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Delaware Supreme Court decision quickly determines a health club release is not void because of public policy issues and is clear and unequivocal.

The decision is very short and very clear. Write a clear and direct release and it will be upheld in Delaware.

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

State: Delaware, Supreme Court of Delaware

Plaintiff: Deshaun Ketler and Brittany Ketler

Defendant: PFPA, LLC, a Delaware Corporation, d/b/a Planet Fitness

Plaintiff Claims: negligence

Defendant Defenses: Release

Holding: For the defendant

Year: 2016

This is a Delaware Supreme Court decision on release law in Delaware from a lawsuit against a health club.

The plaintiff sued the defendant Planet Fitness because she was injured at the health club, a cable broke on a seated rowing machine she was using.

The trial court granted the defendant’s motion for judgment on the pleadings finding the release stopped the claims of the plaintiff. The plaintiff appealed.

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

The Delaware Supreme Court did not waste a single sentence in this very short very instructive decision.

Releases are valid in Delaware. They must be clear and unequivocal if a release is to be valid.

This Court has previously recognized that a release of prospective negligence may be valid. Such a release must be “‘clear and unequivocal’ to insulate a party from liability

The court looked to the language of the release, and without comment stated the language was clear and unequivocal.  The court then looked at the other issues that may void a release.

The release may not be unconscionable.

Unconscionability is a concept that is used sparingly. Traditionally, an unconscionable contract is one which “no man in his senses and not under delusion would make on the one hand, and as no honest or fair man would accept, on the other.”

Unconscionable in Delaware means more than a just a disparity between the party’s ability to bargain. There must be no real choice for the party being offered the release or agreement.

But mere disparity between the bargaining powers of parties to a contract will not support a finding of unconscionability.” “[T]here must be an absence of meaningful choice and contract terms unreasonably favorable to one of the parties.” There is no deprivation of meaningful choice if a party can walk away from the contract. Here, DeShaun was free to accept the Planet Fitness membership or not. The Superior Court did not err in concluding that the release is not unconscionable.

Because the plaintiff was not being forced to sign the contract and a health club contract was not a necessity, the plaintiff could have walked away from the release. Thus the release was not unconscionable.

The next issue was whether the release violated public policy. In Delaware to violate public policy, there must be a statute specifically saying that a release for this activity violates public policy.

The public policy of this state is typically determined by the Delaware General Assembly. No Delaware statute has been identified which bears on the validity of a release of prospective negligence.

The statute must not only look at the issues identified in the release, but must specifically say a release is void for these issues.

However, a general release by its nature releases a party from a potential liability otherwise imposed by law. The public policy involved must be one which disapproves of the release.

The judgement of the lower court was affirmed.

So Now What?

There is very little instructional language in this decision. However, what information is provided is very clear and very easy to understand. Releases in Delaware if they are clear and unequivocal will be upheld in the state.

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

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

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

No. 319, 2015

SUPREME COURT OF DELAWARE

2016 Del. LEXIS 19

December 2, 2015, Submitted

January 15, 2016, Decided

NOTICE:

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

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

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

DISPOSITION: Upon appeal from the Superior Court. AFFIRMED.

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

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

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

OPINION BY: VAUGHN

OPINION

VAUGHN, Justice:

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

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

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

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

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

2 Appellant’s Op. Br. App. at A8.

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

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

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

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

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

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

7 Id.

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

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

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

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


Delaware Equine Liability Act

DELAWARE CODE ANNOTATED

Copyright 2015 by The State of Delaware

TITLE 10.  COURTS AND JUDICIAL PROCEDURE

PART V.  LIMITATION OF ACTIONS

CHAPTER 81.  PERSONAL ACTIONS

GO TO DELAWARE STATUTES ARCHIVE DIRECTORY

10 Del. C. § 8140 (2015)

§ 8140. Liability of persons involved in equine activities

(a) For purposes of this section, the following terms shall have the meaning ascribed herein:

            (1) a. “Engages in an equine activity” means riding, training, assisting in medical treatment of, driving, or being a passenger upon an equine, whether mounted or unmounted or any person assisting a participant or show management.

                        b. “Engages in an equine activity” does not include being a spectator at an equine activity, except in cases where the spectator places such spectator’s person in an unauthorized area and in immediate proximity to the equine activity;

            (2) “Equine” means a horse, pony, mule, donkey or hinny;

            (3) “Equine activity” means:

                        a. Equine shows, fairs, competitions, performances or parades that involve any or all breeds of equines and any of the equine disciplines, including, but not limited to, dressage, hunter and jumper horse shows, grand prix jumping, 3-day events, combined training, rodeos, driving, pulling, cutting, polo, steeplechasing, English and western performance riding, endurance trail riding and western games, and hunting;

                        b. Equine training or teaching activities, or both;

                        c. Boarding equines;

                        d. Riding, inspecting or evaluating an equine belonging to another, whether or not the owner has received some monetary consideration or other thing of value for the use of the equine or is permitting a prospective purchaser of the equine to ride, inspect or evaluate the equine;

                        e. Rides, trips, hunts or other equine activities of any type, however informal or impromptu, that are sponsored by an equine activity sponsor; and

                        f. Placing or replacing horseshoes on an equine;

            (4) “Equine activity sponsor” means an individual, group, club, partnership or corporation, whether or not the sponsor is operating for profit or nonprofit, which sponsors, organizes or provides the facilities for an equine activity, including, but not limited to, pony clubs, 4-H clubs, hunt clubs, riding clubs, school and college-sponsored classes, programs and activities, therapeutic riding programs, and operators, instructors and promoters of equine facilities, including, but not limited to, stables, clubhouses, ponyride strings, fairs and arenas at which the activity is held;

            (5) “Equine professional” means a person engaged for compensation:

                        a. In instructing a participant or renting to a participant an equine for the purpose of riding, driving or being a passenger upon the equine; or

                        b. In renting equipment or tack to a participant;

            (6) “Inherent risks of equine activities” means those dangers or conditions which are an integral part of equine activities, including, but not limited to:

                        a. The propensity of an equine to behave in ways that may result in injury, harm or death to persons on or around them;

                        b. The unpredictability of an equine’s reaction to such things as sounds, sudden movements, and unfamiliar objects, persons or other animals;

                        c. Certain hazards such as surface and subsurface conditions;

                        d. Collisions with other equines or objects; and

                        e. The potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the animal or not acting within the participant’s ability;

            (7) “Participant” means any person, whether amateur or professional, who engages in an equine activity, whether or not a fee is paid to participate in the equine activity.

(b) Except as provided in subsection (c) of this section, an equine activity sponsor, an equine professional or any other person, which shall include a corporation or partnership, shall not be liable for an injury to or the death of a participant resulting from the inherent risks of equine activities. Except as provided in subsection (c) of this section, no participant or participant’s representative shall make any claim against, maintain an action against or recover from an equine activity sponsor, an equine professional or any other person for injury, loss, damage or death of the participant resulting from any of the inherent risks of equine activities.

(c) (1) This section shall not apply to the horse racing industry as regulated in Title 3.

            (2) Nothing in subsection (b) of this section shall prevent or limit the liability of an equine activity sponsor, an equine professional, or any other person if the equine activity sponsor, equine professional or person:

                        a. 1. Provided the equipment or tack, and knew or should have known that the equipment or tack was faulty, and such equipment or tack was faulty to the extent that it did cause the injury; or

                                    2. Provided the equine and failed to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity and determine the ability of the participant to safely manage the particular equine based on the participant’s representations of the participant’s ability;

                        b. Owns, leases, rents or otherwise is in lawful possession and control of the land or facilities upon which the participant sustained injuries because of a dangerous latent condition which was known or should have been known to the equine activity sponsor, equine professional or person and for which warning signs have not been conspicuously posted;

                        c. Commits an act or omission that constitutes wilful or wanton disregard for the safety of the participant, and that act or omission caused the injury; or

                        d. Intentionally injures the participant.

            (3) Nothing in subsection (b) of this section shall prevent or limit the liability of an equine activity sponsor or an equine professional under either product liability or trespass claims.

(d) (1) Every equine professional shall post and maintain signs which contain the warning notice specified in paragraph (d)(2) of this section. Such signs shall be placed in clearly visible locations on or near stables, corrals or arenas where the equine professional conducts equine activities if such stables, corrals or arenas are owned, managed or controlled by the equine professional. The warning notice specified in paragraph (d)(2) of this section shall appear on the sign in red and white, with each letter to be a minimum of 1 inch in height. Every written contract entered into by an equine professional for the providing of professional services, instruction or the rental of equipment or tack or an equine to a participant, whether or not the contract involves equine activities on or off the location or site of the equine professional’s business, shall contain in clearly readable print the warning notice specified in paragraph (d)(2) of this section.

            (2) The signs and contracts described in paragraph (d)(1) of this section shall contain the following warning notice:

WARNING

Under Delaware law, an equine professional is not liable for an injury to or the death of a participant in equine activities resulting from the inherent risks of equine activities, pursuant to 10 Delaware Code § 8140.

 


If you agree to the rules you have to follow the rules

Sanctioning body said you must do XYZ, which creates a standard of care you will be judged by

McDonough v. National Off-Road Bicycle Assn. (NORBA), 1997 U.S. Dist. LEXIS 8036 (Dist. Del 1997)

Plaintiff: Arthur Mcdonough and Linda Mcdonough, in their own right and as Parents of Bradley Alan Mcdonough, deceased

Defendant: National Off-Road Bicycle Assn. (NORBA), U.S. Cycling Fed., and Delaware Trail Spinners

Plaintiff Claims: negligence

Defendant Defenses: release

Holding: for the plaintiff, sent back for trial

 

In this case the deceased was racing in an Off Road [Mountain] Bike Race when he died of dehydration. The lawsuit was started by his parents against the organizations that sanctioned the race, NORBA, the race, and the race course owner. The suit alleged failure of the standards created by the sanctioning organization even though race had agreed to follow the standards.

The decedent died racing in a mountain bike race after being discovered along the race course unconscious. This was the deceased second NORBA race. There were no water or aid stations along the course. However the riders had access to their own water bottles on their bikes.

The plaintiffs argued there was no way for a beginner to access their water bottle on the course because it was so difficult unless they stopped riding. The only water available was what the participants brought with them. No physician, ambulance or emergency medical personnel at the race.

As a sanctioned race, NORBA provided defendant Delaware Trail Spinners the race organizer, with a “Pre-Event Planning Checklist.” In order to host the event the defendant Trail Spinners had to go through the checklist and agree to abide or provide the items on the checklist. The race director for Trail Spinners specifically stated that “there would be an ambulance on site and adequate water or fluids for participants and spectators before, during, and after the race.” NORBA also sends an official who according to the checklist will confirm issues and sign off on the checklist. In this case the NORBA representative did not sign off on the checklist.

To be able to race participants had to sign a one day membership to NORBA and sign a release. The court pointed out that no one explained the release to the participants. The back of the trial membership form said that everyone had to carry 8 ounces of water and that if the race exceeded sixty minutes NORBA would provide water to the race participants.

Before the race began one of the Trail Spinners race organizers, spoke to the 80 to 100 race participants. He told them without a bullhorn or PA system that there was no ambulance on site, but that one could be called if needed. He also told the contestants to be “”careful, . . . take their time” and not to “ride over your head, which means going beyond your ability.” McGroerty also told them to “watch their bodies, make sure they didn’t push themselves too hard because it was hot out.” Finally, he told them that “if they felt dizzy or nauseous, to back off, stay cool and keep from going too hard.”

The deceased was found after a search in an unconscious state off the trail. The friend called 911 from his cell phone and went and got assistance back at the race headquarters.  When he arrived back with two people to help him they started CPR. The deceased bike still had a water bottle with water in it. The deceased died of heat stroke fifteen days later.

Summary of the case

Delaware law, the state where the race was held, was the law applied to this case. The defendants filed a motion for summary judgment based on the release and the defense of primary assumption of the risk. Delaware merged secondary assumption of risk with comparative negligence, however Primary or express (written) assumption of risk is still a defense. The court defined the differences as:

Primary assumption, sometimes referred to as express assumption of risk, “involves the express consent to relieve the defendant of any obligation of care while secondary assumption [of risk] consists of voluntarily encountering a known unreasonable risk which is out of proportion to the advantage gained.”

The court quickly concluded that the summary judgment granted by the lower court should be overturned. The court felt that

…genuine issue of material fact exists as to whether McDonough understood that the release included a waiver against the hazards created by defendants’ alleged negligent and reckless conduct in promoting the race.

The court reviewed the record of the case pointing out every place where the requirements set forth by the sanctioning body, NOBA were not met by the race. (Whether those issues would have made a difference was never discussed.)

The court then shifted and wrote that because it could be argued that the deceased did not understand the release was a waiver of the risks that it was a material fact, which voided the release.

In the present case, plaintiffs assert that a genuine issue of material fact exists as to whether McDonough understood that the release included a waiver against the hazards created by defendants’ alleged negligent and reckless conduct in promoting the race. The court agrees.

The court arrived at this decision by stating the law and then interpreting it differently than all other courts had interpreted the law.

However, for the release to be effective, it must appear that the plaintiff understood the terms of the agreement, or that a reasonable person in his position would have understood the terms.

Thus, the understanding of the parties when the release was executed, in light of all the facts and circumstances, is paramount in determining whether the language is clear and unambiguous.

If you don’t understand what you are signing, then the release was not clear and unambiguous. I know of no other case that has argued that before.

So Now What?

The obvious issue here was the written documentation that required water and first aid and the documentation given to the deceased that stated water would be available where not available. Every race, camp, organization needs to develop a checklist or risk management plan so they can operate. However, as in this case, failing to follow any checklist was enough to lose the defenses of Primary Assumption of the Risk and Release and send your case to trial.

ØIf it is written down and you agree to it, you must follow it.

ØIf it is written down by an organization that you belong to or are sanctioned by, then you must agree to it.

ØIf an organization that you belong to writes a standard, then you must meet the standard!

The court then looked at these facts and was not happy. It then applied the facts in such a way that the court could find the release invalid and send it back for trial.

To see other cases where the defendant lost because they violated their trade associations standard of care see:

ACA Standards are used by Expert for the Plaintiff in a lawsuit against a Camp                                                                             http://rec-law.us/zmKgoi

Expert Witness Report: ACA “Standards” are used by Expert for the Plaintiff in a lawsuit against a Camp                                                   http://rec-law.us/y7QlJ3

Marketing Makes Promises that Risk Management (or in this case an insurance policy) must pay for.                                                       http://rec-law.us/14MebM4

Plaintiff uses standards of ACCT to cost defendant $4.7 millionhttp://rec-law.us/11UdbEn

Trade Association Standards sink a Summer Camp when plaintiff uses them to prove Camp was negligent                                           http://rec-law.us/wszt7N

To Read other articles about standards see:

Can a Standard Impeded Inventions?                http://rec-law.us/yOcca2

Playgrounds will be flat soon                             http://rec-law.us/zGC4DZ

Staying Current                                                  http://rec-law.us/ArdsVk

Stop Feuding, I doubt, move forward anyway, I think you can.   http://rec-law.us/P763zu

This is how a standard in the industry changes          http://rec-law.us/w76X3K

Words: You cannot change a legal definition    http://rec-law.us/AbJ540

 

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#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, NOBA, National Offraod Bicycle Association, Mountain Biking, Bike Race, Cycling, U.S. Cycling Federation,  Delaware Trail Spinners, Delaware, DE, Release, Standards, Standard of Care, Rules, Sanctioning, Sanctioning Body,

 

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McDonough v. National Off-Road Bicycle Assn. (NORBA), 1997 U.S. Dist. LEXIS 8036 (Dist. Del 1997)

McDonough v. National Off-Road Bicycle Assn. (NORBA), 1997 U.S. Dist. LEXIS 8036 (Dist. Del 1997)

Arthur Mcdonough and Linda Mcdonough, in their own right and as Parents of Bradley Alan Mcdonough, deceased, and Arthur Mcdonough in his own right and as Administrator of the Estate of Bradley Alan Mcdonough, Plaintiffs, v. National Off-Road Bicycle Assn. (NORBA), U.S. Cycling Fed., and Delaware Trail Spinners, Defendants.

C.A. No. 95-504-SLR

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

1997 U.S. Dist. LEXIS 8036

June 2, 1997, Decided

NOTICE: [*1] FOR ELECTRONIC PUBLICATION ONLY

DISPOSITION: Defendants’ motion for summary judgment denied.

COUNSEL: For plaintiffs: Donald Eilhu Evans, Esquire, Wilmington, Delaware. Of Counsel: Edwin F. McCoy, Esquire., Philadelphia, Pennsylvania.

For defendants: Mason E. Turner, Esquire, of Prickett, Jones, Elliott, Kristol & Schnee, Wilmington, Delaware.

JUDGES: Sue L. Robinson, District Judge

OPINION BY: Sue L. Robinson

OPINION

MEMORANDUM OPINION

Date: June 2, 1997

Wilmington, Delaware

ROBINSON, District Judge

I. INTRODUCTION

This case is a wrongful death/survival action filed as a result of Bradley McDonough’s (“McDonough”) death on August 30, 1993. Plaintiffs are Arthur and Linda McDonough, the parents of the decedent (collectively referred to as “plaintiffs”). Defendants are The National Off-Road Bicycle Association (“NORBA”), United States Cycling Federation (“Federation”), and the Delaware Trail Spinners (“Trail Spinners”). The court has diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). Presently before the court is defendants’ motion for summary judgment. (D.I. 66) For the following reasons, defendants’ motion for summary judgment shall be denied.

II. BACKGROUND

[*2] In the summer of 1993, Bradley McDonough developed an interest in off-road bicycle competition. In the spring or early summer of 1993, McDonough acquired an off-road bike (also known as a mountain bike) and rode with his college friends, Randall Blaker (“Blaker”), Michael Odenwald (“Odenwald”), and Kenny Steidle (“Steidle”). (D.I. 71 at A51-A52) On August 8, 1993, McDonough, Blaker, Odenwald and Steidle participated in a NORBA sanctioned event in Windham, New York (“Windham race”). (D.I. 71 at A51) In all NORBA events, participants are required to obtain a permanent membership or a one-day trial membership. The application for the one-day membership contains a section entitled “Agreement and Release of Liability” (“release”). (D.I. 68 at A3)

On the day of the Windham race, McDonough, along with his friends, paid for a one-day trial membership and signed the release. (D.I. 71 at A 54-55; D.I. 68 at A5) In signing the release, Blaker stated that he did not really read it, but simply skimmed through it. (D.I. 71 at A54) Blaker stated that he assumed it was a release “to some degree and we understood that we were involved in a sport.” (D.I. 71 at A54-A55)

The Windham race course was [*3] basically a two lap course. (D.I. 71 at A56) McDonough and Steidle quit after one lap because they were tired. (D.I. 71 at A56) Blaker, who was behind McDonough and Steidle, also stopped after the first lap since his friends had stopped. (D.I. 71 at A56) Odenwald did not complete the race either, because his bicycle broke. (D.I. 71 at A56) All four friends had water bottles on their bikes during the race. (D.I. 71 at A54)

On August 15, 1993, McDonough and Blaker participated in another NORBA sanctioned event in Delaware, called the C & D Canal Classic (“C & D race”). (D.I. 84 at A109) The C & D race consisted of three race levels: (1) Beginners’; (2) Sport; and (3) Pro/Expert. (D.I. 71 at A22) McDonough and Blaker both entered the Beginners’ level. (D.I. 71 at A23 and A59) The Beginners’ course was a 14 mile course “over the local terrain which included steep and gradual hills, open gravel and dirt roads, and wooded trails.” (D.I. 71 at A23) The Sport and Pro/Expert courses also used the same 14 miles designated for the Beginners’ course. (D.I. 71 at A38)

The Beginners’ course was difficult because of its layout. (D.I. 71 at A38) The terrain on the Beginners’ course made it difficult [*4] for riders to access their own water without stopping. (D.I. 71 at A38) Some areas on the course were smoothed out so that riders could stop or ride slowly and access their water bottles. (D.I. 71 at 38) The course, however, did not have any neutral area where water was given out to the race contestants. (D.I. 71 at A38) The only water the race contestants could drink was the water that they brought themselves. (D.I. 71 at A38) No physician was present at the race. (D.I. 71 at A24) There was neither an ambulance nor emergency medical personnel present at the race site. (D.I. 71 at A23) Denise Dowd (“Dowd”), another participant in the Beginners’ level, stated that the course was “difficult due to the heat and humidity and layout.” (D.I. 71 at A87) Although Dowd is an avid biker and had participated in approximately 20 mountain bike races, it took her over an hour and fifteen minutes to complete the course. (D.I. 71 at A87)

Defendant Trail Spinners, a NORBA club member, received sanctioning from NORBA to promote the C & D race. In order to receive sanctioning, defendant Trail Spinners had to complete a “Pre-Event Planning Checklist” (“Checklist”) provided by NORBA. (D.I. 84 at A109-A110) [*5] The Checklist contains several questions relating to the safety precautions taken for the event. Trail Spinners, through its race director William Bowen (“Bowen”), represented on the Checklist that there would be, inter alia, emergency medical assistance on site and adequate water for the participants and spectators. (D.I. 84 at A110) Bowen specifically represented that there would be an ambulance on site and adequate water or fluids for participants and spectators before, during, and after the race. (D.I. 84 at A110) The Checklist also provided that: “A NORBA Official must be present at your event. The NORBA Official will complete their portion of the checklist before allowing the event to proceed.” (D.I. 84 at A109) The Checklist identifies Elizabeth Small (“Small”) as the NORBA Official. Small, however, did not complete her portion of the Checklist and did not sign it. (D.I. 84 at A110)

When McDonough arrived at the race site, he again paid for a one-day trial membership and signed the release. (D.I. 68 at A7) Blaker also paid for a one-day trial membership and signed the release. (D.I. 71 at A59) No one at the race site explained the documents to the race participants. (D.I. [*6] 71 at A41) The release provides in part:

I acknowledge that cycling is an inherently dangerous sport in which I participate at my own risk and that NORBA is a non-profit corporation formed to advance the sport of cycling, the efforts of which directly benefit me. In consideration of the agreement with NORBA to issue an amateur license to me, hereby on behalf of myself, my heirs, assigns and personal representatives, I release and forever discharge NORBA and the United States Cycling Federation, its employees, agents, members, sponsors, promoters, and affiliates from any and all liability, claim, loss, cost or expense, and waive any such claims against any such person or organization, arising directly or indirectly from or attributable in any legal way to any action or omission to act of any such person or organization in connection with sponsorship, organization or execution of any bicycle racing or sporting event, in which I may participate as a rider, team member or spectator.

(D.I. 68 at A5) On the back of the trial membership and release certain “Racing Regulations” are set forth. (D.I. 68 at A8). At section 4.6, NORBA recommends that each participant carry “at least [*7] 8 ounces of water.” (D.I. 68 at A8) Section 5.6 provides that neutral water will be provided for any race that exceeds 60 minutes in length. (D.I. 68 at A8)

According to James McGroerty (“McGroerty”), the President, Officer, and Co-Founder of Trail Spinners, it is commonly understood by those who participate in races that they are required to sign the release. (D.I. 71 at A45) McGroerty stated that: “Most of [his] friends who are avid racers look at the form as you are signing this paper basically saying yes, I am doing this race at my own risk on the course. If I get hurt, it’s my own fault. It’s basically the way we look at it when we sign these forms and compete in an event.” (D.I. 71 at A45) Dowd, who also signed the release that day, stated that she understood that the release was intended to protect the defendants from liability. (D.I. 71 at A89) Dowd, however, did not believe that the release was intended to relieve the defendants from providing “common sense safety precautions, particularly on site trained medical personnel with an ambulance.” (D.I. 71 at A89) Dowd stated that she would not have signed the release if she had known there was no medical assistance immediately [*8] available. (D.I. 71 at A89)

Before the start of the race, McGroerty addressed the race contestants from the hood of his car. (D.I. 71 at A38 and A42) He addressed the participants without a bullhorn. (D.I. 71 at A37) There were approximately 80 to 100 total participants in the group that raced with McDonough and Blaker. (D.I. 71 at A37 and A62) McGroerty told the race contestants that there was no ambulance on site, but that one could be called. (D.I. 71 at A42) McGroerty did not specifically warn the participants about heat exhaustion. (D.I. 71 at A42) Instead, McGroerty told the contestants to be “careful, . . . take their time” and not to “ride over your head, which means going beyond your ability.” (D.I. 71 at A42) McGroerty also told them to “watch their bodies, make sure they didn’t push themselves too hard because it was hot out.” (D.I. 71 at A42) Finally, he told them that “if they felt dizzy or nauseous, to back off, stay cool and keep from going too hard.” (D.I. 71 at A42) McGroerty did not get any questions after he addressed the participants. (D.I. 71 at A37) McGroerty testified that he does not have Red Cross, CPR or EMT certification of any kind. (D.I. 71 at A43) He [*9] also does not know the signs of exertional heat stroke. (D.I. 71 at A43)

At approximately 9:00 a.m., McDonough and Blaker left the starting line with other contestants. (D.I. 71 at A23 and A62) Both McDonough and Blaker had brought water bottles with them. (D.I. 71 at A61) The temperature on that day was “extremely hot [] with high humidity.” (D.I. 71 at A85) Although McDonough and Blaker began the race together, they were separated because Blaker had a flat tire. (D.I. 71 at A63) After Blaker changed his flat tire, he continued in the race and eventually completed the course. (D.I. 71 at A64) McDonough, however, did not. (D.I. 71 at A64)

McGroerty found McDonough when he went to investigate whether some participants had accidently or deliberately missed the course markings. (D.I. 71 at A44) McGroerty first saw McDonough’s bike. As he approached the bike, he saw McDonough who was about five or six feet from his bike. (D.I. 71 at A44) According to McGroerty, other participants would not have seen McDonough since he was off to the side of the course, but could have seen his bike. (D.I. 71 at A44)

When McGroerty found McDonough, he was on the ground lying on his side and his breathing [*10] was heavy and labored. (D.I. 71 at A44) McDonough appeared to have trouble breathing and was not responsive. (D.I. 71 at A44) According to McGroerty, McDonough appeared to be unconscious. (D.I. 71 at A44) Based on these observations, McGroerty called 911 from his cellular phone. (D.I. 71 at A44) After calling 911, McGroerty went to the start/finish area and sought assistance. (D.I. 71 at A42 and A87) He led two people back to where McDonough was found and they administered CPR until an ambulance arrived. (D.I. 71 at A42 and A87-A88) According to Dowd, one of the two people who administered CPR, no one gave McDonough any water before the ambulance arrived because no water was provided. (D.I. 71 at A88) Blaker, however, testified that when McDonough’s bike was brought back from where McDonough had been found, it still had a water bottle attached to it that was half full. (D.I. 71 at A65)

Dowd stated that the race was “generally disorganized” and that there was a lot of confusion. (D.I. 71 at A86) According to Dowd, the race was delayed for 30 minutes and no maps of the course were given to the participants or posted. (D.I. 71 at A87-A88) Small, the NORBA official on duty at the race, [*11] reported to NORBA that the “race director [Bowen] was ‘light’ in the emergency medical area.” (D.I. 84 at A110) Small also reported that no course maps were available, but that the course was adequately marked. (D.I. 84 at A110) Overall, Small stated that mistakes were made since no water was provided, no emergency medical personnel were on site, and the course was too long. (D.I. 84 at A114)

Dowd stated that it took her about 5 minutes to reach McDonough and that the ambulance arrived 10 to 15 minutes after she began administering CPR. (D.I. 71 at A88) When the ambulance arrived, McDonough was treated by paramedics and helicoptered to the Medical Center of Delaware in Christiana, Delaware. (D.I. 71 at A23) Although hospitalized, McDonough died of heat stroke on August 30, 1993. (D.I. 70 at 1)

III. DISCUSSION

1. Summary Judgment Standard

[HN1] Summary judgment should be granted only if a court concludes that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). [HN2] The moving party bears the burden of proving that no genuine issue of material fact is in dispute. Matsushita Elec. Indus. [*12] Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 n.10, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Once the moving party has carried its initial burden, the nonmoving party “must come forward with ‘specific facts showing that there is a genuine issue for trial.'” Id. at 587. “Facts that could alter the outcome are ‘material,’ and disputes are ‘genuine’ if evidence exists from which a rational person could conclude that the position of the person with the burden of proof on the disputed issue is correct.” Horowitz v. Federal Kemper Life Assurance Co., 57 F.3d 300, 302 n.1 (3d Cir. 1995) (citations omitted). If the nonmoving party fails to make a sufficient showing on an essential element of his case with respect to which he has the burden of proof, the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The mere existence of some evidence in support of the nonmoving party will not be sufficient for denial of a motion for summary judgment; there must be enough evidence to enable a jury reasonably to find for the nonmoving party on that factual issue. Anderson v. Liberty Lobby, [*13] Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). This court, however, must “view the underlying facts and all reasonable inferences therefrom in the light most favorable to the party opposing the motion.” Pennsylvania Coal Ass’n v. Babbitt, 63 F.3d 231, 236 (3d Cir. 1995) (citation omitted).

2. Express or Primary Assumption of Risk

[HN3] Since Delaware adopted a comparative negligence statute, 1 it has become necessary to distinguish between primary and secondary assumption of the risk. Koutoufaris v. Dick, 604 A.2d 390, 397 (Del. 1992); cf. Bib v. Merlonghi, 252 A.2d 548, 550 (Del. 1969) Primary assumption, sometimes referred to as express assumption of risk, “involves the express consent to relieve the defendant of any obligation of care while secondary assumption [of risk] consists of voluntarily encountering a known unreasonable risk which is out of proportion to the advantage gained.” Koutoufaris, 604 A.2d at 397-398. With the adoption of the comparative negligence statute in Delaware, secondary assumption of risk became “totally subsumed within comparative negligence.” Id. at 398. Primary assumption of risk, however, still exists as [*14] a complete bar to recovery. See id. (stating that primary assumption of risk “might well constitute a complete bar to recover, as a matter of law, even in a comparative negligence jurisdiction”) (citation omitted); see also Patton v. Simone, 626 A.2d 844, 852 (Del. Super. Ct. 1992); see also Staats v. Lawrence, 576 A.2d 663, 668 (Del. Super. Ct. 1990).

1 In 1984, Delaware adopted a modified comparative negligence statute, which allows a jury to apportion liability where both parties are negligent only if the plaintiff’s negligence is less than fifty percent. 10 Del. C. § 8132 (1984).

Defendants argue that plaintiffs’ action is barred, as a matter of law, because McDonough expressly assumed the risks inherent in an off-road bicycle race when he signed the release. Defendants contend that the release, in plain and unambiguous language, is intended to protect defendants from all liability arising out of any hazards encountered in an off-road bike race. (D.I. 78 at 9) Defendants assert that McDonough, [*15] as a college graduate and former participant in a NORBA event, must have had an understanding of the these inherent dangers when he signed the release. As further support, defendants note that McDonough signed an identical Agreement and Release just one week prior to the C & D race. Based on these facts, defendants assert that summary judgment is appropriate.

In considering the facts and making all reasonable inferences in plaintiffs’ favor, the court finds to the contrary. [HN4] A release will not be set aside if the language is clear and unambiguous. Hallman v. Dover Downs, Inc., 1986 U.S. Dist. LEXIS 15708, Civ. A. No. 85-618 CMW, 1986 WL 535 at *2 (D. Del., Dec. 31, 1986) (citing Chakov v. Outboard Marine Corp., 429 A.2d 984, 985 (Del. 1981); see Bennett v. United States Cycling Federation, 193 Cal. App. 3d 1485, 239 Cal. Rptr. 55, 58 (Cal. Ct. App. 1987). [HN5] Where the language of a release is ambiguous, it must be construed strongly against the party who drafted it. Hallman, 1986 WL 535 at *2; Bennett, 239 Cal. Rptr. at 58. [HN6] In an express agreement to assume a risk, a plaintiff may undertake to assume all risks of a particular relation or situation, whether they are known or unknown to him. [*16] Restatement (Second) of Torts, § 496D, cmt. a, (1965). However, for the release to be effective, it must appear that the plaintiff understood the terms of the agreement, or that a reasonable person in his position would have understood the terms. Bennett, 239 Cal. Rptr. at 58. As the Bennett court stated, “there is little doubt that a subscriber of a bicycle release . . . must be held to have waived any hazards relating to bicycle racing that are obvious or that might reasonably have been foreseen.” Id. These hazards include “collisions with other riders, negligently maintained equipment, bicycles which were unfit for racing but nevertheless passed by organizers, [and] bad road surfaces . . . .” Id. Thus, the understanding of the parties when the release was executed, in light of all the facts and circumstances, is paramount in determining whether the language is clear and unambiguous. Hallman, 1986 WL 535 at *2. The evidence must establish that the parties intended the release to apply to the particular conduct of the defendant which has caused the harm. Restatement (Second) of Torts, § 496B, cmt. d, (1965).

In the present case, plaintiffs assert that [*17] a genuine issue of material fact exists as to whether McDonough understood that the release included a waiver against the hazards created by defendants’ alleged negligent and reckless conduct in promoting the race. The court agrees.

IV. CONCLUSION

For the reasons stated above, the court shall deny defendants’ motion for summary judgment. An order will issue consistent with this memorandum opinion.

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Hong, v. Hockessin Athletic Club, 2012 Del. Super. LEXIS 340

Hong, v. Hockessin Athletic Club, 2012 Del. Super. LEXIS 340

Jahndee Hong, as Guardian/Next Friend of Jaden Hong, a minor, Plaintiff, v. Hockessin Athletic Club, and Eastern Athletic Clubs, Llc, a Delaware limited liability company, Defendants.

C.A. No. N12C-05-004 PLA

SUPERIOR COURT OF DELAWARE, NEW CASTLE

2012 Del. Super. LEXIS 340

June 4, 2012, Submitted

July 18, 2012, Decided

JUDGES: Peggy L. Ableman, Judge.

OPINION BY: Peggy L. Ableman

OPINION

This 18th day of July, 2012, it appears to the Court that:

1. Defendants Hockessin Athletic Club (“HAC”) and Eastern Athletic Clubs, LLC (collectively, “Defendants”) have filed a Motion to Dismiss pursuant to Superior Court Civil Rule 12(b)(6), asserting that Plaintiff’s negligence claim is barred by a liability waiver that was executed as part of the club’s Membership Agreement. For the reasons set forth below, the Court agrees that the liability waiver bars Plaintiff’s claim. Accordingly, Defendants’ Motion to Dismiss is GRANTED.

2. Plaintiff Jahndee Hong (“Hong”) brought this negligence action against Defendants on behalf of her son Jaden Hong (“Jaden”). On March 16, 2011, when he was three years old, Jaden fell from indoor playground equipment at the HAC and broke his right arm. 1 On October 30, 2010, Hong and her husband Minsuk Hong executed a Membership Application and Agreement (“Agreement”) with the HAC. The membership application listed the names and ages of the Hongs’ three children, including Jaden. The Agreement includes a waiver and release of [*2] liability. The Agreement defines a Member as “the individual signer and any and all other persons included in his/her membership with HAC.” Under the heading “WAIVER AND RELEASE OF LIABILITY AND INDEMNITY AGREEMENT,” the Agreement provides as follows:

Member hereby acknowledges that in using the facilities, programs and equipment of HAC, he/she does so entirely at his/her own risk and assume[s] the risk of any injury and/or damage while engaging in any physical exercise or activity or use of any club facility on the premises. This assumption of the risk included, without limitation, Member’s use of any exercise equipment (mechanical or otherwise), the locker room, sidewalk, parking lot, stairs, pool, whirlpool, sauna, steam room, racquet courts, lobby hallways, or any equipment in the facility. Member further agrees to assume the risk in participating in any activity, class, program, instruction, or any event sponsored by HAC. Insurance liability conditions and HAC prohibit any personal training lessons or services by non-HAC staff. Violations of such can result in membership termination.

By executing this Agreement, Member does HEREBY WAIVE, RELEASE AND FOREVER DISCHARGE, HAC and its [*3] past, present and future subsidiaries, affiliates, successors, predecessors, executors, committees, fiduciaries, trustee, employee benefit plans, workers compensation carriers, plan administrators, administrators, partners, employees, insureds, assigns, agents, and representatives in their personal and professional capacities (collectively “HAC”), from all claims, demands, injuries, damages, actions or causes of action, and from all acts of active or passive negligence on the part of such company, corporation, club, its servants, agents, or employees of any nature whatsoever, including attorneys’ fees and costs arising out of or connection with the aforementioned activities. Member further agrees to indemnify and hold harmless HAC from any claims, demands, injuries, damages, actions or causes of action, loss, liability, damage or cost which HAC may incur due to Members[‘] presence at or use of the facility. Member further agrees that the foregoing warranty, waiver and indemnity agreement is intended to be as broad and inclusive as permitted by the law of the State of Delaware and that if any portion is deemed to be invalid, it is expressly agreed that the remaining terms shall remain [*4] in full legal force and effect.

MEMBER ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND FULLY UNDERSTANDS THAT IT IS A RELEASE OF LIABILITY AND EXPRESS ASSUMPTION OF RISK AND INDEMNIFICATION. MEMBER IS AWARE AND AGREES THAT BY EXECUTING THIS WAIVER AND RELEASE, HE/SHE IS GIVING UP THE RIGHT TO BRING LEGAL ACTION OR ASSERT A CLAIM AGAINST HAC FOR ITS NEGLIGENCE AND/OR FOR ANY DEFECTIVE PRODUCT THAT MAY BE IN THE FACILITY OR ON ITS PREMISES. BY SIGNING BELOW, MEMBER SIGNIFIES THAT HE/SHE HAS READ AND VOLUNTARILY SIGNED THIS AGREEMENT AND THAT NO ORAL REPRESENTATIONS, STATEMENTS OR INDUCEMENTS APART FROM THIS FOREGOING AGREEMENT HAVE BEEN MADE.

HAC contends that the liability waiver bars Plaintiff’s suit. Plaintiff responds that the waiver does not bar Plaintiff’s claim because the waiver, which refers to “all acts of active or passive negligence […] arising out of or in connection with the aforementioned activities,” is ambiguous and can be interpreted as applying only to the Member’s assumption of the risk of HAC’s negligence in participating in “any activity, class, program, instruction, or any event sponsored by HAC.”

1 Complaint at ¶ 8. The Complaint makes no specific [*5] allegations as to what was wrong with the playground equipment or how HAC’s negligence caused or contributed to Jaden’s injury. Rather, the Complaint alleges that HAC was negligent in that they (a) failed to take reasonable measures to make premises safe for invitees; (b) failed to properly and reasonably inspect the premises; (c) failed to take reasonable measures to make the premises safe; (d) failed to supervise the plaintiff and other invitees on the property to make sure the invitees were safe at all relevant times herein; and (e) were otherwise negligent. See Compl. at ¶ 9. The Court observes that [HN1] playground injuries are a fairly typical hazard of childhood and that the mere fact that a child broke his arm while at the playground ordinarily would not, by itself, demonstrate negligence on the part of the owner of the premises. The Court further notes that [HN2] Delaware’s rules of pleading prohibit plaintiffs from using a complaint as a fishing expedition to see whether a wrong has been committed. See, e.g., Leary v. Eschelweck, 2012 Del. Super. LEXIS 206, 2012 WL 1664236, at *2 (Del. Super. May 8, 2012). The Complaint as presented in this case comes dangerously close to running afoul of that rule.

3. The Court [*6] must first determine whether to adjudicate Defendants’ motion as presented or convert it to a motion for summary judgment. 2 [HN3] Superior Court Civil Rule 12(b)(6) provides that a motion to dismiss shall be treated as a motion for summary judgment under Rule 56 if “matters outside the pleadings are presented to and not excluded by the Court.” 3 HAC has submitted a copy of the signed liability waiver at issue, which Hong also addresses in her Response. Therefore, this motion will be treated as one for summary judgment.

2 Slowe v. Pike Creek Court Club, Inc., 2008 Del. Super. LEXIS 377, 2008 WL 5115035, at 2 (Del. Super. Dec. 4, 2008).

3 Super. Ct. Civ. R. 12(b)(6).

[HN4] When considering a motion for summary judgment, the Court examines the record to determine whether genuine issues of material fact exist and to determine whether the moving party is entitled to judgment as a matter of law. 4 [HN5] Summary judgment will be granted if, after viewing the evidence in the light most favorable to the non-moving party, there are no material facts in dispute or judgment as a matter of law is appropriate. 5

4 Super. Ct. Civ. R. 56(c).

5 Storm v. NSL Rockland Place, LLC, 898 A.2d 874, 879-80 (Del. Super. 2005).

4. In the factual context of this [*7] case, the question of whether the liability waiver that Hong signed as part of the Membership Agreement with HAC now bars her claim against Defendants is an easy one. In Slowe v. Pike Creek Court Club, which involved a guest who fell on a set of negligently maintained stairs in the swimming pool at the Pike Creek Court Club, a forerunner to the Hockessin Athletic Club, this Court held that [HN6] “a provision exonerating a party for its own negligence will only be given effect if the language makes it crystal clear and unequivocal that the parties specifically contemplated such a release.” 6 [HN7] Delaware courts have held that the requirement of “crystal clear and unequivocal” language is satisfied where contractual provisions include language “specifically refer[ring] to the negligence of the protected party.” 7 The Court found that the liability release at issue in Slowe included no specific language indicating that the parties contemplated that the waiver would extend to PCCC’s own acts of negligence. 8 Moreover, as the Court noted in Slowe, PCCC’s liability release lacked “alternative language expressing that PCCC would be released for its own fault or wrongdoing,” concluding that the plaintiff [*8] could reasonably have concluded that the release would only relieve PCCC of liability for injuries or losses resulting from risks inherent in his use of the club. 9

6 Id. (quoting J.A. Jones Constr. Co. v. City of Dover, 372 A.2d 540, 553 (Del. Super. 1977)) (internal quotation marks omitted).

7 Id.; see also Hallman v. Dover Downs, Inc., 1986 U.S. Dist. LEXIS 15708, 1986 WL 535, at *4 (D. Del. Dec. 31, 1986) (collecting cases).

8 Slowe, 2008 Del. Super. LEXIS 377, 2008 WL 5115035, at *3.

9 Id.

5. The Court similarly found that Slowe did not expressly assume the risk of PCCC’s negligence by signing the liability waiver because the waiver did not “clearly, explicitly and comprehensibly notify Slowe that he was assuming the risk that PCCC would negligently fail to maintain and inspect the premises.” 10 The Slowe Court left open the possibility, however, that “a properly-worded release might effect a waiver of premises liability.” 11

10 2008 Del. Super. LEXIS 377, [WL] at *5.

11 Id. The Slowe Court cited to Benedek v. PLC Santa Monica LLC, 104 Cal. App. 4th 1351, 129 Cal.Rptr. 2d 197 (Cal. Ct. App. 2002), which held that the defendant health club’s release barred plaintiff’s claim for negligence and premises liability arising out of injuries he sustained when he tried to catch a falling television set. The [*9] Benedek court reasoned, “[t]he release Benedek signed was clear, unambiguous, and explicit. It released [the health club] from liability for any personal injuries suffered while on [the health club’s] premises, ‘whether using exercise equipment or not.'” The court further noted that given the unambiguous broad language of the release, it “reached all personal injuries suffered by Benedek on [the health club’s] premises, including the injury Benedek suffered because of the falling television” and rejected as “not semantically reasonable” plaintiff’s argument that the release applied or should be interpreted to apply only to injuries suffered while actively using exercise equipment. 129 Cal.Rptr.2d at 204.

6. Here, Hong signed a comprehensive waiver of liability and release in connection with her Membership Agreement that expressly stated that she (and all others on her membership) assumed the risk of “any injury or damage incurred while engaging in any physical exercise or activity or use of any club facility on the premises,” including the use of “any equipment in the facility” and participation “in any activity, class, program, instruction, or any event sponsored by HAC.” Plaintiff’s [*10] suggestion that “the aforementioned activities” specified in the second paragraph of the liability waiver applies only to activities sponsored by HAC, such as a group exercise class, is an implausible reading of the contract. Accordingly, the Court finds that the Membership Agreement and the included liability waiver and release bar Plaintiff’s claims against HAC.

7. Alternatively, notwithstanding the liability waiver, summary judgment should still be granted based on Plaintiff’s failure to make a prima facie case of negligence against Defendants. 12 The Complaint contains no specific allegations about the nature of HAC’s negligence and how it caused Jaden’s injury. Rather, the Complaint asserts, in vague and conclusory fashion, that Defendants negligently

(a) failed to take reasonable measures to make premises safe for invitees;

(b) failed to properly and reasonably inspect the premises;

(c) failed to take reasonable measures to make their premises safe;

(d) failed to supervise the plaintiff and other invitees on the property to make sure the invitees were safe at all relevant times herein; and

(e) were otherwise negligent. 13

In the absence of specific, particularized allegations about [*11] the nature of HAC’s negligence and how it caused Jaden’s injuries, the Complaint must fail.

12 To the extent that Plaintiff believes that she is entitled to discovery to meet her burden, the Court considers the allegations of negligence in the Complaint too vague and generic to allow Plaintiff to conduct what would essentially be a fishing expedition to discover evidence of Defendants’ unspecified negligence. See supra note 1. Summary judgment is therefore appropriate even at this early stage of the litigation.

13 Compl. at ¶9.

8. The Delaware Supreme Court recently upheld this Court’s grant of summary judgment in favor of a car dealership where a would-be customer walked into a plate-glass window at the dealership, noting that while owners and occupiers of commercial property have a duty to maintain their premises in a reasonably safe condition for their customers, patrons also have an affirmative obligation to exercise reasonable care while on the business owner’s premises. 14 [HN8] In a personal injury action, the plaintiff-customer bears the burden of proving that: (i) there was an unsafe condition on the defendant’s premises; (ii) the unsafe condition caused the plaintiff’s injuries; and [*12] (iii) the defendant had notice of the unsafe condition or should have discovered it by reasonable inspection. 15

14 Talmo v. Union Park Automotive, 38 A.3d 1255, 2012 WL 730332, at *3 (Del. Mar. 7, 2012) (TABLE); see also DiOssi v. Maroney, 548 A.2d 1361, 1366-7 (Del. 1988); Howard v. Food Fair Stores, New Castle, Inc., 57 Del. 471, 201 A.2d 638, 640, 7 Storey 471 (Del. 1964); Walker v. Shoprite Supermarket, Inc., 864 A.2d 929 (Del. 2004) (holding that it is negligent for a patron not to see what is plainly visible when there is nothing obscuring the patron’s view).

15 Talmo, 38 A.3d 1255, 2012 WL 730332, at *3.

9. Plaintiff here has failed to make any allegations that even raise a clear issue of fact with regard to Defendants’ negligence. Unlike in Slowe, Plaintiff has not alleged the existence of any dangerous condition on the premises that was the result of the health club’s failure to perform its duties, which were statutory and could not have been disclaimed by liability waiver in any event. 16 Here, Plaintiff has made no allegation that the playground equipment was defective, that the premises otherwise suffered from a latent defect that HAC should have known about and either repaired or warned its invitees [*13] to avoid, or that HAC failed to fulfill a duty to supervise Jaden. Rather, this appears to be a typical incident of a child who was injured on a playground. Such incidents, while unfortunate, do not indicate negligence on the part of the premises-owner any more than does the case of the man who walked into a plate-glass window at a car dealership. Accordingly, based upon Plaintiff’s failure to make a prima facie case of negligence under a theory of premises liability, summary judgment should be granted in favor of Defendants.

16 Slowe, 2008 Del. Super. LEXIS 377, 2008 WL 5115035, at *5-*6.

10. For all of the reasons set forth above, Defendants’ motion for summary judgment is GRANTED.

IT IS SO ORDERED.

/s/ Peggy L. Ableman

Peggy L. Ableman, Judge

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States that allow a parent to sign away a minor’s right to sue

If your state is not listed here, you should assume a parent cannot waive a minor’s right to sue in your state.

State

By Statute

Restrictions

Alaska

Alaska: Sec. 09.65.292

Sec. 05.45.120 does not allow using a release by ski areas for ski injuries

Arizona

ARS § 12-553

Limited to Equine Activities

Colorado

C.R.S. §§13-22-107

Release stops suit for falling off horse at Colorado summer Camp

Florida

Florida Statute § 744.301 (3)

New Florida law allows a parent to sign away a child’s right to sue for injuries

 

By Case Law

 

California

Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647 (1990)

 

Delaware

Hong v. Hockessin Athletic Club, 2012 Del. Super. LEXIS 340

Delaware decision upholds a release signed by a parent against a minor’s claims

Delaware holds that mothers signature on contract forces change of venue for minors claims.

Florida

Global Travel Marketing, Inc v. Shea, 2005 Fla. LEXIS 1454

Allows a release signed by a parent to require arbitration of the minor’s claims

Florida

Gonzalez v. City of Coral Gables, 871 So.2d 1067, 29 Fla. L. Weekly D1147

Release can be used for volunteer activities and by government entities

Massachusetts

Sharon v. City of Newton, 437 Mass. 99; 769 N.E.2d 738; 2002 Mass. LEXIS 384

 

Minnesota

Moore vs. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299

Minnesota decision upholds parent’s right to sign away a minor’s right to sue.

North Dakota

McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3

North Dakota decision allows a parent to sign away a minor’s right to sue

Ohio

Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998)

Ohio Appellate decision upholds the use of a release for a minor for a commercial activity

Wisconsin

Osborn v. Cascade Mountain, Inc., 655 N.W.2d 546, 259 Wis. 2d 481, 2002 Wisc. App. LEXIS 1216, 2003 WI App 1

However the decision in Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2 voided all releases in the state

 

On the Edge, but not enough to really rely on

 

North Carolina

Kelly v. United States of America, 2011 U.S. Dist. LEXIS 89741

Ruling is by the Federal District Court and only a preliminary motion

North Carolina may allow a parent to sign away a minor’s right to sue for injuries when the minor is engaged in non-profit activities sponsored by schools, volunteers, or community organizations

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