non-moving party. Id. at 608. The party appealing the grant of summary judgment has the burden of persuading this court that the trial court’s ruling was improper. Id. When the defendant is the moving party, the defendant must show that the undisputed facts negate at least one element of the plaintiff’s cause of action or that the defendant has a factually unchallenged affirmative defense that bars the plaintiff’s claim. Id. Accordingly, the grant of summary judgment must be reversed if the record discloses an incorrect application of the law to the facts. Id.
P12 We observe that in the present case, the trial court did not enter findings of fact and conclusions of law in support of its judgment. Special findings are not required in summary judgment proceedings and are not binding on appeal. AutoXchange.com. Inc. v. Dreyer and Reinbold, Inc., 816 N.E.2d 40, 48 (Ind. Ct. App. 2004). However, such findings offer this court valuable insight unto the trial court’s rationale for its review and facilitate appellate review. Id.
II. Premises Liability
P13 In support of its argument that the trial court erred in denying its motion for summary judgment, the City relies on Burrell v. Meads, 569 N.E.2d 637 (Ind. 1991), and Pfenning v. Lineman, 947 N.E.2d 392 (Ind. 2011). In Burrell,4 [*717] Indiana’s seminal case for premises liability, [**8] our supreme court imposed a three-part test to determine a landowner’s liability for harm caused to an invitee5 by a condition of its land. Under the Burrell test, a landowner can be held responsible only if the landowner:
(a) Knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) Should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) Fails to exercise reasonable care to protect them against the danger.
Burrell, 569 N.E.2d at 639-40.
4 We acknowledge that on October 26, 2016, our supreme court redrew the premises liability landscape with its decision in Rogers v. Martin, 63 N.E.3d 316, 321 (Ind. 2016), in which the court issued a new test with respect to the situation where an invitee’s injury occurs not due to a dangerous condition of the land but due to claims involving activities on the land. In Rogers, our supreme court distinguished Burrell as follows:
When a physical injury occurs as a condition of the land, the three elements described in the Restatement (Second) of Torts Section 343 accurately describe the landowner-invitee duty. And because Burrell involved an injury due to a condition on the land, it accordingly framed the landowner-invitee duty broadly.  [W]hile Section 343 limits the scope of the landowner-invitee duty in cases involving injuries due to conditions of the land, injuries could also befall invitees due to activities on a landowner’s premises unrelated to the premises’ condition–and that landowners owe their invites the general duty of reasonable care under those circumstances too.
Rogers, 63 N.E.3d at 322-23. Because Kaler’s injury occurred when riding a mountain bike trail feature, we find the cause more properly analyzed pursuant to Burrell [**9] as it involved a condition of the land.
5 All parties agree that Kaler is an invitee of the City.
P14 On May 18, 2011, our supreme court issued Pfenning v. Lineman, 947 N.E.2d 392 (Ind. 2011), which applied the Burrell test in the realm of premises liability while participating in sports activities. In Pfenning, Cassie Pfenning was injured by a golf ball at a golf outing when she was sixteen years old. Id. at 396. At the time of the incident, Pfenning drove a beverage cart and after making several trips around the golf course “was suddenly struck in the mouth by a golf ball while driving the beverage cart on the cart path approaching the eighteenth hole’s tee pad from its green.” Id. at 397. The ball was a low drive from the sixteenth tee approximately eighty yards away. Id. The golfer’s drive traveled straight for approximately sixty to seventy yards and then severely hooked to the left. Id. The golfer noticed the roof of another cart in the direction of the shot and shouted “fore.” Id. But neither the plaintiff nor her beverage-serving companion heard anyone shout “fore.” Id. After hearing a faint yelp, the golfer ran in the direction of the errant ball and discovered the plaintiff with injuries to her mouth, jaw, and teeth. Id.
P15 Pfenning brought, among others, a premises liability claim against the Elks, the fraternal lodge that owned and [**10] operated the golf course. Id. at 405. Finding that the injury arose from a condition on the premises, the supreme court turned to Burrell in its articulation of the contours of the Elks’ duty. Id. at 406. In applying the Burrell test, the court held that the two first aspects of premises liability were not established by the designated evidence. Id. at 407. First, turning to the second element–the discovery or realization of danger–the court concluded that “for the purpose of our premises liability jurisprudence, the issue here is  whether the Elks objectively should have expected that [Pfenning] would be oblivious to the danger or fail to protect herself from it.” Id. at 406. In applying this principle the court found “no genuine issue of fact to contravene the objectively reasonable expectation by the Elks that persons present on its golf course would realize the risk of being struck with an errant golf ball and take appropriate precautions.” Id. Addressing Burrell‘s first element–unreasonable [*718] risk of harm–the Pfenning court reasoned that “the risk of a person on a golf course being struck by a golf ball does not qualify as the ‘unreasonable risk of harm’ referred to in the first two components of the Burrell three-factor [**11] test.” Id.
P16 Likewise, here, we conclude that the designated evidence does not satisfy the Burrell requirements with respect to the duty component of premises liability. Initially, we find that it was objectively reasonable for the City under the facts of this case to expect Kaler to appreciate the risks of riding the trail and take suitable protections. The trail’s difficulty was advertised as appropriate for beginner through intermediate. Kaler’s own deposition characterized himself as an “experienced” bicyclist, who had ridden “a fairly sophisticated” trail before and who “always enjoyed the obstacles.” (City’s App. Vol. II, pp. 91, 95, 100). He conceded that to “try to get an idea of the technical requirements of the trail,” he would get off his bike, especially if he noticed something “as a danger.” (City’s App. Vol. II, p. 89). He admitted that a fall “was just a general consequence of the sport.” (City’s App. Vol. II, p. 95). Although he had ridden the trail the first time without any problems, when Kaler decided to make a second run, it was getting dark but he was insistent that he “wanted to ride the higher grade because [he] knew it was more challenging.” (City’s App. Vol. [**12] II, p. 101). At no point did Kaler step off his bike and inspect the berm’s high grade prior to riding it in the approaching darkness. Accordingly, pursuant to Kaler’s own statements, the City could objectively and reasonably have expected an experienced bicyclist to realize the risks a beginner to intermediate trail would present and take appropriate precautions.
P17 We also conclude that the designated evidence fails to establish that the City had actual or constructive knowledge of a condition on the trail that involved an unreasonable risk of harm to Kaler. Kaler’s own deposition unequivocally affirms that being involved in a bicycle crash “was just a general consequence of the sport.” (City’s App. Vol. II, p. 95). In fact, Kaler “expected to get in a wreck at least every other time [he] rode, and [he] would routinely fall off the bike over obstacles.” (City’s App. Vol. II, p. 95). As the expectation of a bicycle crash is a risk inherent to riding trails, it cannot serve to establish the sort of unreasonable risk of harm contemplated in the first Burrell element. See Pfenning, 947 N.E.2d at 407.
P18 Finding that the designated evidence conclusively established that two of the elements of the premises liability [**13] test are not satisfied, we conclude that the trial court erred by denying summary judgment to the City. We reverse the trial court’s decision and now find summary judgment for the City.
II. Contributory Negligence
P19 Next, the City maintains that Kaler is foreclosed from any recovery because of his failure to exercise the care a reasonable, prudent mountain biker should have exercised. It should be noted that Kaler brought his claim against the City, a governmental entity, and therefore, his claim falls under the common law defense of contributory negligence, as the Indiana Comparative Fault Act expressly excludes application to governmental entities. See I.C. § 34-51-2-2. Consequently, even a slight degree of negligence on Kaler’s part, if proximately contributing to his claimed damages, will operate as a total bar to his action for damages against the City, even though, as against nongovernmental defendants, any fault of Kaler would only operate to reduce the damages he might obtain.
[*719] P20 A plaintiff is contributorily negligent when the plaintiff’s conduct “falls below the standard to which he should conform for his own protection and safety.” Funston v. School Town of Munster, 849 N.E.2d 595, 598 (Ind. 2006). Lack of reasonable care that an ordinary person would [**14] exercise in like or similar circumstances is the factor upon which the presence or absence of negligence depends. Id. Expressed another way, “[c]ontributory negligence is the failure of a person to exercise for his own safety that degree of care and caution which an ordinary, reasonable, and prudent person in a similar situation would exercise.” Id. at 599. Contributory negligence is generally a question of fact and is not an appropriate matter for summary judgment “if there are conflicting factual inferences.” Id. “However, where the facts are undisputed and only a single inference can reasonably be drawn therefrom, the question of contributory negligence becomes one of law.” Id.
P21 In Funston, the plaintiff sued the school after incurring injuries caused by a fall when he leaned backwards while sitting on the top row of a set of bleachers. Id. at 599. Funston had been at the gym for about four hours, watching two basketball games while sitting on lower rows on other sets of identical bleachers. Id. For the third game, he moved to the top row of one of the bleachers. Id. It was clearly visible that there was no back railing for spectators sitting on the top row, but Funston leaned back anyway because he “thought there [**15] was something back there[.]” Id. Our supreme court concluded that Funston was contributorily negligent as a matter of law, finding that:
It certainly is understandable that [Funston] would be distracted as he engaged his attention on his son’s basketball game. But being understandable does not equate with being completely free of all negligence.
Id. at 600.
P22 In his deposition, Kaler affirmed that in trying to build a skill, it would not be unusual for him “to get off [his] bike and look at the  obstacles.” (City’s App. Vol. II, p. 89). He also acknowledged that he knew the berm’s high grade would be challenging because he had just started riding high berms and had never ridden a berm as steep as the one at Town Run. As he approached the end of the turn during his first ride on the berm, Kaler could see “there was a drop[.]” (City’s App. Vol. II, p. 103). After a successful first run on the berm’s low grade, Kaler decided to ride the feature again. Despite the approaching darkness, he planned to ride the berm’s high grade as high as he possibly could because it would be “really cool to ride it and get that speed[.]” (City’s App. Vol. II, p. 101). Notwithstanding the coolness factor, Kaler conceded [**16] that riding obstacles posed a risk of bodily injury as crashes were a general consequence of the sport. Typically, to get an idea of the technical requirements of a trail, the biker “would get off his bike.” (City’s App. Vol. II, p. 89).
P23 Based on the designated evidence, we cannot conclude that Kaler was “completely free of all negligence.” See id. Kaler knew and understood the precautions a reasonably prudent mountain biker should take–inspect the feature prior to riding it–but chose not to follow them. There is no evidence that the jump from the high grade was obscured from view and Kaler conceded that he could have anticipated the drop from the high grade had he taken the precaution a reasonable bicyclist riding an unfamiliar trail would take. Accordingly, we find Kaler contributorily negligent.
P24 Based on the foregoing, we hold that there is no genuine issue of material fact that precludes the entry of summary judgment in the City’s favor on Kaler’s claim of premises liability; and Kaler was contributorily negligent when riding the City’s mountain bike trail at Town Run.
P26 Crone, J. and Altice, J. concur
Gyl Cole, et al., Plaintiffs, v. Camelback Mountain Ski Resort, et al., Defendants.
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
2017 U.S. Dist. LEXIS 100183
June 28, 2017, Decided
June 28, 2017, Filed
CORE TERMS: skiing, advertisement, omission, ski resort, consumer, immunity, consumer fraud, presumed to know, residents, quotation marks omitted, downhill, common law, cause of action, factual allegations, assumption of risk, unlawful practice, sport, business practice, ascertainable loss, material fact, merchandise, concealment, advertised, cognizable, actionable, misleading, snow, Skier’s Responsibility Act, tort liability, reasonable inference
COUNSEL: [*1] For GYL COLE, RONALD COLE, her husband, Plaintiffs: EDWARD F. BEZDECKI, LEAD ATTORNEY, TOMS RIVER, NJ.
For CAMELBACK MOUNTAIN SKI RESORT, Defendant: Samuel J. McNulty, LEAD ATTORNEY, Hueston, McNulty, PC, Florham Park, NJ.
JUDGES: Robert D. Mariani, United States District Judge.
OPINION BY: Robert D. Mariani
This matter presents the following question to the Court: Does a plaintiff state a cause of action for violation of the New Jersey Consumer Fraud Act when he or she alleges that a Pennsylvania ski resort advertised its business in New Jersey but failed to include any information in its advertisements regarding the protections from tort liability the business enjoyed under Pennsylvania law? For the reasons that follow, the Court finds that such a claim is not cognizable under the New Jersey Consumer Fraud Act.
I. Introduction and Procedural History
The above captioned matter was first removed from the Superior Court of New Jersey, (Doc. 1), and then transferred by the District Court for the District of New Jersey to this Court, (Docs. 10). Plaintiffs, Gyl and Ronald Cole, represented by counsel, bring a two count Complaint against Camelback Mountain Ski Resort (“Camelback”), and two John [*2] Doe maintenance companies, (Doc. 1-1), concerning injuries that Gyl Cole sustained while skiing at Defendant Camelback’s skiing facility. Plaintiffs, both residents of New Jersey, allege that Defendants are liable both for negligence (Count I), and for violation of the New Jersey Consumer Fraud Act, N.J. Stat. Ann. § 56:8-2, (Count II). Defendant Camelback now moves to dismiss Count II of Plaintiffs’ Complaint. (Doc. 20).
II. Factual Allegations
Plaintiffs’ Complaint alleges the following facts:
Plaintiffs, Gyl and Ronald Cole, are husband and wife and reside in Waretown, New Jersey. (Doc. 1-1). Camelback is a snow skiing resort facility located in Pennsylvania. (Id. at 14). According to Plaintiffs’ Complaint, Camelback advertises its business heavily in New Jersey through a variety of forms of media. (Id.). Camelback’s advertisements, however, contain no information that, under Pennsylvania law, skiing facilities enjoy “immunity” from liability for the injuries patrons sustain while skiing. (Id.). On March 15, 2014, presumably after viewing one of Camelback’s advertisements, Gyl and Ronald Cole went skiing at Camelback’s skiing facility. (Id. at ¶¶ 1 , 3-4). While skiing on one of the black diamond slopes, Gyl Cole [*3] slammed into a six inch metal pipe and sustained severe injuries. (Id. at ¶ 3).
III. Standard of Review
A complaint must be dismissed under Federal Rule of Civil Procedure 12(b)(6) if it does not allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009).
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of a cause of action’s elements will not do.” Twombly, 550 U.S. at 555 (internal citations and alterations omitted). In other words, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. A court “take[s] as true all the factual allegations in the Complaint and the reasonable inferences that can be drawn from those facts, but . . . disregard[s] legal conclusions and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Ethypharm S.A. France v. Abbott Laboratories, 707 F.3d 223, 231 n.14 (3d Cir. 2013) (internal citations and quotation marks omitted).
Twombly and Iqbal [*4] require [a court] to take the following three steps to determine the sufficiency of a complaint: First, the court must take note of the elements a plaintiff must plead to state a claim. Second, the court should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Finally, where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.
Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013).
“[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged–but it has not show[n]–that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679, 129 S. Ct. at 1950 (internal citations and quotation marks omitted). This “plausibility” determination will be a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id.
Count II of Plaintiffs’ Complaint alleges a violation of the New Jersey Consumer Fraud Act (“NJCFA”). (Doc. 1-1 at ¶¶ 13-22). The NJCFA was enacted to address “sharp practices and dealings in the marketing of merchandise1 and real estate whereby the consumer could be victimized by being lured [*5] into a purchase through fraudulent, deceptive or other similar kind of selling or advertising practices.” Daaleman v. Elizabethtown Gas Co., 77 N.J. 267, 390 A.2d 566, 569 (N.J. 1978). “The Act creates a private cause of action, but only for victims of consumer fraud who have suffered an ascertainable loss.” Weinberg v. Sprint Corp., 173 N.J. 233, 801 A.2d 281, 291 (N.J. 2002).
1 Under the NJCFA, the term “merchandise” is broadly defined to “include any objects, wares, goods, commodities, services or anything offered, directly or indirectly to the public for sale.” N.J. Stat. Ann. § 56:8-1
“A consumer who can prove (1) an unlawful practice, (2) an ascertainable loss, and (3) a causal relationship between the unlawful conduct and the ascertainable loss, is entitled to legal and/or equitable relief, treble damages, and reasonable attorneys’ fees.” Gonzalez v. Wilshire Credit Corp., 207 N.J. 557, 25 A.3d 1103, 1115 (N.J. 2011) (quotation marks omitted).
Unlawful practices include
[t]he act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate . . .
N.J. Stat. Ann. § 56:8-2. The New Jersey Supreme Court has specified that “[u]nlawful practices fall into three general categories: affirmative acts, knowing omissions, and regulation violations.” Cox v. Sears Roebuck & Co., 138 N.J. 2, 647 A.2d 454, 462 (N.J. 1994).
In the case at hand, Plaintiffs assert that the unlawful practice that Defendant Camelback allegedly engaged [*6] in was a failure to inform, i.e., an omission. (Doc. 1-1 at ¶ 14; Doc. 29 at 4). Under the NJCFA, an omission is actionable “where the defendant (1) knowingly concealed (2) a material fact (3) with the intention that the consumer rely upon the concealment.” Arcand v. Brother Int’l Corp., 673 F. Supp. 2d 282, 297 (D.N.J. 2009). “Implicit in the showing of an omission is the underlying duty on the part of the defendant to disclose what he concealed to induce the purchase.” Id.
Plaintiffs’ Complaint alleges that Defendant Camelback failed to include any information in its advertisements with respect to the protections from tort liability it enjoyed under Pennsylvania law. Specifically, Plaintiffs’ Complaint alleges the following:
Camelback knew that their [sic] advertising heavily in New Jersey induced New Jersey residents to attend Camelbacks [sic] site in Pennsylvania. Camelback knew that it had immunity granted to it through the legislation passed by the Pennsylvania Legislature but at no time did Camelback ever tell New Jersey residences [sic] that if they utilize the services of Camelback that they would be subject to the immunity clause granted to Camelback. Knowing full well that they [sic] had this immunity, Camelback elected not to notify any of [*7] the invitees to their [sic] site about the immunity.
(Doc. 1-1 at ¶ 14).2 Defendant Camelback argues that this is insufficient to state a claim under NJCFA. (Doc. 22 at 7). Plaintiffs respond that they have adequately pleaded that “Camelback knew and should have advised the skiing public [through its advertisements] . . . that if they utilize the services of Camelback that they would be subject to the immunity clause granted to Camelback by the Pennsylvania Legislature.” (Doc. 29 at 4).
2 Additionally, and somewhat confusingly, the Complaint also alleges that “Camelback misrepresented to the New Jersey residents at large through its media blitz that the New Jersey residences [sic] can use Camelback facilities for snow skiing.” (Doc. 1-1 at ¶ 17). This singular statement is in stark contrast with the rest of the Complaint which alleges that Plaintiffs, both residents of New Jersey, did in fact engage in snow skiing at Camelback.
The inaptly described “immunity clause” Plaintiffs refer to is no doubt the Pennsylvania Skier’s Responsibility Act, 42 Pa. C.S. § 7102(c). The Act states:
(c) Downhill skiing.–
(1) The General Assembly finds that the sport of downhill skiing is practiced by a large number of citizens of this Commonwealth and also attracts to this Commonwealth large numbers of nonresidents significantly contributing to the economy of this Commonwealth, It is recognized that as in some other sports, there are inherent risks in the sport of downhill skiing.
(2) The doctrine of voluntary assumption of risk as it applies to downhill skiing injuries and damages is not modified by [42 Pa. C.S. § 7102(a)-(a.1)]
42 Pa. C.S. § 7102, The Pennsylvania Supreme Court has made clear that “the Act did [*8] not create a new or special defense for the exclusive use of ski resorts, but instead kept in place longstanding principles of common law.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1186 (Pa. 2010). The common law in which the Act preserves, the doctrine of voluntary assumption of risk, “has also been described as a ‘no-duty’ rule, i.e., as the principle that an owner or operator of a place of amusement has no duty to protect the user from any hazards inherent in the activity.” Id. In Pennsylvania, “this ‘no-duty’ rule applies to the operators of ski resorts, so that ski resorts have no duty to protect skiers from risks that are ‘common, frequent, and expected,’ and thus ‘inherent’ to the sport of downhill skiing.” Id.
Thus, the Court arrives at the question of whether Plaintiffs’ state a claim under the NJCFA when they allege that Defendant Camelback advertised its Pennsylvania skiing facility to New Jersey residents but failed to include a disclaimer with respect to the Pennsylvania Skier’s Responsibility Act or the common law doctrine of voluntary assumption of risk. As this is a question of New Jersey state law, this Court must turn to the decisions of that state’s courts for an answer. U.S. Underwriters Ins. Co. v. Liberty Mut. Ins. Co., 80 F.3d 90, 93 (3d Cir. 1996). The parties have not directed the Court to any [*9] New Jersey case–and the Court’s own research did not uncover any–that squarely addresses this issue. Nor have New Jersey courts apparently addressed the analogous issue of whether, under the NJCFA, advertisers are ever obliged to educate the public on the law applicable to their product absent other specific authority requiring such disclosures. Accordingly, it falls to this Court to predict how the highest tribunal in New Jersey would rule on the matter. Id. For the following reasons, this Court predicts that the New Jersey Supreme Court would find that such a claim is not cognizable under the NJCFA.
First, this is simply not the type of omission contemplated by the NJCFA. The Court is cognizant of the fact the NJCFA “is intended to be applied broadly in order to accomplish its remedial purpose, namely, to root out consumer fraud, and therefore to be liberally construed in favor of the consumer.” Gonzalez, 25 A.3d at 1115 (internal citations and quotation marks omitted). Additionally, the Court is aware that “[t]he statutory and regulatory scheme is . . . designed to promote the disclosure of relevant information to enable the consumer to make intelligent decisions in the selection of products and services.” Div. of Consumer Affairs v. Gen. Elec. Co., 244 N.J. Super. 349, 582 A.2d 831, 833 (N.J. Super. Ct. App. Div. 1990). [*10] Nevertheless, the NJCFA has limits. To qualify as an unlawful practice under the NJCFA, “[t]he practice must be misleading and outside the norm of a reasonable business practice.” Hughes v. TD Bank, N.A., 856 F. Supp. 2d 673, 680 (D.N.J. 2012); see also Miller v. Bank of Am. Home Loan Servicing, L.P., 439 N.J. Super. 540, 110 A.3d 137, 144 (N.J. Super. Ct. App. Div. 2015). Indeed, the “advertisement must have ‘the capacity to mislead the average consumer in order for it to be actionable. Adamson v. Ortho-McNeil Pharm., Inc., 463 F. Supp. 2d 496, 501 (D.N.J. 2006) (quoting Union Ink Co., Inc. v. AT&T Corp., 352 N.J. Super. 617, 801 A.2d 361, 379 (N.J. Super. Ct. App. Div. 2002)). Finally, the omission must concern a material fact. Arcand, 673 F. Supp. 2d at 297. The alleged omission in this case, however, is not one of fact, is not misleading, and does not fall outside the norm of reasonable business practices.
Plaintiffs’ allege that Defendant Camelback failed to provide information in its advertisements concerning the Pennsylvania Skier’s Responsibility Act and the common law doctrine of voluntary assumption of risk. Initially, as omissions of law, these allegations fall outside of the statutory language of the NJCFA. Additionally, the type or nature of legal defenses to liability which a business may assert in the event of a lawsuit is not information normally included in an advertisement, as both parties have equal access to that information. Consequently, Defendant Camelback’s alleged failure to include such information does not imply its nonexistence and is therefore not [*11] misleading nor outside of the norm of a reasonable business practice. As such, omissions of this type are not actionable under the NJCFA.
Second, a finding that Plaintiffs’ claim was cognizable under the NJCFA would run counter to a well-known legal maxim: “[a]ll citizens are presumptively charged with knowledge of the law.” Atkins v. Parker, 472 U.S. 115, 130, 105 S. Ct. 2520, 86 L. Ed. 2d 81 (1985); see also Gilmore v. Taylor, 508 U.S. 333, 360, 113 S. Ct. 2112, 124 L. Ed. 2d 306 (1993) (“[A] citizen . . . is presumed to know the law . . . .”); Anela v. City of Wildwood, 790 F.2d 1063, 1067 (3d Cir. 1986) (“Private citizens are presumed to know the law . . . .”); State v. Moran, 202 N.J. 311, 997 A.2d 210, 216 (N.J. 2010) (“Every person is presumed to know the law.”); Maeker v. Ross, 219 N.J. 565, 99 A.3d 795, 802 (N.J. 2014) (“[E]veryone is presumed to know the law . . . .”); Widmer v. Mahwah Twp., 151 N.J. Super. 79, 376 A.2d 567, 569 (N.J. Super. Ct. App. Div. 1977) (“[T]he principle is well established that every person is conclusively presumed to know the law, statutory and otherwise.”); cf. Commonwealth v. McBryde, 2006 PA Super 289, 909 A.2d 835, 838 (Pa. Super. Ct. 2006) (“[E]veryone is presumed to know the law; an out-of-state driver is not absolved from following the laws of this Commonwealth or any other state in which he or she chooses to drive.”). Thus, as a matter of law, Defendant Camelback’s advertisement did not have the capacity to mislead because the law presumes that Plaintiffs–and everyone else for that matter–already knew the information Defendant Camelback allegedly omitted. Stated otherwise, the law should not obligate Defendant Camelback to inform its prospective customers of what they [*12] already know.3
3 The Court, however, may have come to a different conclusion had Plaintiffs alleged that Defendant Camelback made an affirmative misrepresentation of the law in its advertisements. Nevertheless, such a situation is not presently before this Court.
Finally, if this Court were to come to the opposite conclusion, businesses would have almost unending liability. For example, a Pennsylvania retailor may be liable under the NJCFA if it advertised its clothing outlet to New Jersey residents but failed to include a disclaimer stating that a customer injured at the store by an employee’s negligence may have his or her recovery reduced if the shopper was also negligent. See 42 Pa. C.S. § 7102(a) (“[A]ny damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff.”). Or a marketer of a curling iron may be liable under the NJCFA for failing to disclose to consumers that, even if they are injured due to a design flaw in the product, the users may not be able to recover for their injuries if “there was no reasonable alternative design” for the curling iron at the time of manufacturing. See Cavanaugh v. Skil Corp., 164 N.J. 1, 751 A.2d 518, 520 (N.J. 2000) (quotation marks omitted); see also N.J. Stat. Ann. § 2A:58C-3(a)(1). Indeed, the number of relevant legal concept that a business “omitted” from its advertisement would only be limited by the creativity and imagination of the lawyers involved.
For the reasons outlined above, this Court will grant Defendant Camelback Mountain [*13] Ski Resort’s Motion to Dismiss Plaintiffs’ claim for violation of the New Jersey Consumer Fraud Act, (Doc. 20). A separate Order follows.
/s/ Robert D. Mariani
Robert D. Mariani
United States District Judge
AND NOW. THIS 29th DAY OF JUNE, 2017, upon consideration of Defendant Camelback Mountain Ski Resort’s partial Motion to Dismiss, (Doc.20), IT IS HEREBY ORDERED THAT the Motion is GRANTED. Count II of Plaintiffs’ Complaint, (Doc. 1-1), is DISMISSED WITH PREJUDICE.
/s/ Robert D. Mariani
Robert D. Mariani
United States District Court Judge
Erika Grotheer, Plaintiff and Appellant, v. Escape Adventures, Inc., et al., Defendants and Respondents.
Court of Appeal of California, Fourth Appellate District, Division Two
14 Cal. App. 5th 1283; 2017 Cal. App. LEXIS 764
August 31, 2017, Opinion Filed
PRIOR HISTORY: [**1] APPEAL from the Superior Court of Riverside County, No. RIC1216581, John W. Vineyard, Judge.
COUNSEL: The Law Office of Robert J. Pecora and Robert J. Pecora for Plaintiff and Appellant.
Agajanian, McFall, Weiss, Tetreault & Crist and Paul L. Tetreault for Defendants and Respondents.
JUDGES: Opinion by Slough, J., with Ramirez, P. J., and Codrington, J., concurring.
OPINION BY: Slough, J.
SLOUGH, J.–Plaintiff and appellant Erika Grotheer is a non-English speaking German citizen who took a hot air balloon ride in the Temecula [*1288] wine country and suffered a fractured leg when the basket carrying her and seven or eight others crash-landed into a fence. Grotheer sued three defendants for her injuries: the balloon tour company, Escape Adventures, Inc. (Escape), the pilot and Escape’s agent, Peter Gallagher (Gallagher), and Wilson Creek Vineyards, Inc. (Wilson Creek) (collectively, defendants or respondents). Grotheer alleged Escape and Gallagher negligently or recklessly operated the balloon by (1) failing to properly slow its descent during landing and (2) failing to give the passengers safe landing instructions before the launch. Grotheer alleged the hot air balloon company is a common carrier, and as such, owed [**2] its passengers a heightened duty of care. (Civ. Code, § 2100.) Grotheer also alleged Wilson Creek was vicariously liable for Escape and Gallagher’s conduct because the vineyard shared a special relationship with the balloon company.
Defendants moved for summary judgment, arguing Grotheer could not satisfy the elements of a negligence claim and, even if she could, she had waived the right to assert such a claim by signing Escape’s liability waiver before the flight. The trial court agreed Grotheer could not establish the element of duty, finding Grotheer had assumed the risk of her injury under the primary assumption of risk doctrine and, as a result, Escape and Gallagher owed her no duty of care whatsoever. (Knight v. Jewett (1992) 3 Cal.4th 296 [11 Cal. Rptr. 2d 2, 834 P.2d 696] (Knight).) The trial court entered judgment in favor of defendants, and Grotheer appealed.
Grotheer contends the trial court erred in concluding her claim was barred by primary assumption of risk and reasserts on appeal that Escape is a common carrier. We affirm the judgment, but on a different ground than relied on by the trial court. We hold: (1) a balloon tour company like Escape is not a common carrier subject to a heightened duty of care; (2) the primary assumption of risk doctrine bars [**3] Grotheer’s claim that Gallagher negligently failed to slow the balloon’s descent to avoid a crash landing; and (3) Escape does have a duty to provide safe landing instructions to its passengers, but the undisputed evidence regarding the crash demonstrates that any failure on Escape’s part to provide such instructions was not the cause of Grotheer’s injury.
Grotheer’s son, Thorsten, purchased his mother a ticket for a hot air balloon tour with Escape during her visit to California, as a present for her [*1289] 78th birthday. On the morning of the tour, Grotheer and Thorsten met with the Escape crew and the other passengers in the parking lot of the vineyard owned by Wilson Creek, near the field where Escape launched its balloons. Thorsten later testified at his deposition that when they arrived to check in, he tried to explain his mother’s language barrier to the flight crew so Escape could ensure she understood any safety instructions. Thorsten said Gallagher, the pilot, responded by waving him away and saying, “Everything is going to be fine.” Thorsten tried telling two more Escape employees his mother could not understand English, but they appeared to be in [**4] a rush and told him he could not be in the immediate launch vicinity if he had not purchased a ticket. At some point during this check-in activity, Grotheer signed Escape’s liability waiver, which purported to release the company and its agents from claims based on “ordinary negligence.”
Gallagher then drove the passengers to the nearby launchsite. Grotheer drove over separately, with Thorsten. In his declaration, Gallagher said he gave the passengers safety instructions during the drive, as is his custom. He said the instructions covered what to do during landing: “I described to my passengers what to expect in terms of lifting off … and landing … I told them to bend their knees and hold on upon landing, and not to exit the basket until told to do so.”
According to passengers Boyd and Kristi Roberts, however, neither Escape nor Gallagher provided safety instructions. Boyd declared he sat in the front passenger seat next to Gallagher during the drive, which lasted a little over a minute and during which Gallagher described his credentials and years of experience. Boyd remembered receiving “a very general informational talk … about what to expect on [the] flight,” but said [**5] “[t]here was no mention of safety issues or proper techniques for take-off and landing.” Boyd’s wife, Kristi, also rode to the launchsite with Gallagher and said she never heard him give instructions, “other than to hold on as we took off.”
B. The Crash
The tour proceeded without incident until the landing. According to the four accounts in the record, as the balloon descended at a high rate of speed, the basket crashed into a fence then crashed into the ground and bounced and skidded for about 40 yards before finally coming to a stop, on its side. By all accounts, the event was forceful and caused the passengers to be tossed about the basket.
Boyd Roberts described the crash landing as follows: “The balloon was being pushed at a good clip by the wind and we were travelling in a horizontal direction as we were also descending. We were going sideways, [*1290] and … [b]efore we landed, we actually crashed into and took out several sections of [a] 3 rail fence.” After the basket collided with the fence, it hit the ground “with a hard bump and a bounce.” The passengers were “taken for a wild ride as [the basket] was getting dragged downwind [by the balloon].” The basket “became more and more horizontal” as [**6] it was being dragged. “We easily skipped 30 or 40 yards, with a couple of hard impacts along the way.” When the basket finally came to rest, it was “on its side, not its bottom,” with Grotheer’s section on the bottom and Boyd’s on top. He recalled that Grotheer was below him “lying on what was the side of the [basket] which was now the floor.”
Kristi Roberts’s account of the crash landing matches Boyd’s. She said, “we were going pretty fast towards the ground and it looked like we might hit the fence. We did hit the fence, as the [basket] crashed in the top of the three rails, and knocked it right apart.” After that, the basket “hit the ground hard.” Kristi recalled, “I was holding on as tight as I could to the [b]asket, but we were all standing up and it was hard to keep from falling over when we crashed into the ground.”
Gallagher described the landing similarly, though not in as much detail. He said the balloon had been “descending more quickly than anticipated” and the “passenger compartment of the balloon made a hard landing, first on a fence, then on the ground.” He believed the balloon’s descent had been hastened by a “false lift,” which he described as a condition where the wind travels [**7] faster over the top of the balloon than the rest of the balloon. The faster wind creates lift, but when the wind slows the aircraft can quickly lose altitude unless the pilot adds more heat to the balloon’s envelope. In his declaration, Gallagher said he “applied as much heat as possible to the envelope to add buoyancy,” but the additional heat was not sufficient to arrest the descent before the balloon hit the fence.
In her deposition, Grotheer said the balloon basket experienced two forceful impacts, first with the fence, then with the ground. She recalled she had been holding on to the metal rod in the basket when it hit the fence, but despite holding on, she was “still sliding.” She believed her leg broke upon the second impact–when the balloon hit the ground after the collision with the fence. She described her injury as follows: “The people in the balloon, they were all holding. It was hard. It hit the ground hard. And one woman just came like this (indicating).” Grotheer added, “[a]nd the lady is innocent because even her, she was pushed. She was pushed around by the other people in the basket.” Grotheer did not think anyone collided with her after that initial impact with the ground. [**8] She explained, “I just got myself real quick together. [The injury] was just at the beginning.” [*1291]
James Kitchel, Grotheer’s expert who has piloted balloons for over 25 years, concluded the cause of the crash landing was Gallagher’s “failure to maintain safe control over the ‘delta’ temperature[,] anticipate changing pressure differentials[,] and counterbalance the effects on the rate of descent.” He disagreed with Gallagher’s false lift theory, opining instead the balloon had likely simply experienced a wind shear. He believed all Gallagher had to do “to avoid this crash entirely” was add “sufficient heat” to the envelope “before the Balloon was already about to crash.”
Kitchel explained that many people perceive ballooning as a gentle, peaceful experience, but in reality, balloon rides “can be violent, high speed events with tragic results.” What makes a balloon a risky conveyance is the pilot’s inability to directly control the balloon’s movement. A pilot can directly control only the balloon’s altitude, which is done by managing the amount of heat added to the balloon’s envelope. The direction and speed of the wind determines lateral movement. Kitchel stated, “There is no way of steering [**9] a Balloon, such as by having a rudder. … [A] Balloon pilot never truly knows where the Balloon is going to land. He is at the mercy of the wind speed and direction.”
Kitchel also opined that the industry standard of care requires a commercial balloon operator to give “at the very least, one detailed safety presentation.” According to Kitchel, the Federal Aviation Administration’s Balloon Flying Handbook (FAA Handbook) suggests the following safety instructions to prepare passengers for a “firm impact” upon landing: (1) “Stand in the appropriate area of the basket”; (2) “Face the direction of travel”; (3) “Place feet and knees together, with knees bent”; (4) “‘Hold on tight’ in two places”; and (5) “Stay in the basket.” Kitchel did not believe any one particular set of instructions was required and he described the FAA Handbook’s safe landing procedures as a “good minimum standard.”
C. The Complaint
Grotheer’s complaint against defendants alleged she was injured when the balloon “crash land[ed] into a fence located on WILSON CREEK property.” She alleged her injury was a result of negligent piloting and failure to provide safety instructions. She also alleged Escape is a common carrier and [**10] has a duty to ensure the safety of its passengers.
D. The Summary Judgment Motion
Defendants filed a motion for summary judgment, arguing Grotheer’s negligence claim failed as a matter of law because she had assumed the risk of her injury under the primary assumption of risk doctrine. Defendants also [*1292] sought summary judgment on their liability waiver affirmative defense, claiming Grotheer had expressly waived her right to assert a negligence claim. In opposition, Grotheer argued: (1) the primary assumption of risk doctrine does not apply to common carriers like Escape; (2) the doctrine did not relieve Escape and Gallagher of a duty to avoid the crash landing and to provide safety instructions; and (3) the liability waiver was invalid because Escape knew she did not speak English and could not understand it. Grotheer also argued Wilson Creek was vicariously liable for Escape’s breach because the two companies were in a “symbiotic business relationship.”
After a hearing, the court concluded it was undisputed hot air ballooning is a risky activity that can involve crash landings, Grotheer assumed the risk of injury from a crash landing by voluntarily riding in the balloon, and defendants [**11] owed no duty whatsoever to protect her from her injury. The court also concluded Wilson Creek was not vicariously liable for Escape and Gallagher’s conduct. However, the court denied the motion for summary judgment on the liability waiver defense, stating, “there is at least an arguable duress in being separated from her son who was her translator at the time and not understanding the circumstances based on the language. I think that’s a triable issue of fact.” Based on its finding of no duty, the court concluded Grotheer’s negligence claim failed as a matter of law, and it entered judgment in favor of defendants.
A. Standard of Review
[HN1] A trial court properly grants summary judgment when there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) “The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 [107 Cal. Rptr. 2d 841, 24 P.3d 493] (Aguilar).)
[HN2] A defendant who moves for summary judgment bears the initial burden to show the action has no merit–that is, “one or more elements of the [**12] cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to [that] cause of action.” (Code Civ. Proc., § 437c, subds. (a), (p)(2).) Once the defendant meets this initial burden of production, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of [*1293] material fact. (Aguilar, supra, 25 Cal.4th at pp. 850-851.) “From commencement to conclusion, the moving party defendant bears the burden of persuasion that there is no triable issue of material fact and that the defendant is entitled to judgment as a matter of law.” (Laabs v. Southern California Edison Co. (2009) 175 Cal.App.4th 1260, 1268-1269 [97 Cal. Rptr. 3d 241].) [HN3] We review the trial court’s ruling on a summary judgment motion de novo, liberally construing the evidence in favor of the party opposing the motion and resolving all doubts about the evidence in favor of the opponent. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460 [30 Cal. Rptr. 3d 797, 115 P.3d 77].) We consider all of the evidence the parties offered in connection with the motion, except that which the court properly excluded.1 (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476 [110 Cal. Rptr. 2d 370, 28 P.3d 116].)
1 Without supporting argument, Grotheer claims the trial court abused its discretion in refusing to consider her objections to defendants’ evidence, and her responses to defendants’ objections to her evidence, on the ground they were untimely filed on the day of the hearing. We will not consider this claim, however, because Grotheer has not explained why any of her objections or responses had merit, or how she was prejudiced by the court’s failure to consider them. (City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 287 [149 Cal. Rptr. 3d 491] [“we may disregard conclusory arguments that … fail to disclose [appellant’s] reasoning”].)
B. Escape Is Not a Common Carrier and Did Not Owe Grotheer a Heightened Duty To Ensure Her Safe Carriage
Grotheer claims Escape is a common carrier and therefore owed its passengers a heightened duty of care to ensure their safe carriage during the balloon tour. We conclude a hot air balloon operator like Escape is not a common [**13] carrier as a matter of law.
[HN4] (1) In general, every person owes a duty to exercise “reasonable care for the safety of others,” however, California law imposes a heightened duty of care on operators of transportation who qualify as “common carriers” to be as diligent as possible to protect the safety of their passengers. (See Civ. Code, §§ 1714, subd. (a), 2100, 2168.) “A carrier of persons for reward must use the utmost care and diligence for their safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill.” (Civ. Code, § 2100.) Contrary to Escape’s contention, it is necessary to resolve whether Escape is a common carrier because the heightened duty of care in Civil Code section 2100 precludes the application of the primary assumption of risk doctrine. (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1161 [150 Cal. Rptr. 3d 551, 290 P.3d 1158] (Nalwa).) [*1294]
Whether a hot air balloon operator is a common carrier is an issue of first impression in California.2 It is also a question of law, as the material facts regarding Escape’s operations are not in dispute.3 (Huang v. The Bicycle Casino, Inc. (2016) 4 Cal.App.5th 329, 339 [208 Cal. Rptr. 3d 591] (Huang).)
2 The only published case addressing the issue is Balloons Over the Rainbow, Inc. v. Director of Revenue (Mo. 2014) 427 S.W.3d 815, where a hot air balloon operator argued it was a common carrier under Missouri law for tax purposes. The Supreme Court of Missouri upheld the administrative hearing commissioner’s determination the operator was not a common carrier because it exercised discretion regarding which passengers to fly and therefore did not “carry all people indifferently,” as the statutory definition required. (Id. at pp. 825-827.)
3 Escape claims it stipulated to being a common carrier in its motion for summary judgment. Actually, Escape stated was it was not “controvert[ing] at [that] time the assertion that it is a common carrier.” But even if it had so stipulated, [HN5] we are not bound by agreements that amount to conclusions of law. (E.g., People v. Singh (1932) 121 Cal.App. 107, 111 [8 P.2d 898].)
[HN6] (2) A common carrier of persons is anyone “who offers to the public to carry persons.” (Civ. Code, § 2168.) The Civil Code treats common carriers differently depending on whether they act gratuitously or for reward. (Gomez v. Superior Court (2005) 35 Cal.4th 1125, 1130 [29 Cal. Rptr. 3d 352, 113 P.3d 41] (Gomez).) “A carrier of persons without [**14] reward must use ordinary care and diligence for their safe carriage.” (Civ. Code, § 2096.) But “[c]arriers of persons for reward have long been subject to a heightened duty of care.” (Gomez, at p. 1128.) Such carriers “must use the utmost care and diligence for [passengers’] safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill.” (Civ. Code, § 2100; accord, Gomez, at p. 1130.) While common carriers are not insurers of their passengers’ safety, they are required “‘to do all that human care, vigilance, and foresight reasonably can do under the circumstances.'” (Squaw Valley Ski Corp. v. Superior Court (1992) 2 Cal.App.4th 1499, 1507 [3 Cal. Rptr. 2d 897].) This duty originated in English common law and is “based on a recognition that the privilege of serving the public as a common carrier necessarily entails great responsibility, requiring common carriers to exercise a high duty of care towards their customers.” (Ibid.)
Common carrier status emerged in California in the mid-19th century as a narrow concept involving stagecoaches hired purely for transportation. (Gomez, supra, 35 Cal.4th at p. 1131.) Over time, however, the concept expanded to include a wide array of recreational transport like scenic airplane and railway tours, ski lifts, and roller coasters. (Id. at pp. 1131-1136.) This expansion reflects the policy determination [**15] that a passenger’s purpose, be it recreation, thrill-seeking, or simply conveyance from point A to B, should not control whether the operator should bear a higher duty to protect the passenger. (Id. at p. 1136.)
In Gomez, the California Supreme Court concluded roller coasters are common carriers, despite their purely recreational purpose, because they are [*1295] “‘operated in the expectation that thousands of patrons, many of them children, will occupy their seats'” and are “held out to the public to be safe.” (Gomez, supra, 35 Cal.4th at p. 1136.) As with other recreational transportation like ski lifts, airplanes, and trains, “‘the lives and safety of large numbers of human beings'” are entrusted to the roller coaster operator’s “‘diligence and fidelity.'” (Ibid., quoting Treadwell v. Whittier (1889) 80 Cal. 574, 591 [22 P. 266].)
Despite the consistent trend toward broadening the common carrier definition to include recreational vehicles, almost a decade after Gomez the California Supreme Court refused to apply the heightened duty of care to operators of bumper cars, finding them “dissimilar to roller coasters in ways that disqualify their operators as common carriers.” (Nalwa, supra, 55 Cal.4th at p. 1161.) Crucial to the analysis in Nalwa was that bumper car riders “‘exercise independent control over the steering and acceleration,'” [**16] whereas roller coaster riders “‘ha[ve] no control over the elements of thrill of the ride; the amusement park predetermines any ascents, drops, accelerations, decelerations, turns or twists of the ride.'” (Ibid.) This difference in control convinced the court that “[t]he rationale for holding the operator of a roller coaster to the duties of a common carrier for reward–that riders, having delivered themselves into the control of the operator, are owed the highest degree of care for their safety–simply does not apply to bumper car riders’ safety from the risks inherent in bumping.” (Ibid., italics added.)
(3) This precedent teaches that [HN7] the key inquiry in the common carrier analysis is whether passengers expect the transportation to be safe because the operator is reasonably capable of controlling the risk of injury. (Gomez, supra, 35 Cal.4th at p. 1136; Nalwa, supra, 55 Cal.4th at p. 1161.) While a bumper car rider maintains a large degree of control over the car’s speed and direction, a roller coaster rider recognizes the thrills and unpredictability of the ride are manufactured for his amusement by an operator who in reality maintains direct control over the coaster’s speed and direction at all times. (Gomez, at p. 1136.) As our high court explained, the roller coaster rider “expects [**17] to be surprised and perhaps even frightened, but not hurt.” (Ibid.)
It is in this critical regard we find a hot air balloon differs from those recreational vehicles held to a common carrier’s heightened duty of care. Unlike operators of roller coasters, ski lifts, airplanes, and trains, balloon pilots do not maintain direct and precise control over the speed and direction of the balloon. A pilot directly controls only the balloon’s altitude, by monitoring the amount of heat added to the balloon’s envelope. A pilot has no direct control over the balloon’s latitude, which is determined by the wind’s speed and direction. A balloon’s lack of power and steering poses risks of midair collisions and crash landings, making ballooning a risky activity. (See [*1296] Hulsey v. Elsinore Parachute Center (1985) 168 Cal.App.3d 333, 345-346 [214 Cal. Rptr. 194] [hot air ballooning “involve[s] a risk of harm to persons or property” because pilots cannot “direct their paths of travel … [or] land in small, targeted areas”]; Note, Negligence in the [Thin] Air: Understanding the Legal Relationship Between Outfitters and Participants in High Risk Expeditions Through Analysis of the 1996 Mount Everest Tragedy (2008) 40 Conn. L.Rev. 769, 772 [“hot air ballooning” is a “high-risk activity”].) As Kitchel, Grotheer’s expert, [**18] put it, a balloon pilot “is at the mercy of the wind speed and direction.” (See Note, On a Wind and a Prayer (1997) 83 A.B.A. J. 94, 95 [“winds … can transform a wondrous journey into a life-or-death struggle”].)
[HN8] (4) The mere existence of risk is not sufficient to disqualify a vehicle as a common carrier, however. Roller coasters, ski lifts, airplanes, and trains all pose “‘inherent dangers owing to speed or mechanical complexities.'” (Gomez, supra, 35 Cal.4th at p. 1136.) But there is a significant difference between the dangers of riding those conveyances and the dangers involved in ballooning. The former can be virtually eliminated through engineering design and operator skill, whereas the latter cannot be mitigated without altering the fundamental nature of a balloon.
Operators of roller coasters, ski lifts, airplanes, and trains can take steps to make their conveyances safer for passengers without significantly altering the transportation experience. For example, roller coaster operators can invest in state-of-the-art construction materials and control devices or task engineers with designing a ride that provides optimal thrills without sacrificing passenger safety. With a balloon, on the other hand, safety measures and pilot training [**19] go only so far toward mitigating the risk of midair collisions and crash landings. The only way to truly eliminate those risks is by adding power and steering to the balloon, thereby rendering vestigial the very aspect of the aircraft that makes it unique and desirable to passengers.
(5) Because no amount of pilot skill can completely counterbalance a hot air balloon’s limited steerability, ratcheting up the degree of care a tour company must exercise to keep its passengers safe would require significant changes to the aircraft and have a severe negative impact on the ballooning industry. For that reason, we conclude [HN9] Escape is not a common carrier as a matter of law.
C. The Trial Court Incorrectly Determined Escape Owed Grotheer No Duty of Care
Having concluded a hot air balloon company does not owe its passengers a heightened duty of care, we must decide whether Escape owed Grotheer any [*1297] duty of care to protect her from her injury. Grotheer claims Escape and Gallagher had a duty to safely pilot the balloon and to provide safety instructions. Escape contends it owed neither duty under the primary assumption of risk doctrine. We analyze each separately.
1. Balloon piloting and primary assumption [**20] of risk
Grotheer alleges her injury was caused in part by Gallagher’s subpar piloting. Her expert opined the cause of the crash was Gallagher’s failure to control the speed and direction of the balloon’s descent by anticipating changing pressure differentials and maintaining the proper amount of heat in the balloon’s envelope. According to Kitchel, Gallagher could have avoided the crash entirely by “adding sufficient heat … in a timely manner.”
[HN10] (6) “‘Although persons generally owe a duty of due care not to cause an unreasonable risk of harm to others … , some activities … are inherently dangerous,'” such that “‘[i]mposing a duty to mitigate those inherent dangers could alter the nature of the activity or inhibit vigorous participation.'” (Nalwa, supra, 55 Cal.4th at p. 1154, citation omitted.) Primary assumption of risk is a doctrine of limited duty “developed to avoid such a chilling effect.” (Ibid.) If it applies, the operator is not obligated to protect its customers from the “inherent risks” of the activity. (Id. at p. 1162.)
“‘Primary assumption of risk is merely another way of saying no duty of care is owed as to risks inherent in a given sport or activity. The overriding consideration in the application of this principle is to avoid imposing a duty [**21] which might chill vigorous participation in the sport and thereby alter its fundamental nature.'” (Jimenez v. Roseville City School Dist. (2016) 247 Cal.App.4th 594, 601 [202 Cal. Rptr. 3d 536].) “Although the doctrine is often applied as between sports coparticipants, it defines the duty owed as between persons engaged in any activity involving inherent risks.” (Ibid.) The doctrine applies to any activity “done for enjoyment or thrill … [that] involves a challenge containing a potential risk of injury.” (Record v. Reason (1999) 73 Cal.App.4th 472, 482 [86 Cal. Rptr. 2d 547]; see Beninati v. Black Rock City, LLC (2009) 175 Cal.App.4th 650, 658 [96 Cal. Rptr. 3d 105] [by attending Burning Man festival plaintiff assumed risk of being burned during ritual burning of eponymous effigy].)
The test is whether the activity “‘involv[es] an inherent risk of injury to voluntary participants … where the risk cannot be eliminated without altering the fundamental nature of the activity.'” (Nalwa, supra, 55 Cal.4th at p. 1156.) As we concluded above in the section on common carriers, a balloon’s limited steerability creates risks of midair collisions and crash landings. Moreover, those risks cannot be mitigated except by adding power [*1298] and steering, which would fundamentally alter the free-floating nature of a balloon, turning it into a dirigible.4 “‘[T]he excitement of [ballooning] is that you never know exactly where you’re going to land. [¶] … [¶] … It’s taking something that is unsteerable [**22] and trying to steer it. That’s the challenge.'” (Note, On a Wind and a Prayer, supra, 83 A.B.A. J. at pp. 95, 94; cf. Nalwa, supra, 55 Cal.4th at pp. 1157-1158 [refusing to impose liability on bumper car operators for injuries caused in collisions as doing so would have the effect of “‘decreasing the speed'”–and ultimately the fun–of the ride].)
4 The term “dirigible” literally means “steerable.” It comes from the Latin verb dirigere, meaning “to direct,” and refers to lighter-than-air aircraft capable of being steered, like blimps and zeppelins. (Webster’s 3d New Internat. Dict. (1993) p. 642.)
(7) We therefore hold [HN11] the doctrine applies to crash landings caused by the failure to safely steer a hot air balloon. We further hold Grotheer’s claim of pilot error falls under the primary assumption of risk doctrine because the claim goes to the core of what makes balloon landings inherently risky–the challenge of adjusting the balloon’s vertical movement to compensate for the unexpected changes in horizontal movement. As a result, Escape had no legal duty to protect Grotheer from crash landings caused by its pilot’s failure to safely manage the balloon’s descent.
(8) To avoid this outcome, Grotheer alleged Gallagher’s piloting was not only negligent, but grossly negligent, thereby increasing the inherent risk of crash landing. Grotheer is correct [HN12] the primary assumption of risk does not eliminate an operator’s duty to refrain from engaging in reckless conduct that “unreasonably increase[s] the risks of injury beyond those inherent in the activity.” ( [**23] Nalwa, supra, 55 Cal.4th at p. 1162.) However, she has provided no evidence Gallagher’s piloting fell so outside the range of ordinary it unreasonably increased the inherent risk of crash landing.
Gross negligence is a want of even scant care or an extreme departure from the ordinary standard of conduct. (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 754 [62 Cal. Rptr. 3d 527, 161 P.3d 1095].) In this context, such extreme conduct might be, for example, launching without sufficient fuel, in bad weather, or near electrical towers; using unsafe or broken equipment; or overloading the passenger basket. In the absence of evidence of such conduct, we hold the primary assumption of risk doctrine bars Grotheer’s piloting claim.
Grotheer compares Gallagher’s piloting to the conduct of the skier defendant in Mammoth Mountain Ski Area v. Graham (2006) 135 Cal.App.4th 1367 [38 Cal. Rptr. 3d 422] (Mammoth Mountain), but the analogy is inapt. In Mammoth Mountain, a snowboarding instructor was injured when he collided with a skier who had stopped midslope to throw snowballs at his brother. The [*1299] court reversed summary judgment granted on the basis of primary assumption of risk, concluding there was a factual issue as to whether the skier’s behavior was so “outside the range of ordinary activity involved in the sport of snowboarding” that it increased the inherent risk of colliding with others on the slope. [**24] (Id. at pp. 1373-1374.) Gallagher’s alleged failure to control the balloon’s descent is nothing like the skier’s conduct in Mammoth Mountain. Skiing does not entail throwing snowballs, whereas managing speed and direction in the face of changing wind conditions is the principal challenge in ballooning. As a result, the failure to surmount that challenge falls squarely within the range of ordinary activity for ballooning.
2. Safety instructions and the duty to take reasonable steps to minimize inherent risks
(9) Grotheer also claims her injury was caused, at least in part, by Escape’s failure to give safety instructions. The trial court rejected this theory of liability when it concluded ballooning was an inherently risky activity and, as a result, Escape owed Grotheer no duty at all to protect her from injury. We conclude that ruling was too broad. Under Knight, [HN13] even an operator of an inherently risky activity owes a duty to take reasonable steps to minimize those inherent risks, if doing so would not fundamentally alter the activity. (Knight, supra, 3 Cal.4th at p. 317.) As we explain, instructing passengers on safe landing procedures takes little time and effort, and can minimize the risk of passenger injury in the event of a rough landing. [**25]
The primary assumption of risk doctrine is limited to those steps or safety measures that would have a deleterious effect on recreational activities that are, by nature, inherently dangerous. (Record v. Reason, supra, 73 Cal.App.4th at pp. 484-485; Nalwa, supra, 55 Cal.4th at p. 1162 [“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”].) For example, an obligation to reduce a bumper car’s speed or the rider’s steering autonomy would impede the most appealing aspect of the ride–the ability to collide with others. (Id. at pp. 1157-1158.) “‘Indeed, who would want to ride a tapper car at an amusement park?'” (Id. at p. 1158.) Similarly, in the context of white water rafting, an obligation to design the rafts to minimize the “risk of striking objects both inside and outside the raft,” would transform the activity into “a trip down the giant slide at Waterworld.” (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 256 [38 Cal. Rptr. 2d 65].) Safety is important, but so is the freedom to engage in recreation and challenge one’s limits. The primary assumption of risk doctrine balances these competing concerns by absolving operators of activities with inherent risks from an obligation to protect [**26] their customers from those risks. [*1300]
(10) What the primary assumption of risk doctrine does not do, however, is absolve operators of any obligation to protect the safety of their customers. (Knight, supra, 3 Cal.4th at pp. 317-318.) As a general rule, where an operator can take a measure that would increase safety and minimize the risks of the activity without also altering the nature of the activity, the operator is required to do so. As the court explained in Knight, “in the sports setting, as elsewhere, the nature of the applicable duty or standard of care frequently varies with the role of the defendant whose conduct is at issue in a given case.” (Knight, at p. 318.) [HN14] When the defendant is the operator of an inherently risky sport or activity (as opposed to a coparticipant), there are “steps the sponsoring business entity reasonably should be obligated to take in order to minimize the risks without altering the nature of the sport [or activity].” (Id. at p. 317.)
Even before Knight, tort law imposed on operators a duty to take reasonable steps to minimize the inherent risks of their activity. (See Knight, supra, 3 Cal.4th at p. 317, citing Quinn v. Recreation Park Assn. (1935) 3 Cal.2d 725, 728-729 [46 P.2d 144]; Shurman v. Fresno Ice Rink (1949) 91 Cal.App.2d 469, 474-477 [205 P.2d 77].) Within our own appellate district we find precedent for imposing on hot air balloon operators and their pilots a duty of care to instruct passengers [**27] on how to position themselves for landing.
In Morgan v. Fuji Country USA, Inc. (1995) 34 Cal.App.4th 127 [40 Cal. Rptr. 2d 249] (Morgan), Division One of our appellate district held a golf course owner had a duty to design its course to minimize the risk of being hit by a golf ball, despite the fact such a risk is inherent to golfing, because doing so was possible “‘without altering the nature of [golf].'” (Id. at p. 134.) Our colleagues explained this duty stemmed from the fact the defendant was the golf course owner. If, on the other hand, the plaintiff had sued the golfer who had hit the errant ball, the action would have been barred by the primary assumption of risk doctrine. (Id. at pp. 133-134.)
Nearly a decade after Morgan, the same court held a race organizer had a duty to minimize the risks of dehydration and hyponatremia5–risks inherent to marathons–by “providing adequate water and electrolyte fluids along the 26-mile course” because “[s]uch steps are reasonable and do not alter the nature of the sport [of marathon running].” (Saffro v. Elite Racing, Inc. (2002) 98 Cal.App.4th 173, 179 [119 Cal. Rptr. 2d 497].) Faced with a similar situation in Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072 [122 Cal. Rptr. 3d 22], this court held an owner of a motocross track had a duty to provide a system for signaling when riders have fallen in order to minimize the risk of collisions. (Id. at p. 1084.) Track owners could satisfy this duty by employing “caution flaggers,” [**28] or some similar device, which [*1301] would be relatively easy to implement and would not alter the nature of motocross. (Ibid.) As these cases demonstrate, the primary assumption of risk doctrine has never relieved an operator of its duty to take reasonable steps to minimize inherent risks without altering the nature of the activity.
5 A condition which occurs as a result of decreased sodium concentration in the blood.
(11) Having determined the primary assumption of risk doctrine does not absolve Escape of a duty to exercise reasonable care in all aspects of its operations, we turn to the existence and scope of the duty at issue here–safety instructions. (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1213 [63 Cal. Rptr. 3d 99, 162 P.3d 610] [HN15] [the existence and scope of a duty of care are questions of law for the trial court to determine in the first instance and the appellate court to independently review].) [HN16] Courts consider several factors in determining the existence and scope of a duty of care, including the foreseeability of harm to the plaintiff, the policy of preventing future harm, and the burden to the defendant and consequences to the community of imposing the duty. (See, e.g., Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 675, fn. 5 [25 Cal. Rptr. 2d 137, 863 P.2d 207].)
[HN17] (12) Foreseeability is the primary factor in the duty analysis. (Pedeferri v. Seidner Enterprises (2013) 216 Cal.App.4th 359, 366 [163 Cal. Rptr. 3d 55].) Our task in evaluating foreseeability “‘is not to decide whether a particular plaintiff’s injury was reasonably foreseeable [**29] in light of a particular defendant’s conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed.'” (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 772 [122 Cal. Rptr. 3d 313, 248 P.3d 1170].) The existence and scope of a duty of care “is to be made on a more general basis suitable to the formulation of a legal rule” to be applied in a broad category of cases. (Id. at p. 773; see Huang, supra, 4 Cal.App.5th at pp. 342-343.)
In this case, the evidence is undisputed that giving passengers a brief presentation on safe landing procedures (such as the instructions Grotheer’s expert cites from the FAA Handbook) is a customary and standard practice in the ballooning industry. To paraphrase Grotheer’s expert, these safe landing procedures are: (1) stand in the appropriate area of the basket; (2) face toward or away from the direction of travel, but not sideways (to minimize the risk of a side-impact injury to the hips or knees); (3) place the feet and knees together, and bend the knees; (4) hold on tightly to the rope, handles, or other stabilizing device, and (5) stay inside the basket. Gallagher himself agreed safety instructions are crucial. He said he always explains what passengers can [**30] expect during launch and landing. In preparation for landing, he tells them to hold on to the handles, bend their knees, and not to exit the basket until told to do so. [*1302]
As to foreseeability, undisputed evidence in the record tells us that rough landings are a risk of ballooning and instructing passengers on proper landing positioning can reduce, though not eliminate, the likelihood of injury in the event the landing does not go smoothly. Additionally, we see no public policy reason why balloon operators should not be required to give safe landing instructions. (Huang, supra, 4 Cal.App.5th at p. 342.) As Kitchel, an experienced balloon pilot, owner, and operator, explained, “[a] detailed safety briefing takes no more than 5 minutes and is time well spent.” While “[m]any balloon landings are gentle, stand-up landings … the pilot should always prepare passengers for the possibility of a firm impact,” as rough landings can result in severe injuries.
(13) Escape contends the duty to provide safe landing instructions will be overly burdensome to balloon operators, citing the complexity of the preflight instructions operators of passenger-carrying airplanes are required to give under federal regulation. (See 14 C.F.R. § 121.571 (2017).) We find the concern misplaced. [**31] [HN18] The duty we recognize here does not compel anything so lengthy or complex as commercial airlines’ preflight instructions. It requires only that a commercial balloon operator provide a brief set of safe landing procedures, which Escape’s pilot said is already his custom. Safety instructions are a common practice among operators of recreational activities, and we do not believe requiring balloon operators to set aside a few moments before launch to advise passengers how to position themselves in the basket and what to do in the event of a rough landing will have a negative impact on the ballooning industry. (Cf. Nalwa, supra, 55 Cal.4th at p. 1161 [noting bumper car operator “enforce[d] various riding instructions and safety rules” before giving control of the car’s speed and steering to riders]; Ferrari v. Grand Canyon Dories, supra, 32 Cal.App.4th at p. 251 [operator of white water rafting tour gave plaintiff “safety instructions,” such as “where to sit, that it was necessary to hold onto the raft while navigating rapids and where to hold on, and how to react if thrown out of the raft into the water”].) Because the evidence supports Grotheer’s allegation Escape failed to give safety instructions of any kind to any of its passengers, we need not go into precisely what warnings are required, [**32] including whether a commercial balloon operator must ensure passengers with known language barriers understand the safety instructions.
We therefore conclude the court incorrectly applied the primary assumption of risk doctrine to absolve Escape of a duty to provide safe landing procedures. However, this conclusion does not end our analysis. We must also consider whether Grotheer’s negligence claim fails as a matter of law because she has not demonstrated the existence of a triable issue of fact on causation. (Coral Construction, Inc. v. City and County of San Francisco (2010) 50 Cal.4th 315, 336 [113 Cal. Rptr. 3d 279, 235 P.3d 947] [“‘[i]t is axiomatic that [HN19] we review the trial court’s rulings and not its reasoning'” and [*1303] “[t]hus, a reviewing court may affirm a trial court’s decision granting summary judgment for an erroneous reason”].)
D. Any Lack of Safety Instructions Was Not a Substantial Factor in Causing Grotheer’s Injury
[HN20] (14) “The elements of actionable negligence, in addition to a duty to use due care, [are] breach of that duty and a proximate or legal causal connection between the breach and plaintiff’s injuries.” (Onciano v. Golden Palace Restaurant, Inc. (1990) 219 Cal.App.3d 385, 394 [268 Cal. Rptr. 96] (Onciano).) [HN21] (15) To be considered a proximate cause of an injury, the acts of the defendant must have been a “substantial factor” in contributing to the injury. (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 969 [67 Cal. Rptr. 2d 16, 941 P.2d 1203].) Generally, a defendant’s conduct is a substantial [**33] factor if the injury would not have occurred but for the defendant’s conduct. (Ibid.) If the injury “‘would have happened anyway, whether the defendant was negligent or not, then his or her negligence was not a cause in fact, and of course cannot be the legal or responsible cause.'” (Toste v. CalPortland Construction (2016) 245 Cal.App.4th 362, 370 [199 Cal. Rptr. 3d 522], quoting 6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 1185, p. 552.) As our high court has explained, “‘a force which plays only an “infinitesimal” or “theoretical” part in bringing about injury, damage, or loss is not a substantial factor.'” (Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 79 [86 Cal. Rptr. 2d 846, 980 P.2d 398].)
[HN22] While proximate cause ordinarily is a question of fact, it may be decided as a question of law if “‘”‘under the undisputed facts, there is no room for a reasonable difference of opinion.'”‘” (Onciano, supra, 219 Cal.App.3d at p. 395.) As noted, once a defendant claiming the plaintiff cannot satisfy an element of his or her claim meets the initial burden of production, the burden shifts to the plaintiff to demonstrate a triable issue of fact. (Aguilar, supra, 25 Cal.4th at pp. 850-851.) When the evidence supports only one reasonable inference as to the cause of the plaintiff’s injury, courts should not engage in “unreasonable speculation that other contradictory evidence exists but was not adduced in the summary judgment proceedings.” (Constance B. v. State of California (1986) 178 Cal.App.3d 200, 211 [223 Cal. Rptr. 645] [dismissal [**34] of negligence claim was proper because no reasonable fact finder could find a causal nexus between defendant store owner’s improper lighting and the assault on plaintiff based on the evidence presented during the summary judgment proceedings].)
As explained in the previous part, the purpose of the safety instructions is to reduce injury in the event of rough landings. Here, however, the undisputed descriptions of the landing establish it was not merely rough, but rather [*1304] was a forceful and violent event–a crash. According to Boyd and Kristi Roberts, whose uncontested descriptions are the most detailed, the basket was descending “pretty fast” when it hit the fence with such force it “knocked it right apart,” taking out several fence sections. The basket then hit the ground “hard” and skidded for about 40 yards, becoming more and more horizontal as it was dragged, before coming to a stop on its side with Grotheer’s section on the bottom. Gallagher, the pilot, said the balloon had been descending more quickly than he had anticipated when the basket made a “hard landing, first on the fence and then on the ground.” Grotheer too described both impacts as “hard.” Both Grotheer and Kristi [**35] said they had been holding on to the handles (Kristi as tightly as she could) but were unable to keep from slipping or falling.
From these descriptions, we gather the crash landing was a jarring and violent experience, a “wild ride” so forceful that several passengers fell–even one who had tried desperately not to fall by gripping the basket handles as tightly as possible. (See Endicott v. Nissan Motor Corp. (1977) 73 Cal.App.3d 917, 926 [141 Cal. Rptr. 95] [“If the violence of a crash is the effective efficient cause of plaintiff’s injuries to the extent that it supersedes other factors … and makes them immaterial, plaintiff cannot recover”].) The accounts of the crash satisfied defendants’ burden of demonstrating the violence of the crash, not any lack of instructions, was the proximate cause of Grotheer’s injury. The burden then shifted to Grotheer to explain how things may have played out differently had everyone been instructed on proper body positioning during landing. She produced no such evidence. Instead, she said at her deposition she believed everyone had in fact been holding on to the basket handles during the descent. While one could speculate that Kristi had been the only passenger holding the handles correctly and the woman who fell into Grotheer [**36] had employed an improper grip (say, using only one hand or not holding “tight,” as the FAA Handbook instructs), Grotheer presented no evidence to support such a theory. As a result, she did not meet her burden of demonstrating an evidentiary dispute about whether the provision of instructions would have produced a different outcome.
(16) We conclude any failure to instruct on Escape’s part was not a proximate cause of Grotheer’s injury, and we affirm the grant of summary judgment on that ground. Given our holding that defendants are not liable for negligence, it is unnecessary to review the trial court’s ruling on Wilson Creek’s vicarious liability or its ruling on defendants’ liability waiver defense.6
6 Defendants asked us to review the ruling on their affirmative defense in the event we reversed the trial court’s grant of summary judgment, citing Code of Civil Procedure section 906, which allows a respondent, without appealing from a judgment, to seek appellate review (at the court’s discretion) of any ruling that “substantially affects the rights of a party,” for “the purpose of determining whether or not the appellant was prejudiced by the error … upon which he relies for reversal.” Because we do not reverse the grant of summary judgment, we need not reach the issue of defendants’ affirmative defense.
We affirm the judgment. The parties shall bear their costs on appeal.
Ramirez, P. J., and Codrington, J., concurred.
Alexis Wiemer, Plaintiff, v. Hoosier Heights Indoor Climbing Facility LLC, Defendant.
Case No. 1:16-cv-01383-TWP-MJD
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA, INDIANAPOLIS DIVISION
2017 U.S. Dist. LEXIS 149663
September 15, 2017, Decided
September 15, 2017, Filed
COUNSEL: [*1] For ALEXIS WIEMER, Plaintiff: Mary Beth Ramey, Richard D. Hailey, RAMEY – HAILEY, Indianapolis, IN.
For HOOSIER HEIGHTS INDOOR CLIMBING FACILITY LLC, Defendant: Jessica Whelan, Phil L. Isenbarger, BINGHAM GREENEBAUM DOLL LLP, Indianapolis, IN.
JUDGES: TANYA WALTON PRATT, United States District Judge.
OPINION BY: TANYA WALTON PRATT
ENTRY ON SUMMARY JUDGMENT
This matter is before the Court on Defendant Hoosier Heights Indoor Climbing Facility LLC’s (“Hoosier Heights”) Motion for Summary Judgment filed pursuant to Federal Rule of Civil Procedure 56 (Filing No. 29). Plaintiff Alexis Wiemer (“Wiemer”) brought this action against Hoosier Heights for personal injuries sustained when he fell during a rock climbing activity. For the following reasons, the Court GRANTS Hoosier Heights’ Motion for Summary Judgment.
The material facts are not in dispute and are viewed in a light most favorable to Wiemer as the non-moving party. See Luster v. Ill. Dep’t of Corr., 652 F.3d 726, 728 (7th Cir. 2011).
Hoosier Heights, located in Carmel, Indiana, is a limited liability company which owns and operates an indoor rock climbing facility. The facility is open to the public and is available for individuals of all skill levels in recreational climbing. In order to use the facilities, Hoosier Heights requires all patrons [*2] to sign and acknowledge having read and understood a “Waiver & Release of Liability” form (“Waiver”). (Filing No. 30-1.) The Waiver contains: general gym rules, exculpatory clauses relieving Hoosier Heights of liability, a medical authorization clause, an acknowledgement that the participant understands there are inherent risks to rock climbing with some risks listed, authorization to allow the Hoosier Heights’ staff to use any photographs taken during the patron’s visit for promotional materials, and a signature line for the participant. (Filing No. 30-1 at 1.) At the top of the Waiver is Hoosier Heights’ logo, address, and the name Hoosier Heights Indoor Climbing.
The Waiver states, in relevant part:
RELEASE AND ASSUMPTION OF RISK: In consideration of being permitted to use the facilities of Hoosier Heights Indoor Rock Climbing Facility L.L.C., and mindful of the significant risks involved with the activities incidental thereto, I, for myself, my heirs, my estate and personal representative, do hereby release and discharge Hoosier Heights Indoor Rock Climbing Facility L.L.C. (hereinafter referred to as “Hoosier Heights”) from any and all liability for injury that may result from my [*3] use of the facilities of Hoosier Heights Indoor Climbing, and I do hereby waive and relinquish any and all actions or causes of action for personal injury, property damage or wrongful death occurring to myself arising as a result of the use of the facilities of Hoosier Heights or any activities incidental thereto, wherever or however such personal injury, property damage, or wrongful death may occur, whether foreseen or unforeseen, and for whatever period said activities may continue. I agree that under no circumstances will I, my heirs, my estate or my personal representative present any claim for personal injury, property damage or wrongful death against Hoosier Heights or its employees, members, directors, officers, agents and assigns for any of said causes of actions, whether said causes of action shall arise by the negligence of any said person or otherwise.
It is the intention of the undersigned individual to exempt and relieve Hoosier Heights and its employees, members, directors, officers, agents and assigns from liability for any personal injury, property damage or wrongful death caused by negligence.
(Filing No. 30-1.) The Waiver also contained a provision enumerating the risks [*4] inherent in the sport of rock climbing:
ACKNOWLEDGMENT: I, the undersigned, acknowledge that I understand that there are significant elements of risk associated with the sport of rock climbing, including those activities that take place indoors. In addition, I realize those risks also pertain to related activities such as bouldering, incidental weight training, team building, fitness training regimens and equipment purchased or rented at Hoosier Heights. I realize that those risks may include, but are not limited to, injuries resulting from falls, equipment failures, entanglements, falling or dropped items, or the negligence of other climbers, participants, belayers, spotters, employees, or other users of the facilities. I acknowledge and understand that the above list is not inclusive of all possible risks associated with rock climbing or the use of the Hoosier Heights facilities and that other unknown and unanticipated risks may result in injury, illness, paralysis, or death.
Id. In addition to executing the Waiver, Hoosier Heights requires that all patrons attend and acknowledge undergoing orientation and training.
Wiemer visited Hoosier Heights in October 2014. On that date, he attended [*5] a facility orientation, which is an employee-guided training on how to boulder, belay, and top rope climb.1 (Filing No. 30-7.) If a customer intends to use the “top rope” climbing area of the facility, they must first complete the “top rope” orientation and initial and sign the facility orientation form in the appropriate locations. Following his orientation and training, Wiemer signed a Waiver form.
1 Top rope climbing is a style of climbing in which a rope runs from a belayer at the foot of the climbing wall which is connected to an anchor system at the top of the wall and back down to the climber. Both climber and the belayer are attached to the rope through a harness and carabiner. The belayer is responsible for pulling the slack in the rope, which results in the climber moving up the wall. The belayer must keep the rope tight so that, in the event the climber releases from the wall, the climber remains suspended in the air and does not fall.
Kayli Mellencamp (“Mellencamp”), a part-time Hoosier Heights employee with very little rock climbing experience, provided Wiemer’s orientation and training. (Filing No. 30-6.) Mellencamp’s employee training consisted solely of reviewing company provided instructional books on rock climbing and witnessing other employee orientations. (Filing No. 67-2 at 10-11 and 13-14.) Mellencamp had no other professional rock climbing experience.
On January 14, 2015, Wiemer, along with several co-workers, including Robert Magnus (“Magnus”), traveled to Hoosier Heights for recreational rock climbing. Magnus had also previously visited Hoosier Heights, and Wiemer’s and Magnus’ Waivers were already on file and under the terms of their agreements remained in effect (Filing No. 30-6; Filing No. 30-7). Wiemer [*6] was top rope climbing while Magnus belayed below (Filing No. 30-4). Unfortunately, Wiemer fell while he was climbing. Incident reports indicate that Wiemer fell approximately thirty-five feet to the ground in a sitting position due to Magnus releasing a gate lever while he was belaying for Wiemer, which caused Wiemer to accelerate to the floor very quickly. (Filing No. 30-4 at 1-4.) As a result of the fall, he sustained severe and permanent injuries to his back, as well as impaired bladder and bowel control. Wiemer filed this action alleging Hoosier Heights was negligent in its operations.
II. LEGAL STANDARD
The purpose of summary judgment is to “pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Hemsworth v. Quotesmith.Com, Inc., 476 F.3d 487, 489-90 (7th Cir. 2007). In ruling on a motion for summary judgment, the court reviews “the record in the light most favorable to the nonmoving party and draw[s] all reasonable [*7] inferences in that party’s favor.” Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (citation omitted). However, “[a] party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial.” Hemsworth, 476 F.3d at 490 (citation omitted). “In much the same way that a court is not required to scour the record in search of evidence to defeat the motion for summary judgment, nor is it permitted to conduct a paper trial on the merits of a claim.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001) (citation and internal quotations omitted). “[N]either the mere existence of some alleged factual dispute between the parties . . . nor the existence of some metaphysical doubt as to the material facts . . . is sufficient to defeat a motion for summary judgment.” Chiaramonte v. Fashion Bed Grp., Inc., 129 F.3d 391, 395 (7th Cir. 1997) (citations and internal quotations omitted). “It is equally well settled, however, that where no factual disputes are present or where the undisputed facts demonstrate that one party is entitled to judgment as a matter of law, summary judgment in favor of that party is entirely appropriate. Collins v. American Optometric Ass’n, 693 F.2d 636, 639 (7th Cir. 1982).
Hoosier Heights contends that Wiemer’s signing of the Waiver, which contained an explicit reference waiving liability [*8] for Hoosier Heights’ own negligence, absolves it of any liability and Wiemer expressly acknowledged that falling was a risk inherent in indoor rock climbing. Wiemer responds with two arguments in the alternative. First, he argues that the Waiver misidentifies the released party as “Hoosier Heights Indoor Rock Climbing Facility” because the Defendant’s name, as alleged in the Complaint and as evidenced by the Indiana Secretary of State Certificate of Assumed Business Name, is “Hoosier Heights Indoor Climbing Facility.” (Filing No. 67-4.) Second, Wiemer argues that Hoosier Heights negligence in the hiring and training of Mellencamp, was not an included “inherent risk” and this significantly contributed to his fall and injury.
A. Hoosier Heights’ Business Name
The waiver signed by Wiemer incorrectly lists the business name as ‘Hoosier Heights Indoor Rock Climbing Facility L.L.C.’ (Filing No. 30-1 at 1). Hoosier Heights acknowledges that its official name is Hoosier Heights Indoor Climbing Facility LLC and that the word “Rock” does not appear in its corporate filings with the Indiana Secretary of State although it appears on the Waiver at issue. Wiemer contends that a genuine issue of material [*9] fact exists regarding the validity of the Waiver, because the Waiver that he signed failed to name the correct entity and this inaccuracy creates ambiguity as to who Wiemer contracted with.
The Court is not persuaded by Wiemer’s argument. “Release documents shall be interpreted in the same manner as any other contract document, with the intention of the parties regarding the purpose of the document governing.” Huffman v. Monroe County Community School Corp., 588 N.E.2d 1264, 1267 (Ind. 1992). “The meaning of a contract is to be determined from an examination of all of its provisions, not from a consideration of individual words, phrases, or even paragraphs read alone.” Huffman, 588 N.E.2d at 1267. In addition, when a contract is unambiguous, Indiana courts look to the four corners of the document to determine the intentions of the parties. Evan v. Poe & Associates, Inc., 873 N.E.2d 92, 98 (Ind. Ct. App. 2007). This analysis of contract interpretation is a question of law. Evans v. Med. & Prof’l Collection Servs., Inc., 741 N.E.2d 795, 797 (Ind. Ct. App. 2001).
In Evans, the Indiana Court of Appeals held that a contract was unambiguous that misidentified a business name in the agreement but included the relevant address as that of the business. Evans, 741 N.E.2d at 798. The Evans court found that the plaintiff could not recover payment from the owner, “Evans Ford,” in his personal capacity, even though that was the name indicated in the contract and the actual business [*10] was organized as a corporation under the name of “Evans Lincoln Mercury Ford, Inc.” Id. at 796-98. The court did not resort to extrinsic evidence because the contract unambiguously identified the parties despite the misidentification. See id. at 798.
In this case, the Waiver is unambiguous as to identifying the parties to the agreement. Although the language of the Release and Assumption of Risk paragraph identifies “Hoosier Heights Indoor Rock Climbing Facility,” the document’s letterhead at the top displays “Hoosier Heights Indoor Climbing,” and includes the relevant business address of Hoosier Heights where Wiemer visited. Under these circumstances, the misidentification of Hoosier Heights does not operate to void the Waiver. Because the Waiver is unambiguous, the Court need not examine extrinsic evidence to determine the proper parties to the Waiver. Accordingly, summary judgment is denied on this basis.
B. Negligent Training
Hoosier Heights contends that summary judgment is appropriate because the Waiver’s explicit references to the “inherent risks” of rock climbing creates a binding exculpatory clause which releases Hoosier Heights from liability. Wiemer argues that a genuine issue of material fact exists [*11] regarding whether improper instruction and inadequate training, is an “inherent risk” of indoor rock climbing.
Under Indiana law, waivers containing exculpatory clauses absolving parties of liability for their own negligence must be specific and explicitly refer to waiving that party’s negligence. Anderson v. Four Seasons Equestrian Center, 852 N.E.2d 576, 584 (Ind. Ct. App. 2006). Nevertheless, “an exculpatory clause’s lack of a specific reference to the negligence of a defendant will not always preclude the defendant from being released from liability–such as when a plaintiff has incurred damages that are inherent in the nature of the activity.” Id. (citing Marsh v. Dixon, 707 N.E.2d 998, 1000 (Ind. Ct. App. 1999)).
Wiemer contends that his fall was due to Mellencamp’s improper training and instruction and this was not a risk that he agreed to assume (Filing No. 67 at 10). Further, he argues that improper training and instruction are not risks that are inherent in the nature of rock climbing. Id. Hoosier Heights responds that falls, as indicated by the Waiver, are a specific risk inherent in the nature of rock climbing and that Wiemer specifically waived any claims to injuries from falls by signing the Waiver (Filing No. 68 at 14). Hoosier Heights also contends that Wiemer waived any claims for improper training and instruction [*12] by its’ employees as the Waiver contains an explicit release of Hoosier Heights’ employees for any negligence. Id. at 12.
Hoosier Heights acknowledges that negligence is generally a fact-intensive question; however, it responds that it is entitled to summary judgment because Wiemer waived any claims for liability on the basis of negligence. Id. at 11. Hoosier Heights points the Court to Anderson v. Four Seasons Equestrian Center. In Anderson, the Indiana Court of Appeals held that the defendant, an equine center, was entitled to summary judgment even though the waiver at issue did not contain a specific and explicit release of the equine center due to its own negligence because the plaintiff’s injury of falling while mounting her horse was a risk inherent in the nature of the activity of horse riding. Anderson, 852 N.E.2d at 581. The plaintiff argued that her injury was due to the equine center’s negligence in caring for, conditioning, and training her horse. The court found that the plaintiff’s injury and resulting damages, including her characterization of the cause of those damages (i.e. conditioning and training of her horse), were risks that were inherent in the nature of horse riding and were exactly those for [*13] which she granted the equine center a release of liability by signing the waiver. Id. at 585.
In the present case, Wiemer signed a specific and explicit Waiver, which released Hoosier Heights from liability due to its own negligence. The Waiver explained that “rock climbing activity” at Hoosier Heights included, among other things,
…team building, fitness training regimens and equipment purchased or rented at Hoosier Heights[,]…injuries resulting from falls, equipment failures, entanglements, falling or dropped items, or the negligence of other climbers, participants, belayers, spotters, employees, or other users of the facility…. I understand that the above list is not inclusive of all possible risks associated with rock climbing.
(Filing No. 30-6 at 1). In addition, a very similarly worded reference to liability from their own negligence is contained in the second paragraph of the ‘Release and Assumption of Risk’ section which states, “It is the intention of the undersigned individually to exempt and relieve Hoosier Heights and its employees, … from liability for any personal injury, property damage, or wrongful death caused by negligence.” (Filing No. 30-1 at 1.) The direct mentions [*14] of Hoosier Heights’ own negligence adheres to the holding set in Powell that an exculpatory clause needs to be specific and explicit in referencing an absolving party’s liability from negligence.
Similar to the result in Anderson, by signing the Waiver, Wiemer released Hoosier Heights from any liability resulting from its own negligence, including improper training and instruction. Further, Wiemer’s injury from falling was a risk that was inherent in the activity of rock climbing and explicitly noted in the Waiver. Accordingly, summary judgment is appropriate.
For the reasons stated above, the Court determines that, based on the undisputed material facts, Hoosier Heights is entitled to summary judgment as a matter of law. Hoosier Heights’ Motion for Summary Judgment (Filing No. 29) is GRANTED, and Wiemer’s Complaint is DISMISSED. Final Judgment will issue under a separate order.
/s/ Tanya Walton Pratt
TANYA WALTON PRATT, JUDGE
United States District Court
Southern District of Indiana
Zhou, et al., v.Tuxedo Ridge, LLC, et al., 54 Misc. 3d 1213(A); 2017 N.Y. Misc. LEXIS 350; 2017 NY Slip Op 50128(U)Posted: September 10, 2017
[**1] Judy Zhou, et al., Plaintiff, against Tuxedo Ridge, LLC, et al., Defendants.
SUPREME COURT OF NEW YORK, QUEENS COUNTY
54 Misc. 3d 1213(A); 2017 N.Y. Misc. LEXIS 350; 2017 NY Slip Op 50128(U)
February 3, 2017, Decided
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
CORE TERMS: summary judgment, skier’s, chairlift, slope, daughter, novice, pipes, assumption of risk, belt, ski, plumbing, netting, corral
Negligence–Assumption of Risk.
JUDGES: [*1] Honorable Salvatore J. Modica, J.S.C.
OPINION BY: Salvatore J. Modica
SALVATORE J. MODICA, J.:
The defendant moves for summary judgment in this case where the plaintiff, a nine-year-old child, making her maiden ski trip was injured.
The defendant makes several arguments in support of summary judgment including that the mother of the plaintiff should have supervised her daughter more closely and assumption of risk. Almost ninety years ago, Chief Judge Cardozo stated: “The plaintiff was not seeking a retreat for meditation. Visitors were tumbling about the belt to the merriment of onlookers when he made his choice to join them. He took the chance of a like fate, with whatever damage to his body might ensue from such a fall. The timorous may stay at home.” Murphy v. Steeplechase Amusement Co., 250 NY 479, 483, 166 N.E. 173 (1929) (one stepping on moving belt of amusement device accepts obvious and necessary dangers).
The law has moved from assumption of risk to comparative negligence. As plaintiff’s counsel, Souren A. Israelyan, Esq., cogently and aptly states in his affirmation in opposition to the defense motion, the defendants cut a portion of the Bunny Hill slope by installing white PVC plumbing pipes to create a corral line leading to the chairlift. The PVC pipes were as [*2] hard as metal plumbing pipes and, at the same time, blended into the slope’s white snow and were not clearly visible to a skier in motion, let alone a novice skier such as the plaintiff infant. These obstructions blocked a portion of the snowy slope and were in the path of a skier’s descent. Although the defendants maintained nylon netting at the site, it did not place a fence or netting on the slope above the area to prevent and catch children and novice skiers from coming into contact with the corral line’s PVC posts.
Under the foregoing facts, the provident course is to deny the defendants’ motion for summary judgment. See, De Lacy v. Catamount Dev. Corp., 302 AD2d 735, 755 N.Y.S.2d 484 (3rd Dept. 2003) (genuine issue of material facts existed as to whether seven-year-old novice skier with limited skiing ability was properly instructed regarding use of chairlift, whether owner/operator of ski facility violated its own policies, and whether chairlift’s design was faulty, precluding summary judgment for owner/operator in negligence action brought by mother and her daughter, seeking to recover damages for injury daughter sustained when she fell from chairlift); accord, Finn v. Barbone, 83 AD3d 1365, 921 N.Y.S.2d 704 (3rd Dept. 2011) (fact issues precluded summary judgment on issue of skier’s assumption of the risk).
This Court, [*3] therefore, denies the motion for summary judgment in its entirety.
The parties are required to appear in the Trial Scheduling Part on February 15, 2017, for trial.
The foregoing constitutes the decision, order, and opinion of the Court.
Dated: Jamaica, New York
February 3, 2017
Honorable Salvatore J. Modica
Brian Pellham, Appellant, v. Let’s Go Tubing, Inc., et al., Respondents.
COURT OF APPEALS OF WASHINGTON, DIVISION THREE
199 Wn. App. 399; 2017 Wash. App. LEXIS 1525
March 21, 2017, Oral Argument
June 27, 2017, Filed
WASHINGTON OFFICIAL REPORTS SUMMARY Nature of Action: A participant in an inner tube float on a river sought damages for personal injury incurred when his tube struck a fallen log. The plaintiff sued the company and its owners who rented him the inner tube and who selected the site where participants entered the river, claiming that the defendants owed him a duty to warn about a fallen log in the river that was hidden from but was near the entry site. The plaintiff also claimed that the defendants violated the Consumer Protection Act.
Nature of Action: A participant in an inner tube float on a river sought damages for personal injury incurred when his tube struck a fallen log. The plaintiff sued the company and its owners who rented him the inner tube and who selected the site where participants entered the river, claiming that the defendants owed him a duty to warn about a fallen log in the river that was hidden from but was near the entry site. The plaintiff also claimed that the defendants violated the Consumer Protection Act.
Superior Court: The Superior Court for Chelan County, No. 13-2-00663-9, Lesley A. Allan, J., on April 14, 2016, entered a summary judgment in favor of the defendants, dismissing all of the plaintiff’s claims.
Court of Appeals: Holding that the defendants did not have a duty to warn the plaintiff about the fallen log because the plaintiff assumed the risk of a fallen log and swift current by voluntarily participating in the activity, the court affirms the judgment.
HEADNOTES WASHINGTON OFFICIAL REPORTS HEADNOTES
 Negligence — Assumption of Risk — Sports — River Float — Assumed Risks — Fallen Trees — Swift Current. By voluntarily participating in a float on a wild river, one assumes the inherent risks of fallen trees in the water and a swift current. The assumption of risk may relieve the organizer of the activity of an actionable duty to warn about or to prevent injury from trees in the river.
 Negligence — Assumption of Risk — Sports — Nature of Assumed Risk. Assumption of risk in the context of participating in a sport is in reality the principle of no duty to warn of the hazards of the sport, in which case there can be no breach of duty and no actionable claim for negligence.
 Negligence — Duty — Necessity — In General. A cause of action for negligence will not lie absent the existence of a duty of care.
 Negligence — Assumption of Risk — Effect — Relief From Duty. The tort concept of duty overlaps with the contract and tort principles of assumption of risk. An assumption of risk can sometimes relieve a defendant of a duty.
 Negligence — Duty — Question of Law or Fact — In General. Whether a defendant owed a duty to a plaintiff is a question of law.
 Negligence — Assumption of Risk — Classifications. The term “assumption of risk” expresses several distinct common law theories, derived from different sources, that apply when one is knowingly exposed to a particular risk. The general rubric of assumption of risk does not signify a singular doctrine but, rather, encompasses a cluster of discrete concepts. The law recognizes four taxonomies of assumption of risk: (1) express, (2) implied primary, (3) implied unreasonable, and (4) implied reasonable.
 Negligence — Assumption of Risk — Effect — In General. Express assumption of risk and implied primary assumption of risk operate as complete bars to a plaintiff’s recovery. Implied unreasonable assumption of risk and implied reasonable assumption of risk are merely alternative names for contributory negligence and merely reduce a plaintiff’s recoverable damages based on comparative fault pursuant to RCW 4.22.005 and RCW 4.22.015.
 Negligence — Assumption of Risk — Express Assumption — What Constitutes — In General. Express assumption of risk arises when one explicitly consents to relieve another of a duty regarding specific known risks.
 Negligence — Assumption of Risk — Implied Primary Assumption — What Constitutes — In General. Implied primary assumption of risk follows from one’s engaging in risky conduct, from which the law implies consent.
 Negligence — Assumption of Risk — Implied Unreasonable Assumption — Focus of Inquiry. Implied unreasonable assumption of risk primarily focuses on the objective unreasonableness of one’s conduct in assuming a risk.
 Negligence — Assumption of Risk — Implied Reasonable Assumption — What Constitutes. Implied reasonable assumption of risk is roughly the counterpart to implied unreasonable assumption of risk in that one assumes a risk, but acts reasonably in doing so.
 Negligence — Assumption of Risk — Implied Unreasonable Assumption — Implied Reasonable Assumption — Comparison. The gist of implied reasonable and implied unreasonable assumption of risk is that a defendant performed conduct that increased the risk of an activity or situation beyond the inherent risks thereof and the plaintiff reasonably or unreasonably encountered the increased risk. The categories of implied unreasonable and implied reasonable assumption of risk hold no meaningful distinction since both reduce rather than bar a plaintiff’s recovery.
 Negligence — Assumption of Risk — Inherent Peril — Risk of Activity — Assuming the Dangers. Inherent peril assumption of risk–also known as implied primary assumption of risk–bars a plaintiff’s claim resulting from specific known and appreciated risks impliedly assumed, often in advance of any negligence by the defendant. A plaintiff’s consent to relieve a defendant of any duty is implied based on the plaintiff’s decision to engage in an activity that involves the known risks.
 Negligence — Assumption of Risk — Sports — Implied Assumption. One who participates in a sport impliedly assumes the risks inherent in the sport.
 Negligence — Assumption of Risk — Inherent Peril — Applicability — Sports — In General. Under the theory of inherent peril assumption of risk, a plaintiff assumes the dangers that are inherent in and necessary to a particular activity. To the extent a risk inherent in a sport injures a plaintiff, the defendant has no duty and there is no negligence. A defendant does not have a duty to protect a sports participant from dangers that are an inherent and normal part of the sport.
 Negligence — Assumption of Risk — Inherent Peril — Applicability — Sports — Water Sports. Inherent peril assumption of risk extends to water sports. One who engages in a water sport assumes the reasonably foreseeable risks inherent in the activity. This assumption of risk includes inner tubing on water. Bodies of water often undergo change, and changing conditions in the water do not alter the assumption of risk. There is no duty to warn of the presence of natural transitory conditions in the water.
 Negligence — Assumption of Risk — Inherent Peril — Test. Inherent peril assumption of risk requires evidence that (1) the plaintiff possessed at least an understanding (2) of the presence and nature of the specific risk and (3) voluntarily chose to encounter the risk. In the usual case, a plaintiff’s knowledge and appreciation of a danger is a question of fact, but if it is clear that any person in the plaintiff’s position would have understood the danger, the issue may be decided by a court as a matter of law.
 Negligence — Assumption of Risk — Sports — Negligence Enhancing Assumed Risk. While participants in sports are generally held to have impliedly assumed the risks inherent in the sport, such assumption of risk does not preclude recovery for the negligent acts of others that unduly enhance such risks.
 Negligence — Assumption of Risk — Inherent Peril — Limited Application. Inherent peril assumption of risk is the exception rather than the rule in assumption of risk situations.
 Negligence — Assumption of Risk — Increased Danger — What Constitutes. Increased danger assumption of risk–also known as implied unreasonable assumption of risk and implied reasonable assumption of risk–does not involve a plaintiff’s consent to relieve a defendant of a duty. In this type of assumption of risk, the defendant breached a duty that created a risk of harm, and the plaintiff chose to take that risk. Increased danger assumption of risk involves a plaintiff’s voluntary choice to encounter a risk created by a defendant’s negligence. Increased danger assumption of risk arises when a plaintiff knows of a risk already created by the negligence of the defendant, yet chooses voluntarily to encounter it. In such a case, the plaintiff’s conduct is not truly consensual, but is a form of contributory negligence, in which the negligence consists of making the wrong choice and voluntarily encountering a known unreasonable risk.
 Negligence — Assumption of Risk — Increased Danger — Applicability. Increased danger assumption of risk does not apply in circumstances where the defendant did not create and could not remove the risk and where the plaintiff did not voluntarily take the risk because the plaintiff did not know the precise nature of the risk beforehand and lacked time to avoid the risk once it became apparent.
 Negligence — Assumption of Risk — Inherent Peril — Knowledge of Risk — Warning — Statements in Written Release — Sufficiency. A recitation in a release of liability warning of dangers inherent in an activity can be sufficient to notify a person of the risks of the activity that may give rise to inherent peril assumption of risk where the person chooses to engage in the activity and sustains injury from such dangers.
 Negligence — Assumption of Risk — Inherent Peril — Scope of Defense — Gross Negligence — Intentional or Reckless Conduct. Inherent peril assumption of risk in a sporting or outdoor activity may allow a defendant to avoid liability for gross negligence but not for intentional or reckless conduct. A recklessness standard encourages vigorous participation in recreational activities, while still providing protection from egregious conduct. An actor’s conduct is in “reckless disregard” of the safety of another if the actor intentionally does an act or fails to do an act that it is the actor’s duty to the other to do, knowing or having reason to know of facts that would lead a reasonable person to realize that the actor’s conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result to the other. Fearing, C.J., delivered the opinion for a unanimous court.
COUNSEL: Richard D. Wall (of Richard D. Wall PS), for appellant.
Kristen Dorrity (of Andrews o Skinner PS), for respondents.
JUDGES: Authored by George Fearing. Concurring: Kevin Korsmo, Laurel Siddoway.
OPINION BY: George Fearing
[*403] ¶1 Fearing, C.J. — This appeal asks: does an inner tube rental company owe a duty to warn a renter about a fallen log in a river when the log is hidden from but near the launch site, the river’s current draws the tuber toward the log, the company knows of the fallen log, the company warns other tubers of the log, and the company chooses the launch site? To answer this question, interests such as exhilarating and uninhibited outdoor recreation, retaining the natural environment, and freedom to contract compete with cautious business practices, full disclosure of risks, and compensation for injury. Based on the doctrine of inherent peril assumption of risk, we answer the question in the negative. We affirm the trial court’s summary judgment dismissal of renter Brian Pellham’s suit for personal injury against the tube [**2] rental company, Let’s Go Tubing, Inc.
¶2 Brian Pellham sues for injuries suffered while inner tubing on the Yakima River. Because the trial court dismissed Pellham’s suit on summary judgment, we write the facts in a light favorable to Pellham.
¶3 Melanie Wells invited Brian Pellham and his domestic partner to join her and three others on a leisurely unguided excursion floating the Yakima River. Wells arranged the expedition and reserved equipment and transportation from Let’s Go Tubing, Inc.
¶4 [*404] On July 30, 2011, Brian Pellham met the Wells party at the Let’s Go Tubing’s Umtanum gathering site, where additional tubers waited. Before boarding a bus, each participant signed a release of liability and assumption of risk form. Pellham felt rushed but read and signed the form. The form provided:
I, the renter of this rental equipment, assume and understand that river tubing can be HAZARDOUS, and that rocks, logs, bridges, plants, animals, other people, other water craft, exposure to the elements, variations in water depth and speed of current, along with other structures and equipment, and many other hazards or obstacles exist in the river environment. In using the rental equipment or any facilities [**3] or vehicles related thereto such dangers are recognized and accepted whether they are marked or unmarked. River tubing can be a strenuous and physically demanding activity. It requires walking, bending, lifting, paddling, swimming, and awareness of the outdoor environment. I realize that slips, falls, flips, and other accidents do occur and serious injuries or death may result and I assume full responsibility for these risks … . “IN CONSIDERATION FOR THIS RENTAL AND ANY USE OF THE FACILITIES, VEHICLES, OR ENVIRONMENT RELATED TO THE USE OF THIS EQUIPMENT, I HEREBY RELEASE HOLD HARMLESS AND INDEMNIFY LET’S GO TUBING, INC. ITS SUBSIDIARIES AND ITS AGENTS FROM ANY AND ALL CLAIMS AND LIABILITIES ARISING OUT OF OR IN CONNECTION WITH THE USE OF THIS RENTAL EQUIPMENT.”
Clerk’s Papers at 46. On other occasions, such as a rafting trip, Brian Pellham has signed a waiver. In his business, he employs release forms.
¶5 Let’s Go Tubing launches its customers from the Umtanum site unless the Yakima River level runs low. With low water, the company buses customers to one of two other Yakima River sites, Big Horn or Ringer Loop.
¶6 On July 30, 2011, Let’s Go Tubing’s shuttle bus, because [**4] of a low river level, transported Brian Pellham, his group members, and other customers eight miles upstream [*405] to Ringer Loop. Ringer Loop maintains a public concrete boat ramp and public restroom. The total number of customers on the excursion approached twenty. During transport, Steff Thomas, the Let’s Go Tubing bus driver, told Melanie Wells and a handful of others seated at the front of the bus to push into the middle of the river once they embarked, because a fallen tree obstructed the river immediately downriver but out of sight from the launch site. We do not know the number of customers the driver warned. Thomas did not warn Pellham of the obstructing tree. Nor did anyone else. Someone, possibly Thomas, warned everyone not to leave the river except at designated spots because private owners own most of the riverbank.
¶7 At the launch site, Let’s Go Tubing handed each person a Frisbee to use as a paddle. Brian Pellham requested a life jacket, but Steff Thomas ignored him. Fifteen inner tubers entered the river first. Pellham and four others followed in a second group with their tubes tied together. They encountered a swift current. As soon as the flotilla of five rounded the [**5] first bend in the river, they saw a fallen tree extending halfway across the river. Many branches extended from the tree trunk. Each paddled furiously with his or her Frisbee, but the fleet of five inner tubes struck the tree. Brian Pellham held the tree with his left hand and attempted to steer around the tree. The current grabbed the inner tubes and Pellham fell backward into the river. The fall broke Pellham’s eardrum. The current forced Pellham under the tree and the water level. When Pellham resurfaced, his head struck a large branch. He sustained a whiplash injury. His chest also hit the branch.
¶8 Brian Pellham swam to shore and ended his river excursion. Pellham told Steff Thomas of his dangerous encounter, and the driver admitted he knew about the fallen tree but laws prevented Let’s Go Tubing from removing the obstacle.
[*406] ¶9 Brian Pellham later underwent a neck fusion surgery. The accident also caused damage to a low back disk, and the damage creates pain radiating to his left foot.
¶10 Brian Pellham sued Let’s Go Tubing for negligent failure to warn and Consumer Protection Act, chapter 19.86 RCW, violations. Let’s Go Tubing answered the complaint and raised affirmative defenses, including release of liability and [**6] assumption of the risk. The company filed a motion for summary judgment dismissal based on the release and on assumption of risk. In response to the motion, Pellham argued that he did not waive liability because Let’s Go Tubing committed gross negligence. He also argued he did not expressly or impliedly assume the risk of floating into a hazard. Pellham agreed to dismissal of his consumer protection claim. The trial court granted summary dismissal of all of Pellham’s claims.
LAW AND ANALYSIS
¶11 On appeal, Brian Pellham contends the trial court erred in dismissing his claim because he presented sufficient evidence of gross negligence because Let’s Go Tubing chose the excursion location, knew of the existence of a hazard, and failed to warn Pellham of the hazard. He argues that the rental company’s gross negligence supersedes any release of liability and assumption of the risk contained in the form he signed. On appeal, he does not argue liability against Let’s Go Tubing for failing to provide a life vest.
 ¶12 Let’s Go Tubing responds that summary judgment was appropriate because Pellham failed to establish a duty, the liability release disposes of the claim, and Pellham’s evidence does not create [**7] a genuine issue as to any fact material to establishing gross negligence. We affirm based on the inherent risks in river tubing. Because of Pellham’s [*407] voluntary participation in the outdoor recreation activity, he assumed the risk of a fallen log and swift current. Conversely, Pellham’s assumption of the risk created no duty for Let’s Go Tubing to warn Pellham of or prevent injury to him from trees in the river. Because we rely on the inherent risks in river tubing, we do not address whether the written agreement signed by Pellham bars his suit.
¶13 Because we hold that Brian Pellham assumed the risk and thereby rendered Let’s Go Tubing dutyless, we do not address whether Pellham created an issue of fact with regard to gross negligence. We conclude that, to avoid application of inherent peril assumption of risk, Pellham needed to show intentional or reckless misconduct of the rental company, and Pellham does not show or argue either.
Summary Judgment Principles
¶14 We commence with our obligatory recitation of summary judgment principles. [HN1] This court reviews a summary judgment order de novo, engaging in the same inquiry as the trial court. Highline School District No. 401 v. Port of Seattle, 87 Wn.2d 6, 15, 548 P.2d 1085 (1976); Mahoney v. Shinpoch, 107 Wn.2d 679, 683, 732 P.2d 510 (1987). [HN2] Summary judgment is proper if the records on file with the [**8] trial court show “there is no genuine issue as to any material fact” and “the moving party is entitled to a judgment as a matter of law.” CR 56(c). [HN3] This court, like the trial court, construes all evidence and reasonable inferences in the light most favorable to Brian Pellham, as the nonmoving party. Barber v. Bankers Life & Casualty Co., 81 Wn.2d 140, 142, 500 P.2d 88 (1972); Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). [HN4] A court may grant summary judgment if the pleadings, affidavits, and depositions establish that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Lybbert v. Grant County, 141 Wn.2d 29, 34, 1 P.3d 1124 (2000).
[*408] Defenses on Review
¶15 Let’s Go Tubing seeks affirmation of the summary judgment dismissal of Brian Pellham’s claim based on both an absence of duty and Pellham’s assumption of risk. In turn, Pellham argues that, under RAP 2.5(a), the rental company may not assert a lack of duty because the company did not raise this defense before the trial court.
 ¶16 We need not address Brian Pellham’s objection to Let’s Go Tubing’s argument of lack of duty. We base our decision on inherent peril assumption of risk, and the rental company raised the defense of assumption of risk below. Anyway, assumption of risk in this context is equivalent to a lack of duty. [HN5] Assumption of the risk in the sports participant context is in [**9] reality the principle of no duty and hence no breach and no underlying cause of action. Brown v. Stevens Pass, Inc., 97 Wn. App. 519, 523, 984 P.2d 448 (1999); Codd v. Stevens Pass, Inc., 45 Wn. App. 393, 401-02, 725 P.2d 1008 (1986).
Assumption of Risk
[3, 4] ¶17 [HN6] A negligence claim requires the plaintiff to establish (1) the existence of a duty owed, (2) breach of that duty, (3) a resulting injury, and (4) a proximate cause between the breach and the injury. Tincani v. Inland Empire Zoological Society, 124 Wn.2d 121, 127-28, 875 P.2d 621 (1994). Thus, to prevail on his negligence claim, Brian Pellham must establish that Let’s Go Tubing owed him a duty of care. Folsom v. Burger King, 135 Wn.2d 658, 671, 958 P.2d 301 (1998). [HN7] The tort concept of duty overlaps with the contract and tort principles of assumption of risk. As previously mentioned, sometimes assumption of risk relieves the defendant of a duty. Brown v. Stevens Pass, Inc., 97 Wn. App. at 523 (1999); Codd v. Stevens Pass, Inc., 45 Wn. App. at 402 (1986).
 ¶18 [HN8] The threshold determination of whether a duty exists is a question of law. Tincani v. Inland Empire Zoological [*409] Society, 124 Wn.2d at 128; Coleman v. Hoffman, 115 Wn. App. 853, 858, 64 P.3d 65 (2003). We hold that, because of Brian Pellham’s assumption of the risk of fallen trees in the water, Let’s Go Tubing, as a matter of law, had no duty to warn Pellham of the danger or, at the least, the rental company possessed only a restricted duty to not intentionally injure Pellham or engage in reckless misconduct.
 ¶19 We first briefly explore the variegated versions of assumption of risk in order to later analyze the application of inherent peril assumption of risk. [HN9] The term “assumption of the risk” expresses [**10] several distinct common law theories, derived from different sources, which apply when a plaintiff knowingly exposes himself to particular risks. Allen v. Dover Co-Recreational Softball League, 148 N.H. 407, 807 A.2d 1274, 1281 (2002); Francis H. Bohlen, Voluntary Assumption of Risk (pt. 1), 20 Harv. L. Rev. 14, 15-30 (1906); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 68 (5th ed. 1984). Stated differently, the general rubric of assumption of risk does not signify a singular doctrine but rather encompasses a cluster of discrete concepts. Kirk v. Washington State University, 109 Wn.2d 448, 453, 746 P.2d 285 (1987). Washington law and most other states’ jurisprudence recognize four taxonomies of the assumption of risk doctrine: (1) express, (2) implied primary, (3) implied unreasonable, and (4) implied reasonable. Gregoire v. City of Oak Harbor, 170 Wn.2d 628, 636, 244 P.3d 924 (2010) (plurality opinion); Gleason v. Cohen, 192 Wn. App. 788, 794, 368 P.3d 531 (2016); 16 David K. DeWolf & Keller W. Allen, Washington Practice: Tort Law and Practice § 9:11, at 398-99 (4th ed. 2013).
 ¶20 Before the enactment of comparative negligence and comparative fault statutes, practitioners and courts encountered little reason to distinguish the four versions of assumption of risk because at common law all assumption of the risk completely barred recovery. Scott v. Pacific West Mountain Resort, 119 Wn.2d 484, 496, 834 P.2d 6 (1992). [*410] Today, [HN10] the first two categories of assumption of risk, express assumption and implied primary assumption, on the one hand, continue to operate as a complete bar to a plaintiff’s recovery. Kirk v. Washington State University, 109 Wn.2d at 453-54; Gleason v. Cohen, 192 Wn. App. at 794. On the other hand, implied unreasonable and implied [**11] reasonable assumption meld into contributory negligence and merely reduce the plaintiff’s recoverable damages based on comparative fault pursuant to RCW 4.22.005 and .015. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 497. The last two types are merely alternative names for contributory negligence. Gregoire v. City of Oak Harbor, 170 Wn.2d at 636 (2010). Our decision relies on implied primary assumption, but we will discuss other renderings of assumption of risk in order to sculpt our decision.
[8-11] ¶21 [HN11] Express assumption of risk arises when a plaintiff explicitly consents to relieve the defendant of a duty owed by the defendant to the plaintiff regarding specific known risks. Gregoire v. City of Oak Harbor, 170 Wn.2d at 636; Kirk v. Washington State University, 109 Wn.2d at 453. [HN12] Implied primary assumption of risk follows from the plaintiff engaging in risky conduct, from which the law implies consent. Kirk v. Washington State University, 109 Wn.2d at 453; Erie v. White, 92 Wn. App. 297, 303, 966 P.2d 342 (1998). [HN13] Implied unreasonable assumption of risk, by contrast, focuses not so much on the duty and negligence of the defendant as on the further issue of the objective unreasonableness of the plaintiff’s conduct in assuming the risk. Kirk v. Washington State University, 109 Wn.2d at 454. [HN14] Implied reasonable assumption of risk is roughly the counterpart to implied unreasonable assumption of risk in that the plaintiff assumed a risk but acted reasonably in doing so. Kirk v. Washington State University, 109 Wn.2d at 454.
 ¶22 We confront difficulty in distinguishing among at least three of the four categories because of the [**12] nondescript identifiers and near homophonic labels of some classifications. Therefore, we recommend that the Supreme [*411] Court rechristen the categories as express assumption, inherent peril assumption of risk, and increased danger assumption of risk. [HN15] The gist of implied reasonable and implied unreasonable assumption of risk is that the defendant performed conduct that increased the risk of an activity or situation beyond the risks inherent in the activity or situation and the plaintiff reasonably or unreasonably encountered this increased risk. The traditional categories of implied unreasonable and implied reasonable assumption of risk hold no meaningful distinction since both reduce rather than bar the plaintiff’s recovery, and so we urge combining the two concepts into increased danger assumption of risk. We hereafter use these new terms.
Inherent Peril Assumption of Risk
[13, 14] ¶23 We now focus on inherent peril assumption of risk. [HN16] Inherent peril assumption bars a claim resulting from specific known and appreciated risks impliedly assumed often in advance of any negligence of the defendant. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 497 (1992); Boyce v. West, 71 Wn. App. 657, 666-67, 862 P.2d 592 (1993). Plaintiff’s consent to relieve the defendant of any duty is implied based on the plaintiff’s decision [**13] to engage in an activity that involves those known risks. Egan v. Cauble, 92 Wn. App. 372, 376, 966 P.2d 362 (1998); Gleason v. Cohen, 192 Wn. App. at 797 (2016). [HN17] One who participates in sports impliedly assumes the risks inherent in the sport. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 498; Boyce v. West, 71 Wn. App. at 667.
 ¶24 [HN18] Whether inherent peril assumption of risk applies depends on whether the plaintiff was injured by an inherent risk of an activity. Gleason v. Cohen, 192 Wn. App. at 797. The plaintiff assumes the dangers that are inherent in and necessary to a particular activity. Tincani v. Inland Empire Zoological Society, 124 Wn.2d at 144 (1994); Scott v. Pacific West Mountain Resort, 119 Wn.2d at 500-01; Gleason [*412] v. Cohen, 192 Wn. App. at 797; Lascheid v. City of Kennewick, 137 Wn. App. 633, 641-42, 154 P.3d 307 (2007); Taylor v. Baseball Club of Seattle, LP, 132 Wn. App. 32, 37-39, 130 P.3d 835 (2006); Dorr v. Big Creek Wood Products, Inc., 84 Wn. App. 420, 427, 927 P.2d 1148 (1996).
¶25 [HN19] The classic example of inherent peril assumption involves participation in sports when a participant knows that the risk of injury is a natural part of such participation. Gleason v. Cohen, 192 Wn. App. at 798. One who engages in sports assumes the risks that are inherent in the sport. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 498; Gleason v. Cohen, 192 Wn. App. at 798. To the extent a risk inherent in the sport injures a plaintiff, the defendant has no duty and there is no negligence. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 498; Gleason v. Cohen, 192 Wn. App. at 798. A defendant simply does not have a duty to protect a sports participant from dangers that are an inherent and normal part of a sport. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 498; Gleason v. Cohen, 192 Wn. App. at 798.
 ¶26 [HN20] Inherent peril assumption extends to water sports. One who engages in water sports assumes the reasonably foreseeable risks inherent in the activity. DeWick v. Village of Penn Yan, 275 A.D.2d 1011, 713 N.Y.S.2d 592, 594 (2000). This assumption of risk includes inner tubing on water and canoe rentals. Record v. Reason, 73 Cal. App. 4th 472, 86 Cal. Rptr. 2d 547 (1999); Ferrari v. Bob’s Canoe Rental, Inc., 143 A.D.3d 937, 39 N.Y.S.3d 522 (2016). Bodies of water often undergo change, and changing conditions in the water [**14] do not alter the assumption of risk. DeWick v. Village of Penn Yan, 713 N.Y.S.2d at 594. There is no duty to warn of the presence of natural transitory conditions. DeWick v. Village of Penn Yan, 713 N.Y.S.2d at 594.
¶27 DeWick v. Village of Penn Yan, 275 A.D.2d 1011 is illustrative of the application of inherent peril assumption in the context of water. Trina Kerrick and Daniel DeWick [*413] drowned in Keuka Lake on June 19, 1995. Kerrick allegedly gained access to the lake from the beach at Indian Pines Park, which was owned by defendant Village of Penn Yan. While wading in the water, she stepped from a sandbar where the lake bottom drops off and became caught in an undertow or current. DeWick drowned trying to save her. Neither could swim. The accident occurred on a hot day, four days before the beach officially opened for the season. The plaintiffs alleged that the village failed to warn specifically about the dangers of the drop-off and swift current. The court summarily dismissed the suit. The risk of reaching a drop-off was a reasonably foreseeable risk inherent in wading into a lake.
 ¶28 [HN21] Inherent peril assumption, like express assumption of risk, demands the presence of three elements. The evidence must show (1) the plaintiff possessed full subjective understanding (2) of the presence and nature of the specific risk and (3) voluntarily [**15] chose to encounter the risk. Kirk v. Washington State University, 109 Wn.2d at 453 (1987). The participant must know that the risk is present, and he or she must further understand its nature; his or her choice to incur it must be free and voluntary. Brown v. Stevens Pass, Inc., 97 Wn. App. at 523. In the usual case, his or her knowledge and appreciation of the danger will be a question for the jury; but where it is clear that any person in his or her position must have understood the danger, the issue may be decided by the court. Brown v. Stevens Pass, Inc., 97 Wn. App. at 523; Keeton et al., supra, § 68, at 489.
¶29 [HN22] The rule of both express and inherent peril assumption of risk requires a finding that the plaintiff had full subjective understanding of the presence and nature of the specific risk. Kirk v. Washington State University, 109 Wn.2d at 453. Depending on how specific the risk must be, this statement of the rule taken literally would abrogate the rule of inherent peril assumption because one rarely, if ever, anticipates the full particulars of an accident producing injury. One can never predict all of the variables that [*414] combine to cause an accident and injury. Also, the doctrine might not apply in wrongful death cases, because the judge or jury will lack evidence of the subjective understanding of the decedent. Washington courts’ applications of the rule suggest, however, that the plaintiff need only know [**16] the general nature of the risk. One case example is Boyce v. West, 71 Wn. App. 657 (1993).
¶30 In Boyce v. West, a mother brought a suit against a college and its scuba diving instructor after the death of her son, who died during a scuba diving accident while engaging in the college course. The mother claimed the instructor negligently taught and supervised her son. The son, Peter Boyce, signed a document acknowledging the possibility of death from scuba diving and assuming all risks in connection with the course, whether foreseen or unforeseen. This court affirmed summary judgment dismissal of the claims against the school and the instructor. The court reasoned that negligent instruction and supervision are risks associated with being a student in a scuba diving course and were encompassed by the broad language of the contract. Although Peter may not have specifically considered the possibility of instructor negligence when he signed the release, this lack of consideration did not invalidate his express assumption of all risks associated with his participation in the course. [HN23] Knowledge of a particular risk is unnecessary when the plaintiff, by express agreement, assumes all risks.
¶31 Boyce v. West entails express assumption of [**17] risk, but [HN24] the same rule of subjective knowledge of risk applies to both express assumption and inherent peril assumption. Based on Boyce v. West and cases involving water sports, we hold that Brian Pellham assumed the risks involved in river tubing, including the fallen tree. Pellham may not have precisely and subjectively known how the combination of a swift current, a bend in the river, and a fallen tree would produce his injury. Nevertheless, he knew of the potential of all factors. He may not have known of the location of any [*415] fallen tree in the river, but he knew of the potential of a fallen tree somewhere in the river. He had more reason to know of the dangers that caused his injury when he started his excursion than Peter Boyce had reason to know of the risks that led to his death when Boyce signed his college course form. In the setting of inherent peril assumption, New York courts have ruled that, [HN25] if the participant fully comprehends the risks of the activity or if those risks are obvious or reasonably foreseeable, he or she has consented to those risks and the defendant has performed its duty. Ferrari v. Bob’s Canoe Rental, Inc., 143 A.D.3d at 938 (2016); Turcotte v. Fell, 68 N.Y.2d 432, 439, 502 N.E.2d 964, 510 N.Y.S.2d 49 (1986).
 ¶32 [HN26] While participants in sports are generally held to have impliedly assumed the risks [**18] inherent in the sport, such assumption of risk does not preclude a recovery for negligent acts that unduly enhance such risks. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 501; Gleason v. Cohen, 192 Wn. App. at 798. This principle leads us to a discussion of increased danger assumption.
 ¶33 [HN27] Courts have struggled to properly distinguish between inherent peril assumption of risk (implied primary assumption of risk), which bars the plaintiff’s claim, and increased danger assumption of risk (implied unreasonable assumption of risk), which simply reduces the plaintiff’s damages. Barrett v. Lowe’s Home Centers, Inc., 179 Wn. App. 1, 6, 324 P.3d 688 (2013). This court warned long ago that courts must carefully draw the line between these two types of assumption of risk. Gleason v. Cohen, 192 Wn. App. at 795; Dorr v. Big Creek Wood Products, Inc., 84 Wn. App. at 425-26 (1996). A rigorous application of inherent peril assumption of risk could undermine the purpose of comparative negligence. Kirk v. Washington State University, 109 Wn.2d at 455-56. Significantly, [HN28] inherent peril assumption is the exception rather than the rule in assumption of risk situations.
 ¶34 [HN29] Increased danger assumption of risk does not involve a plaintiff’s consent to relieve the defendant of a [*416] duty. Gleason v. Cohen, 192 Wn. App. at 796. In this type of assumption of risk, the defendant breached a duty that created a risk of harm, and the plaintiff chose to take that risk. Gleason v. Cohen, 192 Wn. App. at 796. Specifically, increased danger assumption involves the plaintiff’s voluntary choice to encounter a risk created [**19] by the defendant’s negligence. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 499; Gleason v. Cohen, 192 Wn. App. at 796. Increased danger assumption of risk arises when the plaintiff knows of a risk already created by the negligence of the defendant, yet chooses voluntarily to encounter it. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 499 (1992); Gleason v. Cohen, 192 Wn. App. at 798. In such a case, a plaintiff’s conduct is not truly consensual but is a form of contributory negligence, in which the negligence consists of making the wrong choice and voluntarily encountering a known unreasonable risk. Gleason v. Cohen, 192 Wn. App. at 796.
¶35 Dorr v. Big Creek Wood Products, Inc., 84 Wn. App. 420, 927 P.2d 1148 (1996) presents a good illustration of increased danger assumption of risk. Michael Dorr entered a forest where his friend John Knecht cut trees. Dorr knew of the phenomenon of “widow-makers,” large limbs caught in surrounding trees after a tree is felled. Nevertheless, after Knecht cut a tree, Knecht waved Dorr forward to meet him. As Dorr proceeded, a large limb fell on him. This court affirmed a verdict favoring Dorr. Although Dorr in general assumed the risk of “widow-makers,” Knecht’s misleading directions led to implied unreasonable or secondary assumption of risk. The jury could still find and did find Dorr comparatively at fault for proceeding with the knowledge of “widow-makers,” but Dorr’s fault would be compared with Knecht’s fault. The negligence of Knecht [**20] arose after Dorr entered the forest.
 ¶36 Brian Pellham alleges that Let’s Go Tubing was negligent by reason of sending him and others on inner tubes in fast moving water with a downed tree in the middle [*417] of the water without warning to the tuber. Let’s Go Tubing did not create the risk and could not remove the risk. Although Pellham knew of the risks of logs and current, Pellham did not know of the precise risk when he first encountered it. When he noticed the risk, he lacked time to avoid the hazard. Pellham did not voluntarily proceed after knowing of the alleged negligence of Let’s Go Tubing. Any alleged negligence of Let’s Go Tubing occurred before Pellham entered the river. Therefore, increased danger assumption of risk does not apply.
¶37 Let’s Go Tubing performed no act that created the swift current or felled the log into the water. [HN30] The cases that decline application of inherent peril assumption involve a positive act of the defendant, such as the implanting of a post or snow shack adjacent to a ski run. Scott v. Pacific West Mountain Resort, 119 Wn.2d 484 (1992); Brown v. Stevens Pass, Inc., 97 Wn. App. at 521 (1999).
¶38 One might argue that Let’s Go Tubing’s failure to warn increased the risk attended to the fallen log in the Yakima River. [HN31] A defendant may be held liable when a reasonable person would customarily [**21] instruct a plaintiff in respect to the dangers inherent in an activity. Allen v. Dover Co-Recreational Softball League, 807 A.2d at 1288. Thus, a defendant may be held liable if the plaintiff alleges that a reasonable person would customarily warn, advise, inform, and instruct regarding the risk of injury to participants and the manner in which such risks could be minimized and their failure to do so caused the plaintiff’s injuries. Allen v. Dover Co-Recreational Softball League, 807 A.2d at 1288. Brian Pellham presents no evidence that those who rent out watercrafts customarily warn of fallen natural objects in the water.
 ¶39 The document signed by Brian Pellham contained terms in addition to releasing Let’s Go Tubing from liability. In the instrument, Pellham also recognized that the hazards of river tubing included the existence of rocks, logs, plants, and variations in water depth and speed of [*418] current. Pellham agreed to assume full responsibility for all risks involved in river tubing, including serious injuries and death resulting from the hazards. Although we do not base our holding on express assumption of risk, we note that the release’s recitation of dangers warned Pellham of the inherent perils attended to inner tubing and those dangers that led to Pellham’s injuries.
¶40 Brian Pellham argues that the waiver [**22] form he signed does not bar a claim for gross negligence. The parties, in turn, devote much argument to the issue of whether Pellham creates a question of fact as to gross negligence. Since we do not rely on express assumption of risk, we need not directly address this argument. Instead, we must ask and answer whether a tuber may overcome the defense of inherent peril assumption of risk by showing gross negligence by the inner tube rental company.
¶41 [HN32] When inherent peril assumption of risk applies, the plaintiff’s consent negates any duty the defendant would have otherwise owed to the plaintiff. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 498 (1992); Gleason v. Cohen, 192 Wn. App. at 798 (2016). Based on this premise of inherent peril assumption, the defendant should avoid liability for gross negligence. Gross negligence constitutes the failure to exercise slight care. Nist v. Tudor, 67 Wn.2d 322, 331, 407 P.2d 798 (1965). The lack of duty resulting from inherent peril assumption should extend to an absence of any obligation to exercise slight care.
¶42 At the same time, [HN33] gross negligence claims survive a release against liability. A sporting participant’s assumption of inherent risks effectively acts as a release from liability. Since gross negligence claims survive a release, gross negligence maybe should survive inherent peril assumption of risk. [**23]
¶43 No Washington case directly holds that a claim for gross negligence survives the plaintiff’s express assumption [*419] of risk. Nevertheless, in at least two decisions, Washington courts assumed that a gross negligence cause of action endured. Boyce v. West, 71 Wn. App. 657 (1993); Blide v. Rainier Mountaineering, Inc., 30 Wn. App. 571, 636 P.2d 492 (1981). In Boyce v. West, the surviving mother failed to present evidence of gross negligence. In Blide v. Rainier Mountaineering, Inc., an injured climber did not argue gross negligence. Other jurisdictions have held that express assumption of risk does not bar a claim for gross negligence since public policy does not allow one to exonerate oneself from gross negligence. Coomer v. Kansas City Royals Baseball Corp., 437 S.W.3d 184, 193 n.3 (Mo. 2014); Kerns v. Hoppe, 128 Nev. 910, 381 P.3d 630 (2012); Perez v. McConkey, 872 S.W.2d 897, 904 (Tenn. 1994).
¶44 [HN34] Since express assumption of risk and inherent peril assumption of risk both result in the bar of the plaintiff’s claim and arise from the plaintiff’s voluntary assumption of risk, one might argue that a gross negligence claim should survive assumption of risk by inherent peril if it survives express assumption of risk. Nevertheless, the two varieties of assumption of risk promote different interests and raise disparate concerns. A signed assumption of all risks could be the result of unequal bargaining power and apply to activities that involve little, or no, risks. The bargaining [**24] power with regard to inherent peril assumption is immaterial. Assumption follows from hazards the plaintiff voluntarily assumes because of the thrill and enjoyment of an activity.
 ¶45 We find no foreign decisions in which the court holds that a cause of action for gross negligence survives the application of inherent peril assumption of risk in the context of sports or outdoor recreation. Instead, other courts addressing the question consistently [HN35] limit the liability of the defendant, when inherent peril assumption applies, to intentional or reckless conduct of the defendant. Ellis v. Greater Cleveland R.T.A., 2014-Ohio-5549, 25 N.E.3d 503, 507 (Ct. App.); Custodi v. Town of Amherst, 20 N.Y.3d 83, [*420] 980 N.E.2d 933, 957 N.Y.S.2d 268 (2012); Cole v. Boy Scouts of America, 397 S.C. 247, 725 S.E.2d 476, 478 (2011); Pfenning v. Lineman, 947 N.E.2d 392, 404 (Ind. 2011); Yoneda v. Tom, 110 Haw. 367, 133 P.3d 796, 808 (2006); Peart v. Ferro, 119 Cal. App. 4th 60, 13 Cal. Rptr. 3d 885, 898 (2004); Allen v. Dover Co-Recreational Softball League, 807 A.2d at 1281 (2002); Behar v. Fox, 249 Mich. App. 314, 642 N.W.2d 426, 428 (2001); Estes v. Tripson, 188 Ariz. 93, 932 P.2d 1364, 1365 (Ct. App. 1997); Savino v. Robertson, 273 Ill. App. 3d 811, 652 N.E.2d 1240, 1245, 210 Ill. Dec. 264 (1995); King v. Kayak Manufacturing Corp., 182 W. Va. 276, 387 S.E.2d 511, 518 (1989). A recklessness standard encourages vigorous participation in recreational activities, while still providing protection from egregious conduct. Behar v. Fox, 642 N.W.2d at 428 (2001). We join the other jurisdictions in imposing an intentional and reckless standard, rather than a gross negligence standard, when the plaintiff assumes the risks of inherent perils in a sporting or outdoor activity.
¶46 [HN36] Gross negligence consists of the failure to exercise slight care. Nist v. Tudor, 67 Wn.2d at 331 (1965). Reckless misconduct denotes a more serious level of misconduct than gross negligence. An actor’s conduct is in “reckless disregard” of the safety of another if he or she intentionally [**25] does an act or fails to do an act that it is his or her duty to the other to do, knowing or having reason to know of facts that would lead a reasonable person to realize that the actor’s conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result to him or her. Adkisson v. City of Seattle, 42 Wn.2d 676, 685, 258 P.2d 461 (1953); Brown v. Department of Social & Health Services, 190 Wn. App. 572, 590, 360 P.3d 875 (2015). Brian Pellham does not allege that Let’s Go Tubing engaged in reckless conduct. No evidence supports a conclusion that the inner tube rental company bus driver purposely omitted a warning to Pellham with knowledge that Pellham would suffer substantial harm.
¶47 We affirm the trial court’s summary judgment dismissal of Brian Pellham’s suit against Let’s Go Tubing.
Korsmo and Siddoway, JJ., concur.
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Great American Alliance Insurance Company, Plaintiff, vs. Windermere Baptist Conference Center, Inc., et al., 2017 U.S. Dist. LEXIS 103148Posted: August 13, 2017
Great American Alliance Insurance Company, Plaintiff, vs. Windermere Baptist Conference Center, Inc., et al., Defendants.
United States District Court for the Western District of Missouri, Central Division
2017 U.S. Dist. LEXIS 103148
July 5, 2017, Decided
July 5, 2017, Filed
PRIOR HISTORY: Great Am. Alliance Ins. Co. v. Windermere Baptist Conf. Ctr., Inc., 2016 U.S. Dist. LEXIS 92701 (W.D. Mo., July 18, 2016)
COUNSEL: [*1] For Great American Alliance Insurance Company, Plaintiff: John S. Sandberg, LEAD ATTORNEY, Kenneth R. Goleaner, Sandberg, Phoenix & von Gontard, PC-St. Louis, St. Louis, MO.
For Windermere Baptist Conference Center, Inc., Defendant: Amber Joy Simon, Lauren E. Tucker McCubbin, LEAD ATTORNEYS, Lisa A. Weixelman, Polsinelli PC – KCMO, Kansas City, MO.
For Kendra Brown, Defendant: Christopher P. Rackers, LEAD ATTORNEY, Kaci R Peterson, Schreimann, Rackers & Francka, LLC, Jefferson City, MO.
For Jeremy Richards, Karlee Richards, Defendants: Patrick M. Martucci, LEAD ATTORNEY, Johnson, Vorhees & Martucci – Joplin, Joplin, MO.
JUDGES: NANETTE K. LAUGHREY, United States District Judge.
OPINION BY: NANETTE K. LAUGHREY
This case principally concerns whether Defendants, Windermere Baptist Conference Center and Kendra Brown, have insurance coverage under a Great American policy for potential liability in a suit pending in Morgan County. In that case, damages are being sought against them for injuries sustained by Karlee Richards after she fell while zip-lining at The Edge, a ropes course at Windermere’s Conference Center. Kendra Brown was an employee of Windermere, working at the Edge at the time of the accident.
In [*2] June 2014, Karlee Richards and her Searcy Baptist Church youth group were attending a summer camp at Windermere’s Conference Center, which was sponsored by Lifeway Christian Resources of the Southern Baptist Conference, d.b.a. Student Life.1 Student Life contracted with Windermere to hold the church camp at Windermere’s facility in Missouri. Student Life had a liability policy with Great American, and Windermere was an additional insured on that policy. The additional insured endorsement provides that the additional insured, in this case Windermere, is only covered for “liability arising out of the ownership, maintenance or use of that portion of the premises leased to [Student Life] [by Windemere].” [Doc. 35-17, p.1 (“Endorsement”)]. Great American contends that Windermere is not entitled to coverage for Kaylee Richards’s injuries because Windermere did not “lease” the Edge to Student Life because the Edge was not specifically mentioned in Student Life’s written agreement with Windermere.
1 Lifeway Christian Resources of the Southern Baptist Convention does business as Student Life. The Court refers to Lifeway and Student Life interchangeably throughout the remainder of this Order as simply, “Student Life.”
Pending before the Court is Great American’s Motion for Summary Judgment. [Doc. 34]. For the following reasons, the Motion is granted in part and denied in part.
I. Undisputed Facts2
2 Unless otherwise noted, the facts recited are those which are properly supported and undisputed.
A. The Student Life [*3] Camp at Windermere
Windermere Baptist Conference Center is a large Conference Center on the Lake of the Ozarks with over 300 acres and 126 buildings, including group lodging, a dining hall, conference space, cabins, a chapel, and a gift shop. Windermere also offers various recreational facilities and activities at its campus, including the Edge. Organizations like Student Life use Windermere’s facilities for summer church camps.
Student Life had been conducting camps at Windermere for about ten years prior to its June 2014 camp. In January 2014, Student Life and Windermere executed an Amended Conference Contract. The “Amended Conference Contract,” provides:
Amended Conference Contract
. . .
Event Name: Student Life #1 ’14 (June 2-6, 2014)
Expected #: 1000
Arrive Date: Saturday, May 31, 2014
(Check in begins at 3:00 PM. Rooms may not be available until 6:00 PM. . .)
Depart Date: Saturday, June 7, 2014
Lodging Check out time is 11:00 AM. Keys must be turned in by this time. . .)
|Per Person (Student Life Extra)||5/31/14||6/2/14||2||25||$17.50||$825.00|
|Per Person (Student Life Extra)||6/1/14||6/2/14||1||15||$17.50||$262.50|
|Per Person (Student Life [*4] ’14)||6/2/14||6/5/14||4||1,000||$70.00||$70,000|
|Total for Lodging: $71,137.50||$56,910.00|
You will need to provide Windermere a rooming list (names of individuals occupying each room) and a copy of your conference or retreat schedule at the time of check-in.
. . .
|Total for Meals: $76,570.00||$61,733.00|
. . .
All guests eating in the dining hall must have a meal ticket or wrist band to be
admitted into the Dining Hall.
. . .
CONFERENCE SPACE INFORMATION
|Wilderness Creek Auditorium (1500)||6/1/14 8:00am||6/6/14 12:00pm|
|Deer Ridge Conf Rm 1 (30)||6/2/14 3:00pm||6/6/14 12:00pm|
|Total for Conference Space: $0.00|
. . .
Use of conference space and facilities begins at the start time stated in the contract. Conference or facility space usage time ends at the time stated in the contract and must be empty of all guests and guest items.
. . .
|Estimated Total Payment||$147,707.50|
|Total Minimum Payment||$118,643.00|
The above named group will have financial responsibility for any damages and excessive wear and tear it incurs to the Windermere grounds, facilities or property to the extent that such damage or excessive wear and tear arises [*5] from the negligence or willful misconduct of the above named group. Cleanup of any facilities or grounds that are excessively dirty will be the financial responsibility of the group.
[Doc. 35-5 (“Amended Conference Contract”)].
The parties’ Amended Conference Contract does not identify every building or activity that was available to campers during Student Life’s camp at Windermere. For example, the chapel, which is made available to any group attending a camp at Windermere, is not listed. In addition, the dining hall is not specifically listed under the “Conference Space Information” heading, despite the Amended Conference Contract listing a price for meals Windermere is to provide.
In addition, it is undisputed that Windermere offered various free recreational activities to its guest campers, including those who attended the Student Life camp. Windermere also offered some special recreational activities that required an additional fee and reservations. The Edge was one such activity. The Edge, a ropes and zip-lining course, is not accessible to campers at Windermere without special scheduling, the purchase of tickets, and the execution of a “Recreational Release” form. Student Life [*6] advertised Windermere’s recreational facilities, including “The Edge,” as available for use to its campers, and it was Student Life’s expectation that these facilities would be available.
In addition to the Amended Conference Contract, Student Life also completed a Facilities Request Form, and Windermere completed a Fax Back Response Sheet. [Docs. 40-3 and 40-4]. The Fax Back Response Sheet provides:
Student Life Camp
Windermere Conference Center
. . .
What are some free-time options on your campus?
o Sand Volleyball, Outdoor Basketball, Tennis, Mini Golf, Disc Golf, Pool, Hiking, The Edge (low/high ropes course), Paintball, Waterfront Activities (Inflatable water park, kayak, canoe, paddle boats, fishing, etc) (See attached PDF on available Recreation Packages).
[Doc. 40-4, p. 3].
B. Great American Insurance Policy
Student Life is the named insured on a Commercial General Liability policy with Great American. The policy requires that all requests for medical payments be made within one year of the accident that gives rise to the insurance claim. [Doc. 42-2, p. 62 of 166]. Also, when there is other valid and collectible excess insurance coverage, the Great American policy provides [*7] that Great American will have no duty to defend its insured against a claim for damages. [Doc. 42-2, p. 67-68 of 166].
Because Student Life was contracting with Windermere for its event, Windermere was named as an additional insured on Student Life’s Great American policy. The Certificate of Liability Insurance was issued by Great American on May 8, 2014, and Windermere accepted. The Certificate referenced Great American’s policy issued to Student Life, Policy No.: GLP 0310189 and stated:
Event: Student Life Event Dates: May 31-June 7 and June 14-20, 2014 Windermere Conference Center is included as Additional Insured on the General Liability policy, as per endorsement #CG 82 24, ed. 12/01, and on the Automobile Liability policy, as per endorsement #CA 8518, ed. 6/09.
[Doc. 35-7 (“Certificate of Liability Insurance”)].
C. The Underlying Lawsuit
The Searcy Baptist Church youth group was one of the groups of campers that attended Student Life’s camp at Windermere in June of 2014. Karlee Richards and the rest of the Searcy youth group were scheduled to ride The Edge on June 4, 2014. They paid Windermere an additional fee for this activity. While zip-lining at The Edge that day, Richards fell [*8] and was injured. Kendra Brown, a Windermere employee, was working at the Edge at the time of the accident.
Following Karlee Richards’s accident at The Edge, her father, Jeremy Richards, both individually and as Next Friend, brought suit against Windermere and several of Windermere’s employees, including Kendra Brown. This lawsuit is currently pending in the Circuit Court of Morgan County, Missouri and seeks damages for Karlee Richards’s physical injuries sustained at The Edge.
On November 17, 2015, Windermere and Kendra Brown tendered claims to Great American for defense and indemnity of the underlying lawsuit, seeking coverage as additional insureds under Student Life’s Great American policy. [Doc. 35-15 (“Demand Letter”)]. The letter also demanded Medical Payments coverage for Karlee Richards’s medical expenses. The demand for Medical Payments coverage was made more than one year after Richards’s June 4, 2014 accident at The Edge. [Docs. 35-15 (“Demand Letter”) and 35-18 (“Feb. 4, 2016 Denial Letter”)].
Great American responded to the parties’ demand letter with a request for additional information, including information regarding Windermere’s coverage through Church Mutual Insurance [*9] Company. Windermere’s insurer, Church Mutual, was defending Windermere in the underlying lawsuit. [Doc. 35-14, p. 1 of 7 (“Dec. 17, 2015 Letter”)]. In subsequent correspondence with Great American, Windermere also stated, “Church Mutual, the insurer for ‘Windermere’ has tendered its full two million dollars in liability insurance.” [Doc. 35-14, p. 1 of 7 (“Dec. 17, 2015 Letter”)].
In its February 4, 2016 denial letter to Windermere and Brown, Great American concluded that Richards’s accident did not arise out of the ownership, maintenance, or use of the premises Windermere leased to Student Life and denied Windermere’s tender. Great American’s letter also provided that:
[E]ven if indemnity coverage did exist for Windermere and Kendra Brown under the Lifeway Policy, it is also clear that that [sic] Great American owes no defense obligation of the pending lawsuit. Your December 17, 2015 correspondence renewing the tender of defense on behalf of both Windermere and Kendra Brown makes clear that Windermere is being afforded a defense by Church Mutual and that Kendra Brown is being defended by both Church Mutual and Shelter. . . . [T]he Social Service Agency General Liability Broadening Endorsement [*10] makes clear that any coverage that did exist would be excess over all other insurance, including both the Church Mutual and Shelter policies. The “Other Insurance” provision of the Lifeway Policy makes clear that, where its coverage is excess and a defense is being provided by another carrier, Great American owes no duty to defend. Hence, Windermere’s and Kendra Brown’s tender of the defense of the pending lawsuit is denied for this additional reason.
[Doc. 35-18, p. 6 (“Feb. 4, 2016 Denial Letter”)]. Great American also denied Brown’s tender, stating that she was not an additional insured on the policy. Id.
Windermere seeks coverage in the underlying Morgan County lawsuit as an additional insured under the Great American policy issued to Student Life. After denying Windermere’s tender, Great American filed suit before this Court seeking a declaratory judgment regarding its obligations under the policy. Great American now moves for summary judgment on its requested declaratory judgment that: (1) no liability coverage exists under its policy issued to Student Life for any claims asserted in the underlying lawsuit against Windermere or Windermere’s employees, including Kendra [*11] Brown; (2) Great American owes no duty to defend Windermere, Kendra Brown, or any other Windermere employees in the underlying lawsuit; and (3) no medical payments coverage exists for Karlee Richards.
A movant is entitled to summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). The rule requires summary judgment to be entered “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
A federal court sitting in diversity applies the choice-of-law rules of the state where the court sits, in this case, Missouri. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); American Guarantee Liability Ins. Co. v. U.S. Fidelity & Guaranty Co., 668 F.3d 991, 996 (8th Cir.2012). But a court need not undertake a choice-of-law inquiry unless an actual conflict of law is demonstrated. Prudential Ins. Co. of Am. v. Kamrath, 475 F.3d 920, 924 (8th Cir.2007) (citation omitted). Because the parties do not raise any actual conflict and because they do not dispute that Missouri law applies, the Court applies Missouri law.3
3 Plaintiff Great American contends no choice of law analysis is necessary because the outcome is the same under the law of the three states that could potentially apply: Missouri, Tennessee, and Alabama. Because Defendants Windermere, Brown, and the Richards contend Missouri law should apply, the Court concludes that the parties agree to the application of Missouri law.
A. Interpretation of Insurance Policies in Missouri
The interpretation [*12] of an insurance policy is a question of law to be determined by the Court. Mendota Ins. Co. v. Lawson, 456 S.W.3d 898, 903 (Mo. Ct. App. 2015). The ultimate goal of contract interpretation is to determine the intent of the parties. Bolinger v. Clarks Mut. Ins. Co., 485 S.W.3d 803, 809 (Mo. Ct. App. 2016). To determine the intent of the parties, the language in the contract is to be read according to its plain and ordinary meaning. Mendota, 456 S.W.3d at 903.
In interpreting an insurance policy, “[t]he key is whether the contract language is ambiguous or unambiguous.” Todd v. Mo. United Sch. Ins. Council, 223 S.W.3d 156, 160 (Mo. banc 2007). If an ambiguity exists, the policy language will be construed against the insurer. Mendota, 456 S.W.3d at 904. “‘An ambiguity exists when there is duplicity, indistinctness, or uncertainty in the meaning of the language of the policy.'” Fanning v. Progressive Northwestern Ins. Co., 412 S.W.3d 360, 364 (Mo. Ct. App. 2013) (quoting Seeck v. Geico Gen. Ins. Co., 212 S.W.3d 129, 132 (Mo. banc 2007)). “‘To test whether the language used in the policy is ambiguous, the language is considered in the light in which it would normally be understood by the lay person who bought and paid for the policy.'” Blumer v. Automobile Club Inter–Ins, 340 S.W.3d 214, 219 (Mo. Ct. App. 2011) (quoting Heringer v. Am. Family Mut. Ins. Co., 140 S.W.3d 100, 102 (Mo. Ct. App. 2004)). “Whether an insurance policy is ambiguous is a question of law.” Todd, 223 S.W.3d at 160.
“[T]he parties seeking to establish coverage under the insurance policy have the burden of proving that the claim is within the coverage afforded by the policy . . . even though they are denominated as defendants in a declaratory judgment action.” State Farm Fire & Cas. Co. v. D.T.S., 867 S.W.2d 642 (Mo. Ct. App. 1993).
B. Liability Coverage [*13] for Windermere as Additional Insured
The Great American policy’s declarations page lists Student Life as the named insured. Windermere is listed as an additional Insured as follows:
5. AUTOMATIC ADDITIONAL INSURED(S)
a. Additional Insured — Manager or Lessor of Premises
(1) This policy is amended to include as an insured any person or organization (hereinafter called Additional Insured) from whom you lease or rent property and which requires you to add such person or organization as an Additional Insured
(2) With respect to the insurance afforded the Additional Insured identified in Paragraph A.(1) of this endorsement, the following additional provisions apply:
(a) This insurance applies only to liability arising out of the ownership, maintenance or use of that portion of the premises leased to [Student Life].
[Doc. 35-17, p. 1 (“Endorsement”)]
Great American contends that the reference in Section 5.a.(2)(a) to “premises leased to you” refers to the specific places identified in the Amended Conference Contract between Windermere and Student Life. According to Great American, because the Edge is not listed, Windermere’s potential liability for the accident at the Edge is not covered. In contrast, Windermere [*14] argues that “premises lease” includes all the places on its property that Student Life campers were authorized to access, including the Edge.
1. Interpretation of Section 5.a.(2)(a)4
4 Defendants Brown and the Richards argue that the limitation of liability in Section 5.a.(2)(a) does not apply to Windermere because that section refers to Paragraph A.(1), and Windermere is identified as an Additional Insured by Paragraph a.(1). In other words, these Defendants reason that the parties must be referring to something other than the preceding paragraph a.(1) because capital A.(1) rather than lower case a.(1) was used. Defendants further reason that the only “Paragraph A.(1)” in the endorsement is located in Section 7A.(1) which limits liability to $300,000 for personal property and building damage rented to an additional insured. The Court rejects this argument because the reference to “A” instead of “a” is clearly a minor typographical error, and the Defendants’ strained interpretation of Section 7 in this context makes no sense. In Mendota Insurance Company v. Ware, 348 S.W.3d 68 (Mo. Ct. App. 2011), the Missouri Court of Appeals rejected a similar argument based on a typographical error because the “policy’s intended meaning, would be apparent to an ordinary reader.” Id. at 73. In the context of the Great American policy, it would not be reasonable for an ordinary reader to think that the use of A.(1), immediately after a section labeled a.(1), would be referring to 7A.(1) when 7A.(1) has nothing to do with identifying an additional insured and is not located in close proximity to the paragraph that does deal with the additional insured.
Whether an insurance provision is ambiguous is a question of law for the Court. General Am. Life Ins. Co. v. Barrett, 847 S.W.2d 125, 131 (Mo. Ct. App. 1993). A policy is ambiguous if it is “fairly open to different interpretations” because it contains “duplicity, indistinctness, or uncertainty of meaning.” Id. Importantly, there are two types of ambiguities in the law: patent and latent. Cent. United Life Ins. Co. v. Huff, 358 S.W.3d 88, 95 (Mo. Ct. App. 2011). “A patent ambiguity is detected from the face of the document, whereas a latent ambiguity is found ‘when the particular words of a document apply equally well to two different objects or some external circumstances make their meaning uncertain.'” Id. (quoting Jake C. Byers, Inc. v. J.B.C. Invs., 834 S.W.2d 806, 816 (Mo. Ct. App. 1992)).
a. Patent Ambiguity
The key phrase that this Court must interpret and apply is “portion of the premises leased to [Student Life].” “The words of a policy must be given their plain and ordinary meaning consistent with the reasonable expectation and objectives of the parties, unless it is obvious that a technical meaning was intended.” Bolinger v. Clarks Mut. Ins. Co., 485 S.W.3d 803, 809 (Mo. Ct. App. 2016). (internal quotation marks removed). Counsel for Great American argues that the term “lease” is understood by everyone [*15] to be a premise over which one has exclusive or near exclusive control. [Oral Argument Transcript, p. 3]. Therefore, the word “lease” would only cover the property over which Student Life had exclusive control by the terms of the Amended Conference Contract. In contrast, Windermere effectively argues that all of the documents surrounding the formation of the insurance policy demonstrate that an ordinary person would not intend the technical meaning of the term “lease,” i.e. exclusive possession, but instead, would expect it to cover all of the Windermere property to which Student Life campers had authorized access.
Under Missouri law, a lease gives exclusive5 use of property for a determined period of time to the lessee. Chubb Group of Ins. Cos. v. C.F. Murphy & Associates, Inc., 656 S.W.2d 766, 777 (Mo. Ct. App. 1983). The term “lease” gives rise to a landlord-tenant relationship, whereby the tenant has “exclusive possession of the premises as against all the world,” including the landlord. Santa Fe Trail Neighborhood Redevelopment Corp. v. W.F. Coen & Co., 154 S.W.3d 432, 439 (Mo. Ct. App. 2005) (internal quotation marks and citations removed). In contrast, “[a] license is only a privilege to enter certain premises for a specific purpose. Kimack v. Adams, 930 S.W.2d 505, 507 (Mo. Ct. App. 1996). The difference between a lease and a license is technical and difficult to determine. Santa Fe, 154 S.W.3d at 439.
5 Great American did not cite to a case that says “near exclusive” possession is enough, and the Court has found no such statement in Missouri law.
When there is a conflict between the technical definition [*16] of a term in a policy and what a reasonable person would understand, the lay definition controls unless it is obvious that a technical definition was intended. Mansion Hills Condo. Ass’n v. Am. Fam. Mut. Ins. Co., 62 S.W.3d 633, 638 (Mo. Ct. App. 2001). “To determine the [lay definition] of a term, courts will consult standard English language dictionaries.” Id. Merriam Webster’s New College Dictionary defines “leased” as “property occupied or used under the terms of a lease.” Webster’s II New College Dictionary (1995). “Lease” is defined as “a contract granting occupation or use of property during a certain period in exchange for a specified rent.” Id. “Premises” is defined as “land and the buildings on it.” Id. Those definitions do not indicate possession is exclusive.
In this context, did the parties intend the phrase “premises leased to you” to have a technical meaning–i.e. the formation of a landlord-tenant relationship between Windermere and Student Life whereby Student Life would have exclusive control over the property listed in the Amended Conference Contract, even as to Windermere? The Certificate of Insurance6 suggests otherwise. [Doc. 35-7]. It states:
Event: Student Life Event Dates: May 31-June 7 and June 14-20, 2014 Windermere Conference Center is included as [*17] Additional Insured on the General Liability policy, as per endorsement #CG 82 24, ed. 12/01, and on the Automobile Liability policy, as per endorsement #CA 8518, ed. 6/09.
This language does not suggest that the parties intended a landlord-tenant relationship being created between Student Life and Windermere. Rather, it suggests that Great American knew it was providing liability insurance to Windermere for an event — the camp — being held by Student Life on the Windermere campus. At a minimum, there is a conflict between the technical meaning of the word lease and what an ordinary person would understand under these circumstances, taking into account the dictionary definitions. In those circumstances, the technical definition does not control. See Mansion Hills Condo. Ass’n v. Am. Fam. Mut. Ins. Co., 62 S.W.3d 633, 638 (Mo. Ct. App. 2001).
6 Because the Certificate of Liability was issued to Windermere for the purpose of adding Windermere as an additional insured, “as per endorsement #CG 82 24 ed. 12/01,” the Certificate arguably became a part of the insurance contract. See Corder v. Morgan Roofing Co., 355 Mo. 127, 195 S.W.2d 441 (Mo. 1946) (finding certificate of insurance that doubled liability coverage, added insurance for property damage, and certified complete coverage of all operations in connection with the insured’s construction contract was part of the insurance contract); see also, Section 1.5.a.(1) of this endorsement:
This policy is amended to include as an insured any person or organization (hereinafter called Additional Insured) from whom you lease or rent property and which requires you to add such person or organization as an Additional Insured on this policy.
Further, State ex rel. State Highway Commission v. Johnson, 592 S.W.2d 854, 857-8 (Mo. Ct. App. 1979), says that a court may consider the circumstances under which the contract was made. These circumstances, as discussed below in the section on latent ambiguity, also support [*18] a finding that an ordinary person would expect to be covered for camp activities, not just for dorm rooms and conference space.
For these reasons, a patent ambiguity exists. The disputed phrase not only should be interpreted in favor of the Defendants, but the Defendants’ interpretation is arguably the only one that would make sense to an ordinary person under these circumstances.
b. Latent Ambiguity
Even if there were no patent ambiguity, the Court can look at extrinsic evidence to determine if there is a latent ambiguity.7 Royal Banks of Mo. v. Fridkin, 819 S.W.2d 359, 362 (Mo. banc 1991) (“A latent ambiguity . . . must be developed by extrinsic evidence.”).
7 Although Defendants do not use the term latent ambiguity, this appears to be the crux of Defendants’ argument: that even if the “premises leased” term is not ambiguous on its face, it is ambiguous when applied to the facts at hand.
A latent ambiguity exists when a contract “on its face appears clear and unambiguous, but some collateral matter makes the meaning uncertain.” Id. In other words, an ambiguity is “latent if language, which is plain on its face, becomes uncertain upon application.” Gen. Am. Life Ins. Co. v. Barrett, 847 S.W.2d 125, 131 (Mo. Ct. App. 1993). For example, “[a] latent ambiguity may be one in which the description of the property is clear upon the face of the instrument, but it turns out that there is more than one estate to which the description applies; or it may be one where the property is imperfectly or in some respects erroneously described, so as not to refer with precision [*19] to any particular object.” Muilenburg, Inc. v. Cherokee Rose Design & Build, LLC, 250 S.W.3d 848, 854-55 (Mo. Ct. App. 2008) (quoting Prestigiacamo v. Am. Equitable Assur. Co. of N.Y., 240 Mo. App. 839, 221 S.W.2d 217, 221 (1949) (internal quotation marks omitted)). The case of Royal Banks of Mo. v. Fridkin, 819 S.W.2d 359, 362 (Mo. banc 1991) provides another example. In Royal Banks, the Missouri Supreme Court found a latent ambiguity in an otherwise unambiguous contract where the contract described a $10,000.00 promissory note but where no $10,000.00 promissory note actually existed. Id. Looking to extrinsic evidence, the court concluded, “Evidence of a promissory note that fits the description in the guaranty in all respects except for principal amount, coupled with the fact that a $10,000.00 note did not exist, is a collateral matter that renders the meaning of the guaranty uncertain. Once it became apparent that there was no $10,000.00 note but instead only a $50,000.00 note, a latent ambiguity existed.” Id.
Although parol evidence may not ordinarily be considered to create an ambiguity, the Court may consider such evidence to demonstrate the existence of collateral matters that create a latent ambiguity. Royal Banks of Mo. v. Fridkin, 819 S.W.2d 359, 362 (Mo. banc. 1991) (“A latent ambiguity is not apparent on the face of the writing and therefore, must be developed by extrinsic evidence.”). Therefore, the Court may consider extrinsic evidence to determine if a latent ambiguity exists. In this case, [*20] in the absence of a definition of “premises leased,” the surrounding facts suggest a latent ambiguity about what was intended by this term.
The plain language of the Amended Conference Contract alludes to Student Life’s use of and access to many more properties than merely conference space and lodging units during its event. For example, the Contract’s plain language contemplates Student Life’s use of a dining hall8 because the meals they contracted for were to be served there. Yet, the Contract does not specifically list the dining hall. Likewise, the Contract does not mention the chapel, despite Windermere’s title as Windermere Baptist Conference Center and its practice of contracting with church groups to conduct summer church camps. At a minimum, a jury could find the parties intended that campers would have access to the chapel, even though it was not listed. Finally, the Contract, like the Certificate of Insurance, refers to an “Event,” and Great American’s interpretation of the Contract considers only part of what was going to occur at that event.
8 The Contract’s “Meal Information” section provides start and end times for specific meals and alludes to Student Life’s use of the Dining Hall, stating, “All guests eating in the dining hall must have a meal ticket or wrist band to be admitted into the Dining Hall.” [Doc. 35-5, p. 2].
The Court also considers the parties’ Fax Back Response Sheet. [Doc. 40-4]. This document confirms that the purpose of the parties’ [*21] agreement was to host an event, referred to by the Sheet as “Student Life Camp.” [Doc. 40-4]. In addition, the Sheet shows the parties’ understanding that Student Life’s campers would have access to not only conference and dorm space, but also a church for worship, recreational fields, a gymnasium, hiking trails, a body of water for “waterfront activities,” and as is relevant in this case, The Edge ropes course:
What are some free-time options on your campus?
o Sand Volleyball, Outdoor Basketball, Tennis, Mini Golf, Disc Golf, Pool, Hiking, The Edge (low/high ropes course), Paintball, Waterfront Activities (Inflatable water park, kayak, canoe, paddle boats, fishing, etc) . . .
See generally [Doc. 40-4 and p. 3 (emphasis added)]. Because Student Life was contracting with Windermere for an event–to host a camp complete with various camp activities and facilities–the Court cannot find that a reasonable insured would have intended the term, “premises leased,” to limit its coverage only to liability arising out of conference rooms and lodging units.
There is no dispute that Student Life camper, Karlee Richards, was authorized to access The Edge at the time of her accident. Based on the Fax [*22] Back Response Sheet, alone, which suggests that Student Life would expect to have access to The Edge during its event, a reasonable juror could conclude that The Edge was a “portion of the premises leased,” which would entitle Windermere to coverage as an additional insured for its liability to Richards. Therefore, summary judgment must be denied.9
9 Although Defendants did not file their own motions for summary judgment, Defendants ask the Court to grant summary judgment in their favor, citing Fed. R. Civ. P. 56(f)(1), which provides: “After giving notice and a reasonable time to respond, the court may: (1) grant summary judgment for a nonmovant.” [Doc. 53]. Granting summary judgment for the non-movants under this rule is discretionary. Due to the fact that the focus of this briefing has been on Great American’s request for summary judgment, the Court declines to exercise its discretion under this provision. However, the Court will permit Defendants to file their own motions for summary judgment within 20 days of the date of this Order, not inconsistent with this order as to the issues ruled against them.
In the alternative, it is well-settled that an ambiguity within an insurance policy must be construed against the insurer. Krombach v. Mayflower Ins. Co., Ltd., 827 S.W.2d 208, 210 (Mo. banc 1992). As already discussed, an ambiguity exists as to what the parties intended “premises leased” to refer to. Therefore, construing this ambiguous term against Great American requires the Court to apply the meaning “which would be attached by an ordinary person of average understanding if purchasing insurance.” Id. An ordinary insured could reasonably understand this phrase to refer to the areas to which Student Life had access during its event at Windermere. Therefore, Great American’s Motion for Summary Judgement must be denied on this issue.
Great American’s cited authorities do not require a different outcome. First, the coverage disputes in many of Great American’s authorities center on how to interpret “arising out of,” [*23] without any dispute as to what properties the parties understood to be the “leased premises” covered by the additional insured endorsement at issue. In contrast to the facts before this Court, each of these cases involved an undisputed lease contract between a landlord and tenant, rather than an event contract between two organizations, and there was no dispute or ambiguity surrounding what property was meant by the “premises leased” or a similar term. See, e.g., Belz Park Place v. P.F. Chang’s China Bistro, Inc., 2015 WL 11145058 (W.D. Tenn. Mar. 23, 2015) (within context of landlord-tenant relationship, involving a lease contract, and no dispute about the leased premises); Liberty Mut. Ins. Co. v. Michigan Mut. Ins. Co., 891 N.E.2d 99 (Ind. Ct. App. 2008) (same); Northbrook Ins. Co. v. American States Ins. Co., 495 N.W.2d 450 (Minn. Ct. App. 1993) (same); Hilton Hotels Corp v. Employers Ins. of Wausau, 629 So.2d 1064 (Fla. Dist. Ct. App. 1994) (same); SFH, Inc. v. Millard Refrigerated Svcs., Inc., 339 F.3d 738 (8th Cir. 2003) (same).
For example, in U.S. Fidelity & Guar. v. Drazic, 877 S.W.2d 140 (Mo. Ct. App. 1994). the Missouri Court of Appeals considered additional insured coverage within the context of a landlord-tenant relationship and an unambiguous lease contract. The Drazics leased a portion of their basement to the Brewers, and the Drazics were named as additional insureds under the Brewers’ liability insurance policy. Id. at 141. After the Brewers’ employee fell in a parking lot near the Drazics’ building and injured herself, she filed suit alleging that the Drazics negligently discharged steam from their dry cleaning business, which formed ice on the parking area [*24] causing her fall. Id. at 141-42. The policy’s additional insured endorsement provided coverage to the Drazics as additional insureds “but only with respect to liability arising out of the ownership, maintenance or use of that part of the premises designated below leased to the named insured.” Id. at 142-43 (emphasis added). The court considered the parties’ lease contract, which identified the premises leased as a “designated portion of a commercial building known and numbered as 418 Manchester Road, Ballwin, Missouri 63011, plus the area adjacent to the entrance of Brewer’s Quilt Shop for installation of their office.” Id. at 142. The court reasoned that the endorsement’s “plain language contemplated coverage for the Drazics as additional insureds for liability arising out of incidents taking place in that part of the building leased to the Brewers pursuant to the lease contract” and that there was no coverage because the accident at issue “took place on a parking area outside the building.” Id. at 143.
In contrast to Drazic, the Great American policy does not limit coverage to the “premises designated below” accompanied by a lease that specifically identifies an address or description of the area unambiguously covered by this [*25] clause. Also unlike the facts before this Court, there is no dispute or uncertainty in Drazic about what is meant by the “premises [leased].”
In addition, the Court rejects Great American’s reliance on Drazic for the separate proposition that “the purpose of additional insured endorsements obtained in a landlord-tenant context is to provide landlords protection from vicarious liability due to a tenant‘s action which takes place on the premises that the tenant has leased.” [Doc. 35, p. 16 (quoting Drazic, 877 S.W.2d at 143)]. Despite articulating this theory, the Drazic court did not resolve the coverage question based on vicarious liability: “The injury to Leary occurred due to alleged negligence on the part of the landlords’ business . . . and it did not occur on the premises leased to the [tenants].” Drazic, 877 S.W.2d at 143 (emphasis added). Furthermore, to the extent Great American contends that additional insured coverage is limited to acts for which Windermere is vicariously liable, the Court disagrees. The case from which this theory originated involved an insurance contract materially different from the one at issue here because the policy language in that case specifically limited coverage for additional insureds “against [*26] vicarious liability for the acts of the named insured.” See Hormel Foods Corp. v. Northbrook Property and Cas. Ins. Co., 938 F. Supp. 555, 558-560 (D. Minn. 1996) (quoting Harbor Ins. Co. v. Lewis, 562 F. Supp. 800, 802 (E.D. Pa. 1983) and explaining the origins and inapplicability of this theory). In contrast, coverage under the Great American policy cannot be said to turn on “vicarious liability” because the policy provision does not use this language.
As for other cases cited by Great American, these cases are distinguishable because they involve starkly different contract language than the term, “premises leased,” which this Court has found to be ambiguous. See, e.g., Lancaster v. Ferrell Paving, Inc., 397 S.W.3d 606 (Tenn. Ct. App. 2012) (involving different endorsement language: “liability arising out of your ongoing operations performed for the [additional] insured”) (emphasis added). Finally, Great American’s reliance on contract cases outside of the insurance context is misplaced because these cases also interpret contract provisions that are unlike the policy language at issue here. See, e.g., Once Upon a Time, LLC v. Chappelle Properties, LLC, 209 So. 3d 1094, 2016 WL 3031347 (Ala. 2016) (applying Alabama law to an indemnity agreement that did not contain the language “arising out of” or “premises leased” and did not involve insurance policy); Union Realty Co., Ltd. v. Family Dollar Stores of Tennessee, Inc., 255 S.W.3d 586 (Tenn. Ct. App. 2008) (interpreting contract language regarding the landlord’s and tenant’s obligations to procure insurance but no interpretation of insurance policy language at [*27] issue); Pilla v. Tom-Boy, Inc., 756 S.W.2d 638 (Mo. Ct. App. 1988) (interpreting indemnity provision in a lease that did not contain the language “arising out of” outside of insurance context and no dispute surrounding what constituted the leased premises).
Finally, the Court rejects Great American’s separate argument that whether a tenant has “shared” versus “exclusive” use of an area controls whether that area is part of the “premises leased” covered by an insurance endorsement. For example, in Colony Ins. Co. v. Pinewoods Enterprises, Inc., 29 F. Supp. 2d 1079 (E.D. Mo. 1998), a district court found insurance coverage for liability arising out of an area shared between the additional insured and other parties. In Colony, Bledsoe and Pinewoods entered a leasing contract in which Bledsoe (the lessee) leased portions of Pinewood’s campgrounds for a concert. Id. at 1081. Pinewoods was named as an additional insured under Bledsoe’s general liability policy with Colony Insurance. Id. During the concert, a rain storm caused many of the concert goers to take shelter on and under a deck attached to a lodge at the campground. Id. The lodge’s deck collapsed, injuring numerous concertgoers. Id. At issue was whether Colony Insurance’s coverage of Pinewoods as an additional insured extended to this accident. Id.
The court considered both the insurance [*28] policy endorsement and the parties’ lease contract. The endorsement provided additional insured coverage “but only with respect to liability arising out of your [Bledsoe’s] operations or premises owned by or rented to you.” Id. at 1082. The leasing contract specifically provided that Bledsoe “shall have the exclusive use of the Pinewoods Park” for a specific time period with the exception of the Lodge area. Id. at 1081-82. The contract also provided:
(5) LESSEE [Bledsoe], its customers, guests and invitees will share the Lodge area and facilities, i.e. store, gift shop, bait and tackle area . . . with the fishermen and permanent guests and any campers reserved prior to June 10, 1995.
Id. at 1082. The court concluded that Bledsoe leased the lodge area because the contract “specifically (albeit not exclusively) lease[d] the lodge area to Bledsoe,” and the endorsement provided that coverage extended to “the premises owned by or rented to you.” Id. at 1083 (emphasis added). The court concluded that “Colony’s additional insured endorsement extend[ed] coverage to Pinewoods for any liability arising out of the collapse of the lodge’s deck because the lodge was part of the premises leased to Bledsoe.” Id. In contrast to Great American’s contention that exclusivity [*29] is required, the Colony court still found the lodge premises to be “rented to” Bledsoe for purposes of additional insured coverage, despite the fact that the parties’ lease agreement provided that Bledsoe would “share” the lodge area premises at issue “with the fishermen and permanent guests and any campers.” Id. (emphasis added).
C. Liability Coverage for Kendra Brown or Other Windermere Employees
Great American also moves for summary judgment on the issue of coverage for Kendra Brown, Windermere’s employee. Great American argues that no coverage exists for Brown or any other Windermere employee because the Additional Insured Endorsement does not provide additional insured status and/or coverage for an additional insured’s employees. Brown is not identified anywhere in Student Life’s Great American policy nor is she listed as an Additional Insured on a Certificate of Liability. Therefore, any coverage for Brown would necessarily derive from her status as Windermere’s employee, and employees are not covered as insureds by the Additional Insured Endorsement.
Brown does not dispute that the Additional Insured Endorsement fails to provide coverage for an additional insured’s employees. Instead, [*30] Brown argues that Windermere should be considered a “Named Insured,” which in turn, makes the provisions applicable to “Named Insureds” also applicable to Windermere, including the provision that expands coverage for “Named Insureds” to their employees. The Court rejects this argument as based on an unreasonable interpretation of the policy.
Brown contends that the policy does not define “Named Insured,” and thus, it must be given the meaning that would be attached by an ordinary person. Brown reasons that an ordinary person would define “Named Insured” as a person or entity that is actually named as an insured. In turn, Brown says, because the Certificate of Liability names Windermere as an additional insured, Windermere must be a “Named Insured.” Brown next points to the following provision:
Throughout this Policy the words “you” and “your” refer to the Named Insured shown in the Declarations, and any other person or organization qualifying as a named insured under this Policy.
The word “insured” means any person or organization qualifying as such under
SECTION II — WHO IS AN INSURED.
[Doc. 42-2, p. 65 of 166 (“CGL Policy”)]. Brown contends that because she has established that Windermere [*31] is a “Named Insured,” “you” and “your” throughout the policy must also refer to Windermere. Next, Brown points to Section II of the policy:
SECTION II — WHO IS AN INSURED
2. Each of the following is also an Insured:
a. Your . . . “employees,” . . . but only for acts within the scope of their employment by you or while performing duties related to the conduct of your business.
[Doc. 42-2, p. 65 of 166 (“CGL Policy”)]. Brown argues that if the Court accepts her contention as true that Windermere is a “Named Insured,” then “your” refers to Windermere, which means that Brown “is also an Insured” as “[y]our [Windermere’s] ’employee,'” according to Section II.2.a.
Brown’s argument fails because it is based on an unreasonable interpretation that Windermere is somehow a “Named Insured,” a status unsupported by the policy’s clear language.10 First, the policy distinguishes between mere “insureds” and those insureds that are “Named Insureds.” Compare “The word ‘insured’ means any person or organization qualifying as such under SECTION II — WHO IS AN INSURED” with “Throughout this Policy the words ‘you’ and ‘your’ refer to the Named Insured shown in the Declarations, and any other person or organization qualifying [*32] as a named insured under this Policy.” [Doc. 42-2, p. 65 of 166 (“CGL Policy”)]. The fact that the policy differentiates between the two statuses shows that they are different terms, despite Brown’s contention that all insureds named are “Named Insureds.”
10 Furthermore, even if the Court accepted Brown’s contention that Windermere, an Additional Insured, was in fact, a Named Insured, Brown still has not shown that she is entitled to coverage under the policy as a Windermere employee because she has not alleged any facts or argument that her liability to Richards arose from “acts within the scope of [her] employment . . . or while performing duties related to the conduct of [Windermere’s] business.” Section II.(2).a.; [Doc. 42-2, p. 65 of 166 (“CGL Policy”)].
Furthermore, the policy’s plain language identifies which insureds are “Named Insureds.” First, the top of the policy’s Declarations page states:
NAMED INSURED LIFEWAY CHRISTIAN RESOURCES OF THE SOUTHERN BAPTIST CONVENTION
[Doc. 42-2, p. 29 of 166]. Therefore, because Student Life is “shown in the Declarations,” it is a “Named Insured.” The policy also includes a Named Insured Endorsement, which amends the Declarations by providing, “It is agreed that the Named Insured shown in the Declarations is amended to read as follows.” [Doc. 42-2, p. 41 of 166]. This statement is followed by a list of various organizations’ names related to Lifeway, which the endorsement provides are also included as Named Insureds. Id. Accordingly, it is reasonable to conclude that these organizations constitute “any other . . . organization qualifying as a named insured under this Policy” and therefore are also “Named Insureds.” [Doc. 42-2, p. 65 of 166 (“CGL [*33] Policy”)]. Based on the policy’s plain language, an ordinary person would understand “Named Insured” to refer to those insureds identified on the Declarations Page next to “NAMED INSURED” and those insureds identified in the Named Insured Endorsement. To interpret the policy to mean that anyone named as an insured, including those named as Additional Insureds, were also entitled to the same expansive level of coverage as the “Named Insureds” would be unreasonable.
In contrast to those entities that are clearly designated as “Named Insureds,” Windermere is not listed as a Named Insured on either the Declarations page or on the endorsement adding Named Insureds to the Declarations page. Instead, the policy’s only reference to Windermere is located in the Certificate of Liability it was issued prior to Student Life’s 2014 camp, which included it as an “Additional Insured,” providing:
Windermere Conference Center is included as Additional Insured on the General Liability policy, as per endorsement #CG 82 24, ed. 12/01, and on the Automobile Liability policy, as per endorsement #CA 8518, ed. 6/09.
[Doc. 35-7 (“Certificate of Liability Insurance”) (emphasis added)]. The Additional Insured Endorsement [*34] provides that it “is added to SECTION II — WHO IS AN INSURED, 5. AUTOMATIC ADDITIONAL INSURED(S).” [Doc. 35-17, p.1 (“Endorsement”).] Had Great American intended to make Windermere a “Named Insured,” it could have identified it as a “Named Insured” within the Certificate of Liability, or it could have provided that Windermere be added to the Named Insured Endorsement, rather than merely “Section II — Who is an Insured.” It did neither. For these reasons, an ordinary person would understand Windermere to be an “insured,” not a “Named Insured,” and thus, the words “you” and “your” throughout the policy do not refer to Windermere. Accordingly, the provision that expands coverage for “Named Insureds” to cover their employees as insureds does not apply to Windermere. Because Brown is not an insured under the policy and therefore not entitled to coverage, summary judgment is granted in favor of Great American on this point.
D. Duty to Defend
Great American also contends that it owes no duty to defend Windermere or Brown and it should be granted summary judgment on this claim. Under Missouri law, the duty to defend “arises whenever there is a potential or possible liability to pay based on [*35] the facts at the outset of the case and is not dependent on the probable liability to pay based on the facts ascertained through trial.” Columbia Cas. Co. v. HIAR Holding, L.L.C., 411 S.W.3d 258, 265 n.10 (Mo. 2013) (internal quotation marks removed). Because the Court has already found that Brown and other Windermere employees are not insureds under Great American’s policy and thus, not entitled to coverage, it follows that Great American has no duty to defend Brown.11
11 This rationale was also articulated in Great American’s denial letter, which provided:
First, as to Kendra Brown, she is not listed as an additional insured on the Certificate of Liability Insurance, nor is there any indication on the [Certificate] that additional insured status is to be afforded to employees of Windermere. Finally, there is nothing in the specific form referenced on the Certificate . . . nor anywhere else in the Lifeway Policy, that affords additional insured status to Kendra Brown or any other Windermere employee. . . . Kendra Brown is simply not an additional insured under the Lifeway Policy such that Great American is denying the tender made on behalf of Kendra Brown.
[Doc. 35-18, p. 5-6 of 12 (“Feb. 4, 2016 Denial Letter”)].
As to whether Great American owes a duty to defend Windermere, the Endorsement makes clear that any coverage for Windermere as an additional insured would be excess, and the policy does not afford [*36] a defense when (1) its coverage is excess and (2) when the insured is being provided a defense by another carrier.12 Under Missouri law, “‘an insurer’s duty to defend is purely contractual.'” Markel Am. Ins. Co. v. Unnerstall, 2009 U.S. Dist. LEXIS 3430, 2009 WL 57451 at *4 (E.D. Mo. 2009) (quoting Crown Ctr. Redevelopment Corp. v. Occidental Fire, 716 S.W.2d 348 (Mo. Ct. App. 1986)). “If there is no contract to defend, there is no duty to defend.” Id. In relevant part, the Endorsement provides:
5. AUTOMATIC ADDITIONAL INSURED(S)
a. Additional Insured — Manager or Lessor of Premises
(2) With respect to the insurance afforded the Additional Insured identified in Paragraph A.(1) of this endorsement, the following additional provisions apply:
(d) Coverage provided herein is excess over any other valid and collectible insurance available to the Additional Insured whether the other insurance is primary, excess, contingent or on any other basis unless a written contractual arrangement specifically requires this insurance to be primary.
12 This rationale was also articulated in Great American’s denial letter, which provided:
[E]ven if indemnity coverage did exist for Windermere and Kendra Brown under the Lifeway Policy, it is also clear that that [sic] Great American owes no defense obligation of the pending lawsuit. Your December 17, 2015 correspondence renewing the tender of defense on behalf of both Windermere and Kendra Brown makes clear that Windermere is being [*37] afforded a defense by Church Mutual and that Kendra Brown is being defended by both Church Mutual and Shelter. . . . [T]he Social Service Agency General Liability Broadening Endorsement makes clear that any coverage that did exist would be excess over all other insurance, including both the Church Mutual and Shelter policies. The “Other Insurance” provision of the Lifeway Policy makes clear that, where its coverage is excess and a defense is being provided by another carrier, Great American owes no duty to defend. Hence, Windermere’s and Kendra Brown’s tender of the defense of the pending lawsuit is denied for this additional reason.
[Doc. 35-18, p. 6 (“Feb. 4, 2016 Denial Letter”)].
The Additional Insured Endorsement’s Section 5.a.(2)(d) is clear that any coverage afforded is “excess over any other valid and collectible insurance,” regardless of the priority of coverage of the insurance–be it “primary, excess, [or] contingent.” In this case, Church Mutual had already tendered, or attempted to tender its policy limits on Windermere’s behalf in the underlying lawsuit. Therefore, although Windermere is entitled to coverage under the Great American policy, this coverage is excess.
The Other Insurance provision then states that where coverage is excess [*38] and the insured is being provided a defense by another carrier, Great American has no defense obligation. [Doc. 42-2, p. 66-68 of 166 (“CGL Policy”)]. Specifically, this provision provides:
SECTION IV — COMMERCIAL GENERAL LIABILITY CONDITIONS
4. Other Insurance
(2) When this insurance is excess we will have no duty under Coverages A or B to defend the Insured against any “suit” if any other insurer has a duty to defend the Insured against the “suit.” . . .
Windermere is currently being defended by its own insurance carrier, Church Mutual. Because the policy is clear that there is no defense obligation where coverage is excess and a defense is being provided by another carrier, which is the case here, the Court rejects Windermere’s contention that it is entitled to a defense based on a potential for coverage. Therefore, summary judgment is granted for Great American on its duty to defend.
E. Medical Payments Coverage
Finally, Great American moves for summary judgment as to the Medical Payments coverage for Richards’s medical expenses. In its November 17, 2015 letter to Great American, Windermere demanded the Coverage C Medical Payments limits for Richards. The provision governing Medical [*39] Payments provides in relevant part:
COMMERCIAL GENERAL LIABILITY COVERAGE FORM
Coverage C — Medical Payments
1. Insuring Agreement
a. We will pay medical expenses as described below for “bodily injury” caused by an accident:
(b) the expenses are incurred and reported to us within one year of the date of the accident; and
[Doc. 42-2, p. 62 of 166 (“CGL Policy”)].
Great American argues that it is entitled to summary judgment as to this coverage because medical expenses were not reported to Great American within the time limit provided in Paragraph 1.a.(b). This provision provides that Great American will pay medical expenses for bodily injury “provided that . . . (b) the expenses are incurred and reported to us within one year of the date of the accident.” Section 1.a.(b) (emphasis added).
Richards’s accident occurred on June 4, 2014. Neither she nor anyone on her behalf made claim for Medical Payments coverage until Windermere’s November 17, 2015 demand letter more than one year after the date of the accident. Therefore, Great American is entitled to summary judgment as to the Medical Payments coverage.
For the reasons set forth above, Plaintiff Great American Alliance [*40] Insurance Company’s motion for summary judgment is granted in part and denied in part. [Doc. 34]. Summary judgment is granted on Great American’s liability coverage for Kendra Brown, individually, as an additional insured; Great American’s duty to defend Kendra Brown and Windermere; and Great American’s Medical Payments coverage for Karlee Richards’s injuries. Summary judgment is denied on Great American’s coverage for Windermere as an additional insured. It is further ordered that on or before July 25, 2017, Defendants may file any motions for summary judgment not inconsistent with this order as to the issues ruled against them.
/s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: July 5, 2017
Jefferson City, Missouri