Lynam v. Blue Diamond LLC, 2016 Del. Super. LEXIS 495
Thomas A Lynam, III and Antoinette M. Lynam, as Parents and Natural Guardians of Thomas A. Lynam, IV, a minor,
Blue Diamond LLC and Parkway Gravel Inc. and Houghton’s Amusement Park, LLC
C.A. No. N14C-11-121 RRC
Superior Court of Delaware, New Castle
October 4, 2016
Submitted: July 6, 2016
On Defendants Blue Diamond LLC’s and Parkway Gravel, Inc.’s Motion for Judgment on the Pleadings.
Tabatha L. Castro, Esquire The Castro Firm, Inc. Attorney for Plaintiffs
Leonard G. Villari, Esquire Villari, Lentz & Lynam, LLC Attorney Pro Hac Vice for Plaintiffs
Marc S. Casarino, Esquire Dana Spring Monzo, Esquire Nicholas Wynn, Esquire White and Williams, LLP Attorneys for Defendants Blue Diamond LLC and Parkway Gravel, Inc.
Pending before this Court is Defendants Blue Diamond LLC’s and Parkway Gravel, Inc.’s (“Defendants”) Motion for Judgment on the Pleadings. In their complaint, Plaintiffs allege that minor Thomas Lynam, IV (“Tommy”) was riding his motocross bicycle on Defendants’ motocross track. After riding off a jump, Tommy landed, lost control of his motocross bicycle, and collided with a metal shipping container near the track. Tommy apparently sustained serious injuries. Plaintiffs’ complaint raises one count of “negligence” as a theory for liability.Although not listed as a separate count in their complaint, Plaintiffs allude in their general “negligence” claim to a theory of reckless conduct by Defendants in connection with the operation of the motocross track.
In their motion, Defendants assert that their alleged behavior was, as a matter of fact and law, neither negligent nor reckless. Alternatively, Defendants raise an affirmative defense that they are released from any liability for negligent or reckless conduct due to a release agreement (the “Release”) signed by the Plaintiffs. Additionally, Defendants raise the doctrine of assumption of the risk as a separate affirmative defense as a bar to recovery.
Plaintiffs agree that they released Defendants from liability for Defendants’ own “negligence.” However, Plaintiffs contend that Defendants’ conduct amounted to recklessness, and that Plaintiffs never released Defendants from liability for their allegedly reckless conduct. In response to Defendants’ claim that Plaintiffs assumed the risk of injury, Plaintiffs contend that the risk of a collision with a metal shipping container was not contemplated at either the signing of the Release or when Tommy began using the facilities.
This Court concludes that the Release was not specifically tailored so as to release Defendants from liability for their allegedly reckless conduct. The Court also finds that the factual record is insufficiently developed to make a legal determination of whether Defendants’ conduct as a matter of law amounted to recklessness. Finally, the Court concludes that it is premature at this juncture to consider Defendant’s affirmative defense. Accordingly, the Court denies Defendants’ Motion for Judgment on the Pleadings.
II.FACTUAL AND PROCEDURAL HISTORY
On January 6, 2013, Tommy, then thirteen years old, was riding a motocross bicycle at Blue Diamond Motocross near New Castle. Plaintiffs allege that the track was advertised as being composed of “safe jumps.” While riding, Tommy rode off a jump, made a hard landing, and was unable to stop in time before colliding with a large metal shipping container.
Prior to granting Tommy admission to the Blue Diamond facilities to ride his motocross bicycle, Blue Diamond required Tommy’s father to sign a release agreement. The Release, entitled “Parental Consent, Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement, ” stated that Plaintiffs understood the “risks and dangers of serious bodily injury” posed by motocross and relieved Defendants from liability for their own negligence. The Release also released Defendants from liability for injuries suffered by Plaintiffs through their own negligence.
In their complaint, Plaintiffs allege that Defendants negligently allowed the container to remain on the premises at an unsafe distance from the motocross track. While Plaintiffs do not specifically allege recklessness as a separate claim for recovery, but rather include it in a single count of “Negligence, ” Plaintiffs’ complaint references reckless conduct as another potential theory of recovery.Plaintiffs, however, now agree that their claims of negligence are barred by the Release. But Plaintiffs assert that the Release did not specifically address or contemplate potential claims against Defendants for “reckless” behavior.
A. Standard of Review
Under Superior Court Civil Rule 12(c), a party may move for judgment on the pleadings after the pleadings are closed. The standard of review in the context of a motion for judgment on the pleadings requires a court to “accept all the complaint’s well-pleaded facts as true and construe all reasonable inferences in favor of the non-moving party.” “The motion will be granted when no material issues of fact exist, and the moving party is entitled to judgment as a matter of law.” “The standard for a motion for judgment on the pleadings is almost identical to the standard for a motion to dismiss.”
B. The Parties Agree that the Release Bars Plaintiffs’ Recovery Against Defendants for Any Negligence
Defendants contend that the executed Release bars recovery for negligence. At oral argument on this motion, Plaintiffs agreed (Plaintiffs’ filings were not explicit on this point) that the Release bars recovery for injuries resulting from Defendants’ allegedly negligent conduct. Although Plaintiffs are residents of Pennsylvania, the parties agree that Delaware law applies to the present motion, as Defendants are Delaware businesses and the incident giving rise to the case at bar occurred in Delaware.
Under Delaware law, parties may enter into an agreement that relieves a business owner of liability for injuries to business invitees that result from the owner’s negligent conduct. However, the release must be unambiguous, not unconscionable, and not against public policy.  Further, the release must be “‘crystal clear and unequivocal’ to insulate a party from liability for possible future negligence.”
In Ketler v. PFPA, LLC, the Delaware Supreme Court recently determined the validity of a release waiving liability for negligence. The release in Ketler provided:
‘I understand and voluntarily accept this risk and agree that [the defendant] . . . will not be liable for any injury, including, without limitation, personal, bodily, or mental injury . . . resulting from the negligence of [the defendant] or anyone on [the defendant’s] behalf whether related to exercise or not. Accordingly, I do hereby forever release and discharge [the defendant] from any and all claims, demands, injuries, damages, actions, or causes of action.'
The Delaware Supreme Court held that the release was sufficiently clear and unequivocal, and that it expressly released the defendant from any and all causes of actions relating to the defendant’s own negligence. Defendants rely heavily on this case, asserting that it applies to claims of reckless conduct.
The Release that Plaintiffs executed in this case is also sufficiently “clear and unequivocal.” The Release provides:
3. I consent to the Minor’s participation in the Event(s) and/or entry into restricted areas and HEREBY ACCEPT AND ASSUME ALL SUCH RISKS, KNOWN AND UNKNOWN, AND ASSUME ALL RESPONSIBILITY FOR THE LOSSES, COSTS, AND/OR DAMAGES FOLLOWING SUCH INJURY, DISABILITY, PARALYSIS OR DEATH, EVEN IF CAUSED, IN WHOLE OR IN PART, BY THE NEGLIGENCE OF THE “RELEASEES” NAMED BELOW.
4. I HEREBY RELEASE, DISCHARGE AND COVENANT NOT TO SUE the . . . track owners, [and] owners and lessees of premises used to conduct the Event(s) . . . all for the purposes herein referred to as “Releasees, ” FROM ALL LIABILITY TO ME, THE MINOR, [and] my and the minor’s personal representatives . . . FOR ANY AND ALL CLAIMS, DEMANDS, LOSSES, OR DAMAGES ON ACCOUNT OF INJRY, including, but not limited to, death or damage to property, CAUSED . . . BY THE NEGLIGENCE OF THE “RELEASEES” OR OTHERWISE.
Similar to the language at issue in Ketler, the Release expressly states that the signor assumes responsibility for injuries caused by Defendants’ own negligent conduct. The release also expressly states that the Defendants are released from any and all causes of action that may arise from Defendants’ negligent conduct. Accordingly, this Court agrees with the parties that the Release validly exculpates Defendants from liability for their own negligence.
Defendants also rely on Lafate v. New Castle County and Devecchio v. Delaware Enduro Riders, Inc. to support their position that the Release waives claims of reckless conduct. Both Lafate and Devecchio concern agreements that released the tortfeasors from liability for their own negligent conduct. Both cases also discussed whether the language of the releases was sufficiently tailored to release the tortfeasor’s negligent conduct. In Lafate, this Court refused to grant the defendant’s motion for summary judgment on grounds that the release did not clearly and unambiguously release the tortfeasor from claims that it was negligent. In Devecchio, this Court granted the defendant’s motion for summary judgment because the plaintiff signed a valid covenant not to sue for injury resulting from the plaintiffs own negligence.
Defendants’ reliance on these cases in light of Plaintiffs’ potential claim of reckless conduct is inapposite. Because the parties have agreed that Defendants are insulated from claims of negligence, the question of whether the release clearly and unambiguously insulates the defendants from liability for their own negligent conduct is moot. Neither the holding in Lafate nor in Devecchio relate to allegations of reckless conduct. Accordingly, because Plaintiffs now assert that Defendant’s conduct was reckless, Lafate and Devecchio are distinguishable from the case at bar.
Finally, the Court considers whether, for purposes of this motion, recklessness is subsumed in negligence, and is therefore barred as a form of negligence. Prosser and Keeton on Torts is particularly informative, providing that “such [exculpatory] agreements [that expressly exempt defendants from liability for their negligent conduct] generally are not construed to cover the more extreme forms of negligence, described as willful, wanton, reckless or gross, and to any conduct which constitutes an intentional tort.” Adopting Prosser and Keeton’s interpretation, this Court finds that although the Release does insulate Defendants from liability for negligent conduct, it does not bar claims of “more extreme forms of negligence, ” such as “reckless” conduct.
C. A Motion for Judgment on the Pleadings is Inappropriate at this Juncture in Light of any Undeveloped Claims of Reckless Conduct
Although Tommy’s father’s execution of the Release precludes recovery from Defendants on a theory of “negligence, ” Plaintiffs assert that the Defendants’ conduct was “reckless.” Plaintiffs did not explicitly allege in a separate count of the complaint that Defendant’s conduct was reckless, but Plaintiffs did make it apparent in the complaint that it was an intended theory of liability. In their briefing and at oral argument, Plaintiffs suggested that Defendants, among other things, had been aware of previous collisions with the shipping container, and that their ignorance of these prior incidents amounts to reckless behavior.Accordingly, the Court must determine whether the Release bars Plaintiffs from asserting claims resulting from injuries caused by Defendants’ reckless conduct.
Courts in Delaware have a strong preference for resolving cases on their merits, or at least allowing discovery to proceed such that additional evidence in support of the parties’ contentions can be developed. While this preference is not outcome-determinative, the preference for resolving cases on the merits is a strong factor in determining whether to grant or deny a dispositive motion.
Plaintiffs, at oral argument and in their response to the motion, argue that they are entitled to recovery based on Defendants’ allegedly reckless conduct. The parties agree that this theory is separate from the one count of “negligence” listed in the complaint. The operative language of the Release does not explicitly enumerate or contemplate recklessness as a theory of recovery barred by the Release. Under Delaware law, as provided in Ketler, a release must be “clear and unambiguous” in order to effectively release the business owner from liability.
This Court finds that the language of the release is not “clear and unambiguous” with respect to Defendants’ liability for their own allegedly reckless conduct. In Ketler, the release at issue specifically used the word “negligence, ” and stated that Defendants “will not be liable for any injury, including, without limitation, personal, bodily, or mental injury . . . resulting from the negligence of [the defendants].” The Delaware Supreme Court held that this language satisfied the “clear and unequivocal” standard and upheld the language of the agreement.
Turning to the Release that Plaintiffs executed, this Court finds that the Release is silent as to claims of recklessness. The Release does not mention “reckless” conduct, and instead only expressly refers to injury caused by Defendants’ “negligence.” In the absence of such language, the Release does not clearly and unambiguously exculpate Defendants from liability for their own reckless conduct. Accordingly, the Release does not operate to bar Plaintiffs’ claim of recklessness.
This Court holds that the Release does not bar claims of reckless conduct. This Court expresses no opinion at this juncture as to whether Plaintiffs ultimately can establish claims against for recklessness. Accordingly, the Court denies Defendants’ Motion for Judgment on the Pleadings, and will grant Plaintiffs leave to conduct further discovery with the option of potentially amending the complaint in support of their contention that Defendants’ conduct was “reckless.”
D. The Court does Not Reach Defendant’s Argument under the Doctrine of Assumption of the Risk
Finally, Defendants’ contend that Plaintiffs assumed the risk of injury from Defendants’ alleged reckless conduct. However, the record has not been sufficiently developed to determine whether Defendants’ conduct was reckless or whether Plaintiffs assumed the risk of injury from Defendants’ allegedly reckless conduct. Accordingly, the Court does not reach this contention at this stage of the litigation.
Defendant’s Motion for Judgment on the Pleadings is DENIED. The Court has enclosed an Order establishing a Scheduling Conference in this case.
Very truly yours,
Richard R. Cooch Resident Judge
 Defendant Houghton’s Amusement Park, LLC did not make an appearance in this case and had a default judgment taken against it on June 21, 2016.
Compl. ¶¶ 79-87.
Compl. ¶ 48.
Defs.’ Mot. for J. on the Pleadings, Ex. A.
Defs.’ Mot. for J. on the Pleadings, Ex. A. Tommy also signed an agreement, titled “Minor’s Assumption of the Risk Acknowledgment, ” that Defendants reference in their motion as another reason they are not liable for Plaintiffs’ injuries. However, it appears from the motion and subsequent filings that the release signed by Tommy is only mentioned in passing, and is not relied upon by Defendants. The release signed by Tommy’s father is the determinative release in the case at bar.
Compl. ¶¶ 79-87.
Compl. ¶¶ 49, 51, 77, 87. Specifically, the Complaint alleges that “Defendants’ failure to exercise reasonable care as alleged above comprised outrageous conduct under the circumstances, manifesting a wanton and reckless disregard of the rights of the Plaintiffs.” Compl. ¶ 87. The Complaint also alleges that Tommy’s injuries were caused by the “reckless indifference” of Defendants. Compl. ¶¶ 51, 77. Moreover, the Complaint alleges that the track was “reckless[ly] design[ed].” Compl. ¶ 49.
At oral argument, Plaintiffs’ counsel answered in the affirmative when the Court asked “Am I understanding Plaintiffs’ position correctly when I read the papers to say that Plaintiffs are not alleging ordinary negligence, but rather recklessness?” Lynam et al. v. Blue Diamond LLC Motocross et al, C.A. No. N14C-11-121 RRC, at 6 (Del. Super. July 6, 2016) (TRANSCRIPT) [hereinafter Oral Arg. Tr.].
 Defs.’ Mot. for J. on the Pleadings, Ex. A.
 A judgment on the pleadings is based only upon a review of Plaintiffs’ complaint and Defendants’ answer. However, under Rule 12(c), “If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the Court, the motion shall be treated as one for summary judgment.” Super. Ct. Civ. R. 12(c). In the case at bar, Defendants introduced the two executed releases as exhibits to their motion. However, the releases were not a part of the pleadings. Nevertheless, the parties agree that this motion should be treated as a motion for judgment on the pleadings.
 Silver Lake Office Plaza, LLC v. Lanard & Axilbund, Inc., 2014 WL 595378, at *6 (Del. Super. Jan. 17, 2014) (quoting Blanco v. AMVAC Chem. Corp., 2012 WL 3194412, at *6 (Del. Super. Aug. 8, 2012)).
 Id. (quoting Velocity Exp., Inc. v. Office Depot, Inc., 2009 WL 406807, at *3 (Del. Super. Feb. 4, 2009).
 Id. (internal quotation marks omitted).
 See Oral Arg. Tr. at 6.
 Ketler v. PFPA, LLC, 132 A.3d 746 (Del. 2016) (upholding “hold harmless” agreements and releases that relieve a proprietor from liability for its own negligent activities).
 Id. at 747-48.
 Riverbend Cmty., LLC v. Green Stone Eng’g, LLC, 55 A.3d 330, 336 (Del. 2012) (internal quotation marks omitted) (quoting State v. Interstate Amiesite Corp., 297 A.2d 41, 44 (Del. 1972)).
 Ketler, 132 A.3d at 747.
 Oral Arg. Tr. at 14-16.
 Defs.’ Mot. for J. on the Pleadings, Ex. A (emphasis added).
 1999 WL 1241074 (Del. Super. Oct. 22, 1999).
 2004 Del. Super. LEXIS 444 (Del. Super. Nov. 30, 2004).
 The plaintiff in Lafate was injured by a metal bar used to divide a basketball court. This Court found that while the agreement did “speak of ‘any and all injuries which may be suffered by [players] during [their] participation, ‘” the absence of the word “negligence” insufficiently insulated the defendants from liability for their own negligent conduct. Lafate, 1999 WL 1241074, at *4.
 In Devecchio, the defendant owned a motorcycle race track that required riders to sign agreements releasing the defendant from liability for injuries resulting from both the riders and the defendant’s negligence. The release pertaining to the defendant’s negligence expressly used the word “negligence.” This Court found that the release using the word “negligence” was sufficiently clear and unambiguous, and therefore insulated the defendant from liability for its own negligent conduct. Devecchio v. Enduro Riders, Inc., 2004 Del. Super. LEXIS 444 (Del. Super. Nov. 30, 2004).
 W. Page Keeton, et al., Prosser and Keeton on Torts, § 68 at 483-84 (5th ed. 1984)). Delaware courts often rely on Prosser and Keeton on Torts in reaching their conclusions. See, e.g., Culver v. Bennett, 588 A.2d 1094, 1097 (Del. 1991); Lafate v. New Castle County, 1999 WL 1241074 (Del. Super. Oct. 22, 1999); Brzoska v. Olson, 668 A.2d 1355, 1360 (Del. 1995).
 Additionally, the Delaware Civil Pattern Jury Instructions for negligence and recklessness are substantially different. The Delaware Civil Pattern Jury Instruction for negligence provides:
This case involves claims of negligence. Negligence is the lack of ordinary care; that is, the absence of the kind of care a reasonably prudent and careful person would exercise in similar circumstances. That standard is your guide. If a person’s conduct in a given circumstance doesn’t measure up to the conduct of an ordinarily prudent and careful person, then that person was negligent. On the other hand, if the person’s conduct does measure up to the conduct of a reasonably prudent and careful person, the person wasn’t negligent.
Del. Super. P.J.I. Civ. § 5.1 (2003), http://courts.delaware.gov/forms/download.aspx?id=85928. On the other hand, the Delaware Civil Pattern Jury Instruction for reckless conduct states:
Reckless conduct reflects a knowing disregard of a substantial and unjustifiable risk. It amounts to an “I don’t care” attitude. Recklessness occurs when a person, with no intent to cause harm, performs an act so unreasonable and so dangerous that he or she knows, or should know, that harm will probably result.
Del. Super. P.J.I. Civ. § 5.9 (2003), http://courts.delaware.gov/forms/download.aspx?id=85928. It is apparent from a comparison of the two different jury instructions that negligence conduct requires a departure from the ordinary standard of care exhibited by the reasonably prudent person, an objective standard. However, in contrast, it appears from the pattern jury instructions that reckless conduct requires a subjective “I don’t care” attitude that evidences an even greater departure from the ordinary standard of care, amounting to an unreasonable conscious disregard of a known risk.
 Compl. ¶¶ 49, 51, 77, 87. For example, Plaintiffs allege that “The reckless design of the track, which was intentionally constructed next to the pre-existing intermodal container, requires riders to land from a jump and immediately decelerate in order to execute a 90° right turn.” Compl. ¶ 49. Moreover, Plaintiffs allege that Tommy’s injuries were “a direct and proximate result of the negligence, carelessness and reckless indifference of Defendants.” Compl. ¶ 77.
 Pl.’s Suppl. Resp. in Opp’n to the Mot. for J. on the Pleadings, at 2.
 Keener v. Isken, 58 A.3d 407, 409 (Del. 2013); see also Wallace v. Wood, 2007 WL 3331530 (Del. Ch. Oct. 31, 2007); DeSantis v. Chilkotowsky, 2004 WL 2914314, at *2 (Del. Super. Nov. 18, 2004), Sup. Ct. Civ. R. 56.
 Plaintiffs did not plead any explicit claim of recklessness. See, e.g., J.L. v. Barnes, 33 A.3d 902, 916 n.77 (De. 2011) (treating recklessness and gross negligence as interchangeable and noting, “In order for a plaintiff to plead gross negligence with the requisite particularity, the plaintiff must articulate ‘facts that suggest a wide disparity between the process  used . . . and that which would have been rational.'” J.L. states that a complaint pleading ten pages of facts to support a claim of gross negligence or recklessness was sufficient to meet the pleading standard). Defendants argue that Plaintiffs have not properly pleaded reckless conduct under Superior Court Civil Rule 9(b). However, the Court need not reach that issue since it will give Plaintiffs the opportunity to amend their complaint.
 Ketler, 132 A.3d at 747.
 Because the Court finds that Defendants’ release does not explicitly bar claims of “reckless” conduct, this Court does not reach the question of whether such a release is potentially permissible under Delaware law. However, this Court notes that other jurisdictions have differing perspectives on whether exculpatory agreements barring claims for recklessness, gross negligence, willful acts, or strict liability are enforceable. See Randy J. Sutton, Annotation, Validity, Construction, and Effect of Agreement Exempting Operator of Amusement Facility from Liability for Personal Injury or Death of Patron, 54 A.L.R.5th 513 (1997). For example, in Barker v. Colo. Region-Sports Car Club of Am., the Colorado Court of Appeals held that exculpatory agreements can release a party only for simple negligence, and not from willful and wanton negligence. 532 P.2d 372, 377 (Colo.App. 1974). Similarly, in Wheelock v. Sport Kites, Inc., the United States District Court for the District of Hawaii held that a release was invalid with respect to claims of gross negligence and strict liability. 839 F.Supp. 730, 736 (D. Haw. 1993). The above annotation suggests that a common reason to not enforce such an agreement is because they are void against the state’s public policy.
Alternatively, other jurisdictions have upheld agreements that exculpate business owners for reckless conduct or strict liability. For example, in Murphy v. N. Am. River Runners, Inc., the West Virginia Supreme Court discussed the matter, stating:
Generally, in the absence of an applicable safety statute, a plaintiff who expressly and, under the circumstances, clearly agrees to accept a risk of harm arising from the defendant’s negligent or reckless conduct may not recover for such harm, unless the agreement is contrary to public policy. When such an express agreement is freely and fairly made, between two parties who are in equal bargaining position, and there is no public interest with which the agreement interferes, it will generally be upheld.
412 S.E.2d 504, 508-09 (W.Va. 1991).
Delaware Courts have previously allowed such an amendment to be made. As this Court held in Guy v. Phillips, a party may amend a complaint following additional discovery when the amended count arises out of the same factual basis for the original complaint. 1997 WL 524124 (Del. Super. July 2, 1997).
 In support of this defense, the Court notes that Defendants rely solely on Deuley v. DynCorp Int’l, Inc., 2010 WL 704895 (Del. Super. Feb. 26, 2010). However, Deuley is distinguishable from the case at bar. In Deuley, surviving relatives of decedents killed by an improvised explosive device (“IED”) in Afghanistan filed a wrongful death action. As part of the employment agreement, the decedents signed an agreement that provided employees expressly assumed the risk of injury or death. In reaching its conclusion that the decedents assumed the risk of death, the Court found that “when [the decedents] signed the releases, even a poorly informed American had to have appreciated that working in Afghanistan involved the general risk of insurgent or terrorist attacking by an IED.” Deuley, 2010 WL 704895, at *4. “The complaint offers no reason to find that any plaintiff here was probably unaware of the general risk of being injured or killed by a bomb.” Id. In the case at bar, drawing inferences in the light most favorable to the Plaintiffs, it is unlikely that Plaintiffs were aware of the risk posed by the shipping container, since they allege that they were unable to inspect the track prior to Tommy using it. Accordingly, Defendants’ reliance on Deuley is inapposite since it could be determined that a collision with the metal shipping container was not contemplated by the Plaintiffs when they signed the Release.
Delaware Supreme Court decision quickly determines a health club release is not void because of public policy issues and is clear and unequivocal.Posted: July 18, 2016
The decision is very short and very clear. Write a clear and direct release and it will be upheld in Delaware.
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
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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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
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
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).
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 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:
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.
Sanctioning body said you must do XYZ, which creates a standard of care you will be judged by
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
What do you think? Leave a comment.
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