Myers v. Lutsen Mountains Corporation, 587 F.3d 891; 2009 U.S. App. LEXIS 25825
Douglas R. Myers, Appellant, v. Lutsen Mountains Corporation, Appellee.
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
587 F.3d 891; 2009 U.S. App. LEXIS 25825
October 22, 2009, Submitted
November 25, 2009, Filed
PRIOR HISTORY: [**1]
Appeal from the United States District Court for the District of Minnesota.
PROCEDURAL POSTURE: Plaintiff skier sued defendant ski resort operator, asserting personal injury claims. The United States District Court for the District of Minnesota granted summary judgment in favor of the resort operator based on a release. The skier appealed.
OVERVIEW: The skier purchased a lift ticket at the ski resort and signed a written release of liability waiver. The skier was injured when he lofted into an area containing rocks and small trees. The district court found that the release signed by the skier precluded him from pursuing his claims. The appellate court determined that the release was enforceable under Minnesota law because (1) the language of the release expressly and unambiguously excluded from its coverage claims arising from reckless or intentional acts, (2) the release was not ambiguous, (3) regarding the skier’s argument that the release violated public policy because he had no bargaining power, there was no disparity of bargaining power since the service provided by the resort operator was not necessary and the skier could have gone elsewhere to ski, (4) regarding whether the release violated public policy, the appellate court predicted the Minnesota Supreme Court would hold skiing was not a public or essential service, and (5) the release was not invalidated by Minnesota’s Plain Language Contract Act and Minnesota’s Consumer Credit Sales Act.
COUNSEL: For Douglas R. Myers, Plaintiff – Appellant: James Walter Balmer, Stephanie M. Balmer, FALSANI & BALMER, Duluth, MN.
For Lutsen Mountains Corporation, Defendant – Appellee: Gregory Aaron Bromen, Brian N. Johnson, HALLELAND & LEWIS, Minneapolis, MN.
JUDGES: Before COLLOTON and BENTON, Circuit Judges, and PIERSOL 1, District Judge.
The Honorable Lawrence L. Piersol, United States District Court for the District of South Dakota, sitting by designation.
OPINION BY: Lawrence L. Piersol
[*892] PIERSOL, District Judge.
Douglas R. Myers (“Myers”) appeals an adverse grant of summary judgment. Myers was injured while skiing at Lutsen Mountains, a ski resort operated by Lutsen Mountains Corporation (“Lutsen”). He sued Lutsen, and the district court 2 granted Lutsen’s motion for summary judgment, holding that a release signed by Myers precluded him from pursuing his claims. This appeal followed. For the reasons set forth below, we affirm the judgment of the district court.
2 The Honorable John F. Forster, Jr., United States Magistrate Judge for the Eastern District of Arkansas, to whom the case was referred for decision by consent of the parties pursuant [**2] to 28 U.S.C. § 636(c).
[HN1] We review de novo a district court’s grant or denial of summary judgment. [*893] Med. Liab. Mut. Ins. Co. v. Alan Curtis LLC, 519 F.3d 466, 471 (8th Cir. 2008). Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, demonstrates that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id.; Fed.R.Civ.P. 56(c).
The facts of this case are essentially undisputed. On December 28, 2006, Myers and two of his friends left their homes in Thunder Bay, Ontario, Canada, and drove approximately two hours to Lutsen, Minnesota. The three friends arrived in time to buy ski tickets before 9:30 a.m., when the ski lifts open at Lutsen. Myers has no memory of that day, but he agrees that he purchased a lift ticket and signed a written release of liability waiver. The release includes the following language:
PLEASE READ CAREFULLY BEFORE SIGNING. THIS IS A RELEASE OF LIABILITY AND WAIVER OF CERTAIN LEGAL RIGHTS.
I understand that skiing in its various forms, including snowboarding, involves risks, dangers and hazards that may cause serious personal injury or death and that injuries [**3] are a common and ordinary occurrence. Risks include, but are not limited to, changes in terrain, weather and snow surfaces, ice, moguls, bare spots, debris, fences, posts, trees, lift equipment and towers, rope tows, light poles, signs, buildings, roads and walkways, ramps, half-pipes, padded and non-padded barriers, jumps and other terrain features, grooming equipment, snowmobiles, collisions with other persons and other natural and man-made hazards. I acknowledge that the risks in the sport of Alpine skiing can be greatly reduced by taking lessons, abiding by the Skier Responsibility Code, (known as Your Responsibility Code), and using common sense.
In consideration of the purchase of a lift ticket for Lutsen Mountains and use of its facilities, I RELEASE AND FULLY DISCHARGE Lutsen Mountains Corporation, its owners, officers, shareholders, agents and employees from any liability resulting from any personal injury to myself, including death, or damage to my property which is caused by the BREACH OF ANY EXPRESS OR IMPLIED WARRANTY or the NEGLIGENT ACT OR OMISSION of Lutsen Mountains Corporation, its owners, officers, shareholders, agents or employees in the design, location, construction, [**4] inspection, maintenance and repair of the conditions on or about the premises or ski area or the operations of the ski area, including but not limited to:
. the design, location, construction, inspection, maintenance and repair of trails, ski runs, slopes, ramps, half-pipes and other terrain features;
. grooming, snow-making, snowmobile operation, ski-lifts, rope tows and ski-lift and rope tow loading and unloading operations;
. padding or non-padding of natural and man-made obstacles and hazards;
. posting or failure to post warnings, signs, fences or other barriers;
. classification and labeling of trails and ski runs; or
. maintaining or modifying variations in the surface, steepness and pitch of trails, ski runs, slopes, ramps and terrain features.
I accept full responsibility for any injuries or damages which may result from the participation in the sport, and it is [*894] my intent to HOLD HARMLESS Lutsen Mountains Corporation, its owners, officers, shareholders, agents or employees for any injury sustained by me, including death, while participating in the sport. I agree not to bring any action or suit against Lutsen Mountains Corporation, its owners, officers, shareholders, agents or employees [**5] for any injury or damage.
In accordance with Minnesota law, nothing in this Release of Liability should be construed as releasing, discharging or waiving any claims I may have for reckless or intentional acts on the part of Lutsen Mountains Corporation, or its owners, officers, shareholders, agents or employees.
I HAVE CAREFULLY READ THIS RELEASE OF LIABILITY AND UNDERSTAND ITS CONTENTS. I AM AWARE THAT BY SIGNING THIS RELEASE OF LIABILITY, I AM WAIVING CERTAIN LEGAL RIGHTS, INCLUDING THE RIGHT TO SUE LUTSEN MOUNTAINS CORPORATION, ITS OWNERS, OFFICERS, SHAREHOLDERS, AGENTS OR EMPLOYEES FOR CERTAIN CLAIMS.
CAUTION: READ BEFORE SIGNING! THIS DOCUMENT AFFECTS YOUR LEGAL RIGHTS AND WILL BAR YOUR RIGHT TO SUE!
At the bottom of the release, Myers printed his name, signed the document, and listed his age as 32.
At approximately 3:30 p.m. on December 28, 2006, Myers, a self-described expert skier at the time of the accident, was on Lutsen’s Lower Meadows trail when he skied over an edge of the course. At oral argument, Myers’ counsel indicated that this is an intermediate slope. Myers apparently lofted into an area containing rocks and small trees, and he was injured. He filed a personal injury [**6] lawsuit against Lutsen in Minnesota district court based on diversity jurisdiction. The parties filed cross-motions for summary judgment. Concluding that the release Myers signed is valid under Minnesota law, the district court granted Lutsen’s motion for summary judgment and dismissed Myers’ complaint with prejudice. On appeal, Myers argues that the district court erred by holding the release is enforceable under Minnesota law.
Minnesota law applies in this diversity case. See Integrity Floorcovering, Inc. v. Broan-Nutone, LLC, 521 F.3d 914, 917 (8th Cir. 2008). [HN2] Exculpatory clauses are enforceable in Minnesota as long as the clause (1) is not ambiguous, (2) does not release intentional, willful, or wanton acts, and (3) does not violate public policy. See Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 923 (Minn. 1982).
Myers first argues the release is ambiguous because it could be interpreted as waiving Lutsen’s liability for all types of claims and not just negligence. We disagree. The language of the release expressly and unambiguously excludes from its coverage claims arising from reckless or intentional acts, and the district court correctly found the release is not ambiguous.
Myers [**7] next asserts the release violates public policy because he had no bargaining power; he had to sign the release or not ski at Lutsen. [HN3] The Minnesota Supreme Court considers two factors to determine whether exculpatory agreements violate public policy: (1) whether there was a disparity of bargaining power between the parties (a compulsion to sign the contract with an unacceptable provision [*895] and a lack of ability to negotiate the elimination of that provision), and (2) the type of service being offered or provided through the contract (one who provides a public or essential service is less likely to be exempted from liability for harm caused by negligently providing that service). See Schlobohm, 326 N.W.2d at 923. Regarding the first factor, the Minnesota Supreme Court has explained that a disparity of bargaining power does not exist if the offered service is not necessary or if it could have been obtained elsewhere. See id. at 925. In Schlobohm, the court concluded there was no disparity in bargaining power when Schlobohm voluntarily joined a fitness center and signed a contract containing an exculpatory clause because there was no showing that the center’s services were necessary or that [**8] the services could not have been obtained elsewhere. See id.
Relying primarily on Yang v. Voyagaire Houseboats, Inc., 701 N.W.2d 783 (Minn. 2005), Myers contends a disparity in bargaining power existed because it would have taken him over two hours to drive from Lutsen to the closest ski hill. In Yang, the Minnesota Supreme Court invalidated an exculpatory clause in the context of a houseboat rental agreement. See id. at 786. The court suggested there was a disparity in bargaining power because the plaintiff had paid a deposit of “a couple thousand” dollars, had not known about the release until he arrived at the place of business, several hours away from the plaintiff’s home, and the next nearest business providing the same services was over 65 miles away, see id. at 789 n. 3, but the essential nature of the service was the dispositive factor in the court’s conclusion that houseboat rental involves a public interest sufficient to invalidate the exculpatory agreement. See id. at 789. Yang lends little support to Myers’ argument that a disparity of bargaining power existed in this case. As did the Minnesota Supreme Court in Schlobohm, we find no disparity of bargaining power because [**9] the service provided by Lutsen is not necessary, and Myers could have gone elsewhere to ski.
This brings us to the second factor considered by Minnesota courts to determine whether a release violates public policy: the type of service provided. Myers does not argue that Lutsen provides a public or essential service, and [HN4] we predict the Minnesota Supreme Court would hold skiing is not a public or essential service. When considering whether a service is public or essential in this context, “courts consider whether it is the type [of service] generally thought suitable for public regulation. Types of services thought to be subject to public regulation have included common carriers, hospitals and doctors, public utilities, innkeepers, public warehousemen, employers and services involving extra-hazardous activities.” Schlobohm, 326 N.W.2d at 925. In Schlobohm, the Minnesota Supreme Court held the services furnished by the health club are not the type generally thought suitable for public regulation and do not involve an activity of great importance or of practical necessity. See id. at 925-26.
Yang is instructive on this issue. The Minnesota Supreme Court held the rental company was acting [**10] both as a resort and as an innkeeper providing a public service when it offered houseboats for daily and weekly rentals. See Yang, 701 N.W.2d at 790. As a matter of public policy, the company could not circumvent its duty to protect guests by requiring them to release the company from liability for its negligence. See id. at 791. The court distinguished these types of [HN5] services from those involving recreational activities which courts generally have held “do not [*896] fall within any of the categories where the public interest is involved.” Id. at 789 (quoting Schlobohm, 326 N.W.2d at 925-26). The court specifically rejected the argument that renting houseboats is a purely recreational activity and is not a necessary or public service. See id. at 790.
[HN6] Whether recreational activities involve a public interest is a question the Minnesota Supreme Court has not yet squarely addressed. If the Minnesota Supreme Court has not spoken on an issue, the federal court must determine what decision the state court would make if faced with the same facts and issue. See Kovarik v. American Family Ins. Group, 108 F.3d 962, 964 (8th Cir. 1997). The federal court should consider relevant state court decisions, [**11] “analogous decisions, considered dicta, . . . and any other reliable data.” Id. at 964 (quoting Ventura v. Titan Sports, Inc., 65 F.3d 725, 729 (8th Cir. 1995)). The Minnesota Court of Appeals has upheld liability releases in contracts for various types of recreational activities, finding the activities are not of great importance to the public or of practical necessity to anyone. See, e.g., Beehner v. Cragun Corp., 636 N.W.2d 821, 828 (Minn. App. 2001) (horseback riding); Malecha v. St. Croix Valley Skydiving Club, Inc., 392 N.W.2d 727, 731 (Minn. App. 1986) (sky diving). We recognize that skiing is an activity enjoyed by many, but we believe the Minnesota Supreme Court would conclude it is not a necessary or public service and would find the release signed by Myers does not violate public policy.
Finally, we disagree with Myers’ arguments that the release is invalidated by two Minnesota statutes, the Plain Language Contract Act and the Consumer Credit Sales Act.
Myers does not contest that the release, if valid, encompasses his claims against Lutsen. The release is valid under Minnesota law and, thus, we affirm the district court’s summary judgment for Lutsen.
“Marketing makes promises Risk Management has to pay for” in this case, the marketing eliminated the protection afforded by the warning labelsPosted: March 20, 2017
Cornell and a manufacturer of a piece of equipment used in a gym at Cornell were being sued by an injured student who used the equipment. The court definitely was leaning towards the student; however, the student had come to court prepared, (and backed by a lot of money I’m guessing.)
State: Pennsylvania, United States District Court for the Eastern District of Pennsylvania
Plaintiff: Randall Duchesneau
Defendant: Cornell University and Tumbltrak
Plaintiff Claims: Product Liability, Failure to Warn, requesting punitive damages
Holding: No duty, Failure to state a claim, Assumption of Risk & Release?
This case spent four years getting to this point, and it is obvious the court is a little tired of the litigation. Consequently, the facts are difficult to determine.
It seems the plaintiff was a beginning gymnast and injured himself on a piece of equipment at the Cornell University gym called the Tumbletrak. The extents of his injuries are never clear, but based on the number of experts the plaintiff hired and the lengthy fight; I guess his injuries were extensive.
This case was being heard in a Pennsylvania Federal Court with a Michigan and a New York Defendant. That fact alone is confusing.
The decision is based on motions for summary judgment filed by both Cornell and the manufacturer Tumbletrak.
Analysis: making sense of the law based on these facts.
The court first examines the manufacture’s motion for summary judgment. The first issue the manufacturer claimed the plaintiff failed to establish the minimum facts necessary to go to trial; the plaintiff is not entitled to punitive damages, and the plaintiff assumed the risk. The court first looked at what was required to establish a failure to warn case. Meaning a manufacturer has a duty to warn users of the product of the risks and failed to do so.
Under New York law, 2 to establish a prima facie case of failure to warn, a Plaintiff must show that (1) the defendant-manufacturer had a duty to warn; (2) the manufacturer breached such duty and so the product is rendered defective, i.e., reasonably certain to be dangerous; (3) the product’s defect was the proximate cause of the injury to plaintiff; and (4) the plaintiff suffered loss or damage.
The burden is on the plaintiff to prove the failure to warn of the risk by the manufacturer was the cause of the plaintiff’s injury.
This burden includes adducing proof that a user of the product at issue would have read and heeded a warning had one been given. Conversely, failure to warn claims can be decided as a matter of law against an injured party where the injured party was “fully aware of the hazard through general knowledge, observation, or common sense” or where the hazard is “patently dangerous.”
Failure to warn can be denied both by proving the plaintiff read and heeded the risk or knew of the risk prior to using the equipment. The manufacturer argued the risk was open and obvious, which does not require proof because the plaintiff should have seen the risk.
T-Trak contends that Plaintiff cannot establish a prima facie case of failure to warn where (1) the risk of injury was open and obvious and (2) Plaintiff did not actually read the warnings that were on the TTA. First T-Trak argues that “the risk of injury while performing a back flip was open and obvious and readily discernable to Plaintiff.” More specifically, T-Trak opines that general knowledge dictates that “an individual might land on his head if he attempts a back flip on a rebounding
In a footnote at this point, the court states the plaintiff signed a release stating he understood the risks; however, nothing else is mentioned about the release in the rest of the decision.
One way to defend against a motion for summary judgment is to argue there are enough facts or issues that make the facts relied upon by the defendant an issue. Meaning if enough facts are in dispute, the motion for summary judgement cannot be granted. This is what the plaintiff did through his experts.
Plaintiff has produced the report of warnings expert Dr. William J. Vigilante Jr., which, inter alia, cited numerous deficiencies in the warnings on the TTA: the warnings on the TTA were blurred and could not be read even at a close distance; the warnings were located on either end of the TTA, not in the middle where a user would mount it; and the warnings were located adjacent to a cartoon depicting teddy bears conducting unspotted, unsupervised backflips on the TTA. [Emphasize added]
Here the manufacturer shot his defense down before the product left the assembly plant by confusing risk management and marketing. Teddy bears doing the activities unspotted that the warning allegedly warns against eliminated the warning in the court’s eyes. (And rightfully so!) If the manufacturer shows cartoons doing the act without regard for safety, then the act must be safe, no matter what the warning says. If the warning can be located.
In a scary statement, the court held that failure to read the warnings on the product is not an issue in a failure to warn case.
However, failure to read the TTA’s warnings “does not necessarily sever the causal connection between the alleged inadequacy of those warnings, on the one hand, and the occurrence of the accident, on the other.”
The court based this analysis on the many different statements by witnesses who seemed to go in every direction, but all stated they never saw the warning.
Indeed, there is more than just that fact here. According to the summary judgment record none of the many fact witnesses in this case (including Plaintiff) testified that they ever saw any warning on the TTA. Furthermore, Plaintiff himself has submitted sworn testimony that if he had seen what Dr. Vigiliante characterized as a proper warning, Plaintiff would have heeded the proper warning and either never have attempted a backflip or done so only with the assistance of a qualified coach or spotter.
A warning does not exist unless the consumer can’t miss it. Meaning the warning must be in the consumer’s face every time they go to use a product. On top of that the warning must be in the manual, in some states on the packaging and maybe on a hangtag with the product.
The failure to warn claim was sustained and would be decided at trial.
The court then looked at the assumption of the risk defense brought by the defendant manufacturer. The court started this analysis looking at the requirements to prove a negligence claim in a product case.
To prove a prima facie case of negligence, a plaintiff must establish (1) existence of a duty of the defendant to the plaintiff; (2) breach of the duty; and (3) that the breach of the duty was a proximate cause of the injury to the plaintiff.
However, assumption of the risk in a product’s case is a little more stringent then in a recreation case. “Assumption of risk is frequently applied to claims arising out of participation in sporting events.” In sporting or recreation cases, the risk is clear and understood by all involved and to be effective the risk was not altered or enhanced by the defendant. In a product’s case the requirements are slightly different.
Assumption of risk operates to eliminate the duty of care to a plaintiff, and can therefore be a complete bar to recovery for negligence. To establish assumption of risk, a defendant bears the burden of establishing that the “plaintiff was aware of the defective or dangerous condition and the resultant risk.” This determination depends in part on the openness and obviousness of the risk.
Again, the case goes back to did the plaintiff know of the risks. Where the risks open and obvious or can you prove under the law the plaintiff knew of the risk. Because no one ever saw the warning, the warning had no value. That left it up to a jury to decide if the plaintiff knew the risk of the sport or activity.
The next argument was a motion to eliminate a punitive damages claim by the manufacturer arguing the case should be tried under Michigan’s law because the manufacturer was based in Michigan. Michigan does not allow punitive damages, unless they are expressly authorized by statute.
There has been a prior argument about the jurisdiction and venue of the case decided by a prior judge. (Which is alone confusing since none of the defendants are located in Pennsylvania where the court sits, however, the court is applying New York law?) Because of the prior decision, this court followed it and ruled that New York law would be applied to the facts of the case, and punitive damages were going to be at issue.
Cornell University was then giving a shot at its motions starting with the punitive damages issue. Cornell claimed the plaintiff had not presented any evidence that could support a punitive damages claim. The plaintiff responded arguing facts that could prove a punitive damages claim against the university.
(1) Cornell ran its own gymnasium without rules, standards, coaching, instruction, screening, supervision, and spotting; (2) multiple experts have opined that Cornell’s conduct in that regard was, inter alia, “highly dangerous,” “indefensible,” “outrageous,” “reckless,” and “an accident waiting to happen”; and (3) Cornell violated “every applicable mainstream gymnastics safety standard, [and] systematically allowed a wholly-incompetent individual to supervise the gymnasium.”
The court defined the requirements to prove a punitive damages claim.
As discussed supra, New York law allows a plaintiff to recover punitive damages, so as to punish gross misbehavior for the public good. An award of punitive damages would be proper “where the conduct of the party being held liable evidences a high degree of moral culpability, or where the conduct is so flagrant as to transcend mere carelessness, or where the conduct constitutes willful or wanton negligence or recklessness.”
The court found there was sufficient evidence to support a possible punitive damages claim.
There is substantial evidence of record concerning purported behavior of Cornell that could be found to rise to the level of egregious recklessness and moral culpability necessary to trigger punitive damages. There are major disputes of fact as to whether Cornell failed to exhibit care to such a degree as would amount to wanton behavior or recklessness. Cornell’s argument primarily rests on its self-serving conclusion that — despite evidence offered to the direct contrary — this case just does not involve one of those rare, egregious instances of recklessness that is punishable by punitive damages. That, however, is properly the jury’s decision. Summary judgment is inappropriate, and the claim for punitive damages shall remain.
Cornell next argued that the plaintiff assumed the risk and there was no evidence proving causation. Cornell was arguing a breach of a duty was not related to the injury. There was no causation between the two which is required to prove negligence.
The court found that Cornell’s case law did not apply correctly to the facts of this case. That means the case law facts were sufficiently different from the facts of this case, that the law could not be interpreted the same way. “Cornell’s caselaw presents numerous, distinct factual circumstances, none of which are analogous here.”
On the causation issues the judge found the plaintiff had presented enough evidence that there could be an issue leading to punitive damages against the college.
Nor can I conclude that Cornell is entitled to summary judgment based upon causation. There is extensive, often-conflicting evidence concerning causation. Plaintiff has adduced significant amounts of evidence concerning Cornell’s systemic negligent conduct leading up to the accident. In addition, Plaintiff has offered evidence from multiple experts that goes directly to duty of care and causation (e.g., that the lack of spotting equipment and spotters proximately caused Plaintiff’s injuries; that the lack of warnings failed to notify Plaintiff of the risks associated with the TTA; that Cornell’s “outrageous” conduct in organizing and supervising Plaintiff’s use of the gymnasium directly contributed to Plaintiff’s accident). Cornell may strongly disagree with these experts, but it is not entitled to have them ignored in favor of summary judgment.
Both defendants failed in their motion for summary judgment, and the decision was to allow the case to proceed to trial.
So Now What?
I have not been able to find the outcome of this case. Meaning it probably settled. The entire issue was the warning on the product; it was not clear; it was not visible, and it could not be seen in normal use.
If you manufacture products and your product poses a risk to the user, then you need to notify the consumer as often and as many were possible that you can. User manuals, hangtags, the container or bag the product is shipped in and on the product itself. It is also not enough that you can say the label or warning is there; the user must be able to see the warning……every time.
What do you think? Leave a comment.
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Duchesneau v. Cornell University, et al., 2012 U.S. Dist. LEXIS 106412
Randall Duchesneau, Plaintiff, v. Cornell University, et al., Defendants.
CIVIL ACTION NO. 08-4856
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
2012 U.S. Dist. LEXIS 106412
July 31, 2012, Decided
July 31, 2012, Filed
PRIOR HISTORY: Duchesneau v. Cornell Univ., 2011 U.S. Dist. LEXIS 135211 (E.D. Pa., Nov. 22, 2011)
CORE TERMS: warning, summary judgment, trampoline’s, assumption of risk, punitive damages, unaware, gymnasium, warn, partial, failure to warn, novice, user, assumed risk, inappropriate, punitive, flip, matter of law, warning label, recklessness, supervision, performing, gymnastic, enhanced, hazard, adduce, facie, causation, choice of law, applicable law, case of failure
COUNSEL: [*1] For RANDALL DUCHESNEAU, Plaintiff: STEWART J. EISENBERG, LEAD ATTORNEY, DANIEL JECK, DANIEL JOSEPH SHERRY, JR., DINO PRIVITERA, KENNETH MICHAEL ROTHWEILER, EISENBERG, ROTHWEILER, WINKLER, EISENBERG & JECK, P.C., PHILADELPHIA, PA; MICHAEL CHOI, CHOI & ASSOCIATES, ELKINS PARK, PA.
For CORNELL UNIVERSITY, Defendant, Cross Claimant: RICHARD B. WICKERSHAM, JR., LEAD ATTORNEY, POST & SCHELL, P.C., PHILADELPHIA, PA; JOE H. TUCKER, JR., THE TUCKER LAW GROUP, ONE PENN CENTER AT SUBURBAN STATION, PHILADELPHIA, PA.
For TUMBLTRAK, Defendant, Cross Defendant: DANIEL J. MCCARTHY, SUSAN R. ENGLE, LEAD ATTORNEYS, MINTZER, SAROWITZ, ZERIS, LEDVA & MEYERS LLP, PHILADELPHIA, PA.
JUDGES: C. DARNELL JONES, II, UNITED STATES DISTRICT JUDGE.
OPINION BY: C. DARNELL JONES, II
Jones, II, U.S.D.J.
Before the Court is Defendant Tumbl Trak’s (“T-Trak”) Motion for Partial Summary Judgment (Docket No. 169); Cornell University’s Motion for Summary Judgment (Docket No. 171); Cornell University’s Motion for Partial Summary Judgment on Punitive Damages (Docket No. 172); and extensive briefing related thereto. 1
1 This matter has been crawling along, with a stunning amount of motion practice and briefing, for years now. The parties and [*2] this Court are well aware of the tortured factual and procedural background of this case, and setting it forth at length again here would be a waste of judicial resources. Rather, I limit the discussion herein to specific facts as may be relevant to resolution of the Motion.
Under Federal Rule of Civil Procedure 56(c), 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.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). To defeat a motion for summary judgment, disputes must be both (1) material, meaning concerning facts that will affect the outcome of the issue under substantive law, and (2) genuine, meaning the evidence must be “such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Summary judgment is mandated “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 [*3] that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. An issue is genuine if the fact finder could reasonably return a verdict in favor of the nonmoving party with respect to that issue. Anderson, 477 U.S. at 249. In reviewing a motion for summary judgment, the court does not make credibility determinations and “must view facts and inferences in the light most favorable to the party opposing the motion.” Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1127 (3d Cir. 1995).
T-Trak’s Motion for Partial Summary Judgment
T-Trak seeks partial summary judgment on three bases: (1) Plaintiff cannot establish a prima facie case of failure to warn; (2) Plaintiff is not entitled to punitive damages; and (3) Plaintiff assumed the risk of serious injury when using the Tumbl Trak apparatus (“TTA”). I address these seriatim.
Failure to Warn
Under New York law, 2 to establish a prima facie case of failure to warn, a Plaintiff must show that (1) the defendant-manufacturer had a duty to warn; (2) the manufacturer breached such duty and so the product is rendered defective, i.e., reasonably certain to be dangerous; (3) the product’s defect was the proximate cause [*4] of the injury to plaintiff; and (4) the plaintiff suffered loss or damage. Humphrey v. Diamant Boart, Inc., 556 F. Supp. 2d 167, 179 (E.D.N.Y. 2008); McCarthy v. Olin Corp., 119 F.3d 148, 156 (2d Cir. 1997). The duty to warn can be breached by either “the complete absence of warnings as to a particular hazard,” or “the inclusion of warnings which are insufficient.” Johnson v. Johnson Chem. Co., 183 A.D.2d 64, 588 N.Y.S.2d 607, 610 (N.Y. App. Div. 1992). The adequacy of a warning is normally a question of fact to be determined at trial. Nagel v. Bros. Int’l Foods, Inc., 34 A.D.3d 545, 825 N.Y.S.2d 93, 95 (N.Y. App. Div. 2006).
2 On November 23, 2011, U.S. Magistrate Judge Lynne A. Sitarski analyzed choice of law inquiries in this case and determined New York law applies throughout. Additionally, no party disputes the application of New York law to the failure to warn and assumption of risk claims here. Accordingly, I apply New York law to those claims.
Plaintiff has the burden of proving that T-Trak’s failure to warn was a proximate cause of his injury. See Mulhall v. Hannafin, 45 A.D.3d 55, 841 N.Y.S.2d 282, 285 (N.Y. App. Div. 2007). This burden includes adducing proof that a user of the product at issue would have read and heeded [*5] a warning had one been given. Sosna v. Am. Home Prods., 298 A.D.2d 158, 748 N.Y.S.2d 548, 549 (N.Y. App. Div. 2002). Conversely, failure to warn claims can be decided as a matter of law against an injured party where the injured party was “fully aware of the hazard through general knowledge, observation, or common sense” or where the hazard is “patently dangerous.” Humphrey, 556 F. Supp. 2d at 179-80 (citing Liriano v. Hobart Corp. (Liriano I), 92 N.Y.2d 232, 700 N.E.2d 303, 308, 677 N.Y.S.2d 764 (1998)).
T-Trak contends that Plaintiff cannot establish a prima facie case of failure to warn where (1) the risk of injury was open and obvious and (2) Plaintiff did not actually read the warnings that were on the TTA. First T-Trak argues that “the risk of injury while performing a back flip was open and obvious and readily discernable to Plaintiff.” Def.’s Mot. Part. Summ. J. (hereinafter “Def.’s Br.”) 21. More specifically, T-Trak opines that general knowledge dictates that “an individual might land on his head if he attempts a back flip on a rebounding [TTA].” Id. T-Trak relies on, inter alia, the following record evidence:
o “Plaintiff, educated in physics, knew that what goes up will come down.” Id. 22; see id. Ex. H, at 380-81.
o Plaintiff [*6] signed a waiver that stated he understood the risks and dangers associated with gymnastics. Id. Ex. F.
o There was a small warning label on the TTA which stated that any activity “creates the possibility of catastrophic injury, including paralysis or even death from falling on the head or neck. Id. Ex. G.
o Plaintiff “was aware of the safety concept of spotting and had done it in high school as a member of the cheerleading squad.” Id. 23; see id. Ex. H, at 432.
Based on these facts, T-Trak contends that “common sense” would have informed an individual that he or she was risking landing on their head by using the TTA, and, as such, T-Trak had no legal duty to warn Plaintiff. Id. 24.
However, there are significant disputes of material fact as to which, if any, hazards associated with the TTA were open and obvious (i.e., could be objectively ascertained) by a similarly-situated novice gymnast. Notably, Plaintiff has produced the report of warnings expert Dr. William J. Vigilante Jr., which, inter alia, cited numerous deficiencies in the warnings on the TTA: the warnings on the TTA were blurred and could not be read even at a close distance; the warnings were located on either end of the TTA, [*7] not in the middle where a user would mount it; and the warnings were located adjacent to a cartoon depicting teddy bears conducting unspotted, unsupervised backflips on the TTA. Pl.’s Resp. Def. T-Trak’s Mot. Part. Summ. J. (hereinafter “Pl.’s Resp. Br.”) Ex. D, at 8-9. Dr. Vigilante’s report clearly suggests there were conflicting messages as to (1) the dangers associated with particular uses of the TTA; (2) how novices should perform backflips off the TTA; and (3) what is the appropriate level of supervision for safety purposes while using the TTA. Dr. Vigilante’s view of the facts is obviously in conflict with that of T-Trak. Cf. Repka v. Arctic Cat, Inc., 20 A.D.3d 916, 798 N.Y.S.2d 629, 631 (N.Y. App. Div. 2005) (triable issue of fact concerning sufficiency of warnings raised through expert).
Apparently as a fallback position, T-Trak also asserts that because Plaintiff never sought to view the warnings prior to his accident, he cannot advance a failure to warn claim. However, failure to read the TTA’s warnings “does not necessarily sever the causal connection between the alleged inadequacy of those warnings, on the one hand, and the occurrence of the accident, on the other.” Johnson, 588 N.Y.S.2d at 611. [*8] This fact alone is insufficient to secure summary judgment. See Humphrey, 556 F. Supp. 2d at 180-81 (holding plaintiff’s admission that he did not read the warning label or operating instructions on equipment not dispositive under New York law in connection with failure to warn claim). Indeed, there is more than just that fact here. According to the summary judgment record none of the many fact witnesses in this case (including Plaintiff) testified that they ever saw any warning on the TTA. 3 Furthermore, Plaintiff himself has submitted sworn testimony that if he had seen what Dr. Vigiliante characterized as a proper warning, Plaintiff would have heeded the proper warning and either never have attempted a backflip or done so only with the assistance of a qualified coach or spotter. 4 See Pl.’s Resp. Br. Ex. T.
3 This evidence is buttressed by the fact that T-Trak’s own warnings expert testified at his deposition that the warnings on the TTA were deficient, illegible, and violative of relevant industry standards pertaining to size. Pl.’s Resp. Br. Ex. S.
4 I do not find T-Trak’s argument that Plaintiff submitted a “sham affidavit” to be convincing.
In sum, this evidence of record establishes [*9] sufficient material disputes of fact as to the level of awareness Plaintiff or any other objective, novice gymnast would have had concerning the danger of specific injuries while performing specific maneuvers on the TTA. Moreover, T-Trak has been unable to adduce undisputed evidence that Plaintiff would have disregarded a proper warning. Accordingly, summary judgment on the failure to warn claim is inappropriate.
Assumption of Risk
T-Trak contends it is entitled to summary judgment on Plaintiff’s negligence claim based on the principle of assumption of risk. 5 To prove a prima facie case of negligence, a plaintiff must establish (1) existence of a duty of the defendant to the plaintiff; (2) breach of the duty; and (3) that the breach of the duty was a proximate cause of the injury to the plaintiff. Martinez v Capital One, N.A., F. Supp. 2d , 2012 U.S. Dist. LEXIS 42214, No. 10 Civ. 8028(RJS), 2012 WL 1027571, at *10 (S.D.N.Y. Mar. 27, 2012). Assumption of risk operates to eliminate the duty of care to a plaintiff, and can therefore be a complete bar to recovery for negligence. Anderson v. Hedstrom Corp., 76 F. Supp. 2d 422, 431 (S.D.N.Y. 1999); Turcotte v. Fell, 68 N.Y.2d 432, 502 N.E.2d 964, 967-68, 510 N.Y.S.2d 49 (1986). To establish [*10] assumption of risk, a defendant bears the burden of establishing that the “plaintiff was aware of the defective or dangerous condition and the resultant risk.” Hedstrom, 76 F. Supp. 2d at 432 (citing Lamey v. Foley, 188 A.D.2d 157, 594 N.Y.S.2d 490, 495 (N.Y. App. Div. 1993)). This determination depends in part on the openness and obviousness of the risk. Id.
5 This argument applies only to Plaintiff’s negligence claim, as New York law does not favor an assumption of risk defense to strict liability claims. Auto. Ins. Co. of Hartford v. Electrolux Home Prods., Inc., 2011 U.S. Dist. LEXIS 12652, 2011 WL 1434672, at *2 (W.D.N.Y. 2011).
Assumption of risk is frequently applied to claims arising out of participation in sporting events. See, e.g., Goodlett v. Kalishek, 223 F.3d 32, 34 (2d Cir. 2000) (airplane racing); Rochford v. Woodloch Pines, Inc., 824 F. Supp. 2d 343, 349-51 (E.D.N.Y. 2011) (golf); Ducrepin v. United States, 964 F. Supp. 659, 664-65 (E.D.N.Y. 1997) (basketball); Mc Duffie v. Watkins Glen Int’l, Inc., 833 F. Supp. 197, 201-02 (W.D.N.Y. 1993) (auto racing); Morgan v. State, 90 N.Y.2d 471, 481-82, 685 N.E.2d 202, 662 N.Y.S.2d 421 (1997) (bobsledding and karate, but not tennis where facility’s negligence in failing to repair torn net unduly increased [*11] the risk); Benitez v. N.Y.C. Bd. of Educ., 73 N.Y.2d 650, 541 N.E.2d 29, 33-34, 543 N.Y.S.2d 29 (1989) (football); Joseph v. N.Y. Racing Ass’n, 28 A.D.3d 105, 809 N.Y.S.2d 526, 529 (N.Y. App. Div. 2006) (horseback riding); Hawley v. Binghamton Mets Baseball Club Inc., 262 A.D.2d 729, 691 N.Y.S.2d 626, 627-28 (N.Y. App. Div. 1999) (baseball). It has even been applied in some (but not all) cases involving jumping on a trampoline. 6 However these cases have a unifying theme — clear risks that were known yet disregarded by the plaintiff, with no negligence by the defendant that enhanced the risk. In cases where the plaintiff was unaware of the risk, or where the defendant’s negligence amplified the risk, summary judgment has not been granted. See, e.g., Clarke v. Peek ‘N Peak Recreation, Inc., 551 F. Supp. 2d 159, 163 (W.D.N.Y. 2008) (ski resort owner’s alleged negligence may have enhanced assumed risk); Hedstrom, 76 F. Supp. 2d at 435-36 (beginning trampoline user unaware and not sufficiently warned of risks); Repka, 798 N.Y.S.2d at 632-33 (assumed risk unduly increased by use of defective snowmobile without adequate warnings); Kroll, 764 N.Y.S.2d at 731 (plaintiff unaware of risk of trampoline’s defect). T-Trak argues vociferously that “Plaintiff [*12] should have been aware of the risk of injury.” Def.’s Br. 31 (emphasis added). While it is true that Plaintiff had some experience with cheerleading and gymnastics, there is evidence he was a novice nonetheless. Additionally, as discussed supra, there is direct testimony that Plaintiff did not view any warnings and thus was not made explicitly aware of the contents thereof. There is further, disputed testimony as to the reasons why Plaintiff was unaware of the warnings, including evidence that the warnings were patently insufficient and no participant saw or became aware of their contents that day. The survey of trampoline cases herein makes it clear that the use of a trampoline has not been deemed inherently risky as a matter of New York law. All of these relevant disputes — namely, as to Plaintiff’s expertise, knowledge, the sufficiency and quality of the warnings, and the obvious nature of the risk to a casual user of the TTA — preclude this Court from absolving T-Trak on the grounds of assumption of risk. T-Trak’s duty to Plaintiff, if any, is properly an issue for trial.
6 Application of assumption of risk is a fact-specific endeavor, including in trampoline cases, which tend to [*13] be decided depending on whether the plaintiff was aware of and appreciated the risk in using the trampoline. A plaintiff may prevail where he adduces evidence that he was unaware of the risk of using a trampoline and that he used the trampoline in an ordinary fashion. See, e.g., Hedstrom, 76 F. Supp. 2d at 427, 435 (finding no assumption of risk where plaintiff was a total beginner who did not see warning label and who used trampoline in a “fairly typical manner”); Kroll v. Watt, 309 A.D.2d 1265, 764 N.Y.S.2d 731, 731 (N.Y. App. Div. 2000) (affirming denial of summary judgment on assumption of risk where plaintiff’s awareness of risk of trampoline tipping over and thus causing plaintiff’s injury was a triable issue of fact). On the other hand, assumption of risk applies where the risk of the activity is inherent or where the injured party fully understands, appreciates, and voluntarily assumes the risk through participation. Goodlett, 223 F.3d at 36-37. New York courts have barred the recovery of plaintiffs injured while jumping on a trampoline where the plaintiff was aware of the risk or performed a particularly risky maneuver. See, e.g., Yedid v. Gymnastic Ctr., 33 A.D.3d 911, 824 N.Y.S.2d 299, 300 (N.Y. App. Div. 2006) [*14] (affirming application of assumption of risk where plaintiff failed to provide evidence that he was unaware of risk of performing front flip on trampoline); Koubek v. Denis, 21 A.D.3d 453, 799 N.Y.S.2d 746, 747 (2005) (finding assumption of risk where plaintiff was aware and appreciative of risk of using trampoline and used it nonetheless); Liccione v. Gearing, 252 A.D.2d 956, 675 N.Y.S.2d 728, 728 (N.Y. App. Div. 1998) (holding assumption of risk applicable where plaintiff ignored sign warning against use of trampoline by two or more participants at the same time and then engaged in such activity).
U.S. Magistrate Judge Lynne A. Sitarski thoroughly and cogently examined choice of law issues in this case in deciding Defendant Cornell University’s Motion to Establish Applicable Law. See Duchesneau v. Cornell Univ., No. 08-4856, 2011, 2011 U.S. Dist. LEXIS 135211, WL 5902155, at *1 (E.D. Pa. Nov. 23, 2011) (order granting applicable law). T-Trak did not participate in the Motion to Establish Applicable Law. Rather, T-Trak asserts in the instant Motion that, while New York law is almost universally applicable in this case, Michigan law operates to bar recovery of punitive damages. In short, T-Trak contends that because it is domiciled [*15] in Michigan and the alleged punitive conduct (design and labeling of the product) occurred in Michigan, Michigan law should apply to Plaintiff’s claim for punitive damages. Unsurprisingly, Michigan law bars punitive damage awards unless expressly authorized by statute, which is not the case here. See Gilbert v. DaimlerChrysler Corp., 470 Mich. 749, 685 N.W.2d 391, 400 (2004). Plaintiff maintains that New York law properly governs all aspects of this matter, including his punitive damages claim. New York law allows a plaintiff to recover punitive damages, so as to punish gross misbehavior for the public good. Clinton v. Brown & Williamson Holdings, Inc., 498 F. Supp. 2d 639, 653 (S.D.N.Y. 2007).
Judge Sitarski aptly laid out the applicable conflicts of law framework and conducted a thorough analysis of asserted interests, and this Court need not repeat the legal discussion at length here. Judge Sitarski concluded that New York law applied to Plaintiff’s claims against Cornell, including with regard to punitive damages and contributory negligence. I reach the same conclusion as to T-Trak for substantially the same reasons. Here, T-Trak knew the TTA was to be delivered and used in New York, and, indeed, [*16] the TTA was used continuously in New York for many years prior to the accident. Generally speaking, courts applying the Pennsylvania choice of law contacts analysis to product liability matters have applied the law of the state where the product was used and where the accident occurred. Shields v. Consol. Rail Corp., 810 F.2d 397, 399-400 (3d Cir. 1987); U.S. Airways, Inc. v. Elliott Equip. Co., Inc., 2008 U.S. Dist. LEXIS 76043, 2008 WL 4461847 (E.D. Pa. Sept. 29, 2008). Plaintiff’s accident was non-fortuitous, and therefore great deference is given to New York as to the law which should apply. LeJeune v. Bliss-Salem, Inc., 85 F.3d 1069 (3d Cir. 1996).
Under the contacts analysis, New York has many compelling interests here: (1) the TTA is located in New York; (2) the accident occurred in New York; (3) Cornell contracted to purchase the TTA in New York; (4) Plaintiff was a student in New York; (5) Plaintiff, although a Pennsylvania resident, received treatment for his injuries in New York; and (6) the key Waiver Agreement in this case governs activities in New York and has its validity determined by New York law. The contacts with Michigan are markedly less. T-Trak’s headquarters is in Michigan. Some design and [*17] testing of the TTA took place in Michigan. However, the TTA and its warnings were designed by a Washington resident, and the component parts of the TTA were manufactured in multiple states other than Michigan (including the pads which containing the warnings). The actual T-Trak dealer who negotiated the New York contract of sale for the TTA with Cornell was based in Georgia. Finally, the TTA was assembled in New York by Cornell from constituent pieces delivered from various locations. 7
7 These circumstances are readily distinguishable from those in Kelly v. Ford Motor Co., 933 F. Supp. 465 (E.D. Pa. 1996), upon which T-Trak heavily relies. In Kelly, much of the design, testing, assembly, and warning label placement occurred in various Michigan locales under the close coordination of Ford. As mentioned above, T-Trak did not even manufacture or assembly any parts of the TTA in Michigan. Kelly is not persuasive.
Accordingly, I conclude New York law applies to the question of punitive damages against T-Trak. Upon review of the record, I find Plaintiff has adduced sufficient evidence to allow the claim for punitive damages to proceed.
Cornell’s Motion for Partial Summary Judgment on Punitive [*18] Damages
Cornell claims that Plaintiff has failed to adduce any evidence that could justify punitive damages under New York law. Plaintiff responds that “Cornell’s relevant conduct is textbook-appropriate” in terms of punitive damages for multiple reasons: (1) Cornell ran its own gymnasium without rules, standards, coaching, instruction, screening, supervision, and spotting; (2) multiple experts have opined that Cornell’s conduct in that regard was, inter alia, “highly dangerous,” “indefensible,” “outrageous,” “reckless,” and “an accident waiting to happen”; and (3) Cornell violated “every applicable mainstream gymnastics safety standard, [and] systematically allowed a wholly-incompetent individual to supervise the gymnasium.” See Pl.’s Resp. Opp’n Def. Cornell’s Mot. Summ. J. Punit. Damages 2-3.
As discussed supra, New York law allows a plaintiff to recover punitive damages, so as to punish gross misbehavior for the public good. Clinton, 498 F. Supp. 2d at 653. An award of punitive damages would be proper “where the conduct of the party being held liable evidences a high degree of moral culpability, or where the conduct is so flagrant as to transcend mere carelessness, or where the conduct [*19] constitutes willful or wanton negligence or recklessness.” Buckholz v. Maple Garden Apts., LLC, 38 A.D.3d 584, 832 N.Y.S.2d 255, 256 (N.Y. App. Div. 2007); see also Mahar v. U.S. Xpress Enters., 688 F. Supp. 2d 95, 110 (N.D.N.Y. 2010) (allowing punitive damages in rare cases of egregious and willful conduct that is morally culpable); Black v. George Weston Bakeries, Inc., No. 07-CV-853S, 2008, 2008 U.S. Dist. LEXIS 92031, WL 4911791, at *7 (W.D.N.Y. Nov. 13, 2008) (permitting punitive damages where conduct constitutes conscious disregard of others); Bohannon (ex rel. Estate of Dolik) v. Action Carting Envtl. Servs., Inc., No. 06-CV-5689 (JG), 2008 U.S. Dist. LEXIS 40516, 2008 WL 2106143, at *3 (E.D.N.Y. May 20, 2008) (recognizing utter indifference to the safety of others warrants granting punitive damages).
Upon review of the record, I concur with Plaintiff that there is more than enough evidence to allow Plaintiff’s punitive damages claim to proceed. There is substantial evidence of record concerning purported behavior of Cornell that could be found to rise to the level of egregious recklessness and moral culpability necessary to trigger punitive damages. There are major disputes of fact as to whether Cornell failed to exhibit care to such a degree as would [*20] amount to wanton behavior or recklessness. Cornell’s argument primarily rests on its self-serving conclusion that — despite evidence offered to the direct contrary — this case just does not involve one of those rare, egregious instances of recklessness that is punishable by punitive damages. That, however, is properly the jury’s decision. Summary judgment is inappropriate, and the claim for punitive damages shall remain.
III. Cornell’s Motion for Summary Judgment
Cornell moves for summary judgment on two bases: (1) Plaintiff assumed the risk of using the TTA and Cornell had no duty to supervise the use of gymnastic equipment by novices, and (2) there is no evidence as to causation concerning Cornell. There are so many material disputes of fact between Plaintiff and Cornell that a lengthy explication of them would be a waste of resources. Suffice it to say that, despite occasional rhetoric to the contrary, Plaintiff and Cornell disagree about nearly every major fact or opinion of record that relates to the issues raised in the Motion. 8 Specific to assumption of risk (discussed supra), there are considerable disputes over whether Plaintiff knew or appreciated the risks of the TTA. Cornell’s [*21] assertions to the contrary appear to be mostly self-serving statements. Because Plaintiff has adduced plentiful evidence (testimony, admissions, experts) in support of the position that he was not aware of the relevant risk and could not be expected to be aware of that risk, summary judgment is obviously inappropriate. 9
8 These two parties have repeatedly filed briefs of excessive length (50-100 pages each), including unnecessary bolded or italicized text for emphasis, in which they highlight disputes of fact ad infinitum.
9 This conclusion is buttressed by the fact that, as discussed supra, there are even disputes of material fact as to whether (1) the risk of harm was obvious, open, or hidden, and (2) the risk of harm was enhanced by Cornell’s own actions.
Cornell’s caselaw presents numerous, distinct factual circumstances, none of which are analogous here. See, e.g., Yedid v. Gymnastic Ctr., 33 A.D.3d 911, 824 N.Y.S.2d 299, 300 (N.Y. App. Div. 2006) (finding experienced gymnast with six years of instruction assumed known risk of performing front flip on trampoline); Koubek v. Denis, 21 A.D.3d 453, 799 N.Y.S.2d 746, 747 (N.Y. App. Div. 2005) (holding plaintiff assumed risk of using trampoline where she failed to [*22] adduce evidence that she was unaware of the potential for injury); Palozzi v. Priest, 280 A.D.2d 986, 720 N.Y.S.2d 676, 676 (N.Y. App. Div. 2001) (affirming application of assumption of risk to teenager injured while “fake wrestling” on trampoline); Liccione v. Gearing, 252 A.D.2d 956, 675 N.Y.S.2d 728, 729 (N.Y. App. Div. 1998) (noting plaintiff assumed risk of “double jumping” despite warnings on trampoline that were deemed adequate as a matter of law); Williams v. Lombardini, 38 Misc. 2d 146, 238 N.Y.S.2d 63, 64-65 (N.Y. Sup. Ct. 1963) (determining plaintiff assumed risk where he admitted seeing rule that prohibited “difficult tricks” but attempted front flip on trampoline anyway). As discussed supra, summary judgment based on assumption of risk is inappropriate where there is a question as to appreciation or understanding of risk. 10 See Hedstrom, 76 F. Supp. 2d at 435-36 (recognizing no assumption of risk by beginning trampoline user who was unaware and not sufficiently warned of risks); Kroll, 764 N.Y.S.2d at 731 (deciding plaintiff did not assume risk because she was unaware of trampoline’s defect). Application of assumption of risk at summary judgment is especially inappropriate here because New York law disfavors using the [*23] doctrine in cases where there are allegations of reckless or intentional conduct, or concealed or unreasonably increased risks. 11 Morgan, 90 N.Y.2d at 485; see, e.g., Charles v. Uniondale Sch. Dist. Bd. of Educ., 91 A.D.3d 805, 937 N.Y.S.2d 275, 276-77 (N.Y. App. Div. 2012) (denying summary judgment where issues of fact existed as to whether defendant unreasonably increased risk by failing to provide head and face protection to plaintiff lacrosse player); Miller v. Holiday Valley, Inc., 85 A.D.3d 1706, 925 N.Y.S.2d 785, 788 (N.Y. App. Div. 2011) (rejecting summary judgment because plaintiff submitted evidence that defendant’s negligent failure to stop ski lift caused plaintiff’s injuries); Repka, 798 N.Y.S.2d at 632-33 (dismissing summary judgment motion because lack of adequate warnings may have unduly enhanced snowmobile’s concealed defect). In short, I do not find that Cornell is entitled to judgment as a matter of law based on the assumption of risk doctrine.
10 Cornell argues that the warning notice on the TTA itself establishes total assumption of risk. However, a vast portion of the evidence in this case (almost all of it disputed) is about whether the TTA’s warnings were seen, sufficient, or effective. In [*24] other words, Cornell relies on a highly disputed factual conclusion concerning the adequacy of the warning to justify summary judgment on assumption of risk grounds. This Court cannot follow.
11 I am completely unpersuaded by Cornell’s argument concerning its total lack of a duty of care to a novice student using equipment in the Teagle Gymnasium. N.Y. Gen. Oblig. Law § 5-326 (McKinney 1976) (voiding gymnasium waivers); Eddy v. Syracuse Univ., 78 A.D.2d 989, 433 N.Y.S.2d 923 (App. Div. 1980) (concluding questions of negligence, foreseeability of injury, and duty to protect gym users are all proper issues for a jury); Lorenzo v. Monroe Comm. Coll., 72 A.D.2d 945, 422 N.Y.S.2d 230 (1979) (finding questions of fact existed as to whether defendant provided adequate supervision in gymnasium). Much of Cornell’s arguments are bootstrapped onto a conclusion of assumption of risk — i.e., because a student assumed the risk, the defendant college owes no duty with respect to the dangers inherent in the activity. As discussed, this Court cannot conclude at this stage that there was any assumption of risk. In addition, this Court will not revisit its previous rulings as to the issue of the prior academic year waiver despite Cornell’s [*25] apparent invitation.
Nor can I conclude that Cornell is entitled to summary judgment based upon causation. There is extensive, often-conflicting evidence concerning causation. Plaintiff has adduced significant amounts of evidence concerning Cornell’s systemic negligent conduct leading up to the accident. In addition, Plaintiff has offered evidence from multiple experts that goes directly to duty of care and causation (e.g., that the lack of spotting equipment and spotters proximately caused Plaintiff’s injuries; that the lack of warnings failed to notify Plaintiff of the risks associated with the TTA; that Cornell’s “outrageous” conduct in organizing and supervising Plaintiff’s use of the gymnasium directly contributed to Plaintiff’s accident). 12 Cornell may strongly disagree with these experts, but it is not entitled to have them ignored in favor of summary judgment.
12 Cornell spends considerable time “debunking” these experts in briefs, often by reference to the testimony of others. By doing so, Cornell highlights some of the very disputes that preclude summary judgment.
Tumbl Trak maintains that Plaintiff cannot prove it inadequately warned him against use of its product. [*26] Cornell suggests that this case involves nothing more than a “luckless accident” that resulted from Plaintiff’s voluntary participation in vigorous athletic activity. Plaintiff disagrees. He believes that he was harmed by (1) a device with grossly inadequate warnings, and (2) an institution which engaged in a course of conduct of gymnasium operation and supervision which was reprehensible and reckless. Based on the record before me, Plaintiff is entitled to put these questions to a jury.
An appropriate Order follows.
AND NOW, this 31st day of July, 2012, it is hereby ORDERED that:
- Defendant Tumbl Trak’s Motion for Partial Summary Judgment (Docket No. 169) is DENIED.
- Cornell University’s Motion for Summary Judgment (Docket No. 171) is DENIED.
- Cornell University’s Motion for Partial Summary Judgment on Punitive Damages (Docket No. 172) is DENIED.
- The Case Management Order dated April 20, 2012 remains in force.
In addition, this Court has briefly reviewed the initial pre-trial filings in this matter and noticed that they do not conform with the Chambers Policies and Procedures, available at http://www.paed.uscourts.gov. The rules contained therein are not optional, and are to be followed [*27] to the letter. No party has ever represented to this Court that they cannot work with their colleagues to fulfill their responsibilities under these procedures. Here, it appears the parties have, at least, failed to properly prepare their joint proposed jury instructions and joint proposed voir dire. Instead, three different versions of each document were separately filed by three different parties — a situation that the Chambers Policies obviously sought to preclude. The parties are specifically directed to review the Chambers Policies and Procedures, Civil Cases, Subsection E, which provide two pages of instructions as to the proper preparation and presentation of these and other pre-trial submissions. 13 It is ORDERED that the parties promptly withdraw any non-conforming filings and submit appropriately-prepared ones by August 31, 2012.
13 Parties are expected to be familiar with all Policies and Procedures by the time of the final pre-trial conference, especially the items concerning exhibits, courtroom operation, and attorney conduct during a trial.
BY THE COURT:
/s/ C. Darnell Jones, II
- DARNELL JONES, II, U.S.D.J.
Walker v. UME, Inc. d/b/a Camp Huaco Springs, 2016 Tex. App. LEXIS 5934
Cynthia Walker, Individually and on Behalf of the Estate of Norman Walker; Stephen Walker; Stephanie Walker Hatton; Jordan Walker; and Caren Ann Johnson, Appellants v. UME, Inc. d/b/a Camp Huaco Springs; WWGAF, Inc. d/b/a Rockin ‘R’ River Rides; William George Rivers; and Richard Duane Rivers, Appellees
Court of Appeals of Texas, Third District, Austin
2016 Tex. App. LEXIS 5934
June 3, 2016, Filed
PRIOR HISTORY: [*1] FROM THE DISTRICT COURT OF COMAL COUNTY, 433RD JUDICIAL DISTRICT. NO. C2012-0796D, HONORABLE DIB WALDRIP, JUDGE PRESIDING.
JUDGES: Before Justices Puryear, Goodwin, and Field.
OPINION BY: David Puryear
Appellants Cynthia Walker, Individually and on Behalf of the Estate of Norman Walker; Stephen Walker; Stephanie Walker Hatton; Jordan Walker; and Caren Ann Johnson1 filed suit against appellees UME, Inc. d/b/a Camp Huaco Springs; WWGAF, Inc. d/b/a Rockin ‘R’ River Rides; William George Rivers; and Richard Duane Rivers for injuries sustained when the Guadalupe River overran its banks during a flash flood in June 2010.2 The trial court granted summary judgment in favor of appellees. We affirm the trial court’s orders granting summary judgment.
1 Cynthia Walker was married to Norman Walker, and Stephen Walker, Stephanie Walker Hatton, and Jordan Walker are their children. Caren Johnson is married to Terry Johnson, Cynthia’s brother. Cynthia, Norman, Caren, and Terry were camping together at Camp Huaco Springs when they were caught in the flood. Norman died, while Cynthia, Terry, and Caren were injured. Caren and Cynthia sued for their own injuries. Cynthia also sued as a representative of [*2] Norman’s estate and, along with her children, as a wrongful death beneficiary.
2 UME, Inc. operates Camp Huaco Springs, WWGAF operates Rockin ‘R’ River Rides, a river-tubing and recreation outfitter, and William and Richard Rivers own the two businesses.
In June 2010, Cynthia and Norman Walker and Terry and Caren Johnson went to Camp Huaco Springs in their RV campers for a weekend of camping and river rafting. When they arrived at the campground, they were assigned two parking spaces. The Walkers and the Johnsons parked their campers as directed. On Saturday, the Walkers and the Johnsons took a canoe trip on the river and went to tour nearby caverns. When they returned to the campsite and went to bed, it was not raining. They had not heard any weather reports and did not know heavy rain was forecast for that night. Cynthia woke at about 6:00 a.m. to thunder and lightning. She looked out the window and saw Terry was screaming that they had to leave. Cynthia looked down and noticed that the river had risen to surround the two campers, causing them to begin floating. The Walkers and Johnsons were all swept downstream in the flood. Norman died in the flood. Cynthia, Terry, and [*3] Caren were rescued miles downstream from the campsite and all required medical attention.
Appellants filed suit alleging negligence, premises liability, and gross negligence. They asserted that WWGAF was liable because it was a joint enterprise with UME and that the Rivers brothers were liable under a theory of alter ego. Appellants asserted that appellees knew that the campground was prone to flooding and failed: to warn appellants of that fact; to warn of the approaching storm; to prepare a plan for flood awareness, communication, and evacuation; to have and use speakers or sirens to warn of flooding; to employ someone to monitor the weather and warn and evacuate guests; to have an employee on site during severe weather; and to make reasonable modifications, have emergency communications, or educate guests about severe-weather risks.
UME and the Rivers brothers filed a traditional and no-evidence motion for summary judgment, asserting that the Texas Recreational Use Statute3 limited appellants to asserting a gross-negligence claim and that appellants could not show various elements of gross negligence; that there was no evidence that they had a duty to warn that the campground was in [*4] a flood zone, to warn that severe weather was approaching, or to plan and prepare for flooding; that there was no evidence they had a duty to have and use speakers or sirens to warn guests; and that there was no evidence that appellants’ injuries were caused by any negligence on the part of UME or the Rivers brothers. UME and the Rivers brothers filed a separate motion for traditional and no-evidence summary judgment addressing appellants’ theories of alter ego and joint enterprise. WWGAF filed its own motion for summary judgment, asserting that it did not own or operate Camp Huaco, that it did not owe a duty to the Walkers and the Johnsons, and that it was a separate entity from Camp Huaco and could not be held liable under theories of joint enterprise or vicarious liability. The trial court signed several orders granting appellees’ motions for summary judgment without specifying the grounds.
3 See Tex. Civ. Prac. & Rem. Code § 75.002 (owner, lessee, or occupant of agricultural land who invites another onto premises for recreation owes invitee same duty that would be owed to trespasser and only owes duty not to injure invitee wilfully, wantonly, or through gross negligence); see generally id. §§ 75.001-.007 (chapter 75, titled [*5] “Limitation of Landowners’ Liability”).
The first question to be addressed, the answer to which is dispositive of this appeal, is whether appellees owed any duty to the Walkers and the Johnsons. Even if we assume that the recreational use statute does not apply, we hold, as a matter of law, that appellees did not owe the Walkers and Johnsons a duty to warn of or ensure against rising river waters. Without such a duty, appellants’ premises-liability claims must fail.4
4 Although appellants alleged both negligence and premises-defect claims, “negligent activity encompasses a malfeasance theory based on affirmative, contemporaneous conduct bythe owner that caused the injury, while premises liability encompasses a nonfeasance theory based on the owner’s failure to take measures to make the property safe.” Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010); see Scurlock v. Pennell, 177 S.W.3d 222, 224-25 (Tex. App.–Houston [1st Dist.] 2005, no pet.) (citing Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 753 (Tex. 1998)) (“Recovery for a negligent activity requires that a person have been injured by the activity itself, rather than by a condition created by the activity; in contrast, recovery for premises liability depends upon a failure to use ordinary care to reduce or to eliminate an unreasonable risk of harm created by a premises condition about which the owner or occupier [of [*6] land] knows or, in the exercise of ordinary care, should know.”). The claims raised by appellants clearly alleged that appellees had failed to take various measures that would have made the campsite safe; they did not allege “contemporaneous conduct . . . that caused the injur[ies].” See Smith, 307 S.W.3d at 776. We therefore consider appellants’ claims under a theory of premises liability. Regardless of the theory under which they are analyzed, appellants’ claims would fail because, as we explain below, appellees did not owe the duty that appellants claim was breached. See General Elec. Co. v. Moritz, 257 S.W.3d 211, 217 (Tex. 2008) (“Like any other negligence action, a defendant in a premises case is liable only to the extent it owes the plaintiff a legal duty.”).
When an injured invitee asserts a premises-liability claim, she must show that the owner or occupier had actual or constructive knowledge of a condition that posed an unreasonable risk of harm and did not exercise reasonable care to reduce or eliminate the risk and that such failure proximately caused her injury. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000). We initially note that appellants do not assert that a condition on the premises caused the tragedy and thus was the basis for liability. Instead, the injuries suffered by appellants were caused by a rain-swollen [*7] river that inundated the campground, a condition that came to the premises.
Regardless of that fact, Texas courts have consistently held as a matter of law that naturally occurring or accumulating conditions such as rain, mud, and ice do not create conditions posing an unreasonable risk of harm. M.O. Dental Lab v. Rape, 139 S.W.3d 671, 675-76 (Tex. 2004); see Scott & White Mem. Hosp. v. Fair, 310 S.W.3d 411, 412-14 (Tex. 2010) (“Because we find no reason to distinguish between the mud in M.O. Dental and the ice in this case, we hold that naturally occurring ice that accumulates without the assistance or involvement of unnatural contact is not an unreasonably dangerous condition sufficient to support a premises liability claim.”); Wal-Mart Stores, Inc. v. Surratt, 102 S.W.3d 437, 445 (Tex. App.–Eastland 2003, pet. denied) (landowner “does not have a duty to protect its invitees from conditions caused by a natural accumulation of frozen precipitation on its parking lot because such an accumulation does not constitute an unreasonably dangerous condition”).5 The basis for those rulings is that rain, dirt, and mud are naturally occurring conditions beyond a landowner’s control. See, e.g., M.O. Dental Lab, 139 S.W.3d at 676 (“rain is beyond the control of landowners” and “accidents involving naturally accumulating mud and dirt are bound to happen, regardless of the precautions taken by landowners”). Requiring a landowner to protect an invitee [*8] from precipitation or other acts of nature would place an enormous burden on the landowner. See id.; see also Fair, 310 S.W.3d at 414 (requiring landowners “to guard against wintery conditions would inflict a heavy burden because of the limited resources landowners likely have on hand to combat occasional ice accumulations”).
5 See also State Dep’t of Highways & Pub. Transp. v. Kitchen, 867 S.W.2d 784, 786 (Tex. 1993) (per curiam) (in premises defect case under Texas Tort Claims Act, supreme court held that “[w]hen there is precipitation accompanied by near-freezing temperatures, . . . an icy bridge is neither unexpected nor unusual, but rather, entirely predictable [and] is something motorists can and should anticipate when the weather is conducive to such a condition”); Brownsville Navigation Dist. v. Izaguirre, 829 S.W.2d 159, 160 (Tex. 1992) (“Plain dirt which ordinarily becomes soft and muddy when wet is not a dangerous condition of property for which a landlord may be liable.”); Lee v. K&N Mgmt., Inc., No. 03-15-00243-CV, 2015 WL 8594163, at *3-4 (Tex. App.–Austin Dec. 11, 2015, no pet.) (mem. op.) (plant that extended over edge of flowerbed was not unreasonably dangerous condition; “The Texas Supreme Court has held that certain naturally occurring substances generally do not pose an unreasonable risk of harm. . . . Under the facts of this case, the plant, like mud and dirt, may have formed a condition that posed a risk of harm, [*9] but on this record, we cannot conclude that it was an unreasonable risk of harm.”); City of Houston v. Cogburn, No. 01-11-00318-CV, 2014 WL 1778279, at *4 (Tex. App.–Houston [1st Dist.] May 1, 2014, no pet.) (mem. op.) (“as a matter of law, naturally occurring conditions that are open and obvious do not create an unreasonable risk of harm for purposes of premises liability”; tree roots over which plaintiff tripped were “open and obvious and were a naturally occurring condition”).
Further, an invitee is or should be “at least as aware” as the landowner of visible conditions that have “accumulated naturally outdoors” and thus “will often be in a better position to take immediate precautions against injury.” M.O. Dental Lab, 139 S.W.3d at 676. In other words, as the supreme court has explained:
When the condition is open and obvious or known to the invitee, however, the landowner is not in a better position to discover it. When invitees are aware of dangerous premises conditions–whether because the danger is obvious or because the landowner provided an adequate warning–the condition will, in most cases, no longer pose an unreasonable risk because the law presumes that invitees will take reasonable measures to protect themselves against known risks, which may include a decision not to accept the invitation to enter onto the landowner’s premises. [*10] This is why the Court has typically characterized the landowner’s duty as a duty to make safe or warn of unreasonably dangerous conditions that are not open and obvious or otherwise known to the invitee
Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 203 (Tex. 2015) (citations omitted). Texas courts have repeatedly observed that a landowner “‘is not an insurer'” of an invitee’s safety and generally “has no duty to warn of hazards that are open and obvious or known to the invitee.” Id. at 203-04 (quoting Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 769 (Tex. 2010)). Texas courts have held in various contexts that flooding due to heavy rains is an open and obvious hazard. See, e.g., State v. Shumake, 199 S.W.3d 279, 288 (Tex. 2006) (“[T]he owner may assume that the recreational user needs no warning to appreciate the dangers of natural conditions, such as a sheer cliff, a rushing river, or even a concealed rattlesnake. But a landowner can be liable for gross negligence in creating a condition that a recreational user would not reasonably expect to encounter on the property in the course of the permitted use.”); City of Austin v. Leggett, 257 S.W.3d 456, 475 (Tex. App.–Austin 2008, pet. denied) (flooded intersection was readily apparent and presented obstacle that would be open and obvious to ordinary motorists).
We see no useful distinction to be drawn between ice and mud, which are natural conditions caused by rain and freezing temperatures, and rising [*11] river waters, caused by a natural weather event over which appellees could exercise no control. See Fair, 310 S.W.3d at 414. The June 2010 flood was not a condition inherent in or on the land in question. Instead, the flooding was a condition that came to the campground as the adjacent river, the same river that made the land an attractive place to camp, rose due to heavy rains. The Walkers and the Johnsons had gone canoeing on the river the day before the flooding occurred, and thus they were obviously aware of the river’s proximity to their campsite. This situation is indeed a tragic one, but it is not one for which appellees can be held to bear legal responsibility. We hold that as a matter of law appellees had no duty to warn the Walkers and Johnsons of the possibility that the river they were camping beside might rise in the event of heavy rain, posing a risk to the campground.6
6 We further note that, even if the campground had posted warnings or issued flood cautions when the Walkers and Johnsons checked into the campsite, there is nothing in this record to indicate that events would have turned out any differently. The Walkers and Johnsons went to bed not having heard that heavy rains would approach [*12] and slept heavily enough that none of them woke up during the storm or to warnings by the local sheriff’s officers, who drove through the campsite at about 4:00 a.m., blowing an airhorn and flashing their car’s lights as they announced over their PA system that the river was rising.
Because appellees did not owe a duty to warn of or attempt to make the campground safe against flooding of the adjacent river due to torrential rain, the trial court properly granted summary judgment in their favor. We affirm the trial court’s orders.
David Puryear, Justice
Before Justices Puryear, Goodwin, and Field
Filed: June 3, 2016
Allowing a climber to climb with harness on backwards on health club climbing wall enough for court to accept gross negligence claim and invalidate the release.Posted: February 27, 2017
Whether or not the employee was present the entire time, is irrelevant, anytime any employee had the opportunity to see the harness on incorrectly was enough to be gross negligence.
State: Michigan, Court of Appeals of Michigan
Plaintiff: David Alvarez and Elena Alvarez
Defendant: LTF Club Operations Company Inc., doing business as Lifetime Fitness Center, and Defendant-Appellee, Jane Doe
Plaintiff Claims: negligence
Defendant Defenses: release
Holding: For the Plaintiff
The facts are difficult to determine because the interpretation of the court in its opinion does not follow the normal language used in the climbing industry.
The plaintiff was injured when he leaned back to descend after climbing a climbing wall. Because he was not hooked in properly, something broke, and he fell. The plaintiff claims an employee of the defendant watched him put the harness on and hook into the belay system. The employee alleges she was not present for that. The plaintiff allegedly put the harness on backwards.
The harness allegedly had a red loop that should have been in front. No one either knew how the harness was to be worn or that the harness was on incorrectly.
Karina Montes Agredano, a Lifetime employee, provided David with a harness, he climbed to the top of the rock wall, and attempted to lower himself back down via the automatic belay system. However, because David’s harness was on backwards and incorrectly hooked to the belay system, it broke and he fell to the ground suffering multiple injuries.
The plaintiff argued the employee was grossly negligent. The trial court granted the defendants motion to dismiss based on the release, and this appeal ensued.
Analysis: making sense of the law based on these facts.
The court first started by defining gross negligence under Michigan’s law. Michigan law is similar if not identical to many other states. Gross negligence requires proof the defendant engaged in reckless conduct or acted in a way that demonstrated a substantial lack of concern for the plaintiff.
To establish a claim for gross negligence, it is incumbent on a plaintiff to demonstrate that the defendant acted or engaged in “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” “Evidence of ordinary negligence is insufficient to create a material question of fact regarding the existence of gross negligence.” “The issue of gross negligence may be determined by summary disposition only where reasonable minds could not differ.” “Simply alleging that an actor could have done more is insufficient under Michigan law, because, with the benefit of hindsight, a claim can always be made that extra precautions could have influenced the result.” However, gross negligence will often be exhibited by a “willful disregard of precautions or measures to attend to safety[.]”
Although the issue debated in the appeal was the location of the employee when the plaintiff was putting on the harness and climbing. It was undisputed the defendant’s employee was instructing the plaintiff while he was climbing. Eventually, the court found this not to be a real issue since any opportunity to see the harness was on incorrectly would have allowed the defendants employee to resolve the issue.
Thus, plaintiffs’ testimony allows the inference that Agredano did not simply have the ability to do more to assure David’s safe climb. Instead, accepting plaintiffs’ testimony as true, evidence exists that Agredano ignored the red loop in David’s harness–a clear visible indication that David was climbing the rock wall in an unsafe manner–and took no steps to avoid the known danger associated with climbing the rock wall with an improperly secured harness.
Failure then, to spot the problem or resolve the problem was proof of gross negligence, or a failure to care about the safety and welfare of the plaintiff.
Thus, Agredano’s alleged failure to affirmatively instruct David on the proper way to wear the harness before he donned it himself, coupled with her alleged disregard for the red loop warning sign that David had his harness on backwards, and instructing him to push off the wall, could demonstrate to a reasonable juror that she “simply did not care about the safety or welfare of” Accordingly, reasonable minds could differ regarding whether Agredano’s conduct constituted gross negligence.
Because the court could determine the acts of the defendant employee were possibly gross negligence, it was enough to determine what occurred and if gross negligence occurred.
So Now What?
This is pretty plane on its face. You allow a person to use a piece of equipment incorrectly who is then injured there is going to be a lawsuit. You allow a person to use a piece of safety equipment, equipment needed for the safe operation of your business incorrectly you are going to lose no matter how well written your release.
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Alvarez v LTF Club Operations Company Inc., 2016 Mich. App. LEXIS 2198
David Alvarez and Elena Alvarez, Plaintiff-Appellants, v LTF Club Operations Company Inc., doing business as Lifetime Fitness Center, and Defendant-Appellee, Jane Doe, Defendant. David Alvarez and Elena Alvarez, Plaintiff-Appellees, v LTF Club Operations Company Inc., doing business as Lifetime Fitness Center, and Defendant-Appellant, Jane Doe, Defendant.
No. 328221, No. 328985
COURT OF APPEALS OF MICHIGAN
2016 Mich. App. LEXIS 2198
November 29, 2016, Decided
NOTICE: THIS IS AN UNPUBLISHED OPINION. IN ACCORDANCE WITH MICHIGAN COURT OF APPEALS RULES, UNPUBLISHED OPINIONS ARE NOT PRECEDENTIALLY BINDING UNDER THE RULES OF STARE DECISIS.
PRIOR HISTORY: [*1] Oakland Circuit Court. LC No. 2014-140282-NO. Oakland Circuit Court. LC No. 2014-140282-NO.
CORE TERMS: harness, climbing, gross negligence, rock, climb, belay, incorrectly, backwards, walked, deposition testimony, loop, red, putting, front, genuine issue, material fact, reasonable minds, precautions, favorable, watched, donned, order granting, rock climbing, grossly negligent, adjacent, facing, matter of law, conduct constituted, ordinary negligence, evidence submitted
JUDGES: Before: M. J. KELLY, P.J., and MURRAY and BORRELLO, JJ.
In Docket No. 328221, plaintiffs, David Alvarez and his wife Elena Alvarez, appeal as of right the trial court’s order granting summary disposition in favor of defendant, LTF Club Operations Company, Inc., doing business as Lifetime Fitness Center (Lifetime). In Docket No. 328985, Lifetime appeals as of right the order denying its request for case evaluation sanctions and for taxation of costs. For the reasons stated herein, we reverse the trial court’s order granting defendant’s motion for summary disposition and remand for further proceedings.
This litigation arises from David’s fall from a rock climbing wall at Lifetime’s facility in Novi. Plaintiffs were at Lifetime, where they are members, with their minor daughter to allow her the opportunity to use the rock climbing wall. Neither the plaintiffs, nor their daughter, had previously attempted to use the rock climbing wall. After David signed the requisite forms, Karina Montes Agredano, a Lifetime employee, provided David with a harness, he climbed to the top of the rock wall, [*2] and attempted to lower himself back down via the automatic belay system. However, because David’s harness was on backwards and incorrectly hooked to the belay system, it broke and he fell to the ground suffering multiple injuries.
Plaintiffs argued that, as an employee of Lifetime, Agredano was grossly negligent1 in failing to ascertain whether David had properly attached his harness and the belay system before permitting him to climb the rock wall or descend. Defendant filed a motion for summary disposition arguing the assumption of risk and waiver of liability provision within the paperwork David signed barred plaintiffs’ claims because Agredano’s asserted conduct constituted only ordinary negligence and not gross negligence. The trial court granted defendant’s motion for summary disposition finding plaintiffs failed to “present any evidence establishing that defendant was grossly negligent in failing to take precautions for plaintiff’s safety.”
1 Plaintiffs had signed a waiver of any negligence based liability.
Plaintiffs assert that the trial court erred in dismissing their claim of gross negligence against Lifetime, arguing a genuine issue of material fact exists regarding whether Agredano [*3] was grossly negligent. We agree.
The trial court granted summary disposition in accordance with MCR 2.116(C)(7) and (10). This Court reviews “de novo a trial court’s ruling on a motion for summary disposition.” In re Mardigian Estate, 312 Mich App 553, 557; 879 NW2d 313 (2015). Specifically:
When considering a motion for summary disposition under MCR 2.116(C)(10), a court must view the evidence submitted in the light most favorable to the party opposing the motion. Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. A genuine issue of material fact exists when the evidence submitted might permit inferences contrary to the facts as asserted by the movant. When entertaining a summary disposition motion under Subrule (C)(10), the court must view the evidence in the light most favorable to the nonmoving party, draw all reasonable inferences in favor of the nonmoving party, and refrain from making credibility determinations or weighing the evidence. [Id. at 557-558, quoting Dillard v Schlussel, 308 Mich App 429, 444-445; 865 NW2d 648 (2014) (quotation marks omitted).]
In determining whether a party is entitled to judgment as a matter of law pursuant to MCR 2.116(C)(7), a court must accept as true a plaintiff’s well-pleaded factual allegations, affidavits, or other [*4] documentary evidence and construe them in the plaintiff’s favor. Where there are no factual disputes and reasonable minds cannot differ on the legal effect of the facts, the decision regarding whether a plaintiff’s claim is barred by the statute of limitations is a question of law that this Court reviews de novo. [Terrace Land Dev Corp v Seeligson & Jordan, 250 Mich App 452, 455; 647 NW2d 524 (2002) (citation omitted).]
To establish a claim for gross negligence, it is incumbent on a plaintiff to demonstrate that the defendant acted or engaged in “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” Xu v Gay, 257 Mich App 263, 269; 668 NW2d 166 (2003) (citations omitted). “Evidence of ordinary negligence is insufficient to create a material question of fact regarding the existence of gross negligence.” Woodman v Kera, LLC, 280 Mich App 125, 152; 760 NW2d 641 (2008), aff’d 486 Mich 228 (2010). “The issue of gross negligence may be determined by summary disposition only where reasonable minds could not differ.” Id. “Simply alleging that an actor could have done more is insufficient under Michigan law, because, with the benefit of hindsight, a claim can always be made that extra precautions could have influenced the result.” Tarlea v Crabtree, 263 Mich App 80, 90; 687 NW2d 333 (2004). However, gross negligence will often be exhibited by a “willful disregard of precautions or measures to attend to safety[.]” Id.
As [*5] evidence of Agredano’s gross negligence, plaintiffs offered their deposition testimony. In his deposition testimony, David indicated that Agredano provided him with a harness and was present as he put it on and prepared to climb the wall:
- Q. And where was [Agredano] when you were placing the harness on yourself?
- A. She was in front of us. We were here. She was in front of us.
- Q. So she’s staring directly at your as you’re putting the harness on?
- A. She was, yeah, in front of us. We were here, and she was — I mean, we could show the picture if you want.
- Q. But I want to know if she was facing you when you were putting this harness on?
- A. Yes.
* * *
- Q. How much time elapsed between the time that you had your harness on and began climbing from the time when your wife began climbing?
- A. Okay. So they walked over to the wall, and then, as soon as I put on my harness, I walked over to the wall adjacent to [Agredano], and I watched my wife. She was already up the So whatever time it took for her to get up the eight feet, which is probably a couple minutes. I mean, a minute maybe.
- Q. All right. And when you walked over to the wall, was [Agredano] standing to your right?
- A. When I walked over to [*6] the wall, she was on my right.
- Q. And would you say she was within three or four feet of you?
- A. I could touch her. She was right there.
Further, David stated that Agredano spoke to him after he had inadvertently placed the harness on backwards and directed him to a climbing area, but did not warn him that the red loop on his harness should be on his front before he began to climb the wall:
- Q. When were you told to hook into something between your legs?
- A. Sure. So I had trouble putting on the harness, right? They walked over to the I followed . . . . I was next to — adjacent to [Agredano] . . . . As my wife started to come down [the rock wall], I asked — I asked, where should I go climb? [Agredano] pointed me over to the other adjacent valet or belay.
- Q. Belay
- A. Belay. Then somewhere between there I asked — or I don’t know if I asked, but she said, Hook it between your legs. . . .
David also stated that Agredano was present in the climbing wall area during the whole incident and watched him climb the rock wall while wearing the harness incorrectly:
- Q. And was [Agredano] facing you when you began climbing?
- A. She was facing both of us.
* * *
- Q. What I want to know is were [sic] you and [*7] your wife on the climbing, and she was behind you looking at the two of you?
- A. Yeah. She was looking at both of us.
* * *
- Q. Was there any point in time, while you were putting on your harness or after you put on your harness, where [Agredano] was inside the wall, through this door?
- A. No.
- Q. So she was outside in the climbing wall area with you the entire time?
- A. Correct.
In Elena’s deposition testimony, she testified that Agredano also spoke to David after he reached the top of the rock wall, gave him instructions regarding how to descend, and instructed David to let go of the wall despite his incorrectly worn harness:
- Q. What happened at that point?
- A. And he said — he asked her twice how to go down. And he asked her two times, because I remember, like, why he’s asking her? . . . So then, when he asked her two times, she said, just let go, and it will bring you down, the automatically thing will bring you down. And she said, I think, you know, push, let go. She said, just let go. Just let go. . . .
While Agredano claimed that she was not in the room when David incorrectly donned his harness and ascended the wall, we must consider the evidence in the light most favorable to plaintiffs and [*8] accept their testimony as true. Terrace Land Dev Corp, 250 Mich App at 455. David and Elena’s deposition testimony was that Agredano was present when David donned his harness and ascended the wall, that she had ample opportunity to determine that David had put his harness on incorrectly, but that she failed to correct his mistake. Further, plaintiffs testified that Agredano watched David climb the wall in an unsafe harness, and directed David to let go of the wall to repel back down to the ground despite the red loop on David’s harness indicating that his harness was on backwards. Thus, plaintiffs’ testimony allows the inference that Agredano did not simply have the ability to do more to assure David’s safe climb. Instead, accepting plaintiffs’ testimony as true, evidence exists that Agredano ignored the red loop in David’s harness–a clear visible indication2 that David was climbing the rock wall in an unsafe manner–and took no steps to avoid the known danger associated with climbing the rock wall with an improperly secured harness. Thus, Agredano’s alleged failure to affirmatively instruct David on the proper way to wear the harness before he donned it himself, coupled with her alleged disregard for the red loop warning sign [*9] that David had his harness on backwards, and instructing him to push off the wall, could demonstrate to a reasonable juror that she “simply did not care about the safety or welfare of” David. Tarlea, 263 Mich App at 90. Accordingly, reasonable minds could differ regarding whether Agredano’s conduct constituted gross negligence. Thus, the trial court erred in granting defendant’s motion for summary disposition.
2 Agredano testified that if someone was standing below a rock climber, that person would be readily able to see if a harness was on backwards.
Because we have concluded that the trial court erred in granting summary disposition to defendant, it is unnecessary for us to address in Docket No. 328985 whether the decision to deny the case evaluation award would otherwise have been appropriate if the grant of summary disposition had been proper.
We reverse the order granting defendant’s motion for summary disposition and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Michael J. Kelly
/s/ Christopher M. Murray
/s/ Stephen L. Borrello