Indoor trampoline park company held liable for its actions in creating safety rules for its sub-groups creating liability for itself from the sub-group’s customers.

The parent company knew the employee handbook, which contained safety rules, which was given to the companies operating trampoline parks would be used to keep the customers of the parks safe. When the employee handbook was badly written, the parent company was liable to the injured plaintiff.

We have seen this before in Bad luck or about time, however, you look at this decision, you will change the way you work in the Outdoor Recreation Industry. A second case will create greater concern and liability for actions of “safety” experts in the outdoor recreation industry.

Citation: Haines v. Get Air Tucson Incorporated, et al., 2018 U.S. Dist. LEXIS 180500, 2018 WL 5118640

State: Arizona, United States District Court, D. Arizona

Plaintiff: Blake Haines

Defendant: Get Air Tucson Incorporated, et al

Plaintiff Claims: Negligence and Gross Negligence

Defendant Defenses:

Holding: for the Plaintiff on the negligence claim and for the defendants on the Gross Negligence claim

Year: 2018

Summary

A prior company of some sort created safety rules in an employee handbook which were poorly written. The prior or parent company gave these rules to the trampoline parks to use. A plaintiff argued, successfully, the parent company was liable to him because the rules were poorly written, and the court agreed.

Third party contractors are increasingly brought into lawsuits because of their actions. The contractors are hired to decrease the risk to the customers, and the courts are holding when they fail, they are liable for their actions.

Facts

These facts on how the injury occurred, and the relationship between the parties came from a different decision in this case.

On September 8, 2013 Haines was at the Get Air Tucson indoor trampoline park and performed a move where he flipped multiple times off of a platform and into a foam pit. Haines “suffered catastrophic injuries from the maneuver, including fractured cervical vertebrae resulting in paralysis.” Following this incident, Haines filed suit in Pima County Superior Court on September 5, 2014 against the following defendants: Get Air Tucson, Inc.; Get Air Tucson Trampolines, LLC; Get Air Management, Inc.; Get Air, LLC; Trampoline Parks, LLC; Patti Goodell; Jacob Goodell; Kiersten Goodell; Scott Goodell; Alan McEwan Jr.; Val Iverson, individually and as owner or operator of Trampoline Parks, LLC; Jane and/or John Does #s 1-20; ABC Corporations 1-10; XYZ Partnerships 1-10; and ABC Limited Liability Corporations (LLCs) 1-10. Haines alleged claims for negligence, negligent design, negligence in safety standards, negligent supervision, negligent hiring and training of personnel, piercing the corporate veil, and punitive damages. Id.

There are three parties to this lawsuit. The plaintiff who was injured at the Defendant Get Air Tucson’s facility, Get Air Tucson and GALLC. GALLC was a former trampoline park that is no longer in business but seemingly a parent company?

GALLC created an employee handbook to be used by its clients (trampoline parks or franchisors). The plaintiff claims he was injured because of the “allegedly deficient safety rules contained in the Employee Handbook.” The handbook does not clearly define what a somersault is. The plaintiff was injured when he did a flip.

As previously found by this Court, Plaintiff has presented evidence that GALLC developed a generic employee handbook (“EH”) for use in other Get Air trampoline parks as part of its support for the expansion of the Get Air business enterprise, and that the EH was used by Get Air Tucson.

The case had been referred to a magistrate who created an order dismissing the gross negligence claims but keeping the negligence claims. That magistrate’s order was then reviewed, which is the decision this article is based on.

Judge Markovich recommended that Defendant’s Motion for Summary Judgment be granted with respect to Plaintiff’s punitive-damages claim. Judge Markovich rejected Defendant’s other arguments. He found that, as a result of “the special business-customer relationship that was created when GALLC performed an undertaking to develop the EH [employee handbook] as part of its support work for the Get Air entities, ” GALLC owed Plaintiff a duty to exercise reasonable care in developing the safety rules in the EH. Judge Markovich found that summary judgment on the issue of a breach of the standard of care is precluded because there is a material factual dispute concerning whether the rule prohibiting somersaults in the EH was sufficient to prohibit the flip maneuver attempted by Plaintiff.

Analysis: making sense of the law based on these facts.

The defendant GALLC argued it had no duty to the plaintiff.

In its Motion for Summary Judgment, Defendant argues (1) it owed no duty to Plaintiff, (2) even if it owed a duty, it was not negligent because the EH prohibited the maneuver that led to Plaintiff’s injuries, (3) it no longer has any potential legal liability because the employee involved in the creation of the EH was dismissed with prejudice; (4) Plaintiff cannot prove causation, and (5) Plaintiff’s claim for punitive damages is factually unsupported.

The court then reviewed how a duty was created and what the courts looked for in making that decision.

To establish a defendant’s liability for a negligence claim, a plaintiff must prove: (1) a duty requiring the defendant to conform to a certain standard of care; (2) breach of that standard; (3) a causal connection between the breach and the resulting injury; and (4) actual damages.

Whether or not a duty exists is a legal question to be determined by a court of law. A duty can arise if a special relationship exists between the parties or because of an “undertaking” of the defendant.

Although there is evidence that the various Get Air enterprises were operated as a closely linked network, the Court does not find that Plaintiff and GALLC had a traditional business-customer relationship.

So, the relationship alone between the plaintiff and GALLC was not enough to create a duty. However, the court did find a relationship because of GALLC’s attempt to create safety rules in the employee handbook for its customers.

However, even though there was no direct business-customer relationship, Plaintiff and GALLC, nevertheless, had a special relationship based on GALLC undertaking to create safety rules for other Get Air trampoline parks, which GALLC included in a generic EH developed as part of its support work for the Get Air entities. Imposition of a duty based on this special relationship is supported by Arizona’s case law as well as sections 323 and 324A of the Restatement (Second) of Torts.

The Restatement (Second) of Torts states:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of such harm, or

(b) he has undertaken to perform a duty owed by the other to the third person, or

(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

Restatement (Second) of Torts § 324A (1965).

The court found that GALLC undertook to render services, the creation of the employee handbook, which contained safety rules, which were necessary to protect the customers of Get Air Tucson. Plaintiff alleged in its complaint that GALLC failed to exercise reasonable care for the creation of the safety rules, thus creating liability.

GALLC, failing to exercise reasonable care in developing the safety rules increased the harm to Get Air Tucson’s’ customers, like the plaintiff.

Additionally, the failure to perform a duty, development of reasonable safety rules, which Get Air Tucson owed to its customers, created liability.

The Court agrees with Judge Markovich that GALLC owed Plaintiff a duty to exercise reasonable care in the development of the safety rules contained in the generic EH supplied to Get Air Tucson.

The court also found that there was a genuine issue of material fact because GALLC allegedly breached its duty to exercise reasonable care in the creation of the safety rules when the definition of a somersault which was used in the rules, and the definition was not clear. The issue was, did the actions of the plaintiff flipping constitute a somersault?

On top of that, when the manual or rules are not clear or are ignored, this creates greater liability on the companies involved.

Even if the maneuver attempted by Plaintiff falls within a technical definition of the term “somersault, “as Defendant argues, Plaintiff has identified evidence showing that Get Air employees did not consider flips to be encompassed by the EH’s safety rule prohibiting somersaults.

The court found GALLC was liable not because of its relationships between the parties, but because its actions constituted an independent undertaking that created a duty.

However, as Judge Markovich found, Plaintiff is not asserting vicarious liability; rather, Plaintiff alleges that GALLC is independently negligent for undertaking to create a generic EH for use in other Get Air parks, including Get Air Tucson, and including allegedly deficient safety rules in that EH. The dismissal with prejudice of Val Iverson does not preclude Plaintiff from asserting a claim against GALLC for its own independent negligence, even if establishing the independent negligence of GALLC may require proof of Val Iverson’s negligence.

So Now What?

Safety is always scary. How much do you write? If you don’t write enough, you don’t cover everything, and you could be found liable. If you write too much you don’t cover everything, and you are still found liable because either you did not cover the issue at hand, or you did not follow the rules you created.

You can’t follow the rules if the rules are too much to remember. You can’t handle an incident with a notebook in one hand trying to figure out what to do next.

Worse, you are a third party, and you inspect or write safety issues, and you are now liable to the customers of your customer who you were trying to protect. In Bad luck or about time, however, you look at this decision, you will change the way you work in the Outdoor Recreation Industry the defendant did an inspection of the property. The injured plaintiff argued the inspection was insufficient, and the defendant owed her a duty.

In this case the rules where insufficient, badly written, and seemingly not enforced, creating a duty to the injured plaintiff.

If you are an inspector or a rule writer, a third-party contractor hired to teach, inspect or write you had better to it correctly and completely. On top of that you better have a great liability insurance policy and contract with your client to protect you.

If you are a third-party contractor, expect to see more claims like this in the future.

What do you think? Leave a comment.

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Haines v. Get Air Tucson Incorporated, et al., 2018 U.S. Dist. LEXIS 180500, 2018 WL 5118640

Haines v. Get Air Tucson Incorporated, et al., 2018 U.S. Dist. LEXIS 180500, 2018 WL 5118640

Blake Haines, Plaintiff,

v.

Get Air Tucson Incorporated, et al., Defendants.

No. CV-15-00002-TUC-RM (EJM)

United States District Court, D. Arizona

October 19, 2018

ORDER

Honorable Rosemary Marquez United States District Judge.

Pending before the Court is Defendant Get Air, LLC’s (“Defendant” or “GALLC”) Motion for Summary Judgment. (Doc. 238.) On August 2, 2018, Magistrate Judge Eric J. Markovich issued a Report and Recommendation (Doc. 266), recommending that the Motion for Summary Judgment be granted as to Plaintiff’s punitive damages claim but otherwise denied. Defendant filed an Objection (Doc. 269), to which Plaintiff responded (Doc. 273).

I. Standard of Review

A district judge “may accept, reject, or modify, in whole or in part, the findings or recommendations” made by a magistrate judge. 28 U.S.C. § 636(b)(1). The district judge must “make a de novo determination of those portions” of the magistrate judge’s “report or specified proposed findings or recommendations to which objection is made.” Id. The advisory committee’s notes to Rule 72(b) of the Federal Rules of Civil Procedure state that, “[w]hen no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation” of a magistrate judge. Fed.R.Civ.P. 72(b) advisory committee’s note to 1983 addition. See also Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999) (“If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error.”); Prior v. Ryan, CV 10-225-TUC-RCC, 2012 WL 1344286, at *1 (D. Ariz. Apr. 18, 2012) (reviewing for clear error unobjected-to portions of Report and Recommendation).

II. GALLC’s Objection to Judge Markovich’s Report and Recommendation

As previously found by this Court, Plaintiff has presented evidence that GALLC developed a generic employee handbook (“EH”) for use in other Get Air trampoline parks as part of its support for the expansion of the Get Air business enterprise, and that the EH was used by Get Air Tucson. (See Doc. 158 at 12-14; Doc. 172 at 5.)[1] Plaintiff claims that his injuries were caused by allegedly deficient safety rules contained in the EH. (See Doc. 84 at 6, 10, 12-13.) In its Motion for Summary Judgment, Defendant argues (1) it owed no duty to Plaintiff, (2) even if it owed a duty, it was not negligent because the EH prohibited the maneuver that led to Plaintiff’s injuries, (3) it no longer has any potential legal liability because the employee involved in the creation of the EH was dismissed with prejudice; (4) Plaintiff cannot prove causation, and (5) Plaintiff’s claim for punitive damages is factually unsupported. (Doc. 238 at 1-2.)

Judge Markovich recommended that Defendant’s Motion for Summary Judgment be granted with respect to Plaintiff’s punitive-damages claim. (Doc. 266 at 17.) Judge Markovich rejected Defendant’s other arguments. He found that, as a result of “the special business-customer relationship that was created when GALLC performed an undertaking to develop the EH as part of its support work for the Get Air entities, ” GALLC owed Plaintiff a duty to exercise reasonable care in developing the safety rules in the EH. (Id. at 10.) Judge Markovich found that summary judgment on the issue of breach of the standard of care is precluded because there is a material factual dispute concerning whether the rule prohibiting somersaults in the EH was sufficient to prohibit the flip maneuver attempted by Plaintiff. (Id. at 7-8.) Judge Markovich also found that the dismissal of Val Iverson does not preclude Plaintiff from pursuing this action against GALLC, because a stipulated dismissal with prejudice no longer operates as an adjudication on the merits under Arizona law, and because Plaintiff’s claims are based on GALLC’s own negligence and piercing the corporate veil rather than on vicarious liability. (Id. at 16.) Finally, Judge Markovich found that Defendant’s causal-connection argument is “belied by other evidence previously considered by the Court.” (Id. at 16-17.)

Defendant argues that Judge Markovich erred in finding that GALLC owed Plaintiff a duty, in finding a material factual dispute with respect to the issue of breach of the standard of care, and in finding that GALLC can be held liable despite the dismissal of Val Iverson. (Doc. 269 at 1-10.) GALLC’s Objection to the Report and Recommendation does not address Judge Markovich’s finding on causation. The parties do not object to Judge Markovich’s finding that Plaintiff’s punitive-damages claim is factually unsupported.

III. Discussion

As no specific objections have been made to Judge Markovich’s recommendations regarding Plaintiff’s punitive-damages claim and Defendant’s causation argument, the Court has reviewed those portions of the Report and Recommendation for clear error, and has found none. Accordingly, the Court will accept and adopt Judge Markovich’s recommendation to grant Defendant’s Motion for Summary Judgment with respect to Plaintiff’s punitive damages claim and to deny the Motion for Summary Judgment to the extent it argues a lack of evidence of causation.

A. Existence of Duty

“To establish a defendant’s liability for a negligence claim, a plaintiff must prove: (1) a duty requiring the defendant to conform to a certain standard of care; (2) breach of that standard; (3) a causal connection between the breach and the resulting injury; and (4) actual damages.” Quiroz v. Alcoa Inc., 416 P.3d 824, 827-28 (Ariz. 2018). The existence of a duty is determined by the Court as a matter of law. See Id. at 828. A duty may “arise from a special relationship between the parties, ” including a special relationship finding its basis in “undertakings.” Stanley v. McCarver, 92 P.3d 849, 851 (Ariz. 2004); see also Quiroz, 416 P.3d at 829.

Although there is evidence that the various Get Air enterprises were operated as a closely linked network, the Court does not find that Plaintiff and GALLC had a traditional business-customer relationship. However, even though there was no direct business-customer relationship, Plaintiff and GALLC nevertheless had a special relationship based on GALLC undertaking to create safety rules for other Get Air trampoline parks, which GALLC included in a generic EH developed as part of its support work for the Get Air entities. Imposition of a duty based on this special relationship is supported by Arizona case law as well as sections 323 and 324A of the Restatement (Second) of Torts.

In McCarver, the Arizona Supreme Court imposed a duty of reasonable care on a radiologist contracted by the plaintiff’s employer to interpret an x-ray of the plaintiff’s chest, despite the lack of a traditional doctor-patient relationship. 92 P.3d at 853. In imposing a duty, the Court analyzed “whether the doctor was in a unique position to prevent harm, the burden of preventing harm, whether the plaintiff relied upon the doctor’s diagnosis or interpretation, the closeness of the connection between the defendant’s conduct and the injury suffered, the degree of certainty that the plaintiff has suffered or will suffer harm, the skill or special reputation of the actors, and public policy.” Id. Though the facts at issue in McCarver differ from those at issue in the present case, the factors supporting imposition of a duty in McCarver also support imposition of a duty here. By including safety rules in a generic EH developed for use in other Get Air parks, GALLC placed itself in a unique position to prevent harm to customers of those other Get Air parks. Get Air Tucson customers such as Plaintiff relied upon the safety rules developed by GALLC and enforced by Get Air Tucson. Plaintiff alleges that his injuries were caused by deficiencies in those safety rules. GALLC’s experience in the field of trampoline-park operations gave it special skill and a special reputation with respect to the creation of safety rules for other Get Air parks. Deficient safety rules increase the risk of harm to trampoline park customers, and the burden of developing sufficient safety rules is minimal.

The Court in McCarver also found that imposition of a duty in that case comported with Restatement (Second) of Torts § 324A. See McCarver, 92 P.3d at 853-54. Defendant argues in its Objection that Restatement (Second) of Torts § 324A “can appear to be the basis of the holding” in McCarver “but it is not.” (Doc. 269 at 3.) The import of Defendant’s argument is unclear. Whether it forms the basis of the holding in McCarver or not, Restatement (Second) of Torts § 324A has been adopted by Arizona courts. See Tollenaar v. Chino Valley Sch. Dist., 945 P.2d 1310, 1312 (Ariz. App. 1997). Section 324A provides:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of such harm, or

(b) he has undertaken to perform a duty owed by the other to the third person, or

(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

Restatement (Second) of Torts § 324A (1965).

Restatement (Second) of Torts § 324A supports the existence of a duty in this case.[2] GALLC undertook to render services to Get Air Tucson (e.g., development of an EH containing safety rules) which were necessary for the protection of Get Air Tucson’s customers. Plaintiff alleges that GALLC failed to exercise reasonable care in the development of the EH’s safety rules; if so, the failure increased the risk of harm to Get Air Tucson’s customers. See Restatement (2d) of Torts § 324A(a) (1965). Furthermore, GALLC undertook to perform a duty-development of reasonable safety rules-which Get Air Tucson owed to its customers. See Id. at § 324A(b). Plaintiff alleges he was injured as a result of his reliance upon the safety rules developed by GALLC and enforced by Get Air Tucson. See Id. at § 324A(c).

Restatement (Second) of Torts § 323 has also been adopted by Arizona courts, see Tollenaar, 945 P.2d at 1312, and it also supports the existence of a duty here. Section 323 provides:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if

(a) his failure to exercise such care, increases the risk of such harm, or

(b) the harm is suffered because of the other’s reliance upon the undertaking.

Restatement (2d) of Torts § 323 (1965). GALLC’s creation of safety rules was a service rendered not only to Get Air parks but to the customers of those parks, including Get Air Tucson customers.

The Court agrees with Judge Markovich that GALLC owed Plaintiff a duty to exercise reasonable care in the development of the safety rules contained in the generic EH supplied to Get Air Tucson.

B. Breach

The Court also agrees with Judge Markovich that there is a genuine issue of material fact precluding summary judgment on the issue of whether GALLC breached its duty to exercise reasonable care in the creation of the EH’s safety rules. Specifically, there is a factual dispute regarding the definition of “somersault, ” as used in the EH’s safety rules and, therefore, a dispute regarding whether the flip maneuver attempted by Plaintiff was prohibited by the safety rules. The evidence identified by Plaintiff and Defendant indicates that there may be differing technical and layperson definitions of the term “somersault.” Even if the maneuver attempted by Plaintiff falls within a technical definition of the term “somersault, ” as Defendant argues, Plaintiff has identified evidence showing that Get Air employees did not consider flips to be encompassed by the EH’s safety rule prohibiting somersaults. (See Doc. 246 at 4-5; Doc. 246-1.) Accordingly, there is evidence from which a reasonable jury could find that the EH’s safety rules were defective for not clearly prohibiting the flip maneuver that led to Plaintiff’s injuries.

C. Liability of GALLC

Defendant argues that the only act of negligence alleged by Plaintiff is GALLC’s creation of allegedly defective safety rules, that Val Iverson was solely responsible for the creation of those safety rules, and that GALLC cannot be held vicariously liable for the conduct of Val Iverson because he has been dismissed with prejudice. However, as Judge Markovich found, Plaintiff is not asserting vicarious liability; rather, Plaintiff alleges that GALLC is independently negligent for undertaking to create a generic EH for use in other Get Air parks, including Get Air Tucson, and including allegedly deficient safety rules in that EH. The dismissal with prejudice of Val Iverson does not preclude Plaintiff from asserting a claim against GALLC for its own independent negligence, even if establishing the independent negligence of GALLC may require proof of Val Iverson’s negligence. See Kopp v. Physician Grp. of Ariz., Inc., 421 P.3d 149, 150 (Ariz. 2018).

IT IS ORDERED that Defendant’s Objection (Doc. 269) is overruled, and Judge Markovich’s Report and Recommendation (Doc. 266) is accepted and adopted as set forth above.

IT IS FURTHER ORDERED that Defendant’s Motion for Summary Judgment (Doc. 238) is granted as to Plaintiffs punitive damages claim only and is otherwise denied.

—–

Notes:

[1] Record citations refer to the page numbers generated by the Court’s electronic filing system.

[2] Defendant argues that § 324A is no longer a permissible basis of duty in Arizona because it is based on foreseeability. (Doc. 269 at 8.) Defendant cites no authority in support of the proposition that Arizona courts no longer follow § 324A. (See Doc. 247 at 1-4; Doc. 269 at 8.) Arizona courts have rejected the concept of duty based on the creation of an unreasonable risk of harm to “a foreseeable plaintiff, ” meaning a plaintiff “who is within the orbit or zone of danger created by a defendant’s conduct.” Quiroz, 416 P.3d at 828 (internal quotation marks omitted). Here, however, GALLC owed a duty to Get Air customers based on the special relationship created as a result of GALLC undertaking to develop safety rules for the protection of those customers. The duty arises from the special relationship rather than “zone of danger” foreseeability. See Id. at 829 (given the elimination of foreseeability from the duty framework, “the duty analysis” under Arizona law is limited to “common law special relationships or relationships created by public policy”).

—–


Arizona University did not owe student a duty of care during a study abroad program when the students organized an “off campus” trip, which resulted in a student’s death

Two different issues determine most outcomes in lawsuits against college & universities, whether the class was for credit or not and whether the incident occurred off campus or on campus.

Boisson v. Arizona Board Of Regents, et. al., 236 Ariz. 619; 343 P.3d 931; 2015 Ariz. App. LEXIS 36; 708 Ariz. Adv. Rep. 7

State: Arizona, Court of Appeals of Arizona, Division One

Plaintiff: Elizabeth Boisson

Defendant: Arizona Board Of Regents, a public entity; State of Arizona, a public entity; Nanjing American University, L.L.C., an Arizona corporation doing business as, or under the trade name of Yangtze International Study Abroad

Plaintiff Claims: negligence

Defendant Defenses: no duty owed

Holding: for the defendant

Year: 2015

The deceased signed up for an international study abroad trip in China through the defendant university. While in China, the deceased and several other students organized a trip to Everest base camp. While at Everest base camp the deceased suffered altitude sickness and died.

From China, you can drive to the North Side base camp of Everest, which is at 19,000 feet.

During a student-organized trip, 14 study abroad students — including Morgan — flew to Lhasa, Tibet. The students then drove to the Mount Everest base camp a few days later. While at base camp, which is approximately 18,000 feet above sea level, Morgan developed and then died of altitude sickness.

The trial court dismissed the plaintiff’s claims based on the defendant’s motion for summary judgment. This appeal followed.

Analysis: making sense of the law based on these facts.

The court first looked at the requirements to prove negligence in Arizona.

Although described in various ways, a plaintiff alleging a claim for negligence under Arizona common law has the burden to show: (1) duty; (2) breach of that duty; (3) cause-in-fact; (4) legal (or proximate) causation and (5) resulting damages.

Arizona uses a five-step test for negligence when most other states use a four-point test. The difference is Arizona expands the definition of proximate causation requiring an actual cause and a proximate cause to prove negligence.

Of the five steps, the first, whether or not there was a duty, is a decision that is made by the court.

The existence of a duty of care is a distinct issue from whether the standard of care has been met in a particular case. As a legal matter, the issue of duty involves generalizations about categories of cases. Duty is defined as an “obligation, recognized by law, which requires the defendant to conform to a particular standard of conduct in order to protect others against unreasonable risks of harm.” . . . .

Whether the defendant owes the plaintiff a duty of care is a threshold issue; absent some duty, an action for negligence cannot be maintained. Thus, a conclusion that no duty exists is equivalent to a rule that, for certain categories of cases, defendants may not be held accountable for damages they carelessly cause, no matter how unreasonable their conduct.

Foreseeability is not an issue under Arizona’s law. Whether or not the defendant could foresee the injury to the plaintiff does not come into play when determining if a duty existed.

The court then looked at the duties owed by a college in Arizona to a student. Most duties arise when the relationships between the school and the student are custodial. Arizona does owe students a duty of reasonable care for on campus activities.

However, the duties owed for off-campus  activities by a university to a student are different.

Therefore, in the student-school relationship, the duty of care is bounded by geography and time, encompassing risks such as those that occur while the student is at school or otherwise under the school’s control.

This analysis has seven steps to determine the duty owed, if any, by an Arizona college.

…Arizona cases have identified the following factors in determining whether an off-campus activity is deemed a school activity: (1) the purpose of the activity, (2) whether the activity was part of the course curriculum, (3) whether the school had supervisory authority and responsibility during the activity, and (4) whether the risk students were exposed to during the activity was independent of school involvement. Courts elsewhere also have looked at whether (5) the activity was voluntary or was a required school activity; (6) whether a school employee was present at or participated in the activity or was expected to do so and (7) whether the activity involved a dangerous project initiated at school but built off campus.

Here the trip was conceived and organized by the students. The students dealt with a Chinese tour company to make the arrangements. Not all the students in the study abroad program undertook the trip. The college offered no academic credit for the trip, and the trip was not in the curriculum of the program.

Defendants had no supervisory authority over, or responsibility for, the trip, and no faculty or staff went on the trip. The risk of altitude sickness was present independent of any involvement by Defendants and the trip did not involve a potentially dangerous project initiated at school but built off campus. Accordingly, applying these factors, the Tibet trip was not an off-campus school activity for which Defendants owed Morgan a duty under Arizona law.

The plaintiff hired an expert witness who stated that the university absolutely had a duty to the plaintiff. However, the court ignored the expert finding the determination of a duty was solely within the province of the court, and the expert witness’s opinion did not matter.

The trial court’s determination was upheld because the appellate court found that the school owed no duty to the deceased.

So Now What?

One important thing that parents seem to forget when their sons and daughters leave for college is not only are they leaving home, but they are also leaving any real supervision, custody or control. Colleges and universities are not baby sitters or parents and parents probably should be reminded of that fact.

Here, the effects were disastrous; however, the issues were clear. A group of students left campus to do something. Where campus is, did not matter and where the students went did not matter. Whether or not the effects of altitude on a student at 19, 000 did also not matter because the college did not arrange, run, manage or control the students.

What do you think? Leave a comment.

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Boisson v. Arizona Board Of Regents, et. al., 236 Ariz. 619; 343 P.3d 931; 2015 Ariz. App. LEXIS 36; 708 Ariz. Adv. Rep. 7

Boisson v. Arizona Board Of Regents, et. al., 236 Ariz. 619; 343 P.3d 931; 2015 Ariz. App. LEXIS 36; 708 Ariz. Adv. Rep. 7

Elizabeth Boisson, individually and on behalf of all statutory beneficiaries, Plaintiff/Appellant, v. Arizona Board Of Regents, a public entity; State of Arizona, a public entity; Nanjing American University, L.L.C., an Arizona corporation doing business as, or under the trade name of Yangtze International Study Abroad, Defendants/Appellees.

No. 1 CA-CV 13-0588

Court of Appeals of Arizona, Division One

236 Ariz. 619; 343 P.3d 931; 2015 Ariz. App. LEXIS 36; 708 Ariz. Adv. Rep. 7

March 10, 2015, Filed

SUBSEQUENT HISTORY: Review denied by , , 2015 Ariz. LEXIS 348 (Ariz., Dec. 1, 2015)

PRIOR HISTORY: [***1] Appeal from the Superior Court in Maricopa County. No. CV2010-025607. The Honorable Douglas L. Rayes, Judge.

DISPOSITION: AFFIRMED.

COUNSEL: Knapp & Roberts, P.C., Scottsdale, By Craig A. Knapp, Dana R. Roberts, David L. Abney, Counsel for Plaintiffs/Appellants.

Garrey, Woner, Hoffmaster & Peshek, P.C., Scottsdale, By Shawna M. Woner, Stephanie Kwan, Counsel for Defendants/Appellees Arizona Board of Regents and State of Arizona.

Udall Law Firm, LLP, Tucson, By Peter Akmajian, Janet Linton, Counsel for Defendants/Appellees Nanjing American University, L.L.C., dba Yangtze International Study Abroad.

Judge Samuel A. Thumma delivered the decision of the Court, in which Presiding Judge Margaret H. Downie and Judge Andrew W. Gould joined.

JUDGES: THUMMA, Judge.

OPINION BY: THUMMA

OPINION

[*621] [**933] THUMMA, Judge:

P1 Elizabeth Boisson appeals from a judgment dismissing a wrongful death negligence claim arising out of the death of her son Morgan Boisson. The judgment was based on the ground that Defendants owed no duty to Morgan when, while studying abroad in China, he traveled to Tibet and died of altitude sickness. Finding no error, this court affirms.

FACTS1 AND PROCEDURAL HISTORY

1 The superior court struck supplemental filings relating to the summary judgment [***2] briefing and, on Elizabeth’s motion, struck portions of certain declarations filed by Defendants. Because the judgment is properly affirmed on other grounds, this court does not address these issues or the finding that there were no disputed issues of material fact. See Monroe v. Basis School, Inc., 234 Ariz. 155, 157 n.1 ¶ 3, 318 P.3d 871, 873 n.1 (App. 2014).

P2 Morgan was an undergraduate student at the University of Arizona, which is governed by the Arizona Board of Regents (ABOR). In the fall of 2009, Morgan and 16 other university students spent the semester studying in China at Nanjing American University (NAU). This study-abroad program, sometimes referred to as Yangtze International Study Abroad (YISA), was a collaborative effort between ABOR and NAU.

P3 While in China, the study-abroad program included school-sponsored trips to various cities in China with NAU faculty. At other times, the students organized their own trips. During a student-organized trip, 14 study abroad students — including Morgan — flew to Lhasa, Tibet. The students then drove to the Mount Everest base camp a few days later. While at base camp, which is approximately 18,000 feet above sea level, Morgan developed and then died of altitude sickness.

P4 As relevant here, Elizabeth filed a complaint [***3] against the State of Arizona, ABOR and NAU (collectively Defendants), asserting a wrongful death negligence claim pursuant to Arizona Revised Statutes (A.R.S.) sections 12-611 to -613 (2015).2 After discovery, motion practice and oral argument, the superior court granted Defendants’ motions for summary judgment on the ground that Defendants “owed no affirmative duty of care to Morgan while he was a participant on the subject trip to Tibet.” After entry of judgment, Elizabeth timely appealed. This court has jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, [*622] [**934] and A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).

2 Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated.

DISCUSSION

I. Duty In An Arizona Common Law Negligence Claim.3

3 Because the parties do not claim that any other law applies, this court applies Arizona law. See Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493, 501, 917 P.2d 222, 230 (1996).

P5 Although described in various ways, [HN1] a plaintiff alleging a claim for negligence under Arizona common law has the burden to show: (1) duty; (2) breach of that duty; (3) cause-in-fact; (4) legal (or proximate) causation and (5) resulting damages. See, e.g., Gipson v. Kasey, 214 Ariz. 141, 143 ¶ 9, 150 P.3d 228, 230 (2007); Ontiveros v. Borak, 136 Ariz. 500, 504, 667 P.2d 200, 204 (1983); Wisener v. State, 123 Ariz. 148, 149, 598 P.2d 511, 512 (1979). “The first element, whether a duty exists, is a matter of law for the court to decide.” Gipson, 214 Ariz. at 143 ¶ 9, 150 P.3d at 230 (citation omitted).

[HN2] The existence of a duty of care is [***4] a distinct issue from whether the standard of care has been met in a particular case. As a legal matter, the issue of duty involves generalizations about categories of cases. Duty is defined as an “obligation, recognized by law, which requires the defendant to conform to a particular standard of conduct in order to protect others against unreasonable risks of harm.” . . . .

Whether the defendant owes the plaintiff a duty of care is a threshold issue; absent some duty, an action for negligence cannot be maintained. Thus, a conclusion that no duty exists is equivalent to a rule that, for certain categories of cases, defendants may not be held accountable for damages they carelessly cause, no matter how unreasonable their conduct.

Gipson, 214 Ariz. at 143–44 ¶¶ 10–11, 150 P.3d at 230–31 (citations omitted).

P6 As noted by the Arizona Supreme Court, pre-2007 case law addressing duty “created ‘some confusion and lack of clarity . . . as to what extent, if any, foreseeability issues bear on the initial legal determination of duty.'” Gipson, 214 Ariz. at 144 ¶ 15, 150 P.3d at 231 (citation omitted). Gipson, however, expressly held “that [HN3] foreseeability is not a factor to be considered by courts when making determinations of duty, and we reject any contrary suggestion in [***5] prior opinions.” 214 Ariz. at 144 ¶ 15, 150 P.3d at 231. Accordingly, foreseeability is not a part of the duty inquiry and those portions of pre-Gipson cases relying on foreseeability when addressing the issue are no longer valid.

P7 Although a duty can arise in various ways, Elizabeth argues: (1) the student-school relationship imposes a duty on Defendants here and (2) public policy imposes such a duty. [HN4] Recognizing the concept of duty is context dependent, Gipson indicates that duty may arise from the relationship between the parties or, alternatively, from public policy considerations. Gipson, 214 Ariz. at 145 ¶ 18, ¶ 23, 150 P.3d at 232; accord Monroe v. Basis School, Inc., 234 Ariz. 155, 157, 159 ¶ 5, ¶ 12, 318 P.3d 871, 873, 875 (App. 2014); see also Randolph v. Ariz. Bd. of Regents, 19 Ariz. App. 121, 123, 505 P.2d 559, 561 (App. 1973) (“No better general statement can be made, than that the courts will find a duty where, in general, reasonable men would recognize it and agree that it exists.”).

A. Duty Based On The Student-School Relationship.

1. Context Of The Duty.

P8 [HN5] “The student-school relationship is one that can impose a duty within the context of the relationship.” Monroe, 234 Ariz. at 157 ¶ 5, 318 P.3d at 873. Arizona case law shows the duty most clearly applies in on-campus activities in the primary and secondary school context, where the relationship is custodial. Monroe, 234 Ariz. at 158 ¶ 9, 318 P.3d at 874. Arizona case law is less clear whether and to what extent the duty applies in off-campus [***6] activities in the primary and secondary school context. See Alhambra Sch. Dist. v. Superior Court, 165 Ariz. 38, 41–42, 796 P.2d 470, 473–74 (1990) (holding school district owed duty to high school student injured in elementary school-created crosswalk); Collette v. Tolleson Unified Sch. Dist., No. 214, 203 Ariz. 359, 54 P.3d 828 (App. 2002) (holding school owed no [*623] [**935] duty to third party who was injured by high school student who left campus in violation of school policy).

P9 In the college and university context, courts in other jurisdictions “are split on whether a college owes an affirmative duty to its students.” Restatement (Third) of Torts: Physical and Emotional Harm § 40 Reporters’ Notes cmt. l (2012) (Restatement) (citing cases). [HN6] Arizona case law, however, indicates a college or university does owe its students a duty of reasonable care for on-campus activities. See Jesik v. Maricopa Cnty. Cmty. Coll. Dist., 125 Ariz. 543, 611 P.2d 547 (1980); see also Delbridge v. Maricopa Cnty. Cmty. Coll. Dist., 182 Ariz. 55, 58–59, 893 P.2d 55, 58–59 (App. 1994) (holding college owed duty to student for injury incurred during college class, even though college did “not have a permanent campus”). It is undisputed that the Tibet trip was not an on-campus activity.

P10 The parties have cited, and the court has found, no Arizona case addressing whether a college or university owes its students a duty of reasonable care for off-campus activities. Section 40(b)(5) of the Restatement, applied by the Arizona Supreme Court in a different context, imposes a “duty of reasonable care with [***7] regard to risks that arise within the scope of the relationship” for “a school with its students.” Restatement § 40(a), (b)(5).4 As framed by the parties, Restatement § 40 provides that a college or university may owe a duty to its student “to risks that occur while the student is at school or otherwise engaged in school activities.” Restatement § 40 cmt. l (emphasis added). No Arizona case has recognized a duty by a university or a college in any context comparable to this case. In addition, Restatement § 40, in its final form, was promulgated in 2012, meaning there is comparatively little guidance in construing “otherwise engaged in school activities.” Restatement § 40 cmt. l. This lack of authority is significant given that Elizabeth has the burden to show the existence of a duty. Gipson, 214 Ariz. at 143 ¶ 9, 150 P.3d at 230.

4 In the common carrier context, Nunez v. Professional Transit Mgmt. of Tucson, Inc., applied Restatement § 40 Proposed Final Draft No. 1 (2007). 229 Ariz. 117, 121 ¶¶ 17–18 & n.2, , 271 P.3d 1104, 1108 & n.2 (2012); see also Monroe, 234 Ariz. at 157 ¶ 5, 318 P.3d at 873 (citing Restatement § 40 in primary school context).

P11 [HN7] Recognizing that the existence of duty is a legal, not a factual, matter, Gipson cautioned against “a fact-specific analysis of the relationship between the parties” in determining whether a duty of care exists. Gipson, 214 Ariz. at 145 ¶ 21, 150 P.3d at 232 (considering whether duty existed in a case not involving a categorical relationship). Accordingly, [***8] this court does not look at “the parties’ actions” alleged to determine “if a duty exists.” Id. at 145 ¶ 21, 150 P.3d at 232. Instead, this court looks to the legal factors identified elsewhere to determine whether the Tibet trip was an off-campus school activity for which Defendants owed Morgan a duty of reasonable care. See Barkhurst v. Kingsmen of Route 66, Inc., 234 Ariz. 470, 472–75 ¶¶ 10–18, 323 P.3d 753, 755–58 (App. 2014) (citing cases); Wickham v. Hopkins, 226 Ariz. 468, 471–73 ¶¶ 13–23, 250 P.3d 245, 248–50 (App. 2011) (citing cases); see also Monroe, 234 Ariz. at 157-59 ¶¶ 5-11, 318 P.3d at 873-75.

2. The Trip Was Not An Off-Campus School Activity For Which Defendants Owed Morgan A Duty.

P12 [HN8] In the college and university setting, duty is not governed by custody or in loco parentis concepts. Delbridge, 182 Ariz. at 59, 893 P.2d at 59; see also Randolph v. Ariz. Bd. of Regents, 19 Ariz. App. 121, 123, 505 P.2d 559, 561 (App. 1973) (“There comes a time when an individual must take it upon himself to be responsible for his own education and well-being. No person can be insulated against all the risks of living.”). Similarly, “[t]he scope of the duty imposed by the student-school relationship is not limitless.” Monroe, 234 Ariz. at 157 ¶ 6, 318 P.3d at 873. “[T]he duty is tied to expected activities within the relationship. Therefore, in the student-school relationship, the duty of care is bounded by geography and time, encompassing risks such as those that occur while the student is at school or otherwise under the school’s control.” Id. at [*624] [**936] 157–58 ¶ 6, 318 P.3d at 873–74 (citing cases and Restatement § 40(b)(5) cmts. f, l).

P13 In what are at best analogous [***9] contexts, Arizona cases have identified the following factors [HN9] in determining whether an off-campus activity is deemed a school activity: (1) the purpose of the activity, Collette, 203 Ariz. at 363 ¶ 16, 54 P.3d at 832; (2) whether the activity was part of the course curriculum, Delbridge, 182 Ariz. at 59, 893 P.2d at 59; (3) whether the school had supervisory authority and responsibility during the activity, id.; Monroe, 234 Ariz. at 161 ¶ 18, 318 P.3d at 877; and (4) whether the risk students were exposed to during the activity was independent of school involvement, Collette, 203 Ariz. at 365 ¶ 23, 54 P.3d at 834. Courts elsewhere also have looked at whether (5) the activity was voluntary or was a required school activity; (6) whether a school employee was present at or participated in the activity or was expected to do so and (7) whether the activity involved a dangerous project initiated at school but built off campus. See 5 James A. Rapp & Jonathan M. Astroth, Education Law § 12.09[6][c] (2014) (citing cases).

P14 Applying these factors, the Tibet trip was conceived by exchange students who wanted to see Mount Everest, not for any NAU-related purpose. After doing some research, a student made arrangements directly with Tibettours, a Tibet-based tour company, which then set the itinerary, arranged trip details and served as a guide during the trip. Fourteen [***10] of the 17 study abroad students then went on the trip and paid Tibettours directly, or through the coordinating students. The trip, details of the trip and the cost of the trip were not part of the study-abroad program or any course curriculum, and no academic credit was awarded for the trip. At the students’ request, NAU student liaison Zhang Fan helped the students communicate with Tibettours and arrange flights, and also provided a letter, required by the Chinese government to secure required permits, stating the students were NAU students. At the students’ request, the professors agreed to allow the students to make up classes they missed if they participated in the trip. Defendants had no supervisory authority over, or responsibility for, the trip, and no faculty or staff went on the trip. The risk of altitude sickness was present independent of any involvement by Defendants and the trip did not involve a potentially dangerous project initiated at school but built off campus. Accordingly, applying these factors, the Tibet trip was not an off-campus school activity for which Defendants owed Morgan a duty under Arizona law. See Monroe, 234 Ariz. at 159 ¶ 11, 318 P.3d at 875; Collette, 203 Ariz. at 363 ¶ 16, 54 P.3d at 832; Delbridge, 182 Ariz. at 59, 893 P.2d at 59; see also Rapp & Astroth, Education [***11] Law § 12.09[6][c] (citing cases).5

5 This does not mean that a university or college lacks a duty to protect its students for activities occurring off campus on property owned or controlled by the university or college, or for off-campus functions controlled or regulated by the university or college. See, e.g., Barkhurst, 234 Ariz. at 473–74 ¶¶ 12–14, 323 P.3d at 756–57 (discussing Estate of Hernandez v. Ariz. Bd. of Regents, 177 Ariz. 244, 866 P.2d 1330 (1994)); accord Monroe, 234 Ariz. at 157–58 ¶ 6 n.2, 318 P.3d at 873–74 n.2 (citing Delbridge, 182 Ariz. at 59, 893 P.2d at 59).

P15 Elizabeth argues that the Tibet trip was a school activity because: (1) Defendants “knew that study-abroad programs pose dangers,” and issued students cell phones to “safeguard . . . [them] during their study-abroad program;” (2) 14 of the 17 exchange students participated in the trip; (3) Defendants let students make up the classes they missed during the trip and (4) the trip would not have been possible without Fan’s assistance.

P16 Defendants’ purported knowledge that participating in the study-abroad program would involve “risks not found in study at” the University of Arizona in Tucson does not help answer whether the trip was a school activity. See Gipson, 214 Ariz. at 144 ¶ 15, 150 P.3d at 231 (rejecting foreseeability as factor in determining duty). Similarly, providing the students cell phones “with which they can contact faculty and staff to answer [***12] questions and solve problems day or night from any part of China” does not make the Tibet trip a school activity. And although many study-abroad students decided to go on the trip, some did not. Allowing [*625] [**937] classes to be made up at the students’ request similarly does not mean the trip was a school activity and the record suggests that students would have gone to Tibet even if it meant they could not make up classes they missed. Finally, it may be that the trip would not have been possible but for Fan’s assistance in response to the students’ request. That, however, does not mean Defendants owed Morgan a duty while on the trip. No authority cited holds the existence of a duty turns on whether a defendant made something possible. Indeed, such a rule would mean an almost unlimited number of individuals and entities could be found to have owed a duty here, including the airline that flew the students to Tibet, the manufacturer of that airplane and the provider of the airplane fuel. [HN10] Although a “but for” inquiry often is relevant in determining whether a plaintiff has shown causation after a duty and its breach are established, it does not address whether a duty exists. See id. at 145 ¶ 21, 150 P.3d at 232.

P17 Nor [***13] does Elizabeth’s reliance on 2007 and 2009 YISA brochures and an affiliation agreement between YISA and the University of Arizona alter the analysis. The substance of the 2009 brochure is not contained in the record. The description attributed to the brochure (“Additional Travel Opportunities,” noting “that students in past programs had visited Tibet”) does not make the trip here a school activity. Presuming the 2007 brochure applied to the Fall 2009 program, that document states: (1) “[i]ncluded in your program fee will be trips to important cities or sites in China;” (2) in addition, “students will have a week or more of time off to travel on their own” and (3) “[o]ur staff will help with all aspects of planning these trips throughout China.” That Defendants may have helped students plan “travel on their own” does not impose on Defendants a duty for the student-planned Tibet trip. Similarly, YISA agreeing to provide “student support services — translation assistance, travel planning, and emergency assistance” — does not impose upon Defendants a duty to protect students from harms in the student-planned Tibet trip.

P18 Elizabeth also argues on appeal that selected excerpts from ABOR’s internal [***14] code of conduct mean the Tibet trip was a school activity. Although Elizabeth cited this document in superior court to show that the exchange program was an ABOR-sponsored activity, she did not argue it established a duty. By not pressing that argument then, Elizabeth cannot do so now. See Fisher v. Edgerton, 236 Ariz. 71, 75 n.2 ¶ 9, 336 P.3d 167, 171 n.2 (App. 2014).6 Even absent waiver, Elizabeth has not shown how ABOR’s code of conduct — addressing “misconduct . . . subject to disciplinary action” and “the promotion and protection” of “an environment that encourages reasoned discourse, intellectual honesty, openness to constructive change and respect for the rights of all” at state universities — makes the Tibet trip a school activity imposing a duty on Defendants.

6 Similarly, Elizabeth alleged negligence per se in superior court based on ABOR’s internal code of conduct, but did not further develop that claim. See Fisher, 236 Ariz. at 75 n.2 ¶ 9, 336 P.3d at 171 n.2; see also Steinberger v. McVey, 234 Ariz. 125, 139 ¶ 56, 318 P.3d 419, 433 (App. 2014) (noting negligence per se claim “must be based on a statute enacted ‘for the protection and safety of the public'”) (citation omitted).

P19 Finally, Elizabeth relies on the opinions of Dr. William W. Hoffa, her “standard of care” expert, who took the position that study-abroad programs should categorically owe a duty to students [***15] throughout all aspects of the program. But the question of whether a duty exists is an issue of law for the court to decide, not experts. Badia v. City of Casa Grande, 195 Ariz. 349, 354 ¶ 17, 988 P.2d 134, 139 (App. 1999) ( [HN11] “The issue of whether a duty exists is a question of law for the court, unaffected by expert opinion.”); see also Monroe, 234 Ariz. at 157 ¶ 4, 318 P.3d at 873 (existence of duty “is a matter of law for the court to decide”) (citing Gipson, 214 Ariz. at 143 ¶ 9, 150 P.3d at 230). Moreover, as Elizabeth concedes, Dr. Hoffa’s testimony goes to the standard of care and other issues that are premised on the existence of a duty. See Gipson, 214 Ariz. at 143–44 ¶¶ 10–11, 150 P.3d at 230–31 (citations omitted). Accordingly, Dr. Hoffa’s opinions do not resolve the question of whether a duty exists.

[*626] [**938] P20 For these reasons, the superior court properly concluded that the Tibet trip was not an off-campus school activity for which Defendants owed Morgan a duty.

B. Duty Based On Public Policy.

P21 In discussing whether public policy should recognize a duty here, Elizabeth

cites no public policy authority, and we are aware of none, supporting a general duty of care against harm away from school premises, absent a school-supervised activity or a particular statute. To hold otherwise would imply that the student-school relationship extends to situations where the school lacks custody [***16] over the student and the student is not participating in a school-sponsored activity. We decline to define the scope of duty in such broad terms.

Monroe, 234 Ariz. at 161 ¶ 20, 318 P.3d at 877. For these reasons, Elizabeth has not shown that public policy considerations result in Defendants owing Morgan a duty for the Tibet trip.

II. Other Issues On Appeal.

P22 Having found Defendants did not owe Morgan a duty for the Tibet trip, this court affirms the judgment and need not address the other issues raised on appeal. ABOR’s request for taxable costs on appeal is granted contingent upon its compliance with Arizona Rule of Civil Appellate Procedure 21.

CONCLUSION

P23 The judgment in favor of Defendants is affirmed.


Travel agents have a very limited duty to disclose, unless they know about a hazard. If you book for others, you are a travel agent.

College students on break to Mexico on a “party train” fell between the cars. Decedent was the 4th student to fall which gives rise to the liability of the travel agent. This is an early Arizona case voiding releases also.

Maurer, v. Cerkvenik-Anderson Travel, Inc., 181 Ariz. 294; 890 P.2d 69; 1994 Ariz. App. LEXIS 105; 165 Ariz. Adv. Rep. 51

State: Arizona

Plaintiff: Larry Maurer and Linda Maurer, husband and wife, personally and on behalf of the Estate of Molly Marie Maurer

Defendant: Cerkvenik-Anderson Travel, Inc., an Arizona corporation; College Tours, a division of Cerkvenik-Anderson Travel, Inc.; Dennis Anderson and Jane Doe Anderson, husband and wife; Anton Cerkvenik and Jane Doe Cerkvenik, husband and wife; and John Does I-X

Plaintiff Claims: Negligence, violation of the Arizona Consumer Fraud Act,

Defendant Defenses: No duty and release

Holding: For the Plaintiff

Year: 1994

The defendant is a travel agency that specialized in college tours. These college tours are more famously known for taking students south of the boarder during breaks to party where the age to drink is lower and so is about everything else.

One of these tours included an eighteen hour train ride known as the “Party Train.” The plaintiff and a friend decided to move forward and investigate the engine. Between the cars were extensions between the cars were covered with some sort of plate. However the last passenger car had not extension and no plate extending back from the freight car or engine. The plaintiff stepped off and fell from the train to her death.

The plaintiff was the fourth student to die this way on a tour organized by the defendant, although the particular incidents leading to the student deaths were slightly different.

The decedent’s parents sued the travel agency for themselves and representing the estate of the deceased. The trial court dismissed the case because there was no duty of care owed to the plaintiff by the defendant travel agent.

Analysis: making sense of the law based on these facts.

The court started its analysis by looking at the duty owed by the defendant as a travel agent.

(1) to exercise reasonable care for the safety of students in operating its student tours; (2) to disclose material facts affecting safety in promoting and selling its tours; and, (3) not to make misrepresentations in promoting and selling its tours.

The defendant argued that because it could not control the train and had no knowledge of the specific condition leading to the decedent’s death the travel agent had no duty to the plaintiff.

Duty is an issue of law and as such the courts decide whether or not there was any duty. Juries apply the facts to the law.

Whether a duty exists is a question of whether one of the parties to a relationship is under an obligation to use care to avoid or prevent injury to the other. “‘Duty’ is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff.”

If the court decides no duty exists then no trial is held. No duty, no negligence. However the appellate court saw the existence of a duty differently from the trial court which stated there was no duty.

The court concluded the relationship between the decedent and the defendant was like an agency, since the defendant was a travel agent.

Different occupations owe different duties to their guests, customers, clients, patrons or consumers. The court set out the duties of a travel agent under Arizona law, which included a duty to disclose. “These duties include the duty to disclose material dangers known to the agent.” This duty “…does not represent an extension of tort liability upon an agent it results from an exposition of the pre-existing duty of care owed a principal by his agent.”

That duty requires the travel agent to disclose information the traveler would like to know.

Unless otherwise agreed, an agent is subject to a duty to use reasonable efforts to give his principal information which is relevant to affairs entrusted to him and which, as the agent has notice, the principal would desire to have and which can be communicated without violating a superior duty to a third person.

That duty appears to be wide open as well as trap. What the traveler wants to know is usually unknown until communicated by the traveler to the agent. However, “The scope of this duty of disclosure will be limited, naturally, to what is reasonable in any given instance.”

However the fact the travel agent does not know what the traveler wants to know is a bar to their duty to disclose. “While there is no duty of investigation, the travel agent must disclose all information the agent learns which is material to the object of the agency.”

The court concluded that a jury must decide whether or not three other students had died on that train was something the deceased wanted to know.

The plaintiff’s also sued claiming violation of the Arizona consumer fraud act. The omission of the other deaths violated the act.

Under the Act, it is unlawful for any person to use or employ any deception, deceptive act or practice, fraud, false pretense, false promise, misrepresentation, or concealment, suppression or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise whether or not any person has in fact been misled, deceived, or damaged thereby.

The act defined merchandise to include services. The trial court found that death was not related to the information contemplated by the act to be disclosed. Again the appellate court found differently.

The final issue was whether or not a release was in existence and valid.

The itinerary contained a paragraph stating the defendant waived liability. There was also an invoice for the trip with the same release language as on the itinerary. The decedent acknowledge in her payment for the trip that she had “read the flyer, waiver of liability and the itinerary and acknowledged by her payment for the trip that she had read the information, agreed to it and understood all its terms and conditions.”

The trial court denied the validity of the release and the appellate court agreed. “Here, the danger is too defuse [sic] and unspecific for a valid waiver to apply.”

The appellate court agreed and stated: “Attempts to release oneself from liability by contract for harm caused by one’s own negligence are not looked upon with favor. “This would tend to encourage carelessness.””

The court also quoted Restatement (Second) of Agency § 419 (1957), and found the lack of the disclosure of the other deaths also violated the requirements for the release to be valid.

…such agent is under the “duty of disclosure and fair dealing stated in Section 390.” That section provides that an agent has a duty to deal fairly with the principal and to disclose to him all facts which the agent knows or should know would reasonably affect the principal’s judgment, unless the principal has manifested that he knows such facts or that he does not care to know them.

The appellate court then sent the case back for trial.

Thus, although we conclude that CA is a seller to consumers and an agent bound by statutory and common law duties, we are unable to determine from the limited record before us whether the release is valid. Whether CA fulfilled its duty to Molly under Section 390 must await further discovery or trial.

So Now What?

Duties owed to your customer, consumer or guests vary based on the occupation of the defendant. You need to make sure you understand those duties. More importantly, you need to make sure you understand your classification or job description.

Many outfitters and guides as well as college and university programs book for third parties. College’s book trips, outfitters and guides will book for their competitors when their trips are full. This changes their duties because their relationship with the client has changed.

This case also provides another way that releases can be void and reinforces a common way. Any time the court can find a failure to disclose a release will be void. Courts in the way past would use the argument that a release should be void because it encourages defendants to be careless leading to injuries.

Arizona courts have slowly chipped away at the defense of release for several decades. Unless the activity is protected by statute, the courts have found easy and unobtrusive ways to void releases. Not enough to ring alarm bells, but each time, enough to void the release.

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Maurer, v. Cerkvenik-Anderson Travel, Inc., 181 Ariz. 294; 890 P.2d 69; 1994 Ariz. App. LEXIS 105; 165 Ariz. Adv. Rep. 51

Maurer, v. Cerkvenik-Anderson Travel, Inc., 181 Ariz. 294; 890 P.2d 69; 1994 Ariz. App. LEXIS 105; 165 Ariz. Adv. Rep. 51

Larry Maurer and Linda Maurer, husband and wife, personally and on behalf of the Estate of Molly Marie Maurer, Deceased, Plaintiffs/Appellants, v. Cerkvenik-Anderson Travel, Inc., an Arizona corporation; College Tours, a division of Cerkvenik-Anderson Travel, Inc.; Dennis Anderson and Jane Doe Anderson, husband and wife; Anton Cerkvenik and Jane Doe Cerkvenik, husband and wife; and John Does I-X, Defendants/Appellees. Larry Maurer and Linda Maurer, husband and wife, personally and on behalf of the Estate of Molly Marie Maurer, Deceased, Cross-Appellees. v. Cerkvenik-Anderson Travel, Inc., an Arizona corporation; College Tours, a division of Cerkvenik-Anderson Travel, Inc.; Anton Cerkvenik and JANE Doe Cerkvenik, husband and wife. Cross-Appellants.

2 CA-CV 93-0175

COURT OF APPEALS OF ARIZONA, DIVISION TWO, DEPARTMENT B

181 Ariz. 294; 890 P.2d 69; 1994 Ariz. App. LEXIS 105; 165 Ariz. Adv. Rep. 51

May 17, 1994, Filed

SUBSEQUENT HISTORY: [***1] Petition for Review Denied December 20, 1994.

PRIOR HISTORY: APPEAL FROM THE SUPERIOR COURT OF MARICOPA COUNTY. Cause No. CV 91-17422. Honorable J. Kenneth Mangum, Judge, Honorable Sherry H. Hutt, Judge.

DISPOSITION: REVERSED IN PART AFFIRMED IN PART

CASE SUMMARY:

COUNSEL: Treon, Strick, Lucia & Aguirre, by Arthur G. Newman, Jr. and Richard T. Treon, Phoenix, Attorneys for Plaintiffs/Appellants/Cross-Appellees.

Teilborg, Sanders & Parks, P.C., by Brian R. Burt and Rick N. Bryson, Phoenix, Attorneys for Defendants/Appellees/Cross-Appellants.

Jennings, Kepner and Haug, by James L. Csontos, Phoenix, Attorneys for Defendants/Appellees Dennis Anderson.

JUDGES: JAMES D. HATHAWAY, Judge, WILLIAM E. DRUKE, Chief Judge, PHILIP G. ESPINOSA, Presiding Judge.

OPINION BY: JAMES D. HATHAWAY

OPINION

[**70] [*295] OPINION

HATHAWAY, Judge.

In this action for the wrongful death of their daughter Molly, plaintiffs/appellants Maurers appeal from the trial court’s grant of summary judgment in favor of defendants/appellees Cerkvenik-Anderson Travel, Inc., College Tours, Dennis Anderson and Anton Cerkvenik (collectively, “CA”) on the basis that CA had no duty to Molly regarding the tour package she purchased. CA cross-appeals [***2] the court’s denial of summary judgment sought on the basis of waiver or release from liability and its refusal to award attorney’s fees. We reverse summary judgment as to appellants and affirm as to CA.

2 FACTS

Viewing the evidence in the light most favorable to the non-moving party, Nicoletti v. Westcor, Inc., 131 Ariz. 140, 639 P.2d 330 (1982), the facts are as follows. CA is a travel agency doing business as “College Tours.” Its business includes organizing, promoting, selling and operating student vacation tours destined for Mazatlan, Mexico. CA sets the itinerary, arranges for transportation and lodging and provides information relating to the students’ comfort, convenience and safety on the tour. For many years, the tour packages have included an eighteen-hour ride on a Mexican train traveling from Nogales to Mazatlan, as was the case with the tour purchased by the decedent. CA described this as a “Party Train.”

During the train ride from Nogales to Mazatlan, Molly and a friend decided to “adventure” forward in the trainto see the engine. The connecting areas between passenger railcars have metal floors with accordion-like “boots” extending from the [***3] sides of each railcar, forming an area in which it is safe to walk from the door at the end of one railcar to the door at the end of the other. En route, Molly paused and attempted to communicate in Spanish with an apparent employee of the railroad before going through a door, which turned out to be the front door of the foremost passenger car of the train. The car in front of this car was either a freight car or the engine. There was only a partial “boot” between the front of this car and the car in front of it. Beyond the door was only a narrow platform and then a large area between the cars, up to four feet wide, open straight down to the tracks and wheels of the train. It was dark, and after Molly stepped through the door, she fell to her death between the cars.

Molly was the fourth student to die by falling from a moving train on a student tour to Mazatlan organized by CA. Three other students had died previously, albeit the particular circumstances of each incident varied. The students on Molly’s tour were not informed of these prior incidents eventhough CA acknowledges that it “knew of other deaths on Mexican trains.”

[**71] [*296] DUTY OF TRAVEL AGENTS/TOUR OPERATORS

[***4] Appellants contend that CA had a duty (1) to exercise reasonable care for the safety of students in operating its student tours; (2) to disclose material facts affecting safety in promoting and selling its tours; and, (3) not to make misrepresentations in promoting and selling its tours. CA counters that it had no such duties as a travel agent, it lacked the right to control the train to make it safe, and it had no knowledge of the specific condition which caused Molly’s death.

[HN1] The existence of duty is an issue of law for the court to decide, Markowitz v. Arizona Parks Board, 146 Ariz. 352, 706 P.2d 364 (1985), not to be confused with details of conformance with a standard of conduct imposed by the relationship. Ibid. 146 Ariz. at 355, 706 P.2d at 367; see also, Lasley v. Shrake’s Country Club Pharmacy, Inc., 1994 Ariz. App. LEXIS 58, 162 Ariz.Adv.Rep. 10 (App. April 5, 1994). Whether a duty exists is a question of whether one of the parties to a relationship is under an obligation to use care to avoid or prevent injury to the other. [***5] “‘Duty’ is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff.” W. Page Keeton, et al., Prosser and Keeton on The Law of Torts § 53 at 356 (5th ed. 1984). “If the court decides that no duty exists, then a trial is unnecessary.” Lankford & Blaze, The Law of Negligence in Arizona at 11 (1992). In this case, the trial court concluded that a trial was unnecessary because “no duty was owed by [CA] to [appellants’] decedent for the injuries which led to her death.” We disagree.

To conclude there is “no duty” is to conclude the defendant cannot be liable, no matter the facts. As the supreme court observed in Markowitz: “To postulate that the possessor of land has no duty at all to protect its invitees or warn of specific types of danger is to postulate that it can never be liable, no matter what the circumstances.” 146 Ariz. at 357, 706 P.2d at 369. The court asked the poignant question: “Would the state have been liable even if the park ranger, knowing of the hazard, had sat on the rock, watched David get ready to dive and said nothing?” Id. at 356, 706 P.2d at 368.

Adapting that query [***6] to the instant case, we believe an affirmative answer as to CA’s responsibility is compelled under principles governing agency relationships. As an Oklahoma court well summarized in Douglas v. Steele, 816 P.2d 586, 589 (Okla.App. 1991):

[HN2] An agent who handles travel and vacation plans is a special agent of the traveler for purposes of that one transaction between the parties. … And this is so even though the agent’s compensation may be paid by the company to whom she steers the business, much like an advertising agent….

[HN3] [The travel agent has] a duty to act with the care, skill and diligence a fiduciary rendering that kind of service would reasonably be expected to use…. This agency relationship also imposes a duty to promptly communicate to [the] principals confirmations and all other relevant information about the proposed travel plans and tours which would help them protect themselves from harm or loss.

(Citations omitted.) These duties include the [***7] duty to disclose material dangers known to the agent. See Tracy A. Bateman, Annotation, “Liability of Travel Publication, Travel Agent, or Similar Party for Personal Injury or Death of Traveler,” 2 A.L.R. 5th 396 (1992). This duty to disclose or warn of known dangers, as the court explained in Rookard v. Mexicoach, 680 F.2d 1257, 1263 (9th Cir. 1982), “does not represent an extension of tort liability upon an agent[;] it results from an exposition of the pre-existing duty of care owed a principal by his agent.” See also In re Swartz, 129 Ariz. 288, 294, 630 P.2d 1020, 1026 (1981) (agent’s duty to make full disclosure to principal of all material facts relevant to agency is fundamental to fiduciary relation); Walston & Co. v. Miller, 100 Ariz. 48, 410 P.2d 658 (1966); Restatement (Second) of Agency § 381 (1957), states the duty thusly:

Unless otherwise agreed, an agent is subject to a duty to use reasonable efforts to give his principal information which is relevant to affairs entrusted to him and which, as the agent has notice, the principal would desire tohave and which can be communicated [**72] [*297] [***8] without violating a superior duty to a third person.

The travel agent’s duty to disclose is not without limits, however. The scope of this duty of disclosure will be limited, naturally, to what is reasonable in any given instance. A travel agent is not an insurer, nor can he be reasonably expected to divine and forewarn of an innumerable litany of tragedies and dangers inherent in foreign travel. Nonetheless, it does not follow that because a travel agent cannot possibly presage all dangers, he should be excused entirely from his fiduciary duties toward his principal to warn of those dangers of which he is aware, or should be aware in the exercise of due care.

Rookard, 680 F.2d at 1263. [HN4] “While there is no duty of investigation, the travel agent must disclose all information the agent learns which is material to the object of the agency.” United Airlines, Inc. v. Lerner, 87 Ill.App.3d 801, 43 Ill. Dec. 225, 410 N.E.2d 225, ___, 43 Ill.Dec. 225, ___, 410 N.E.2d 225, 228 (1980);Restatement (Second) of Agency, § 381 (1957).

[***9] In this case, because of the duties existing through the agency relationship, the trial court erred in ruling otherwise.

CONSUMER FRAUD ACTION

Appellants contend that CA violated the Consumer Fraud Act (Act), A.R.S. § 44-1521, et seq., by omitting material facts and making misrepresentations to Molly in selling and promoting its tours. [HN5] A private right of action exists for breach of the Act. Sellinger v. Freeway Mobile Home Sales, Inc., 110 Ariz. 573, 521 P.2d 1119 (1974). [HN6] Under the Act, it is unlawful for any person to use or employ any deception, deceptive act or practice, fraud, false pretense, false promise, misrepresentation, or concealment, suppression or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise whether or not any person has in fact been misled, deceived, or damaged thereby, A.R.S. § 44-1522(A) [***10] . The term “merchandise” includes “services.” A.R.S. § 44-1521(5). Accordingly, CA can be held liable for misrepresentations and “concealment, suppression or omission” of any material fact in selling its services.

Appellants contend the trial court evidently held, death, as a matter of law, is not a type of damage for which a private right of action may be brought under the Act. Appellants point out that they have found only one case in the nation that has considered the question. Duncavage v. Allen, 497 N.E.2d 433, 147 Ill.App.3d 88, 100 Ill.Dec. 455 (1986) (claim held to have been stated in suit against landlord for consumer fraud act violation for death of tenant based on representations and omissions about building safety.)

Appellants argue that no policy reason exists to exclude death as an injury for which a private action for damages may be brought under the Act when the omission of material information about safety has caused the death of the purchaser. They also contend that such a view is consistent with Arizona decisions in which the omission of information one has a duty to disclose causes death. See, e.g., Robertson v. Sixpence Inns of America, Inc., 163 Ariz. 539, 789 P.2d 1040 (1990) [***11] (trial court erred in ruling that motel owner owed no duty to disclose information about earlier presence of robber to independent contractor security guard who was later shot and killed by robber.) Moreover, appellants contend that neither the Act nor the cases interpreting it exclude death caused by a breach of the Act; rather, the cases have considered as an element of the cause of action the general “consequent and proximate injury” to the victim. See, Parks v. Macro-Dynamics, Inc., 121 Ariz. 517, 591 P.2d 1005 (App. 1979).

Finally, appellants argue that if a private right of action had not been recognized in Arizona, the statute is the sort the violation of which would have been treated as negligence per se and that death is a cognizable injury within the scope of an action for negligence per se. Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200 (1983). They persuasively conclude that, “recognition of a private [**73] [*298] right of action should not reduce the relief that would … otherwise have been available under negligence per se without the private right of action.” We agree.

We do not find any basis for an [***12] exemption when the damage resulting from the alleged violation is death. Accordingly, the trial court erred in granting summary judgment as to appellants’ claim under the Consumer Fraud Act.

CROSS-APPEAL ON CONTRACTUAL

RELEASE/WAIVER OF LIABILITY

CA contends in its cross-appeal that even assuming the existence of a duty, summary judgment against appellants must be affirmed because Molly released and/or waived any claim against them for any acts or omissions that led to her death. This issue has been raised both in the cross-appeal and as a cross-issue on appeal.

Molly’s itinerary contained the following provision:

XV. Terms and Conditions

… The purchaser releases and absolves College Tours from all liability for property loss or damage, caused and/or from all damages resulting in death or personal injury, loss of services, which may be sustained on account of, arising out of or while engaged in said trip, whether due to its own negligence or otherwise.

(Bold in original) The itinerary also contained a paragraph expressly entitled “Waiver of Liability.” This provision was set out separately from the other paragraphs in the itinerary and provided:

[***13] The students and the students [sic] relatives hereby waive any [sic] or liability for property damage, or personal injury, or death (Including the loss of services), which may be sustained by any student on account of, arising out of, or while engaged in said trip unless claimant establishes that the person or entity, versus whom the claim is made, violated the law or was guilty of a willful injury. Any alleged violation of law or willful injury must be the direct cause of the injury complained of; otherwise, the student and anyone making a claim as a result of any injury, damage or death to said student, hereby waives any such claim. All potential claimants hereby acknowledge that there are other means and tours available to visit Mexico or Hawaii and the student is not in an inferior bargaining position and thus freely accepts the responsibility contracted for herein. Each client has the right to choose to attend or not attend any event provided by College Tours and does so at their own discretion.

(Bold in original) Molly received an invoice form that also contained a “Waiver of Liability” provision virtually identical to that contained in the itinerary. [***14] It also contained a certification that the customer had read the flyer, waiver of liability and the itinerary and acknowledged by her payment for the trip that she had read the information, agreed to it and understood all its terms and conditions. A copy of the invoice was returned to CA with Molly’s final payment for the trip.

In denying the defense motion for summary judgment on the release/waiver issue, the trial court explained:

This Court does not find waiver to be a valid defense to Plaintiffs’ claims. read the flyer, waiver of liability and the itinerary and acknowledged by her payment for the trip that she had read the information, agreed to it and understood all its terms and conditions. Because the danger being waived was so specific and obvious in Valley National Bank v. National Assoc. for Stock Car Auto Racing, Inc., 153 Ariz.App. [sic] 374, 736 P.2d 1186 (App. 1987), that Court allowed the waiver to defeat Plaintiff’s claims. Here, the danger is too defuse [sic] and unspecific for a valid waiver to apply.

We find merit in the trial court’s distinction. Attempts to release oneself from liability by contract for harm caused by one’s own negligence are not looked upon with favor. “This would tend to encourage [***15] carelessness.” Salt River Project Agric. Improvement & Power Dist. v. Westinghouse Elec. Corp., 143 Ariz. 368, 382, 694 P.2d 198, 212 (1984).

[HN7] While an agent may be discharged from liability by an effective release, Restatement [**74] [*299] (Second) of Agency § 419 (1957), such agent is under the “duty of disclosure and fair dealing stated in Section 390.” That section provides that an agent has a duty to deal fairly with the principal and to disclose to him all facts which the agent knows or should know would reasonably affect the principal’s judgment, unless the principal has manifested that he knows such facts or that he does not care to know them.

Thus, although we conclude that CA is a seller to consumers and an agent bound by statutory and common law duties, we are unable to determine from the limited record before us whether the release is valid. Whether CA fulfilled its duty to Molly under Section 390 must await further discovery or trial. Accordingly, the court’s order denying CA’s Motion to Dismiss/Motion for Summary Judgment on waiver/release grounds [***16] is affirmed.

Reversed in part; affirmed in part.

JAMES D. HATHAWAY, Judge

CONCURRING:

WILLIAM E. DRUKE, Chief Judge

PHILIP G. ESPINOSA, Presiding Judge


Walnut Canyon National Monument celebrating its 100th Anniversary this Summer. Great Place for a Picnic

Celebrate Walnut Canyon National Monument’s 100th Anniversary with a Summer Picnic

FLAGSTAFF, ARIZONA – As part of the yearlong celebration of Walnut Canyon National Monument’s 100th anniversary, the Natural and Cultural Resources staff will host a summer picnic. Please join us for this family friendly event on Sunday, June 21, 2015 featuring special talks and tours highlighting the unique resources of Walnut Canyon National Monument. Whether you are a frequent visitor or it is your first time, this will be an excellent opportunity to meet with park biologists, ecologists, and archeologists to learn about Walnut Canyon National Monument.

Regular entrance fees apply. The entrance fee is $5.00/person for visitors 16 and over. America the Beautiful Passes are honored and sold. There is no additional fee for this event.

Reservations are required for the picnic. Please contact Lisa Leap at 928-526-1157 ext. 222. Picnic space is limited. Sign up for the various talks will occur on site.

Walnut Canyon’s Summer Picnic at the visitor center, Sunday, June 21, 2015

· -11:00 am -3:00 pm
· -Participants must bring their own food and beverage. Dessert will be provided.
· -Featured talks and tours will begin immediately after lunch. They will include:

o Ranger Cabin and CCC boundary fence

o Archeology along the Island Trail

o Archeology along the Ranger Ledge Trail

o Architectural styles at Walnut Canyon

o Bird watching and wildlife tracking/identification

o Plant identification and Ponderosa Pine

· -Picnic area is wheelchair accessible as are several of the tours.
· -Family friendly event.
· -Wear comfortable shoes/clothing; don’t forget your sun protection, extra water, and camera!

Event location

Walnut Canyon National Monument is located approximately 7.5 miles (12km) east of Flagstaff on I-40; take Exit 204, and head south. The Walnut Canyon Visitor Center is located at the end of this 3 mile road. Information can be obtained from (928)526-3367 and on the web at www.nps.gov/waca.

www.nps.gov

About the National Park Service: More than 20,000 National Park Service employees care for America’s 406 national parks and work with communities across the nation to help preserve local history and create close-to-home recreational opportunities. Visit us at www.nps.gov, on Facebook www.facebook.com/nationalparkservice, Twitter www.twitter.com/natlparkservice, and YouTube www.youtube.com/nationalparkservice.

WACASummerPicnic_Final 6-2-15.pdf