Assumption of the Risk is a defense to negligence and gross negligence claims in this case against a college offering for credit tour abroad study.

Student died swimming in the Pacific Ocean and his parents sued the college for his death. College was dismissed because student was an adult and assumed the risk that killed him.

Downes et al. v. Oglethorpe University, Inc., 342 Ga.App. 250 (Ga.App. 2017)

State: Georgia, Court of Appeals of Georgia

Plaintiff: Elvis Downes and Myrna Lintner (parents of the deceased)

Defendant: Oglethorpe University, Inc.

Plaintiff Claims: Negligence and Gross Negligence

Defendant Defenses: Assumption of the Risk

Holding: for the Defendant

Year: 2017

Summary

There are some risks that the courts say you understand and accept the risks because we know of them. Examples are cliffs and water. Here, the family of a student who died on a study abroad trip while swimming in the ocean could not sue because the student assumed the risks of swimming.

What is interesting is the assumption of the risk defense was used to defeat a claim of negligence and Gross Negligence.

Facts

During the 2010-2011 academic year, Oglethorpe offered to their students a 12-day study-abroad trip to Costa Rica. The students were charged a fee for the trip to pay for expenses such as airfare, lodging, and food. The students were also required to pay the ” per credit tuition rate” and were to receive four credits toward their degree for academic work associated with the trip. Oglethorpe retained Horizontes, a Costa Rican tour operator, to coordinate the trip and to provide transportation and an English-speaking guide.

Dr. Jeffrey Collins was then the director of Oglethorpe’s study-abroad program. According to Collins, Oglethorpe tried to follow ” best practices,” which is ” defined as those protocols, procedures that as best and as far as possible ensure[ ] the safety of students.” He acknowledged that students would swim on the trips. Collins was not aware of any potential dangers in Costa Rica and did no investigation to ascertain if there were potential dangers in Costa Rica.

During pre-trip meetings with Downes and the five other students who had registered for the program, Dr. Roark Donnelly and Dr. Cassandra Copeland, the two professors who accompanied the students on the trip, asked the students if everyone was a good swimmer, and the students agreed that they were. The group also discussed swimming in the ocean, including ” that there are going to be currents.” One of the professors told the students that, during a previous study-abroad trip to another location, a student had recognized that he was a weak swimmer and was required to wear a life jacket during all water activities. After hearing this, the students continued to express that they were good swimmers. Before leaving on the trip, the students were required to sign a release agreement which included an exculpatory clause pertaining to Oglethorpe.

The students and professors flew to Costa Rica on December 28, 2010. During the course of the trip, on the afternoon of January 4, 2011, the group arrived at a hotel on the Pacific coast. The six students, two professors, the guide, and the driver got into their bus and drove to a nearby beach, Playa Ventanas, which had been recommended by the hotel. Upon their arrival, there were other people on the beach and in the water. There were no warning signs posted on the beach, nor any lifeguards or safety equipment present.

The students swam in the ocean, staying mostly together, and eventually ventured out into deeper water. After about 20 minutes, Dr. Donnelly yelled for the students to move closer to shore. Shortly thereafter, student Robert Cairns, a former lifeguard, heard a female student screaming. Cairns swam toward the screams, and the student informed him that Downes needed help. Cairns realized that ” some kind of current … had pulled us out.” Cairns swam to within ten feet of Downes and told him to get on his back and try to float. Downes could not get on his back, and Cairns kept telling him he had to try. After some time, Downes was struck by a wave, went under the water, and disappeared from Cairns’s view. Downes’s body was recovered from the ocean three days later.

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

The deceased student signed a release in this case, however the trial court and the appellate court made their decisions based on assumption of the risk.

Under Georgia law, assumption of the risk is a complete bra to a recovery.

The affirmative defense of assumption of the risk bars a plaintiff from recovering on a negligence claim if it is established that he[,] without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not.

Absent a showing by the plaintiff of coercion or a lack of free choice assumption of the risk prevents the plaintiff from recovery any damages for negligence from the defendant.

To prove the deceased assumed the risk the college must show:

A defendant asserting an assumption of the risk defense must establish that the plaintiff (i) had knowledge of the danger; (ii) understood and appreciated the risks associated with such danger; and (iii) voluntarily exposed himself to those risks.

The plaintiff does not have to know and understand every aspect and facet of the risk. The knowledge can be that there are inherent risks in an activity even if the specifics of those risks are not known.

The knowledge requirement does not refer to a comprehension of general, non-specific risks. Rather, the knowledge that a plaintiff who assumes the risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury.

Assumption of the risk is usually a jury decision because the jury must weigh whether or not the plaintiff truly understood the risks. However, if the risk is such that there is undisputed evidence that it exists and the plaintiff knew or should have known about it, the court can act.

As a general rule, whether a party assumed the risk of his injury is an issue for the jury that should not be decided by summary judgment unless the defense is conclusively established by plain, palpable and undisputed evidence.

Drowning is a known and understood risk under Georgia law of being in the water.

It is well established under Georgia law that ” [t]he danger of drowning in water is a palpable and manifest peril, the knowledge of which is chargeable to [persons] in the absence of a showing of want of ordinary capacity.

Because the deceased student was a competent adult, meaning over the age of 18 and not mentally informed or hampered, the risk was known to him. “As Downes was a competent adult, he was necessarily aware of the risk of drowning when he voluntarily entered the Pacific Ocean.”

The plaintiff’s argued the college created the risk because they did not investigate the beach, have an emergency preparedness plan, ensure the professors had adequate training and did not supply safety equipment. However, the court did not buy this because there was nothing in the record to show the College created or agreed to these steps to create an additional duty on the colleges part.

Assuming that Oglethorpe, having undertaken a study-abroad program, was under a duty to act with reasonable care, and that there is evidence of record that Oglethorpe failed to do so, assumption of risk is nevertheless a defense to negligence.

The college was under not statutory or common law duty to provide any of the issues the plaintiff argued. Nor did the college create a duty by becoming an insurer of the students.

Appellants do not show, however, that Oglethorpe was under a statutory or common law duty to provide safety equipment to its students during an excursion to the beach, or that the ocean is analogous to a nonresidential swimming pool. Nor can we conclude that Oglethorpe became an insurer for the safety of its students by undertaking a study-abroad program, or that it was responsible for the peril encountered by Downes in that it transported him to the beach.

Even then the assumption of the risk defense would apply because assuming the risk relieves the defendant of any negligence.

Even if a defendant is negligent, a determination that a plaintiff assumed the risk or failed to exercise ordinary care for [his] own safety bars recovery for the resulting injury suffered by the plaintiff, unless the injury was wilfully and wantonly inflicted.

The defendant was not liable because the student, as an adult would have appreciated the risks of drowning in the Pacific Ocean.

Because he was a competent adult, Downes would have appreciated the specific risk of drowning posed by entering a body of water so inherently dangerous as the Pacific Ocean. As Downes voluntarily did so, Oglethorpe established that he assumed that risk. Although Downes’s death was undeniably tragic, we are constrained to conclude that the trial court correctly granted Oglethorpe’s motion for summary judgment.

So Now What?

There are two important points in this decision.

First, although not discussed, the court allowed assumption of the risk to stop a claim for gross negligence. Normally, like assumption of the risk, whether or not a defendant was grossly negligent requires a review by the jury to determine if the facts alleged meet the definition of gross negligence in the state.

Second is the issue that the less you do the less liability you create. In the pre-trip briefing with the students the risks of swimming in the ocean were discussed. The students all stated they were strong swimmers and nothing more was done.

If the college had made them take a swim test, further questioned their swimming skills by requiring more information or making sure a professor who was a lifeguard was on the trip, the college would have created an additional duty owed to the students.

What do you think? Leave a comment.

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Downes et al. v. Oglethorpe University, Inc., 342 Ga.App. 250 (Ga.App. 2017)

Downes et al. v. Oglethorpe University, Inc., 342 Ga.App. 250 (Ga.App. 2017)

342 Ga.App. 250 (Ga.App. 2017)

802 S.E.2d 437

Downes et al. v. Oglethorpe University, Inc

A17A0246

Court of Appeals of Georgia

June 30, 2017

Assumption of the risk. DeKalb State Court. Before Judge Polk, pro hac vice.

Katherine L. McArthur, Caleb F. Walker, for appellants.

Swift, Currie, McGhee & Hiers, David M. Atkinson, for appellee.

OPINION

[802 S.E.2d 438]

Ellington, Presiding Judge.

Erik Downes, then a 20-year-old college student, drowned in the Pacific Ocean on January 4, 2011, while he was in Costa Rica attending a study-abroad program organized by Oglethorpe University, Inc. Elvis Downes and Myrna Lintner (the ” Appellants” ), as Downes’s parents and next of kin, and in their capacity as administrators of Downes’s estate, brought this wrongful death action alleging that Oglethorpe’s negligence and gross negligence were the proximate cause of Downes’s drowning. The trial court granted Oglethorpe’s motion for summary judgment, and the Appellants appeal. We affirm because, as a matter of law, Downes assumed [802 S.E.2d 439] the risk of drowning when he chose to swim in the Pacific Ocean.

Under OCGA § 9-11-56 (c), [s]ummary judgment is warranted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. We review the grant or denial of a motion for summary judgment de novo, and we view the evidence, and the reasonable inferences drawn therefrom, in a light most favorable to the nonmovant. (Citations and punctuation omitted.) Assaf v. Cincinnati Ins. Co., 327 Ga.App. 475, 475-476 (759 S.E.2d 557) (2014). See also Johnson v. Omondi, 294 Ga. 74, 75-76 (751 S.E.2d 288) (2013) (accord).

So viewed, the evidence shows the following. During the 2010-2011 academic year, Oglethorpe offered to their students a 12-day study-abroad trip to Costa Rica. The students were charged a fee for the trip to pay for expenses such as airfare, lodging, and food. The students were also required to pay the ” per credit tuition rate” and were to receive four credits toward their degree for academic work associated with the trip. Oglethorpe retained Horizontes, a Costa Rican tour operator, to coordinate the trip and to provide transportation and an English-speaking guide.

Dr. Jeffrey Collins was then the director of Oglethorpe’s study-abroad program. According to Collins, Oglethorpe tried to follow ” best practices,” which is ” defined as those protocols, procedures that as best and as far as possible ensure[ ] the safety of students.” He acknowledged that students would swim on the trips. Collins was not aware of any potential dangers in Costa Rica and did no investigation to ascertain if there were potential dangers in Costa Rica.

During pre-trip meetings with Downes and the five other students who had registered for the program, Dr. Roark Donnelly and Dr. Cassandra Copeland, the two professors who accompanied the students on the trip, asked the students if everyone was a good swimmer, and the students agreed that they were. The group also discussed swimming in the ocean, including ” that there are going to be currents.” One of the professors told the students that, during a previous study-abroad trip to another location, a student had recognized that he was a weak swimmer and was required to wear a life jacket during all water activities. After hearing this, the students continued to express that they were good swimmers. Before leaving on the trip, the students were required to sign a release agreement which included an exculpatory clause pertaining to Oglethorpe.

The students and professors flew to Costa Rica on December 28, 2010. During the course of the trip, on the afternoon of January 4, 2011, the group arrived at a hotel on the Pacific coast. The six students, two professors, the guide, and the driver got into their bus and drove to a nearby beach, Playa Ventanas, which had been recommended by the hotel. Upon their arrival, there were other people on the beach and in the water. There were no warning signs posted on the beach, nor any lifeguards or safety equipment present.

The students swam in the ocean, staying mostly together, and eventually ventured out into deeper water. After about 20 minutes, Dr. Donnelly yelled for the students to move closer to shore. Shortly thereafter, student Robert Cairns, a former lifeguard, heard a female student screaming. Cairns swam toward the screams, and the student informed him that Downes needed help. Cairns realized that ” some kind of current … had pulled us out.” Cairns swam to within ten feet of Downes and told him to get on his back and try to float. Downes could not get on his back, and Cairns kept telling him he had to try. After some time, Downes was struck by a wave, went under the water, and disappeared from Cairns’s view. Downes’s body was recovered from the ocean three days later.

The Appellants filed this wrongful death action claiming that Downes’s death was the proximate result of Oglethorpe’s negligence and gross negligence. Evidence adduced during discovery included the testimony of Dr. John Fletemeyer, the Appellants’ expert in [802 S.E.2d 440] coastal sciences, that Downes had been caught in a ” rip current” [1] when he became distressed and ultimately drowned. Dr. Fletemeyer opined that some beaches on the western coast of Costa Rica are particularly dangerous ” mainly [because of] the lack of lifeguards,” but also because of physical conditions such as ” high wave energy force” and ” pocket beaches,” and that Playa Ventanas was a pocket beach.[2] He also testified that, in the context of the ocean, ” every beach you go to is extremely dangerous.” Other testimony showed that a continuing problem with drownings on beaches along the Pacific coast of Costa Rica was well publicized in Costa Rica, and that the United States Consular Authority in Costa Rica had ” published statistics about the danger of swimming on Costa Rica’s beaches and identified specifically the west coast beaches as being the most dangerous.” [3]

Following discovery, Oglethorpe moved for summary judgment and argued that (i) Oglethorpe owed no legal duty to Downes; (ii) the Appellants’ negligence claims are barred by Downes’s written waiver of liability and there is a lack of evidence that Oglethorpe was grossly negligent; and (iii) Downes assumed the risk of swimming in the ocean. The trial court granted Oglethorpe’s motion for summary judgment.

1. The Appellants contend that Oglethorpe was not entitled to summary judgment on the ground that Downes, as a matter of law, assumed the risk of drowning when he swam in the ocean.[4]

The affirmative defense of assumption of the risk bars a plaintiff from recovering on a negligence claim if it is established that he[,] without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not. (Citation and punctuation omitted.) Vaughn v. Pleasent, 266 Ga. 862, 864 (1) (471 S.E.2d 866) (1996).

A defendant asserting an assumption of the risk defense must establish that the plaintiff (i) had knowledge of the danger; (ii) understood and appreciated the risks associated with such danger; and (iii) voluntarily exposed himself to those risks. The knowledge requirement does not refer to a comprehension of general, non-specific risks. Rather, the knowledge that a plaintiff who assumes the risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury.

(Citation and punctuation omitted.) Gilreath v. Smith, 340 Ga.App. 265, 268 (1) (797 S.E.2d 177) (2017). ” As a general rule, whether a party assumed the risk of his injury is an issue for the jury that should not be decided by summary judgment unless the defense is conclusively established by plain, palpable and undisputed evidence.” (Citation and punctuation omitted.) Findley v. Griffin, 292 Ga.App. 807, 809 (2) (666 S.E.2d 79) (2008).

[342 Ga.App. 254] It is well established under Georgia law that ” [t]he danger of drowning in water is a palpable and manifest peril, the knowledge of which is chargeable to [persons] in the absence of a showing of want of ordinary capacity.” Bourn v. Herring, 225 Ga. 67, 69 (2) (166 S.E.2d 89) (1969). See, e.g., White v.

[802 S.E.2d 441]Ga. Power Co., 265 Ga.App. 664, 666 (1) (595 S.E.2d 353) (2004) (the ” [p]erils of deep water are instinctively known” ). The record does not show that Downes was aware of the presence of rip currents in the waters off the beach; however, ” [i]t is the body of water per se that presents an obvious risk of drowning, not its attendant conditions such as a strong unseen current or a deep unknown hole.” Id. at 667 (1). As Downes was a competent adult, he was necessarily aware of the risk of drowning when he voluntarily entered the Pacific Ocean.

The Appellants contend that Oglethorpe had a duty to exercise ordinary care in the planning and implementing of its study-abroad program to avoid exposing the students to a risk of drowning. Because Oglethorpe owed this duty, they contend, the fact that Downes entered the water voluntarily does not establish as a matter of law that he assumed the risk of drowning. Rather, they contend, Oglethorpe created the dangerous situation by taking Downes to the beach without investigating its dangers, adopting an emergency preparedness plan, ensuring the professors in charge had adequate training and procedures for supervising swimming students, and supplying safety equipment.

Assuming that Oglethorpe, having undertaken a study-abroad program, was under a duty to act with reasonable care, and that there is evidence of record that Oglethorpe failed to do so, assumption of risk is nevertheless a defense to negligence. ” Even if a defendant is negligent, a determination that a plaintiff assumed the risk or failed to exercise ordinary care for [his] own safety bars recovery for the resulting injury suffered by the plaintiff, unless the injury was wilfully and wantonly inflicted.” (Citation omitted.) City of Winder v. Girone, 265 Ga. 723, 724 (2) (462 S.E.2d 704) (1995). In Rice v. Oaks Investors II, 292 Ga.App. 692, 693-694 (1) (666 S.E.2d 63) (2008), the defendant was entitled to a directed verdict where, notwithstanding evidence that the defendants were negligent per se in failing to properly enclose the pool in which the ten-year-old decedent drowned, the child’s own negligence was the sole proximate cause of her death because the risk of swimming in the pool was obvious as a matter of law. Similarly, notwithstanding whether a defendant breached a duty to care for or supervise a decedent, the decedent’s assumption of the risk of injury may bar recovery. See Sayed v. Azizullah, 238 Ga.App. 642, 643-644 (519 S.E.2d 732) (1999) (finding no need to reach the issue [342 Ga.App. 255] of whether a duty was owed by the defendant to care for the 17-year-old decedent because the decedent was charged with appreciating the risk of swimming in the lake as a matter of law, and he voluntarily assumed that risk); Riley v. Brasunas, 210 Ga.App. 865, 868 (2) (438 S.E.2d 113) (1993) (any failure of the defendant to exercise the duty of an ordinary responsible guardian in watching over the seven-year-old child, who was injured using a trampoline, could not be the proximate cause of the child’s injuries where the child knowingly exposed himself to the obvious danger). See also Bourn v. Herring, 225 Ga. at 69-70 (2) (as the decedent, who was over 14 years old, was chargeable with diligence for his own safety against palpable and manifest peril, plaintiff could not recover against defendants for failure to exercise ordinary care in supervising the decedent in and around the lake in which he drowned).

As Appellants show, a decedent’s decision to enter a body of water with awareness of the physical circumstances is not necessarily determinative of whether the decedent assumed the risk of drowning. For example, the breach of a duty to provide statutorily required safety equipment may be ” inextricable from the proximate cause of the damage.” (Citation and punctuation omitted.) Holbrook v. Exec. Conference Center, 219 Ga.App. 104, 107 (2) (464 S.E.2d 398) (1995) (finding that a jury could determine that the absence of statutorily mandated safety equipment was the proximate cause of the decedent’s drowning in the defendant’s pool). See Alexander v. Harnick, 142 Ga.App. 816, 817 (2) (237 S.E.2d 221) (1977) (where the decedent drowned after she jumped from the defendant’s houseboat into the water in an attempt to rescue her dog, and the defendant did not have any throwable life preservers on board, nor readily accessible life vests, as required by law, ” a jury would not be precluded [802 S.E.2d 442] from finding that the absence of the safety equipment was the proximate cause of the decedent’s death merely because she entered the water voluntarily” ). And in premises liability actions, the general rule is ” that owners or operators of nonresidential swimming facilities owe an affirmative duty to exercise ordinary and reasonable care for the safety and protection of invitees swimming in the pool.” Walker v. Daniels, 200 Ga.App. 150, 155 (1) (407 S.E.2d 70) (1991).

Appellants do not show, however, that Oglethorpe was under a statutory or common law duty to provide safety equipment to its students during an excursion to the beach, or that the ocean is analogous to a nonresidential swimming pool. Nor can we conclude that Oglethorpe became an insurer for the safety of its students by undertaking a study-abroad program, or that it was responsible for the peril encountered by Downes in that it transported him to the beach. Compare Alexander v. Harnick, 142 Ga.App. at 817 (3) (an issue of fact remained as to whether, by taking decedent onto the water without the statutorily required safety equipment, defendant helped to create her peril). Because he was a competent adult, Downes would have appreciated the specific risk of drowning posed by entering a body of water so inherently dangerous as the Pacific Ocean. As Downes voluntarily did so, Oglethorpe established that he assumed that risk. Although Downes’s death was undeniably tragic, we are constrained to conclude that the trial court correctly granted Oglethorpe’s motion for summary judgment.

2. The Appellants’ other claims of error are moot.

Judgment affirmed.

Andrews and Rickman, JJ., concur.

Notes:

[1]The evidence showed that ” [a] rip current is a strong outflow or stream of water usually beginning at the beach, moving perpendicular to the beach, beginning with the neck and then terminating at some point beyond the surf line[.]”

[2]Fletemeyer’s testimony is not explicit as to why pocket beaches are dangerous to swimmers, although, in the context of the line of questioning, his testimony implies that the physical characteristics of pocket beaches are associated with the formation of rip currents.

[3]The evidence did not show that Playa Ventanas, in particular, had an unusually high number of drownings.

[4]The Appellants also contend that the trial court erred in granting Oglethorpe’s motion for summary judgment (1) because Oglethorpe owed a duty to exercise ordinary care for the safety of its students in the planning and implementation of its study-abroad program, and material issues of fact remain regarding Oglethorpe’s negligence, (2) the exculpatory clause in the release agreement signed by Downes is not enforceable, and (3) gross negligence cannot be waived by an exculpatory clause, and material issues of fact remain as to whether Oglethorpe was grossly negligent.


Non-governmental park not liable under Georgia Recreational Use Statute because cyclists failed to negotiate a barricade. The dangerous condition was open, obvious and visible to all including the deceased.

Because cyclists failed to look up and did not see the barricades in time, does not change the fact the barricades were visible for hundreds of feet.

Stone Mountain Memorial Association v. Amestoy, 337 Ga. App. 467; 788 S.E.2d 110; 2016 Ga. App. LEXIS 358

State: Georgia; Court of Appeals of Georgia

Plaintiff: Nancy Amestoy

Defendant: Stone Mountain Memorial Association

Plaintiff Claims: (1) was liable for Martin’s death due to its failure to warn of the allegedly dangerous condition of the barricades, (2) had actual knowledge that the barricades posed a risk of serious bodily injury or death, and (3) willfully failed to warn of the alleged danger (despite knowing of the risk posed by the barricades).

Defendant Defenses: Georgia Recreational Use Statute

Holding: For the Defendant at trial Court, Plaintiff on appeal 

Year: 2016

Summary

The Georgia Recreational Use Statute extends immunity to non-governmental landowners. Here a cyclist died after failing to look up and see barricades blocking a road. Because the barricades were open and obvious, the Recreational Use Statute protected the landowner from suit. 

Facts 

The deceased was on a bike ride. The road he was riding had been closed for a foot race. The closure was  accomplished by two saw horse barricades. The deceased in attempting to negotiate between them fell suffering head injuries, while wearing a helmet, and died.

…between 7:30 and 7:45 a.m. on the day in question, officers with SMMA’s public-safety department engaged in temporary traffic-control efforts on portions of Stone Mountain Park’s Robert E. Lee Boulevard in anticipation of a 5k walk/run event that was scheduled to begin at 8:00 a.m. These temporary traffic-control efforts consisted of two saw-horse style barricades placed  side-by-side across the road’s southbound lanes, spanning approximately ten-feet wide with an approximately one-and-a-half foot gap between them. Both barricades bore orange and white stripes and “do not enter” signs.

It appeared to witnesses that the deceased did not look up until the last minute to see the barricades. 

…Martin Amestoy was observed riding his bicycle toward the barricades at what a witness believed was a “safe, normal speed”; however, Amestoy’s head was down. Amestoy then traveled between the barricades, striking the inside corner of the lefthand barricade with his handlebar, and was thrown forward off of his bike.3 Although he was wearing a helmet, Amestoy suffered severe head trauma and died later that day. 

The plaintiff, wife of the deceased, sued for:

(1) was liable for Martin’s death due to its failure to warn of the allegedly dangerous condition of the barricades, (2) had actual
knowledge that the barricades posed a risk of serious bodily injury or death, and (3) willfully failed to warn of the alleged danger (despite knowing of the risk posed by the barricades).

The defendant filed a motion for summary judgment stating it was not liable because of the Georgia Recreational Use Act. The plaintiff argued that the exception to the act applied, if the landowner of and did not warn of a dangerous condition. The Trial court agreed and the defendant immediately appealed that order. 

SMMA responded and filed a motion for summary judgment, contending that it was immune from suit under the RPA. The trial court ultimately denied SMMA’s motion when it concluded that genuine issues of material fact remained as to whether (1) the barricades were a dangerous condition and (2) SMMA had actual knowledge that this condition was dangerous.

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

The defendant appealed the decision based upon the facts that:

… (1) there was no evidence that it had actual knowledge of a dangerous condition, (2) the allegedly dangerous condition was
open and obvious as a matter of law, and (3) there was no evidence that it willfully failed to warn of the allegedly dangerous condition. Because the allegedly dangerous condition–i.e., the barricades blocking the southbound lanes of Robert E. Lee Boulevard–was open and obvious as a matter of law….

Under the Georgia Recreational Use Act, the landowner owes no duty of care to keep the premises safe for others entering the land for recreational purposes.

In enacting the RPA, the General Assembly sought to “encourage property owners to make their property available to the public for recreational purposes by limiting the owners’ liability.”8 In this regard, OCGA § 51-3-22 provides that “an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on the premises to persons entering for recreational purposes.”

There is a liability for willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity. Under Georgia’s law:

…”willful failure” involves “a conscious, knowing, voluntary, intentional failure, rather than a mere inadvertent, accidental,  involuntary, inattentive, inert, or passive omission.” And malice requires either “an actual intent to cause the particular harm produced or the wanton and [willful] doing of the act with an awareness of the plain and strong likelihood that harm may result.”  Thus, in order for the “willful or malicious failure” exception to apply, Nancy Amestoy must show that the property owner  (SMMA) had actual knowledge that (1) the property was being used for recreational purposes; (2) a condition existed involving unreasonable risk of death or serious bodily harm; (3) the condition was not apparent to those using the property; and (4) having the foregoing knowledge, the property owner chose not to warn users in disregard of the possible con-sequences. Constructive knowledge is insufficient to meet this burden of proof, and the property owner has no duty to inspect the property. Importantly, the plaintiff must satisfy each prong of this four-part test to succeed against a recreational property owner under this exception.

The court held the plaintiff failed to produce any evidence to create a jury question on whether or not the condition was not apparent to those using the property, the third prong of the test.

The court cited witness statements and statements from the investigators that the barriers where visible at least for hundreds of feet. 

Considering the above testimony, Nancy Amestoy presented no evidence that SMMA had actual knowledge that the barricades were not apparent to park users when they were open and obvious, as overwhelmingly demonstrated by the foregoing testimony and photographic evidence.

The Appellate Court reversed the trial court and granted the defendant’s motion for summary judgment based on the Georgia Recreational Use Statute

So Now What? 

The first take away is the Georgia Recreational Use Statute protects parks owned non-governmental landowners from suit. The second is, even though the statute has an exception for “willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity,” the landowner must have actual knowledge, not just constructive knowledge of the dangerous condition.

Here because the barricades were visible for hundreds of feet, the barricades did not constitute a dangerous condition. 

If you are a cyclist, look up once in a while. 

What do you think? Leave a comment.

 Copyright 2017 Recreation Law (720) 334 8529

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Georgia Recreational Use Statute

 OFFICIAL CODE OF GEORGIA
ANNOTATED

 TITLE 51.  TORTS

 CHAPTER 3.  LIABILITY OF OWNERS AND OCCUPIERS OF LAND

 ARTICLE 2.  OWNERS OF PROPERTY USED FOR RECREATIONAL
PURPOSES

 § 51-3-20.  Purpose of article

§ 51-3-21.  Definitions

§ 51-3-22.  Duty of owner of land to those using same for recreation generally

§ 51-3-23.  Effect of invitation or permission to use land for recreation

§ 51-3-24.  Applicability of Code Sections 51-3-22 and 51-3-23 to owner of land leased to state or subdivision for recreation

§ 51-3-25.  Certain liability not limited

§ 51-3-26.  Construction of article

§ 51-3-20.  Purpose of article

The purpose of this article is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting the owners’ liability toward persons entering thereon for recreational purposes.

§ 51-3-21.  Definitions

As used in this article, the term:

(1) “Charge” means the admission price or fee asked in return for invitation or permission to enter or go upon the land.

(2) “Land” means land, roads, water, watercourses, private ways and buildings, structures, and machinery or equipment when attached to the realty. 

(3) “Owner” means the possessor of a fee interest, a tenant, a lessee, an occupant, or a person in control of the premises.

(4) “Recreational purpose” includes, but is not limited to, any of the following or any combination thereof: hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, aviation activities, nature study, water skiing, winter sports, and viewing or enjoying historical, archeological, scenic, or scientific sites. 

§ 51-3-22. Duty of owner of land to those using same for recreation generally 

Except as specifically recognized by or provided in Code Section 51-3-25, an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on the premises to persons entering for recreational purposes.

§ 51-3-23.  Effect of invitation or permission to use land for recreation 

Except as specifically recognized by or provided in Code Section 51-3-25, an owner of land who either directly or indirectly invites or permits without charge any person to use the property for recreational purposes does not thereby:

(1) Extend any assurance that the premises are safe for any purpose;

(2) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed; or

(3) Assume responsibility for or incur liability for any injury to person or property caused by an act of omission of such persons.

§ 51-3-24.  Applicability of Code Sections 51-3-22 and 51-3-23 to owner of land leased to state or subdivision for recreation 

Unless otherwise agreed in writing, Code Sections 51-3-22 and 51-3-23 shall be deemed applicable to the duties and liability of an owner of land leased to the state or any subdivision thereof for recreational purposes.

§ 51-3-25.  Certain liability not limited 

Nothing in this article limits in any way any liability which otherwise exists:

(1) For willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity; or 

(2) For injury suffered in any case when the owner of land charges the person or persons who enter or go on the land for the recreational use thereof, except that, in the case of land leased to the state or a subdivision thereof, any consideration received by the owner for the lease shall not be deemed a charge within the meaning of this Code section. 

§ 51-3-26.  Construction of article 

Nothing in this article shall be construed to: 

(1) Create a duty of care or ground of liability for injury to persons or property; or

(2) Relieve any person using the land of another for recreational purposes from any obligation which he may have in the absence of this article to exercise care in his use of the land and in his activities thereon or from the legal consequences of failure to employ such
care.
 

 


Stone Mountain Memorial Association v. Amestoy, 337 Ga. App. 467; 788 S.E.2d 110; 2016 Ga. App. LEXIS 358

Stone Mountain Memorial Association v. Amestoy, 337 Ga. App. 467; 788 S.E.2d 110; 2016 Ga. App. LEXIS 358

Stone Mountain Memorial Association v. Amestoy.

A16A0056.

COURT OF APPEALS OF GEORGIA

337 Ga. App. 467; 788 S.E.2d 110; 2016 Ga. App. LEXIS 358

June 21, 2016, Decided

HEADNOTES Georgia Advance Headnotes

(1) Torts. Real Property Torts. General Premises Liability. The wife of a bicyclist who died of a head injury after striking a barricade that had been placed across the road in a public park to protect runners in a road race failed to produce sufficient evidence to create a jury question as to the park owner’s actual knowledge that the barricades were not apparent to those using the property as required to prove an exception to immunity under OCGA § 51-3-25 (1) of the Recreational Property Act; the road was straight and open and the barricades were highly visible.

COUNSEL: Samuel S. Olens, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Kirsten S. Daughdril, Senior Assistant Attorneys General, Kristine K. Hayter, Assistant Attorney General, for appellant.

Childers, Schleuter & Smith, William A. Parker, Jr., for appellee.

JUDGES: [***1] DILLARD, Judge. Phipps, P. J., and Peterson, J., concur.

OPINION BY: DILLARD

OPINION

[*467] [**111] Dillard, Judge.

Stone Mountain Memorial Association (“SMMA”) appeals from the trial court’s denial of its motion for summary judgment in a premises-liability and wrongful-death action brought by Nancy Amestoy following her husband Martin’s tragic death in a bicycling accident at Stone Mountain Park. Specifically, SMMA contends that the trial court erred in denying its motion for summary judgment because it is immune from liability under the Recreational Property Act (“RPA”).1 Because we agree with SMMA that the RPA immunizes it from liability, we reverse.

1 See OCGA § 51-3-20 et seq.; see also OCGA § 51-3-20 [HN1] (“The purpose of this article is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting the owners’ liability toward persons entering thereon for recreational purposes.”).

Viewed in the light most favorable to Nancy Amestoy (i.e., the nonmoving party),2 the record reflects that between 7:30 and 7:45 a.m. on the day in question, officers with SMMA’s public-safety department engaged in temporary traffic-control efforts on portions of Stone Mountain Park’s Robert E. Lee Boulevard in anticipation of a 5k walk/run event that [***2] was scheduled to begin at 8:00 a.m. These temporary traffic-control efforts consisted of two saw-horse style barricades placed side-by-side across the road’s southbound lanes, spanning approximately ten-feet wide with an approximately one-and-a-half foot gap between them. Both barricades bore orange and white stripes and “do not enter” signs.

2 See, e.g., Holcomb v. Long, 329 Ga. App. 515, 517 (765 SE2d 687) (2014).

The SMMA major stationed at these barricades manned the post for a few minutes after they were erected, but he left suddenly when [*468] overcome by an urgent need to use the restroom. While the major was in the restroom, the SMMA captain–who was stationed at a separate traffic-control post–saw two bicyclists maneuver around the barricades at the major’s post. Then, six or seven minutes later, Martin Amestoy was observed riding his bicycle toward the barricades at what a witness believed was a “safe, normal speed”; however, Amestoy’s head was down. Amestoy then traveled between the barricades, striking the inside corner of the lefthand barricade with his handlebar, and was thrown forward off of his bike.3 Although he was wearing a helmet, Amestoy suffered severe head trauma and died later that day.

3 Nancy Amestoy alleges that her husband may [***3] have been attempting to avoid a collision with the barricades by trying to ride between them. Officers could not speak to Martin after the collision to ascertain his version of events because he was unconscious. But Nancy’s expert opined that “once [Martin] was aware of [the barricades,] his only path of travel was between the two barricades.”

Thereafter, Nancy Amestoy filed suit against SMMA in her capacity as surviving spouse and on behalf of Martin’s estate. In doing so, she asserted that SMMA (1) was liable for Martin’s death due to its failure to warn of the allegedly dangerous condition of the barricades, (2) had actual knowledge that the barricades posed a risk of serious bodily injury or death, and (3) willfully failed to warn of the alleged danger (despite knowing of the risk posed by the barricades). SMMA responded and filed a motion for summary judgment, contending that it was immune [**112] from suit under the RPA. The trial court ultimately denied SMMA’s motion when it concluded that genuine issues of material fact remained as to whether (1) the barricades were a dangerous condition and (2) SMMA had actual knowledge that this condition was dangerous. The trial court did, however, [***4] certify the denial of SMMA’s motion for immediate review, and this Court granted SMMA’s application for interlocutory appeal. This appeal follows.

At the outset, we note that [HN2] on appeal from the denial of a motion for summary judgment, we conduct a de novo review of the record.4 [HN3] To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the nonmovant, entitle the moving party to judgment as a matter of law.5 A defendant may do this by showing the trial court that the record [*469] reveals no evidence sufficient to create a jury issue on at least one essential element of the plaintiff’s case.6 Indeed, if there is no evidence sufficient to create a genuine issue of material fact as to “any essential element of the plaintiff’s claim, that claim tumbles like a house of cards.”7 With these guiding principles in mind, we turn now to SMMA’s arguments on appeal.

4 See Gayle v. Frank Callen Boys & Girls Club, 322 Ga. App. 412, 412 (745 SE2d 695) (2013) (“A de novo standard of review applies to an appeal from a grant [or denial] of summary judgment[.]” (punctuation omitted)).

5 See id. [HN4] (“Summary judgment is proper when there is no genuine issue of material [***5] fact and the movant is entitled to judgment as a matter of law.” (punctuation omitted)).

6 See Farris v. First Fin. Bank, 313 Ga. App. 460, 462 (722 SE2d 89) (2011) [HN5] (“This burden is met by a defendant when the court is shown that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the plaintiff’s case.” (punctuation omitted)).

7 La Quinta Inns, Inc. v. Leech, 289 Ga. App. 812, 812 (658 SE2d 637) (2008) (punctuation omitted).

SMMA argues that the trial court erred in denying its motion for summary judgment based upon immunity under the RPA because (1) there was no evidence that it had actual knowledge of a dangerous condition, (2) the allegedly dangerous condition was open and obvious as a matter of law, and (3) there was no evidence that it willfully failed to warn of the allegedly dangerous condition. Because the allegedly dangerous condition–i.e., the barricades blocking the southbound lanes of Robert E. Lee Boulevard–was open and obvious as a matter of law, SMMA was entitled to summary judgment.

[HN6] In enacting the RPA, the General Assembly sought to “encourage property owners to make their property available to the public for recreational purposes by limiting the owners’ liability.”8 In this regard, OCGA § 51-3-22 provides [***6] that “an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on the premises to persons entering for recreational purposes.”

8 Gayle, 322 Ga. App. at 413 (punctuation omitted). [HN7] The RPA applies when the property is “open to the public for recreational purposes and the owner does not charge an admission fee.” Id. at 414. It is undisputed between the parties that Stone Mountain Park is open to the public for recreational purposes and does not charge an admission fee. See OCGA § 51-3-21 (a) (” ‘Charge’ means the admission price or fee asked in return for invitation or permission to enter or go upon the land.”); see also Hogue v. Stone Mtn. Mem. Ass’n, 183 Ga. App. 378, 380 (1) (358 SE2d 852) (1987) (holding that initial motor-vehicle fee was “a permit for the use of a vehicle in the park” and that “the trial court was authorized to conclude as a matter of law that this fee did not constitute a charge for the recreational use of the parkland itself”).

[HN8] Notwithstanding the RPA’s general provision for immunity from liability, there is an exception “[f]or willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity.”9 But as we have previously held, [***7] “willful failure” involves “a conscious, knowing, voluntary, intentional failure, rather than a mere inadvertent, accidental, involuntary, inattentive, inert, or passive [*470] [**113] omission.”10 And malice requires either “an actual intent to cause the particular harm produced or the wanton and [willful] doing of the act with an awareness of the plain and strong likelihood that harm may result.”11 Thus, in order for the “willful or malicious failure” exception to apply, Nancy Amestoy must show that the property owner (SMMA) had actual knowledge that (1) the property was being used for recreational purposes;12 (2) a condition existed involving unreasonable risk of death or serious bodily harm; (3) the condition was not apparent to those using the property; and (4) having the foregoing knowledge, the property owner chose not to warn users in disregard of the possible consequences.13 Constructive knowledge is insufficient to meet this burden of proof, and the property owner has no duty to inspect the property.14 Importantly, the plaintiff must satisfy each prong of this four-part test to succeed against a recreational property owner under this exception.15

9 OCGA § 51-3-25 (1); see also Gayle, 322 Ga. App. at 415.

10 Collins v. City of Summerville, 284 Ga. App. 54, 56 (643 SE2d 305) (2007) (punctuation omitted); accord Cooley v. City of Carrollton, 249 Ga. App. 387, 388 (547 SE2d 689) (2001); Spivey v. City of Baxley, 210 Ga. App. 772, 773 (437 SE2d 623) (1993).

11 Collins, 284 Ga. App. at 56 (punctuation [***8] omitted); accord Gayle, 322 Ga. App. at 415.

12 The parties do not dispute that the first prong of this test is satisfied.

13 See Gayle, 322 Ga. App. at 415 (listing the four requirements); Collins, 284 Ga. App. at 56 (same); Spivey, 210 Ga. App. at 773 (same); Quick v. Stone Mtn. Mem. Ass’n, 204 Ga. App. 598, 599 (420 SE2d 36) (1992) (same); see also Edmondson v. Brooks Cty. Bd. of Educ., 205 Ga. App. 662, 663 (423 SE2d 413) (1992) (noting that, in the fourth prong, ” ‘[t]his knowledge’ refers to the three previously listed facts of which the owner must have actual knowledge in order to be liable for ‘choosing not to guard or warn’ ” (punctuation omitted)).

14 See Collins, 284 Ga. App. at 56 (“Constructive knowledge is not sufficient, and no duty to inspect is imposed on the property owner.”); Ga. Dep’t of Transp. v. Thompson, 270 Ga. App. 265, 269 (2) (a) (606 SE2d 323) (2004) (“This test excludes either constructive knowledge or a duty to inspect.” (punctuation omitted)).

15 See, e.g., Lee v. Dep’t of Nat’l Res., 263 Ga. App. 491, 493-94 (3) (588 SE2d 260) (2003) (holding that, despite uncontroverted satisfaction of first prong, failure to satisfy other prongs was fatal to claim); Edmondson, 205 Ga. App. at 663 (noting that, in holding that RPA immunized defendant from liability, the issue of liability under the RPA is “resolved by a four-part test” and the defendants “rel[ied] on the absence of the third prong of the test”).

At the outset, [HN9] we reject any suggestion that the four-part test does not require actual knowledge as to each prong. Although we have not always been precise in our recitation of the analytical framework,16 the notion that actual knowledge is not required by the foregoing [***9] four-part test is belied by the plain language of the test adopted by this Court in McGruder v. Georgia Power Co.,17 by our [*471] explanation and application of the test in subsequent cases,18 and even by other jurisdictions that have construed the test employed in Georgia.19 (1) And here, Nancy [**114] Amestoy failed to produce any evidence to create a jury question as to the third prong of the test–that is, that SMMA had actual knowledge that the barricades were not apparent to those using the property.20 As the trial court noted in its order, the road leading up to the barricades is straight and open. Indeed, witnesses observed two other cyclists negotiate their bicycles around the barricades only minutes before Martin Amestoy’s accident. Additionally, not only does the photographic evidence demonstrate that the barricades were highly visible, but testimony by numerous SMMA public-safety personnel established that they believed this to be the case.

16 See Gayle, 322 Ga. App. at 415; Collins, 284 Ga. App. at 56; Norton v. Cobb Cty., 284 Ga. App. 303, 307 (3) (643 SE2d 803) (2007) (physical precedent only).

17 126 Ga. App. 562, 563-64 (1) (191 SE2d 305) (1972) (“In the context of the whole statute, it would seem that a wilful failure to guard or warn would require actual knowledge of the owner that its property is being used for recreational purposes; that a condition exists involving [***10] an unreasonable risk of death or serious bodily harm; that the condition is not apparent to those using the property; and that having this knowledge, the owner chooses not to guard or warn, in disregard of the possible consequences.”), reversed on other grounds by 229 Ga. 811 (194 SE2d 440) (1972); see also Ga. Marble Co. v. Warren, 183 Ga. App. 866, 867 (1) (360 SE2d 286) (1987) (adopting the four-part test as previously set forth in McGruder v. Ga. Power Co., and noting that “[a]lthough the test was turned into dicta by the Supreme Court’s ruling that the RPA was not applicable in that case, it is sound”).

18 See Ray v. Ga. Dep’t of Nat’l Res., 296 Ga. App. 700, 702 (1) (675 SE2d 585) (2009); Lee, 263 Ga. App. at 493-94 (3); Thompson, 270 Ga. App. at 269 (2) (a); S. Gwinnett Athletic Ass’n v. Nash, 220 Ga. App. 116, 119 (1) (469 SE2d 276) (1996); Spivey, 210 Ga. App. at 773; Quick, 204 Ga. App. at 599; Edmondson, 205 Ga. App. at 663; Warren, 183 Ga. App. at 867 (1).

19 Hendrickson v. Ga. Power Co., 80 FSupp2d 1374, 1379 (III) (B) (M.D. Ga. 2000) (acknowledging that this Court uses a four-part test, and reciting test so as to make clear that defendant must have “actual knowledge” as to the first three prongs); Ex parte City of Geneva, 707 So2d 626, 629 n.2 (Ala. 1997) (construing Alabama’s recreational-use statute and observing that “the four-part ‘actual knowledge’ test of [Ala. Code] § 35-15-24 [(which applies ‘actual knowledge’ to the first three prongs of test)] appears likely to be a codification of the test employed by the state courts of Georgia when determining whether a noncommercial recreational landowner may be liable for ‘willful … failure to guard or warn against a dangerous condition, use, [***11] structure, or activity.’ “).

20 See Ray, 296 Ga. App. at 702 (2) (“The … third prong of this test was not met, because no evidence was presented that appellees had actual knowledge of a condition that was not apparent to persons using the property.”); Nash, 220 Ga. App. at 119 (1) (reversing denial of motion for summary judgment when, inter alia, “even assuming for the sake of argument that the unfinished bleachers presented a dangerous condition, there is no evidence that the [defendant] had any knowledge that this condition was not apparent to people using the property”); Edmondson, 205 Ga. App. at 663 (“[The third] prong requires plaintiffs to show that defendants actually knew that the dangerous condition of the merry-go-round was not apparent to those using the playground.”).

The testimony from SMMA personnel included that of a corporal who assisted in the investigation after the accident, and who testified that (1) the “barricades were plainly visible for quite a distance,” (2) the barricades were visible “for hundreds of feet,” (3) the sun was shining on the morning in question, and (4) there was “a great deal of visibility.” Likewise, an SMMA officer who performed an accident investigation, including taking various measurements to construct a to-scale diagram and [***12] conducting a “conspicuity test,” estimated that [*472] the barricades would have been visible from “a couple hundred yards” up Robert E. Lee Boulevard. More specifically, the major who was stationed at the barricades estimated that the distance at which they were visible would have been 200 to 250 feet, though he did acknowledge that on the morning in question, “[t]he way the sun was up, [a cyclist or motorist] would possibly [have] been looking into the sun.” Lastly, the SMMA captain calculated that the distance from the first line of sight to the barricades was one-tenth of a mile, or 528 feet, concluding that the barricades were “highly visible.” The captain also echoed other testimony that “[i]t was a clear day, the sun was out, [and] visibility was good.”

Finally, Nancy Amestoy’s expert testified that from his position and speed on a bicycle, Martin Amestoy likely would have seen the gap between the barricades when he was approximately fifteen feet away, giving him about one-half of a second to react. But when questioned about the distance from which the barricades themselves would have been visible, the expert testified that he did not “have an answer for that” and that he did not “know how far [***13] back they would have been seen,” though he opined that it would not have been “very far.” He also testified that he had no way of knowing what Martin Amestoy was doing “10, 20, [or] 50 feet prior to the barricades.”

Considering the above testimony, Nancy Amestoy presented no evidence that SMMA had actual knowledge that the barricades were not apparent to park users when they were open and obvious,21 as overwhelmingly [**115] demonstrated by the foregoing testimony and photographic evidence.22 Indeed, as previously noted, there is no evidence [*473] that SMMA officials knew that the barricades were not apparent.23 Although Nancy Amestoy claims that SMMA stationed a major at the barricades to provide warnings to approaching motorists and bicyclists and that this officer had actual knowledge of the need to provide such warnings, there is no evidence to substantiate these assertions. Instead, the major testified that the objective of his post was to “turn the cars around, bicyclists around.” Additionally, the SMMA captain testified that the purpose of the major’s post was “to block the road, to keep cars from going down into that area where the people would be crossing” and “protect the walkers,”24 not to “protect [***14] bicyclists and cars.” And when further asked if there was “any interest in protecting the bicyclists or the vehicles from entering that area,” the captain responded that “[o]ur objective is to protect everybody in the park.” But this diplomatic answer is a far cry from testimony that would create a genuine issue of material fact as to whether SMMA officials had actual knowledge that the barricades themselves were not apparent–or open and obvious–to park users.

21 Cf. Turkett v. Cent. of Ga. Ry. Co., 117 Ga. App. 617, 617 (161 SE2d 362) (1968) (holding that court erred in dismissing petition alleging negligence when plaintiff collided with warning device placed in roadway by defendant while traveling in the dark, in the rain, and under circumstances of poor visibility; and obstruction was unlighted, obscured from plaintiff’s vision by its placement, and could not be seen until within 10 feet); Rogers v. Johnson, 94 Ga. App. 666, 666 (syllabus), 677 (1), 678 (3) (96 SE2d 285) (1956) (sustaining verdict for plaintiff when decedent was traveling roadway at night in car that collided with defendant’s vehicle, which was hauling house-trailer, nearly blocking the entire roadway after making a lefthand turn); Trammell v. Matthews, 84 Ga. App. 332, 338-39 (1) (66 SE2d 183) (1951) (holding that there was a question for the jury as to negligence when plaintiff alleged, inter alia, “that had the defendant placed proper warnings at the [***15] point where the detour went around the place where the bridge was out, the driver of the car … would not have passed the detour and gone through the partial road block and then into the place where the bridge was out,” and when it appeared from the plaintiff’s petition “that the way ahead of the driver of this car was not clear, that it was yet dark, and the road was not straight as one approached this partial road block from the [s]outh; that the detour was the same color as the paved road; [and] that the partial road block was not sufficient and adequate to prevent one from assuming that the road could be used”).

22 See Metro. Atlanta Rapid Transit Auth. v. Fife, 220 Ga. App. 298, 299, 300 (1) (469 SE2d 420) (1996) (noting that photographic evidence showed that allegedly dangerous condition of drainage culvert was “plainly visible to anyone standing at the curb,” and holding that condition was open and obvious); Warren, 183 Ga. App. at 868 (1) (“Photographs of the stream illustrate that even a first time visitor to the stream would perceive that the stream’s bed was or at least was likely to be rocky. … The rocky condition of the terrain in and about the stream was open and obvious.”); see also Engleson v. Little Falls Area Chamber of Commerce, No. Civ. 101-102, 2002 U.S. Dist. LEXIS 23093, 2002 WL 31689432, at *3 (3) (D. Minn. 2002) (noting, in case involving a plaintiff who tripped over an orange traffic cone, that “[t]he test for obviousness is an [***16] objective test that examines whether the danger was in fact visible, rather than whether the injured party actually saw the danger,” and concluding that not only were traffic cones obvious but that defendants “could not have anticipated harm from the cones because traffic cones are, themselves, warning markers”).

23 See Ray, 296 Ga. App. at 702 (1) (“The … third prong of this test was not met, because no evidence was presented that appellees had actual knowledge of a condition that was not apparent to persons using the property.”); Edmondson, 205 Ga. App. at 663 (“[The third] prong requires plaintiffs to show that defendants actually knew that the dangerous condition of the merry-go-round was not apparent to those using the playground.”).

24 (Emphasis supplied.)

Furthermore, even if we were to assume that Martin Amestoy could not see the barricades from his position and speed on his bicycle or due to the sun’s location at the exact moment of his accident on the morning in question, [HN10] whether a dangerous condition is open and obvious depends on the objective knowledge of a reasonable person, not on the plaintiff’s subjective knowledge.25

25 See Morris v. Clark Equip. Co., 904 FSupp. 1379, 1383 (II) (B) (M.D. Ga. 1995) (“In determining whether a danger was open and obvious to the injured party, the court should [***17] use an objective point of view, as opposed to subjective, since the user’s perceptions are irrelevant.”); see also Weatherby v. Honda Motor Co., 195 Ga. App. 169, 171 (393 SE2d 64) (1990) (“In determining, under the ‘open and obvious rule,’ whether the peril from which an injury results is latent or patent, the decision is made on the basis of an objective view … , and the subjective perceptions of the user or injured party are irrelevant.”), overruled on other grounds by Ogletree v. Navistar Intern. Transp. Corp., 269 Ga. 443, 443-44 (500 SE2d 570) (1998) (holding that “open and obvious danger” rule is not applicable in cases of alleged design defect). See generally 62A Am. Jur. 2d Premises Liability § 713 (2016) [HN11] (“Whether a condition is open and obvious, for premises liability purposes, depends on the objective knowledge of a reasonable person, not the plaintiff’s subjective knowledge. The test for what constitutes an ‘obvious’ danger is an objective test: the question is not whether the injured party actually saw the danger, but whether it was in fact visible.” (footnotes omitted)).

[*474] [**116] In light of the foregoing, we must reverse the trial court’s denial of SMMA’s motion for summary judgment.26

26 See Nash, 220 Ga. App. at 119 (1) (reversing denial of motion for summary judgment when, inter alia, “even assuming for the sake of argument that the unfinished bleachers presented a dangerous condition, there is no [***18] evidence that the [defendant] had any knowledge that this condition was not apparent to people using the property”).

Judgment reversed. Phipps, P. J., and Peterson, J., concur.


Georgia Limited Liability of Owners and Operators of Sport Fishing Locations

 OFFICIAL CODE OF GEORGIA ANNOTATED

Copyright 2014 by The State of Georgia

All rights reserved.

TITLE 27.  GAME AND FISH

CHAPTER 4.  FISH

ARTICLE 7.  LIMITED LIABILITY OF OWNERS AND OPERATORS OF SPORT FISHING LOCATIONS

GO TO GEORGIA STATUTES ARCHIVE DIRECTORY

O.C.G.A. § 27-4-280  (2014)

§ 27-4-280.  Legislative findings

The General Assembly recognizes that persons who participate in the sport of fishing may incur injuries as a result of the risks involved in such activity. The General Assembly also finds that the state and its citizens derive numerous economic and personal benefits from such activity. The General Assembly finds, determines, and declares that this article is necessary for the immediate preservation of the public peace, health, and safety. It is, therefore, the intent of the General Assembly to encourage the sport of fishing by limiting the civil liability of those involved in such activity.

O.C.G.A. § 27-4-281  (2014)

§ 27-4-281.  Definitions

As used in this article, the term:

            (1) “Fishing location” means a body of water, whether naturally occurring or manmade, containing fish and for the privilege of fishing there a fee is charged.

            (2) “Participant” means any person who enters the fishing location, singly or with a group, either by paying a fee or having the fee waived, for the purpose of fishing, education, or enjoying the outdoor environment and any person who accompanies such person.

HISTORY: Code 1981, § 27-4-281, enacted by Ga. L. 1998, p. 1659, § 1.

Title Note

§ 27-4-282.  Immunity from liability for injury or death; exceptions

(a) Except as provided in subsection (b) of this Code section, the owner or operator of any fishing location, or any other person, corporation, group, partnership, or other entity, shall not be liable for an injury to or the death of a participant resulting from the inherent risks of fishing, including but not limited to drowning, and, except as provided in subsection (b) of this Code section, no participant or participant’s representative shall make any claim against, maintain an action against, or recover from an owner or operator, or any other person or entity for injury, loss, damage, or death of the participant resulting from any of the inherent risks of fishing.

(b) Nothing in subsection (a) of this Code section shall prevent or limit the liability of an owner or operator or any other person or entity if the owner or operator:

            (1) 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 owner or operator and for which signs warning of the latent defect have not been conspicuously posted;

            (2) Commits an act or omission that constitutes willful or wanton disregard for the safety of the participant, and that act or omission caused the injury; or

            (3) Intentionally injures the participant.

(c) Nothing in subsection (a) of this Code section shall prevent or limit the liability of an owner or operator under liability provisions as set forth in the products liability laws.

HISTORY: Code 1981, § 27-4-282, enacted by Ga. L. 1998, p. 1659, § 1.

O.C.G.A. § 27-4-282  (2014)

§ 27-4-283.  Warning sign to be posted; contents of warning sign

(a) Every owner and operator of a fishing location shall post and maintain signs which contain the warning notice specified in subsection (b) of this Code section. Such signs shall be placed in a clearly visible location on or near the water and at the location where the fee is paid. The warning notice specified in subsection (b) of this Code section shall appear on the sign in black letters, with each letter to be a minimum of one inch in height. Every written contract entered into by an owner or operator shall contain in clearly readable print the warning notice specified in subsection (b) of this Code section.

(b) The signs and contracts described in subsection (a) of this Code section shall contain the following warning notice:

WARNING

Under Georgia law, an owner or operator of a fishing location is not liable for an injury to or the death of a participant from the inherent risks of fishing, including but not limited to drowning, pursuant to Article 7 of Chapter 4 of Title 27 of the Official Code of Georgia Annotated.

(c) Failure to comply with the requirements concerning warning signs and notices provided in this Code section shall prevent an owner or operator from invoking the privileges of immunity provided by this article.

HISTORY: Code 1981, § 27-4-283, enacted by Ga. L. 1998, p. 1659, § 1.

 


Georgia court finds no requirement for an employee to intervene when higher trained first aid providers are present.

Sixteen-year-old collapsed at the defendant YMCA. A sheriff deputy and EMT provided CPR. Court held that the congenital heart disease had no causal connection to the Y’s negligence if there was any. Court also held the Y was not negligent because the employees did nothing, because higher trained medical personnel were already attending to the victim.

Goins et al. v. The Family Y et al. 326 Ga. App. 522; 757 S.E.2d 146; 2014 Ga. App. LEXIS 216; 2014 Fulton County D. Rep. 909

State: Georgia, Court of Appeals

Plaintiff: James and Jennifer Goins

Defendant: The Family YMCA

Plaintiff Claims: negligence and fraud

Defendant Defenses: No duty and proximate causation

Holding: for the defendant

Year: 2014

The plaintiffs are the parents of a sixteen-year-old who died walking on a treadmill at the defendant Family Y (YMCA). It was determined the deceased died from congenital heart disease.

The plaintiff’s brought their son to the YMCA to get ready for baseball season and to lose some weight. They chose the Y because it was a safe and positive environment with adequate well trained employees “on hand at all times and that these employees would have access to life-saving equipment and would know how to use it.”

(This is an example of looking at the website and brochure post-accident and looking for information or is this why they picked the Y?)

An employee of the Y saw the deceased fall and immediately called 911. She did not go to the deceased because she said there was a sheriff’s deputy who was a first responder and had another first aid training attending to the deceased. Soon thereafter, an EMT also assisted the deceased.

The parents, plaintiff’s, sued the defendant because their son:

…was under the “personal care” of a Y employee who had no CPR or first aid training, in spite of representations made by the fitness center. The Goins also claimed that the Y employees stood around and did nothing after Brant collapsed. The complaint alleged that the AED or defibrillator was locked away and not available in case of emergency. There was also a fraud count in which the Goins contended that the Y made misrepresentations to them that led them to believe that the Y was a “safe and positive” environment for their son.

The trial court dismissed their claims, and the plaintiff’s appealed.

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

The first issue was whether there was a duty to render first aid and whether the representations that the Y misled the parents. The court first outlined the requirements to prove negligence in Georgia.

The essential elements of a negligence claim are the existence of a legal duty; breach of that duty; a causal connection between the defendant’s conduct and the plaintiff’s injury; and damages. Thus, the threshold issue in a negligence action is whether and to what extent the defendant owes a legal duty to the plaintiff. This issue is a question of law.

The plaintiffs argued there was a special relationship between themselves and the Y because the Y assumed a special duty to supervise minor children. The appellate court shot down that argument with one sentence. “Brant Goins was 16 years of age and the only duty undertaken by the Y was to provide him with a personal trainer to help him lose weight. It is undisputed that this is what occurred.”

The second issue on appeal was the negligence claim. As stated above to prove negligence, there must be a connection between the injury and the breach of the duty. Here the duty was alleged to be a lack of training, as advertised by the Y., However, the court could not find a connection. CPR would not have saved the deceased’s life and the people attempting to do so were better trained then the employees. “…the [plaintiff’s] cannot show a causal connection between Mason’s or any other employee’s lack of CPR training and Brant Goins’ death.” A casual connection is less than the proximate causation required to prove negligence.

It is undisputed that there was an emergency medical technician, and a deputy sheriff trained as a first-responder present at the time of Brant’s collapse. There would have been no reason for a Y employee to interfere with the care being given by the two qualified first responders.

The final issue was the fraud claim. The fraud claim was based on the allegations that the Y promised the plaintiff’s that the YMCA was a safe and positive environment and that there would be adequate and well-trained employees, and the employees would have access to life-saving equipment.

There was not argument that this did not occur. The plaintiff’s then tried to tie together the fact these things did not occur and that because their son had died, proving negligence.  (The absence of facts does not prove a point in most cases and those facts that exist must link to each other in a legal way.) However, the court did not find this to be proved either.

Even assuming that the Goins could establish the other elements of their fraud claim, they can show no damage as the result of this claimed fraud. The EMT and the deputy were clearly the most highly trained people present in administering CPR. Neither called for a defibrillator and both testified that a defibrillator, would not be used on someone with a pulse who was still breathing.

Not brought up in the decision on this argument was proximate causation. There was no connection between the facts that if the Y had not done any of the issues pled in the fraud that the misrepresentation had anything to do with the death of their son.

The appellate court affirmed the lower court’s decision.

So Now What?

First, it is great to have a court require a special relationship or acceptance of a duty that can be proved, not just argued and based on trying to tie loose facts together. The Y’s acceptance of the deceased minor to provide a trainer came with no other requirements, and the Y did nothing to create additional duties which it could be held too.

This is critical that in bringing in business, you don’t make promises that either you can’t complete or that may come back to haunt you.

Second, although specifically identified, the issue of higher medical care prevailed. I’ve never seen this issue argued in a case, that the person with the higher medical care, once they step in, are in charge and owes any duty. We are all taught this issue in first aid classes, but courts have never identified it. Here the court uses the argument and supports it.

Too often we start any defense of a lawsuit by lining up the defenses. All too often in the outdoor recreation community, we need to see if (1) we did anything wrong and (2) is there a connection with what was done incorrectly or not done and the injury. That is, was a duty breached and was there a proximate connection between the breach and the injury.

Amazing how a well-argued decision can be so short.

What do you think? Leave a comment.

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By Recreation Law       Rec-law@recreation-law.com              James H. Moss

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Negligence, Duty, Proximate Causation, Proximate Cause, YMCA, Y, Fraud, Georgia, GA, First Aid, Higher Medical Authority,

 


Goins et al. v. The Family Y et al. 326 Ga. App. 522; 757 S.E.2d 146; 2014 Ga. App. LEXIS 216; 2014 Fulton County D. Rep. 909

Goins et al. v. The Family Y et al. 326 Ga. App. 522; 757 S.E.2d 146; 2014 Ga. App. LEXIS 216; 2014 Fulton County D. Rep. 909

Goins et al. v. The Family Y et al.

A13A1778.

COURT OF APPEALS OF GEORGIA

326 Ga. App. 522; 757 S.E.2d 146; 2014 Ga. App. LEXIS 216; 2014 Fulton County D. Rep. 909

March 25, 2014, Decided

PRIOR HISTORY: Negligence, etc. Richmond Superior Court. Before Judge Annis.

DISPOSITION: [***1] Judgment affirmed.

COUNSEL: Richard H. Goolsby, Sr., for appellants.

Dodson & Associates, Charles R. Beans, for appellees.

JUDGES: ANDREWS, Presiding Judge. Dillard and McMillian, JJ., concur.

OPINION BY: ANDREWS

OPINION

[*522] [**147] Andrews, Presiding Judge.

James and Jennifer Goins sued The Family YMCA (the Y) after their 16-year-old son Brant collapsed while walking on a treadmill at its facility. Brant died before EMTs arrived, and it was later determined that he suffered from a congenital heart disease. The trial court granted the Y’s motion for summary judgment on the Goins’ claims of negligence and fraud. For reasons that follow, we affirm.

The following facts are undisputed. The Goins brought their son Brant to the Y to get him into shape for baseball season and to lose some weight. Brant began training with Greg Mason, a certified personal trainer, and there was no indication at the time that Brant was not in good physical condition. The Goins do not contend that there was anything inappropriate in the level or intensity of the workouts suggested by Mason.

On the day in question, Brant had been walking on the treadmill for a short time when he collapsed. An employee who saw him fall immediately called 911. This employee was trained in CPR, but stated that she did not go over to Brant because there were two “paramedics” [***2] with him. One of the two men was a deputy sheriff who had been a first responder for eight years, was trained in advanced CPR, first aid, and also had life saving training in the Marine Corps. The deputy said that he checked for a pulse and saw that Brant was still breathing. The other man who went over to Brant after he collapsed was an EMT who testified that the deputy was with Goins when he went over to see if he could help. He stated that Brant’s airway was open and he saw him take a breath, but then Brant [*523] appeared to stop breathing. The deputy also testified that he saw Brant take a large breath and then stop breathing. At that point, the deputy and the EMT began CPR. Simultaneously, the ambulance and EMTs arrived on the scene.

The Goins filed this suit, claiming that the Y was negligent in the death of their son because he was under the “personal care” of a Y employee who had no CPR or first aid training, in spite of representations made by the fitness center. The Goins also claimed that the Y employees stood around and did nothing after Brant collapsed. The complaint alleged that the AED or defibrillator was locked away and not available in case of emergency. There was [***3] also a fraud count in which the Goins contended that the Y made misrepresentations to them that led them to believe that the Y was a “safe and positive” environment for their son.

The trial court granted the Y’s motion for summary judgment in a two-sentence order. This appeal followed.

[HN1] To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A [***4] defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. The burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

Boller v. Robert W. Woodruff Arts Center, 311 Ga. App. 693, 693-694 (716 SE2d 713) (2011).

1. The Goins first argue that the trial court erred in finding there was no duty to render first aid to a minor child in the Y’s care when false representations had been made to the child’s parents.

[HN2] The essential elements of a negligence claim are the existence of a legal duty; breach of that duty; a causal connection between the defendant’s conduct and the plaintiff’s injury; and damages. Thus, the threshold issue in a negligence [*524] action is whether and to what extent the defendant [***5] owes a legal duty to the plaintiff. This issue is a question of law.

Boller, supra at 695-696. In Boller, plaintiff

claimed that the Arts Center breached its duty of care to her husband, an [**148] invitee, by its failure to have on site either an ambulance or an officer operating an automatic external defibrillator device (“AED”) and by its failure to maintain a safety and security plan to govern the actions of employees and security personnel during a medical emergency.

Id. at 695. This Court held that

the long-established general rule is that [HN3] “[a] person is under no duty to rescue another from a situation of peril which the former has not caused,” even when the peril is foreseeable. We conclude that this case is controlled by our decision in Rasnick v. Krishna Hospitality, where we held that the defendant innkeeper had no legal duty to comply with a wife’s requests that it attempt a rescue of its guest, her husband, from his medical peril. In that case, the defendant did not create the decedent’s underlying medical condition. Similarly, in the case at bar, Boller does not allege that the Arts Center or the concert it sponsored caused her husband’s sudden attack of cardiac arrest.

(Footnotes omitted.) Id. at 696.

Nevertheless, [***6] the Goins argue that a “special relationship” existed in this case, because the Y assumed a special duty to supervise minor children. The Goins cite to several cases not on point. See, e.g., Bull Street Church of Christ v. Jensen, 233 Ga. App. 96 (504 SE2d 1) (1998) (four-year-old victim molested at church); Wallace v. Boys Club of Albany, 211 Ga. App. 534 (439 SE2d 746) (1993) (five-year-old boy abducted from summer camp after employees assured parents that they would watch child and keep track of his whereabouts). (1) Brant Goins was 16 years of age and the only duty undertaken by the Y was to provide him with a personal trainer to help him lose weight. It is undisputed that this is what occurred.1 There is no merit to this enumeration.

1 The Goins claim that when they signed their son up for a personal trainer at the YMCA, Greg Mason was misrepresented to them as a “certified” personal fitness trainer. This argument is puzzling. The undisputed evidence was that Mason was a certified personal trainer.

[*525] 2. Likewise, for the same reasons discussed in Division 1, the (2) trial court did not err in granting summary judgment on appellants’ negligence claim. Further, and equally important, the Goins [***7] cannot show a causal connection between Mason’s or any other employee’s lack of CPR training and Brant Goins’ death. The Goins’ statement of facts does not refer to the deposition testimony of the deputy sheriff or the EMT. It is undisputed that there was an emergency medical technician and a deputy sheriff trained as a first responder present at the time of Brant’s collapse. There would have been no reason for a Y employee to interfere with the care being given by the two qualified first responders.

3. Next, the Goins claim that the trial court erred in finding no issues of fact on their fraud claim. The Goins alleged in their complaint that they were told that “THE FAMILY Y was a safe and positive environment.” (3) They contend that it was represented to them that there would be adequate well-trained employees on hand at all times and that these employees would have access to life-saving equipment and would know how to use it.

[HN4] To survive a motion for summary judgment on a fraud count, some evidence must support each of the five elements, which are: a false representation by a defendant; scienter; intention to induce the plaintiff to act or refrain from acting; justifiable reliance [***8] by plaintiff; and damage to the plaintiff.

Wertz v. Allen, 313 Ga. App. 202, 207-208 (721 SE2d 122) (2011).

Even assuming that the Goins could establish the other elements of their fraud claim, they can show no damage as the result of this claimed fraud. The EMT and the deputy were clearly the most highly trained people present in administering CPR. Neither called for a defibrillator and both testified that a defibrillator, would not be used on someone with a pulse who was still breathing. The Y was entitled to summary judgment on this claim, and there was no error.

Judgment affirmed. Dillard and McMillian, JJ., concur.


Georgia Federal Court finds that assumption of the risk is a valid defense in a head injury case against a bicycle helmet manufacturer.

If you purchase a helmet that only protects part of your head, then you cannot sue for injuries to the part of your head not protected.

Wilson v. Bicycle South, Inc., 915 F.2d 1503; 1990 U.S. App. LEXIS 18903; 31 Fed. R. Evid. Serv. (Callaghan) 682

State: Georgia, US Court of Appeals for the Eleventh Circuit

Plaintiff: Lois Elaine Wilson

Defendant: Bicycle South, Inc.

Plaintiff Claims: Product Liability (breach of warranty, strict liability, and negligence)

Defendant Defenses: Assumption of the Risk and Open and Obvious

Holding: For the defendants

Year: 1990

This case is fairly easy to understand, even though the opinion is quite complicated. The plaintiff was riding her bike from Florida to California. While traveling through Georgia she crashed suffering head injuries.

She sued claiming the rear wheel of the bike collapsed causing her crash. She claimed her head injuries were caused because the helmet failed to protect her head.

She sued the wheel manufacturer, Opportunities Inc., the bicycle manufacturer, Trek Bicycle Corporation and the retailer Bicycle South, Inc. The three defendants were found not liable at trial.

The jury did find the helmet manufacturer, Skid Lid Manufacturing Company liable for the plaintiff’s head injuries. The majority of the decision reviews the helmet issues. The plaintiff purchased the helmet for her ride. The helmet was a “half helmet” which only covered the top half of her head. The helmet came down to about the top of her ears.

The jury found in favor of the plaintiff on the head injury issue caused by the helmet manufacturer. The defendant Skid Lid moved for a judgment notwithstanding the verdict, (JNOV), which the court granted. The defendant helmet manufacturer appealed the decision.

A JNOV is effectively a motion filed by the losing party and the judge overrules the jury. This is a motion that is rarely granted and only done so to overcome extreme or unreasonable jury verdicts. The judge must find that no reasonable jury could reach the decision that was reached by the jury in the case. Normally this is because there are insufficient facts to support the claims or the jury applied the law incorrectly.

In this case, the JNOV seemed to have been entered because the jury ignored the defenses presented by the defendant.

Summary of the case

Georgia at the time of the decision allowed several defense to product liability claims, two of which were: Assumption of the risk and the “open and obvious” defects. Variations of these defenses are available in some, but not all states. The trial judge in this case granted the JNOV based on the Assumption of the Risk defense. The appellate court looked at both of these defenses.

The open and obvious defense states a plaintiff cannot recover from a defendant when the alleged defect is patent and obvious to the user.

The open and obvious rule states that a product is not defective if the peril from which injury could result is patent or obvious to the user. This determination regarding the peril is made on the basis of an objective view of the product. In assessing what is obvious, it must be remembered that, contrary to the belief of some, the American public is not child-like.

This defense is not based on a defect in the product, only that the product will not or will do something that is patent, and open and obvious.

The defense applied here because the plaintiff when purchase the helmet purchased one that only covered part of her head. It was “obvious” that the helmet would not protect the part of her head that the helmet did not cover.

The assumption of risk defense is slightly different, but also applicable in this case. If the consumer knows of a defect in the product, is aware of the danger presented by the defect and proceeds to use the product anyway the plaintiff is barred from recovering. “The first part of the test, actual knowledge of the defect and danger, is fulfilled because appellant had subjective knowledge that the helmet she purchased only covered a portion of her head.”

The assumption of risk defense in Georgia is slightly more difficult to prove because the injured plaintiff must have known about the defect. (However, a defect only becomes one in pleadings after an injury has occurred.) What I mean by this is, as a manufacturer should point out the limitations of the product in the information supplied by the product. This provides the necessary notice to a user of the defect and provides a defense to the manufacturer.

The court also ruled on evidentiary issues in the case which are not important in understanding these issues.

So Now What?

For manufacturers, selling a product means more than just point out the great features of the product. You must warn the consumer of any problems or issues with the product and you must point out what the product cannot do.

That does not mean that you should point out your bicycle won’t get you to the moon. It might mean you should point out that the bicycle should only be ridden on roads if it is a road bike. Videos online show road bikes being ridden everywhere, but that does not mean as a manufacturer you should be liable when someone tries to ride the Monarch Crest Trail on your road bike.

As a retailer, you should point out the differences in products trying to specifically point out short comings about a product. This helmet has a MIPS system in side, this one does not.

Both of these defenses are easy to rely on, however not all states still allow the use of these defenses.

What do you think? Leave a comment.

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Wilson v. Bicycle South, Inc., 915 F.2d 1503; 1990 U.S. App. LEXIS 18903; 31 Fed. R. Evid. Serv. (Callaghan) 682

Wilson v. Bicycle South, Inc., 915 F.2d 1503; 1990 U.S. App. LEXIS 18903; 31 Fed. R. Evid. Serv. (Callaghan) 682

Lois Elaine Wilson, Plaintiff-Appellant, v. Bicycle South, Inc., a Georgia Corporation, et al., Defendants-Appellees

No. 89-8522

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

915 F.2d 1503; 1990 U.S. App. LEXIS 18903; 31 Fed. R. Evid. Serv. (Callaghan) 682

October 30, 1990

SUBSEQUENT HISTORY: As Amended.

PRIOR HISTORY: [**1] Appeal from the United States District Court for the Northern District of Georgia. No.1: 85-cv-2658-CAM; Moye, Jr., Judge.

DISPOSITION: AFFIRMED.

COUNSEL: Robert H. Benfield, Jr., Middleton & Anderson, Atlanta, Georgia, for Appellant.

For Trek Bicycle: Stephen F. Dermer, Smith Gambrell & Russell, Atlanta, Georgia.

For Bicycle South: Jonathan Mark Engram, Swift Currie McGhee & Hiers, Thomas E. McCarter, Atlanta, Georgia.

For Opportunities, Inc.: Tommy T. Holland, Carter & Ansley, Christopher N. Shuman, Atlanta, Georgia.

For Skid Lid: Palmer H. Ansley, Long Weinberg Ansley & Wheeler, David A. Sapp, Atlanta, Georgia.

JUDGES: Clark, Circuit Judge, Morgan and Hill, * Senior Circuit Judges.

* See, Rule 34-2(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit.

OPINION BY: HILL

OPINION

[*1504] HILL, Senior Circuit Judge

I. INTRODUCTION

This appeal concerns a products liability action based upon alleged breach of warranty, strict liability, and negligence resulting in injuries to Lois Elaine Wilson (“Wilson”), appellant. Wilson incurred head injuries during an accident in Georgia while on a cross-country bicycle trip. The jury returned a verdict in favor of Wilson and against one defendant on a bicycle helmet defect claim, and against Wilson and in favor of three defendants on a bicycle wheel defect claim. The district court granted a judgment notwithstanding the verdict on the helmet claim. Plaintiff appeals [*1505] this grant and also alleges several other errors by the district court concerning the bicycle wheel claim.

A. Issues Presented

Appellant raises four distinct categories of issues on appeal. First, appellant claims that the district court erred in granting appellee Skid Lid Manufacturing Company’s (“Skid Lid”) motion for a judgment notwithstanding [**2] the verdict. Second, appellant contends that the district court improperly commented on the evidence. Third, she asserts that the district court committed reversible error by refusing to admit “similar accident” evidence. Finally, appellant maintains that the district court erred in charging the jury on the defense of “legal accident.”

We hold that the trial court did not err in granting the JNOV. Nor do the trial judge’s comments on the evidence provide cause for reversal. Similarly, we find appellant’s third and fourth contentions to be meritless.

B. Factual and Procedural History

On January 6, 1983, appellant purchased a Trek 614 touring bicycle. Trek Bicycle Corporation (“Trek”) manufactured the bicycle, Opportunities, Incorporated (“Opportunities”) assembled the bike’s rear wheel according to Trek’s specifications, and Bicycle South, Inc. (“Bicycle South”) sold the bike to appellant. The latter three parties will be referred to collectively as “the bicycle defendants.” On February 9, 1983, appellant also purchased, from a company not a party to this lawsuit, a bicycle helmet manufactured by Skid Lid. Rather than purchase a helmet covering her entire head, appellant chose [**3] one that only covered the top half of her head, coming down to about the top of her ears.

Wilson purchased the bike and helmet for a cross-country bicycling trip from Florida to California. Eight days into her trip, on April 23, 1983, Wilson sustained head injuries in a fall from the bicycle while she was riding downhill on a two-lane Georgia highway between Plains and Americus, Georgia. Between January 6 and April 23, Wilson had ridden approximately 1200 to 1600 miles on the bicycle.

The cause of appellant’s fall is disputed by the parties. Appellant maintains that the rear wheel collapsed into a saddle-like shape as a result of an improper manufacturing process and a failure to retrue the spokes of the wheel after the rim was assembled. Under this theory, the tension in the wheel, which was not released after the rim was formed and the wheel assembled, caused the spokes to loosen after use and led to the collapse. The bicycle defendants, on the other hand, maintain that the fall did not result from the wheel collapse, but that the wheel collapsed as a result of appellant’s fall from the bike. 1

1 The actual cause of the fall does not affect the issues currently before this Court.

[**4] The point of initial impact between Ms. Wilson’s head and the pavement was behind her left ear and below the edge of the helmet. As a result of the impact, she claims that she sustained three injuries. The first two, a basilar skull fracture and occipital scalp laceration, were not particularly serious and do not comprise the more serious damage. The more serious injury was a “contre-coup” (an injury to the opposite side of the head from the point of initial impact) brain contusion.

Alleging defects in the bicycle wheel and helmet, Ms. Wilson filed a complaint in this products liability action based upon breach of warranty, strict liability, and negligence. During the trial, appellant attempted to introduce evidence of a prior bicycle wheel defect claim brought by another party against Trek, Opportunities, and another bicycle store, alleging that the incidents were substantially similar. The trial court excluded the earlier incident.

At the beginning of his charge, the trial judge explained to the jury:

As a federal judge, I have the right, power, and duty to comment on the facts, to express my opinion with respect thereto . . . but remember, in the last analysis, every factual issue [**5] in this case must be decided by you, by you alone, and anything that anybody else in this room says [*1506] about the facts is a mere opinion, not binding upon you.

Subsequently, referring to witness testimony, the judge again emphasized that “as sole judges of the facts, you, the jury, and you only, must determine which of the witnesses you believe and what portion of their testimony you accept and what weight you attach to it.” Prior to analyzing and giving his opinion of the evidence that Ms. Wilson presented, 2 the judge again cautioned the jury that “you, as jurors, are at liberty to disregard each, every, and all comments of the court in arriving at your own findings of the facts.” At the conclusion of his remarks, the trial judge further emphasized:

Let me stress as strongly as I can that you, the jury, are the sole and only judges of the facts. The past several minutes I have been giving you [**6] my opinion with respect to matters committed solely to your decision, not mine. My comments are and can only be expressions of a personal opinion and are not binding on you in any way, shape, or form. Remember that in considering every issue in this case, including those to which I have just alluded, you must resort to your own recollection of the evidence, not that which I have just stated. . . . You must, in the diligent performance of your duty, rely on your recollection of all the evidence and not merely that which I may have called to your attention and emphasized.

2 The trial judge focused especially on items of derogatory information with respect to appellant’s expert, Mr. James Green.

On April 13, 1989, the jury returned a verdict in favor of appellant against appellee Skid Lid in the amount of $ 265,000 on the helmet claim. On the bicycle wheel claim, the jury returned a verdict against appellant and in favor of the bicycle defendants.

On April 21, 1989, appellee Skid Lid moved for a judgment notwithstanding the verdict, and on May 24 the trial court entered an Order granting the motion. The court did so because it found that Ms. Wilson had “assumed the risk of injury as to parts of her body patently not covered by the helmet.”

II. DISCUSSION

A. The Helmet & the Judgment Notwithstanding the [**7] Verdict

[HN1] We review the district court’s grant of a JNOV under the same standard as the district court used in determining whether to grant a JNOV. As we stated in Castle v. Sangamo Weston, Inc., 837 F.2d 1550, 1558 (11th Cir.1988):

All of the evidence presented at trial must be considered “in the light and with all reasonable inferences most favorable to the party opposed to the motion.” A motion for judgment n.o.v. should be granted only where “reasonable [people] could not arrive at a contrary verdict. . . .” Where substantial conflicting evidence is presented such that reasonable people “in the exercise of impartial judgment might reach different conclusion, [sic]” the motion should be denied. (citations omitted)

In applying this standard for the sufficiency of evidence, we also look to Georgia substantive law to determine whether Skid Lid deserved judgment as a matter of law. See Erie v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938); Salter v. Westra, 904 F.2d 1517, 1524 (11th Cir.1990).

Defendants in products liability actions have asserted two similar defenses in attempting to steer clear of liability, assumption of the risk and the “open and obvious [**8] rule.” 3 While the trial judge in this case based the JNOV on assumption of the risk, we also address the open and obvious rule because affirmance of the JNOV is proper even if based on a different rationale. See Paisey v. Vitale, 807 F.2d 889, 890 (11th Cir.1986).

3 This rule is also known as the “patent danger rule” and has its roots in a New York decision involving negligence law, Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802 (1950). New York later abandoned the rule in Micallef v. Miehle Co., 39 N.Y.2d 376, 384 N.Y.S.2d 115, 348 N.E.2d 571 (1976).

[*1507] We need not reach the assumption of the risk issue if the helmet was not defective because Skid Lid would have breached no duty to Ms. Wilson. We thus initially address the open and obvious rule. [HN2] The open and obvious rule states that a product is not defective if the peril from which injury could result is patent or obvious to the user. Stodghill v. Fiat-Allis Construction Machinery, Inc., 163 Ga. App. 811, 295 S.E.2d 183, 185 (1982). This determination [**9] regarding the peril is made on the basis of an objective view of the product. Weatherby v. Honda Motor Co., Ltd., 195 Ga. App. 169, 393 S.E.2d 64, 66 (1990) (certiorari denied June 21, 1990). In assessing what is obvious, it must be remembered that, contrary to the belief of some, the American public is not child-like. Stodghill is instructive in this respect. In Stodghill, the plaintiff was using a bulldozer manufactured by the defendants to clear felled trees from a construction site when a tree jumped over the bulldozer blade and struck him in the chest. The plaintiff claimed that the machine was defective because it had no protective metal cage surrounding the driver’s seat. The Georgia Court of Appeals recognized that the plaintiff “was obviously aware that the bulldozer he was operating had no protective cage and that the absence of this safety device exposed him to the danger of being injured by anything which might strike the driver’s compartment.” Id. 295 S.E.2d at 184. The court concluded that

“because the failure of the appellees in this case to install a protective cage over the driver’s seat of the bulldozer was an obvious characteristic of the machine [**10] which created no hidden peril and did not prevent the machine from functioning properly for the purpose for which it was designed, it cannot reasonably be considered a design or manufacturing defect under Georgia law.”

Id. at 185.

Similar to the absence of the protective cage on the bulldozer, it is or should be apparent to one who purchases an article of clothing or protective gear that the article can only protect that portion of the body which is covered. A person purchasing a bullet proof vest cannot realistically claim that he expected it to protect him from a bullet in the leg. Likewise, one purchasing a sleeveless t-shirt cannot protest that it should have protected him from a scrape on the arm. In the case at bar, rather than selecting a helmet covering her entire head, appellant elected to purchase a helmet that she knew covered only the top half of her head. She did know, or certainly should have known, that the helmet with less extensive coverage would not protect her from an impact to an area not covered by the helmet. Unlike a full helmet, the half-helmet was not designed to protect against impacts anywhere on the head. The extent of coverage was “an obvious characteristic [**11] of the [helmet] that created no hidden peril and did not prevent the [helmet] from functioning properly for the purpose for which it was designed.” Stodghill, 295 S.E.2d at 185. We thus find, as a matter of law, that the helmet was not defective under Georgia law. 4

4 We note that Georgia courts have been careful to avoid treating the American public as children where a peril is obvious or patent and the product thus not defective. In Weatherby, the five-year old plaintiff had been a passenger on an off-road motorcycle that did not have its gas cap in place. During the ride over uneven terrain, gasoline splashed from the open tank and ignited, causing burns to the plaintiff. The court found that an open fuel tank “surely suggests the possibility of spillage,” that because the fuel tank is located above the engine “gravity can be anticipated to bring the spilled fuel in contact with the engine and spark plug,” and that the dangers of spilled gasoline coming into contact with an engine are generally known. 393 S.E.2d at 67. The court consequently concluded as a matter of law that the peril of an open fuel tank resting over the engine and its spark plug was “an obvious or patent peril,” and that the product was thus not defective. Id. at 68.

[**12] Even if the failure to cover the full head were a defect, it is still beyond peradventure that appellant assumed the risk of injury to the parts of her body patently not covered by the helmet. [HN3] Under Georgia law, “‘if the user or consumer discovers the defect and is aware of the danger, but nevertheless proceeds unreasonably to make use of the product, he is [*1508] barred from recovery.'” 5 Center Chemical Co. v. Parzini, 234 Ga. 868, 870, 218 S.E.2d 580 (1975) (citation omitted). The first part of the test, actual knowledge of the defect and danger, is fulfilled because appellant had subjective knowledge that the helmet she purchased only covered a portion of her head. Had appellant, somehow, been unaware that the helmet only partially covered her head, the result might be different. As counsel for appellant admitted at oral argument, however, there is no evidence that she thought the helmet covered more of her head than it did cover, or that she believed it would protect her from injury to parts of her body not covered. Nor do we find, after our careful review of the transcript, any testimony to that effect. As for the second portion of the test, unreasonable use, it seems axiomatic [**13] to say that it is unreasonable to use a helmet to protect a portion of the body that the helmet clearly does not cover.

5 This test, in contrast to the open and obvious rule, looks to the subjective perceptions of the user or injured party. Another difference between assumption of the risk and the open and obvious rule is that while the latter places the burden of proof on the plaintiff, the former places it on the defendant. Weatherby, 393 S.E.2d at 66. See also Annotation, Products Liability: modern status of rule that there is no liability for patent or obvious dangers, 35 A.L.R. 4th 861, 865 (1985) (discussing open and obvious rule and the differences from assumption of the risk).

In sum, the district judge properly granted appellee Skid Lid’s motion for a JNOV.

B. Comments on the Evidence

At the close of the case, the district judge employed the time-honored, though little used, right and duty of a federal trial judge to comment on the evidence. As the Supreme Court stated in Quercia v. United [**14] States, 289 U.S. 466, 469, 53 S. Ct. 698, 698-99, 77 L. Ed. 1321 (1932):

[HN4] In a trial by jury in a federal court, the judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law. (citation omitted) In charging the jury, the trial judge is not limited to instructions of an abstract sort. It is within his province, whenever he thinks it necessary, to assist the jury in arriving at a just conclusion by explaining and commenting upon the evidence, by drawing their attention to the parts of it which he thinks important; and he may express his opinion upon the facts, provided he makes it clear to the jury that all matters of fact are submitted to their determination. (citations omitted) Sir Matthew Hale thus described the function of the trial judge at common law: “Herein he is able, in matters of law emerging upon the evidence, to direct them; and also, in matters of fact to give them a great light and assistance by his weighing the evidence before them, and observing where the question and knot of the business lies, and by showing them his opinion even in matters of fact; which is a great advantage and [**15] light to laymen. (citation omitted)

[HN5]

The trial judge will not be reversed unless his comments “excite a prejudice which would preclude a fair and dispassionate consideration of the evidence.” Id. at 472, 53 S. Ct. at 700. See also United States v. Hope, 714 F.2d 1084, 1088 (11th Cir.1983) (“[a] trial judge may comment upon the evidence as long as he instructs the jury that it is the sole judge of the facts and that it is not bound by his comments and as long as the comments are not so highly prejudicial that an instruction to that effect cannot cure the error”). 6 It is only where [*1509] this prejudice exists that the substantial rights of the parties are affected and Fed.R.Civ.P. 61 permits disturbing a judgment. 7 In assessing whether this prejudice exists and has affected the parties’ substantial rights, we consider the record as a whole and not merely isolated remarks. See Newman v. A.E. Staley Mfg. Co., 648 F.2d 330, 334-335 (5th Cir. Unit B June 1981). “The test is not whether the charge was faultless in every particular but whether the jury was misled in any way and whether it had understanding of the issues and its duty to determine those issues.” Bass v. International [**16] Bhd. of Boilermakers, 630 F.2d 1058, 1065 (5th Cir.1980) (citations omitted).

6 Other circuits have adopted similar language regarding a trial judge’s right to comment on the evidence. See, e.g., White v. City of Norwalk, 900 F.2d 1421 (9th Cir.1990); Johnson v. Helmerich & Payne, Inc., 892 F.2d 422 (5th Cir.1990); Vaughn v. Willis, 853 F.2d 1372 (7th Cir.1988); United States v. Munz, 542 F.2d 1382 (10th Cir.1976), cert. denied, 429 U.S. 1104, 97 S. Ct. 1133, 51 L. Ed. 2d 555 (1977); Mihalic v. Texaco, Inc., 377 F.2d 978 (3d Cir.1967); Meadows v. United States, 144 F.2d 751 (4th Cir.1944); A number of practitioners and commentators have also assessed the role of the judge in a jury trial. See, e.g., Bancroft, Jury Instructions, Communications, Juror Substitutions and Special/Partial Verdicts: Selected Topics — The Principal Law, 340 Prac.L.Inst. 611 (1987); Loeffler, Project — Seventeenth Annual Review of Criminal Procedure: United States Supreme Court and Courts of Appeals 1986-1987 (III. Trial: Authority of the Trial Judge), 76 Geo.L.J. 986 (1988); Murphy, Errors in the Charge, 14 Litig. 39 (1988).

[**17]

7 [HN6] Fed.R.Civ.P. 61 provides in part:

“No error . . . is ground for granting a new trial . . . unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”

Appellants allege that the district judge went too far in commenting on the evidence and on the testimony of their expert, Mr. Green. We do not doubt that a trial judge could misuse his authority. 8 After careful review of the record, however, while we are not prepared in this case to suggest the outside limits on a trial judge’s comments, we are satisfied that the district judge here did not overstep his bounds. As recounted in Part I.B. of this opinion, he went to great lengths to assure that the jury understood that it was the sole fact-finder in the case. 9 When his remarks are considered in their entirety, on the facts of this case we find no prejudice affecting the substantial rights of the parties.

8 Perhaps one of the best examples of a jury charge that would constitute an abuse of authority today, but was permitted prior to Quercia, is Judge Emory Speer’s eight and one-half hour, 92 page charge in United States v. Greene, 146 F. 803 (S.D.Ga.1906), cert. denied, 207 U.S. 596, 28 S. Ct. 261, 52 L. Ed. 357 (1907). In testimony before a congressional committee looking into the possibility of impeaching Judge Speer, Alexander Lawrence (one of Greene’s defense attorneys) characterized the judge and his charge as follows:

He knows the jury, knows how to play on their passions, on their prejudices, as no living man that I have seen could do it; he has a faculty for marshalling evidence that I have never seen another living man able to marshal; and in that Greene & Gaynor case he charged that jury for eight hours and I will challenge any six prosecuting attorneys in the United States, from the Attorney General down, all of them together, to take that mass of testimony taking three months’ time that Judge Speer heard, and then put it down in as ingenious an argument against the defense as Judge Speer put it in that thing. It was a masterpiece of oratory, but a very poor thing when you come down to look at it from a judicial standpoint.

H. Res. 234, 63rd Cong., 2d Sess. (1914) (Minority Report of Representative Volstead).

Since, Quercia, many appeals courts have overturned cases where the trial judge has gone too far. See, e.g., Bentley v. Stromberg-Carlson Corp., 638 F.2d 9, 11 (2d Cir.1981) (trial judge’s comments to the jury gave all the arguments for the defendant, being “tantamount to directing a verdict” for defendant); McCullough v. Beech Aircraft Corp., 587 F.2d 754, 761 (5th Cir.1979) (trial judge’s mistaken assertions virtually destroyed appellant’s circumstantial case, requiring reversal); Maheu v. Hughes Tool Co., 569 F.2d 459, 471-472 (9th Cir.1978) (trial judge’s comments amounted to “personal character reference” for witness and thus “went too far”).

[**18]

9 It seems that the jurors responded to the trial judge’s direction that they were the sole fact-finders. The judge brought to their attention that appellant’s expert had been prepared to testify that the helmet was defective because of one set of facts and then shifted his reasoning when that set of facts was disproven; nevertheless, the jury still awarded appellant $ 265,000 against the helmet manufacturer.

In the course of his remarks, appellant also contends that the trial judge improperly restricted her case to the testimony of her one expert, Mr. Green. In stressing the importance of Mr. Green’s testimony to appellant’s case, the judge stated as follows:

In this case, as in every case, there are the two big main issues: one, liability, and, two, the amount of any damages proximately flowing therefrom. The plaintiff has the burden of proving each and every element of the plaintiff’s case. The plaintiff’s entire case here, and in meeting the elements which must be proved, rests upon the expert testimony, [*1510] that is, the expert opinion, of Mr. Green. Except for Mr. Green’s testimony, the plaintiff [**19] has not made out a case of liability. With Mr. Green’s testimony, the plaintiff has made out a legal case on liability; therefore, the court suggests that the first, immediate, and crucial issue in the case for you to determine is the credibility or the believability of Mr. Green.

After studying the record, we find no merit in appellant’s contention. We are inclined to agree with the trial judge that, without Mr. Green, the case would not have been one for the jury.

In sum, we find that on the facts of this case the trial judge’s comments to the jury, when taken as a whole, neither excited a prejudice affecting the substantial rights of the parties nor incorrectly instructed the jury.

C. The Allegedly Similar Accident

Appellant argues that the trial court erred by refusing to admit evidence of the collapse of another wheel manufactured by appellees Trek and Opportunity. Appellant sought to show appellees’ notice of a defect in the wheel, the magnitude of the danger, appellees’ ability to correct a known defect, the lack of safety for intended purposes, the strength of the product, the standard of care, and causation.

The trial judge denied the proffer on the grounds that the evidence [**20] was not probative because of the necessity for a considerable amount of extrinsic evidence to determine whether the incidents were sufficiently similar to meet the standards of Fed.R.Evid. 403. 10 [HN7] A trial judge has broad discretion over the admission of evidence, Borden, Inc. v. Florida East Coast Ry. Co., 772 F.2d 750, 754 (11th Cir.1985), and we find that the district judge did not abuse his discretion. 11

10 The cause of the alleged similar incident had never been established because that case settled out of court. The parties in the instant case vigorously dispute the actual cause, demonstrating that even had the trial court reached the issue of whether the two incidents were similar this issue would have required a trial within a trial.

11 Because of our disposition of this issue, we need not reach the question of whether the two incidents were actually similar, and if so, whether the prior incident would have been properly excluded under Fed.R.Evid. 403.

D. The Charge on “Legal Accident”

In his [**21] instructions to the jury, the judge included a charge on “legal accident.” 12 To determine whether such a charge is appropriate, we first look to Georgia substantive law. See Erie v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938); McCullough v. Beech Aircraft Corp., 587 F.2d 754, 759 (5th Cir.1979). [HN8] Georgia law permits a charge on “legal accident” where there is evidence in the record authorizing a finding that the occurrence was an “accident.” 13 Chadwick v. Miller, 169 Ga. App. 338, 344, 312 [*1511] S.E.2d 835, 840 (1983). 14 Where appropriate, the charge is valid in a products liability case. Kemp v. Bell-View, Inc., 179 Ga. App. 577, 579, 346 S.E.2d 923, 926 (1986).

12 This portion of the charge reads as follows:

Now, let me tell you that the mere fact that an accident happened or an occurrence happened from which injury stemmed standing alone does not permit a jury to draw any inference that the occurrence was caused by anyone’s negligence or by any defect.

Now, I have used the word “accident” loosely, as I think is commonly the practice, is interchangeable with the word occurrence producing injury, but in Georgia law accidental injury means, in connection with personal injury actions such as this, any injury which occurs without being caused by the negligence either of the plaintiff or of the defendants. The idea of accident removes responsibility for the cause of the injury if found to have occurred by reason of a legal accident as defined under Georgia law, that is, one which is caused by the negligence neither of the plaintiff or the defendants.

It is necessary that you find from a preponderance of the evidence in this case, in order to find for the plaintiff, that the occurrence and/or resulting injuries were the result of defect and/or negligence and/or breach of warranty to the exclusion of legal accident, as I have defined that term to you, because the plaintiff has the burden of proof, as I will charge you later, to demonstrate by a preponderance of the evidence that the occurrence did, in fact, result from defect and/or negligence and/or breach of warranty, to the exclusion of legal accident.

[**22]

13 [HN9] “Accident” is defined as “an occurrence which takes place in the absence of negligence and for which no one would be liable.” Chadwick, 169 Ga. App. at 344, 312 S.E.2d 835.

14 Appellant cites Seaboard Coastline R.R. Co. v. Delahunt, 179 Ga. App. 647, 347 S.E.2d 627 (1986), for the proposition that a charge on “legal accident” can be given only where there is no evidence of negligence on the part of either party. The Georgia Court of Appeals recognized in Stiltjes v. Ridco Exterminating Co., 192 Ga. App. 778, 386 S.E.2d 696, 697 (1989), however, that Delahunt had misstated the law in Georgia.

Because the manner of giving jury instructions is procedural rather than substantive, it is governed by federal rather than state law. McCullough, 587 F.2d at 759. In reviewing alleged errors in jury instructions, we must determine whether the trial court’s charge, considered as a whole, “sufficiently instructs the jury so that the jurors understand the issues involved and are not misled.” Mark Seitman & Assocs., Inc. v. R.J. Reynolds Tobacco Co., 837 F.2d 1527, 1531 (11th [**23] Cir.1988) (citation omitted). We will only reverse if we are left with “a substantial and ineradicable doubt as to whether the jury was properly guided in its deliberations.” Id. (citation omitted).

After careful review, we find evidence in the record that supports a charge on legal accident as defined by Georgia law. We are therefore satisfied that the district judge properly guided the jury with respect to this issue.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.

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Wife signed release, husband signed addendum to release and was held to the exculpatory clause in the release

Language of addendum was sufficient to bind husband to contract – but a risky legal move.

Hembree v. Johnson et al., 224 Ga. App. 680; 482 S.E.2d 407; 1997 Ga. App. LEXIS 182; 97 Fulton County D. Rep. 622

Plaintiff: Terrell L. Hembree

Defendant: Gordon Johnson and James Haddle d/b/a Douglasville Health & Athletic Club

Plaintiff Claims: negligence

Defendant Defenses: Release

Holding: for the defendants

The wife of the plaintiff joined the defendant Douglasville Health & Athletic Club. When she joined she signed the Membership Agreement that was referenced by an Agreement Number (13217). When she completed the agreement. She listed her husband, the plaintiff as a family member. The membership agreement on the front referred to rules and conditions which the signor agreed to that were listed on the back. The rules and conditions on the back included exculpatory (release) language.

Several months after his wife joined, the plaintiff joined the health club. He signed a Membership Addendum which stated, “I herewith modify my original membership agreement No. 13217 dated 4-14-92 as stated herein.”

The plaintiff allegedly slipped and fell while playing racquet ball injuring his knee. The defendants filed a motion for summary judgment based upon the release signed by the spouse of the plaintiff.

Summary of the case

The plaintiff argued the dismissal of his case was improper because there was the existence of a material issue of a disputed fact. That fact was whether he assented to the release when he joined the defendant club.

Under Georgia law the construction of a written contract is a question of law, which can be decided by a court unless an ambiguity exists in the agreement.

Simply put, when the plaintiff signed the Membership Addendum, he assented to all the terms contained in the original agreement signed by his wife.

Even better the court stated, “It was incumbent upon Hembree [plaintiff] to read the contract and apprise himself of the terms to which he assented.”

Another issue raised by the plaintiff was the release violated the Georgia Fair Business Practices Act (O.C.G.A. § 10-1-393.2). The plaintiff failed to preserve the issue for appeal; however, the court did review the issue.

A health club membership does not violate public policy, or violate the Georgia Fair Business Practices Act.

A contracting party may waive or renounce that which the law has established in his favor, provided doing so does not injure others or affect the public interest. O.C.G.A. § 1-3-7. It is well settled that public policy does not prohibit the inclusion of an exculpatory clause, like the one at issue here, in a health club membership.

So Now What?

Normally, a court looks at a release or waiver as a personal contract with a third party. No one can sign away the right to sue of another, unless they are legally allowed to do so through a Power of Attorney or as a guardian.

In this case, the court looked at the relationship between the person who signed the original agreement and the person signing the addendum. The addendum specifically referred to the original agreement by a number.

Do not ever rely on this case to have a non-signor on a release held to a release. Always get a signature. In this case, it would have only taken a few more minutes to hand the plaintiff a release and have him read and sign the document.

What do you think? Leave a comment.

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Hembree v. Johnson et al., 224 Ga. App. 680; 482 S.E.2d 407; 1997 Ga. App. LEXIS 182; 97 Fulton County D. Rep. 622

Hembree v. Johnson et al., 224 Ga. App. 680; 482 S.E.2d 407; 1997 Ga. App. LEXIS 182; 97 Fulton County D. Rep. 622

Hembree v. Johnson et al.

A97A0034.

COURT OF APPEALS OF GEORGIA

224 Ga. App. 680; 482 S.E.2d 407; 1997 Ga. App. LEXIS 182; 97 Fulton County D. Rep. 622

February 14, 1997, Decided

PRIOR HISTORY: [***1] Slip and fall. Douglas Superior Court. Before Judge James.

DISPOSITION: Judgment affirmed.

COUNSEL: Akin & Tate, S. Lester Tate III, for appellant.

Chambers, Mabry, McClelland & Brooks, Rex D. Smith, Ian R. Rapaport, for appellees.

JUDGES: Judge Harold R. Banke. Pope, P. J., and Johnson, J., concur.

OPINION BY: Harold R. Banke

OPINION

[*680] [**408] Judge Harold R. Banke.

Terrell L. Hembree sued Gordon Johnson and James Haddle d/b/a Douglasville Health & Athletic Club (collectively “Johnson”) to recover damages relating to a knee injury allegedly sustained in a slip and fall on a racquetball court. Hembree appeals the trial court’s adverse summary judgment ruling.

Johnson moved for summary judgment relying primarily on exculpatory language contained in a membership agreement. The record shows that Melissa Hembree completed and signed joint Membership Agreement No. 13217 on which she listed Terrell Hembree, her husband, as a family member. The first section in the contract provides, “I agree to use the Health and Athletic Club in accordance with the Rules and Conditions printed on the reverse side.” Melissa Hembree signed the Rules and Conditions document which contains certain exculpatory provisions requiring a member [***2] to: (1) assume any risk occasioned by the use of the facilities, and (2) forever release and discharge the corporate owner of the club, and any affiliated companies and/or its agents and employees from liability for claims arising out of the use of the facilities. Several months after the joint membership expired, Terrell Hembree signed a Membership Addendum to obtain an individual membership. The Membership Addendum states, “I herewith modify my original membership agreement No. 13217 dated 4-14-92 as stated herein.” The only pertinent change in the addendum altered [*681] the joint membership to an individual one. During the time Hembree had an individual membership, he allegedly slipped and fell. Held:

1. We reject Hembree’s contention that summary judgment was precluded by the existence of a material issue of disputed fact as to whether he assented to the waiver. [HN1] The construction of a written contract is a question of law for the trial court unless after the court applies the applicable rules of construction, ambiguity remains. O.C.G.A. § 13-2-1; Binswanger Glass Co. v. Beers Constr. Co., 141 Ga. App. 715, 716 (1) (234 S.E.2d 363) (1977). This is not such a situation. When Hembree [***3] signed the Membership Addendum, he specifically assented to all the terms contained in Membership Agreement No. 13217, which was incorporated by reference in the Membership Addendum. [HN2] Incorporation by reference is generally effective to accomplish its intended purpose where, as here, the reference has a reasonably clear and ascertainable meaning. Binswanger, 141 Ga. App. at 717 (2). Hembree was bound by the terms and conditions of the contract that he signed including the Rules and Conditions giving effect to the waiver. It was incumbent upon Hembree to read the contract and apprise himself of the terms to which he assented. Conklin v. Liberty Mutual Ins. Co., 240 Ga. 58, 59 (239 S.E.2d 381) (1977); Lovelace v. Figure Salon, 179 Ga. App. 51, 53 (1) (345 S.E.2d 139) (1986). Having shown the absence of any genuine issue of material fact, Johnson was entitled to summary judgment as a matter of law. O.C.G.A. § 9-11-56 (c).

2. Hembree enumerates as errors an alleged violation of the Fair Business Practices Act (O.C.G.A. § 10-1-393.2) and an assertion that Johnson and Haddle are not [**409] agents and employees of the corporation as contemplated by the waiver language. Although Hembree [***4] claims that he raised these two issues during oral argument, he failed to provide a transcript of the summary judgment hearing. Hembree, as [HN3] the party alleging error, has the burden to show it affirmatively by the record. North Fulton Feed v. Purina Mills, 221 Ga. App. 576, 577 (472 S.E.2d 122) (1996). [HN4] Because Hembree failed to show that either of these issues was raised and argued below, they cannot be raised now for the first time. Auerbach v. First Nat. Bank of Atlanta, 147 Ga. App. 288, 290 (1) (B) (248 S.E.2d 551) (1978).

3. Notwithstanding Hembree’s argument to the contrary, we find no violation of public policy in the exculpatory clause at issue. [HN5] A contracting party may waive or renounce that which the law has established in his favor, provided doing so does not injure others or affect the public interest. O.C.G.A. § 1-3-7. It is well settled that public policy does not prohibit the inclusion of an exculpatory clause, like the one at issue here, in a health club membership. Day v. Fantastic Fitness, 190 Ga. App. 46 (1) (378 S.E.2d 166) (1989); My Fair Lady of Ga. v. Harris, 185 Ga. App. 459 (364 S.E.2d 580) (1987); Lovelace, 179 Ga. [*682] App. at 52 (1).

Judgment [***5] affirmed. Pope, P. J., and Johnson, J., concur.

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Georgia Ski Safety Act

Georgia Ski Safety Act

OFFICIAL CODE OF GEORGIA ANNOTATED

Copyright 2012 by The State of Georgia

TITLE 43. PROFESSIONS AND BUSINESSES

CHAPTER 43A. SNOW SKIING SAFETY

GO TO GEORGIA STATUTES ARCHIVE DIRECTORY

O.C.G.A. § 43-43A-1 (2012)

§ 43-43A-1. Definitions

As used in this chapter, the term:

(1) “Base area lift” means a passenger tramway to gain access to some other part of the ski area.

(2) “Competitor” means a skier engaging in competition or preparing for competition on a slope or trail designated by the ski area or used by the skier for the purpose of competition or training for competition.

(3) “Conditions of ordinary visibility” means all periods of daylight, and, when visibility is not restricted by weather or other atmospheric conditions, nighttime.

(4) “Inherent dangers and risks of skiing” means categories of danger or risks of skiing, or conditions of the sport of skiing that cause or can cause any injury, death, or property damage, including:

(A) Changing weather conditions;

(B) Surface and subsurface snow or ice conditions as they may exist or change from time to time, including variable conditions such as hard packed powder, packed powder, wind-blown snow, wind-packed snow, corn snow, crust slush, snow modified by skier use, or cut up snow; surface or subsurface snow or ice conditions as they exist or may change as the result of weather changes or skier use; snow created by or resulting from snow making or snow grooming operations; or collisions or falls resulting from such conditions;

(C) Surface or subsurface conditions other than those specified in subparagraph (B) of this paragraph, including dirt, grass, rocks, trees, stumps, other forms of forest or vegetative growth, stream beds, or other natural objects or debris; or collisions or falls resulting from such conditions;

(D) Collisions with: lift towers; components of lift towers; signs, posts, fences, mazes, or other enclosure devices; hydrants, pipes, or any other portions of snow making or snow delivery systems; snow grooming equipment or other over-snow vehicles marked or lighted as required by this chapter; or collisions with or falls resulting from any such structures or any other manmade structures or their components;

(E) Variations in surface, contour, or steepness of terrain, including, but not limited to, moguls, ski jumps, roads, depressions, water bars, and cat walks; other terrain changes or modifications which occur naturally or result from slope design or construction, snow making, snow grooming, maintenance operations, or skier use; or collisions with or falls resulting from such variations; and

(F) Collisions with other skiers unless such collisions are caused by the failure on the part of other skiers to conduct themselves in accordance with the provisions of this chapter.

(5) “Passenger” means a person who is lawfully being transported by a passenger tramway.

(6) “Passenger tramway” means any mechanical device used to transport passengers uphill, but such term does not include over-snow vehicles.

(7) “Ski area” means all snow ski slopes or trails and other places under the control of a ski area operator at a defined business location within this state.

(8) “Ski area operator” means an individual, partnership, corporation, or other commercial entity who owns, manages, or otherwise directs or has operational responsibility for any ski area.

(9) “Ski slopes or trails” means those areas open to the skiing public and designated by the ski area operator to be used by a skier. The designation may be generally set forth on trail maps and further designated by signage posted to indicate to the skiing public the intent that the areas be used by the skier for the purpose of skiing. Nothing in this paragraph implies that ski slopes or trails may not be restricted for use at the discretion of the ski area operator.

(10) “Skier” means any person who uses any part of a ski area for the purpose of skiing, snowboard skiing, or sliding or moving on any device other than a motorized device or any person except a passenger who uses any of the facilities of the ski area, including the ski slopes and trails.

(11) “Surface lift” means any passenger tramway that allows the skier’s sliding equipment to stay in contact with the skier and the snow during all of the uphill transportation.

§ 43-43A-2. Use of passenger tramway; passenger rules

(a) No passenger shall use a passenger tramway if the passenger does not have sufficient knowledge, ability, or physical dexterity to negotiate or use the facility safely unless and until the passenger has asked for and received information sufficient to enable the passenger to use the equipment safely. A passenger is required to follow any written, verbal, or other instructions that are given by ski area personnel regarding the use of the passenger tramway.

(b) No passenger shall:

(1) Attempt to enter, use, exit, or leave a passenger tramway except at a location designated by ski area signage for that purpose, except that, in the event of a stoppage of the passenger tramway, a passenger may exit under the supervision and direction of the operator or its representatives, or, in the event of an emergency, a passenger may exit in order to prevent an injury to the passenger or others;

(2) Throw, drop, or release any object from a passenger tramway except as directed by the operator or its representatives;

(3) Act in any manner that may interfere with the proper or safe operation of the passenger tramway or cause any risk, harm, or injury to any person;

(4) Place in an uphill track of any surface lift any object that may cause damage to property or injury to any person;

(5) Use or attempt to use any passenger tramway marked as closed; or

(6) Disobey any instructions posted in accordance with this chapter or any verbal or other instructions of the ski area operator or its lawful designee regarding the use of passenger tramways.

§ 43-43A-3. Sign system; inspection; explanation of signs and symbols; warning signs; degree of difficulty signs

(a) Each ski area operator shall maintain a sign system with information for the instruction of passengers and skiers. Signs must be in English and visible in conditions of ordinary visibility and, where applicable, lighted for nighttime passengers. Without limitation, the signs shall be posted:

(1) At or near the loading point of each passenger tramway, regardless of the type, advising all persons that if they are not familiar with the operation of the device, they must ask the operator of the device for assistance and instructions and that they must understand such instructions before they attempt to use the passenger tramway; and

(2) At or near the boarding area of each lift, setting forth the warning regarding inherent dangers and risks and duties as provided in this chapter.

(b) The ski area operator, before opening a passenger tramway to the public each day, shall inspect the passenger tramway for the presence and visibility of all required signs.

(c) The ski area operator shall post a sign visible to skiers who are proceeding to the uphill loading point of each base area lift which shall depict and explain the following signs and symbols that a skier may encounter at the ski area:

(1) A green circle and the word “easier” designating the ski area’s least difficult trails and slopes;

(2) A blue square and the words “more difficult” designating the ski area’s trails and slopes that have a degree of difficulty that lies between the least difficult and most difficult trails and slopes;

(3) A black diamond and the words “most difficult” designating the ski area’s most difficult trails and slopes;

(4) Two black diamonds and the words “most difficult” designating a slope or trail which meets the description of “most difficult” but which is particularly challenging; and

(5) Crossed poles or other images clearly indicating that a trail or slope is closed and may not be used by skiers.

(d) If applicable, a warning sign shall be placed at or near the loading point of a passenger tramway indicating that it provides access to only “most difficult” or “more difficult” slopes or trails.

(e) The ski area operator shall place a sign at or near the beginning of each trail or slope indicating the relative degree of difficulty of that particular trail or slope.

§ 43-43A-4. Warning notice

(a) The ski area operator shall post and maintain signs that contain the following warning notice:

“WARNING: Under Georgia law, every skier accepts the risk of any injury or death and damage to property resulting from any of the inherent dangers or risks of skiing. The inherent dangers or risks of skiing, or conditions of the sport of skiing that cause or can cause injury, death, or property damage, include:

(1) Changing weather conditions;

(2) Surface and subsurface snow or ice conditions as they may exist or change from time to time, including variable conditions such as hard packed powder, packed powder, wind-blown snow, wind-packed snow, corn snow, crust slush, snow modified by skier use, or cut up snow; surface or subsurface snow or ice conditions as they exist or may change as the result of weather changes or skier use; snow created by or resulting from snow making or snow grooming operations; or collisions or falls resulting from such conditions;

(3) Surface or subsurface conditions other than those specified in paragraph (2), including dirt, grass, rocks, trees, stumps, other forms of forest or vegetative growth, stream beds, or other natural objects or debris; or collisions or falls resulting from such conditions;

(4) Collisions with: lift towers; components of lift towers; signs, posts, fences, mazes, or other enclosure devices; hydrants, pipes, or any other portions of snow making or snow delivery systems; snow grooming equipment or other over-snow vehicles marked or lighted as required by this chapter; or collisions with or falls resulting from any such structures or any other manmade structures or their components;

(5) Variations in surface, contour, or steepness of terrain, including, but not limited to, moguls, ski jumps, roads, depressions, water bars, and cat walks; other terrain changes or modifications which occur naturally or result from slope design or construction, snow making, snow grooming, maintenance operations, or skier use; or collisions with or falls resulting from such variations; and

(6) Collisions with other skiers.”

(b) A warning sign as described in subsection (a) of this Code section shall be placed:

(1) At the ski area in the location where lift tickets or ski school lessons are sold;

(2) In the vicinity of the uphill loading point of each base area lift; and

(3) At such other places as the ski area operator may select.

(c) Each sign required by subsection (a) of this Code section shall be no smaller than 3 feet by 3 feet and shall be white or yellow with black and red letters as specified in this subsection. The word “WARNING” shall appear on the sign in red letters. The warning notice specified in subsection (a) of this Code section shall appear on the sign in black letters with each letter being a minimum of one inch in height.

(d) Every passenger tramway ticket sold may contain the warning notice specified in subsection (a) of this Code section.

§ 43-43A-6. Revocation of skiing privileges

Each ski area operator, upon finding a person skiing in violation of any posted regulations governing skiing conduct, may revoke that person’s skiing privileges. This Code section shall not in any way be construed to create an affirmative duty on the part of the ski area operator to protect skiers from their own or other skiers’ careless or reckless behavior, including any skier’s violation of any duties set forth in this chapter.

§ 43-43A-7. Duties and responsibilities of each skier; assumption of risk

Any other provision of law to the contrary notwithstanding:

(1) Each individual skier has the responsibility for knowing the range of his or her own ability to negotiate any ski slope or trail or any portion thereof and must ski within the limits of his or her ability. Each skier expressly accepts and assumes the risk of any injury or death or damage to property resulting from any of the inherent dangers and risks of skiing, as set forth in this chapter; provided, however, that injuries sustained in a collision with another skier are not an inherent risk of the sport for purposes of this Code section;

(2) Each skier has the duty to maintain control of his or her speed and course at all times and to maintain a proper lookout so as to be able to avoid other skiers and objects, natural or manmade. The skier shall have the primary duty to avoid colliding with any persons or objects below him or her on the trail;

(3) No skier shall ski on a ski slope or trail that has been posted as closed in accordance with the provisions of this chapter;

(4) Each skier shall stay clear of all snow grooming or snow making equipment, vehicles, lift towers, signs, and any other equipment at the ski area;

(5) Each skier shall obey all posted information, warnings, and requirements and shall refrain from acting in any manner that might cause or contribute to the injury of the skier or any other person. Each skier shall be charged with having seen and understood all information posted as required or permitted in this chapter. Each skier shall locate and ascertain the meaning of all signs posted in accordance with this chapter;

(6) Each sliding device used by a skier shall be equipped with a strap or other device designed to help reduce the risk of any runaway equipment should it become unattached from the skier;

(7) No skier shall cross the uphill track of any surface lift device except at locations designated by the operator, nor shall any person place any object in the uphill track of such a device;

(8) Before beginning to ski from a stationary position, or before entering a ski slope or trail, the skier shall have the duty of yielding to moving skiers already using the slope or trail;

(9) No skier shall stop where he or she obstructs a trail or is not visible from higher on the slope or trail; and

(10) No skier shall board or use or attempt to board or use any passenger tramway of any type or use any ski slope or trail while that skier’s ability to do so is impaired by alcohol, drugs, or any controlled substance.


Georgia does not have a lot of skiing, but you can rent skis there.

Benford et al. v. RDL, Inc., 223 Ga. App. 800; 479 S.E.2d 110; 1996 Ga. App. LEXIS 1284; 96 Fulton County D. Rep. 4312

Release for renting skis stops litigation over failing of the binding to release.

In this case, the plaintiff rented skis from the defendant in Georgia. The plaintiff completed the rental agreement which included a fairly well written release. The rental company from the decision, asked the proper questions to calculate the DIN setting which in this case was 5 ½.

The plaintiff took the rented equipment on a ski trip. He made several runs, falling “uneventfully” the first day. None of those falls released the plaintiff from the bindings. On the last run while attempting to stop he fell releasing one binding but not the other. The leg in binding that failed to release suffered the classic skiing injury, torn ligaments in the plaintiff’s knee.

After the injury, the ski rental shop tested the binding which the test showed the binding passed.

The plaintiff sued for “breach of warranty, breach of contract, and negligence” and the plaintiff’s spouse sued for loss of a consortium. The defendant used the defense of release, and the trial court granted the defense motion for summary judgment.

Summary of the case

The first area of the law the court spoke to was the fact the relationship between the plaintiff and the defendant were bailor-bailee. Normally, this term is applied to someone in possession of another’s property. A valet is the bailee of your car when you hand over the keys. You are the bailor, the legal owner who has given temporary possession to another.

Once the court determined the relationship between the parties, then the court could conclude that the relationship was governed by the rental agreement.

The court then found that the plaintiff had failed to produce any evidence of negligence upon the part of the defendant. Then in a footnote, the court found that if the plaintiff had found evidence of negligence, the plaintiff still would have been bound by assumption of the risk. The court then went back to release and stated that even if negligence had been shown, the release would have prevented the suit.

“…in Georgia, the general rule is that a party may exempt himself by contract from liability to the other party for injuries caused by his negligence, and the agreement is not void for contravening public policy.”

The court then concluded the release did just that.

The remaining claims of the plaintiff were dismissed based on the analysis or the release.

The court finished with this line.

It is difficult to envision how the waiver language here could have been any clearer.

So Now What?

Get a good release written. Have your clients sign the release. Make sure your equipment meets the standards of the industry and maybe if you are faced with this issue, you will see this short and sweat answer to any litigation.

 

Plaintiff: Mr. and Mrs. Benford, no first name was ever given

 

Defendant: RDL, Inc. d/b/a Rocky Mountain Ski Shop

 

Plaintiff Claims: breach of warranty, breach of contract, and negligence and Mrs. Benford’s claim of loss of consortium

 

Defendant Defenses: Release

 

Holding: For the defendant on the release

 

What do you think? Leave a comment.

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Copyright 2013 Recreation Law (720) Edit Law

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By Recreation Law          Rec-law@recreation-law.com   James H. Moss                  Jim Moss

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Benford et al. v. RDL, Inc., 223 Ga. App. 800; 479 S.E.2d 110; 1996 Ga. App. LEXIS 1284; 96 Fulton County D. Rep. 4312

Benford et al. v. RDL, Inc., 223 Ga. App. 800; 479 S.E.2d 110; 1996 Ga. App. LEXIS 1284; 96 Fulton County D. Rep. 4312

Benford et al. v. RDL, Inc.

A96A1458.

COURT OF APPEALS OF GEORGIA

223 Ga. App. 800; 479 S.E.2d 110; 1996 Ga. App. LEXIS 1284; 96 Fulton County D. Rep. 4312

December 4, 1996, Decided

SUBSEQUENT HISTORY: [***1] Certiorari Applied For.

PRIOR HISTORY: Bailment; release. Fulton Superior Court. Before Judge Cook.

DISPOSITION: Judgment affirmed.

COUNSEL: James B. Gurley, for appellants.

Long, Weinberg, Ansley & Wheeler, Kenneth M. Barre, for appellee.

JUDGES: ANDREWS, Judge. Pope, P. J., and Smith, J., concur.

OPINION BY: ANDREWS

OPINION

[**111] [*800] ANDREWS, Judge.

Mr. Benford and his wife appeal from the trial court’s grant of summary judgment to RDL, Inc. d/b/a Rocky Mountain Ski Shop in Mr. Benford’s suit alleging breach of warranty, breach of contract, and negligence and Mrs. Benford’s claim of loss of consortium.

1. Viewed under the standard of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 S.E.2d 474) (1991), the evidence on summary judgment was that Mr. Benford went to the ski shop on December 12, 1992 to rent skis and boots for an upcoming ski trip. He was assisted by Cooper, [*801] who asked Benford to pick out a pair of boots and to complete and sign a Rental Agreement and Release of Liability. Benford acknowledged reading, initialling, and signing the document which states that:

“I accept for use as is the equipment listed on this form and accept full responsibility for the care of this equipment. I have made no misrepresentations to this [***2] ski shop regarding my height, weight, age or skiing ability.

“I understand and am aware that skiing is a HAZARDOUS activity. I understand that the sport of skiing and the use of this ski equipment involve a risk of injury to any and all parts of my body. I hereby agree to freely and expressly assume and accept any and all risks of injury or death to the user of this equipment while skiing.

“I understand that the ski equipment being furnished forms a part or all of a ski-boot-binding system which will NOT RELEASE at all times or under all circumstances, and that it is not possible to predict every situation in which it will or will not release, and that its use cannot guarantee my safety or freedom from injury while skiing. I further agree and understand that this ski-boot- binding system may reduce but NOT eliminate the risk of injuries to the lower portion of my leg. However, I agree and understand that this ski-boot-binding system does NOT reduce the risk of injuries to my knees or any other parts of my body.

“I agree that I will release this ski shop from any and all responsibility or liability for injuries or damages to the user of the equipment listed on this form, or to any [***3] other person. I agree NOT to make a claim against or sue this ski shop for injuries or damages relating to skiing and/or the use of this equipment. (Please initial ) [Benford’s initials].

“In consideration for being able to rent this ski equipment, I hereby agree to accept the terms and conditions of this contract. This document constitutes the final and entire agreement between this ski shop and the undersigned. There are NO WARRANTIES, express or implied, which extend beyond the description of the ski equipment listed on this form.

“I have carefully read this agreement and release of liability and fully understand its contents. I am aware that this is a release of liability and a contract between myself and this ski shop and I sign it of my own free will.”

Pursuant to the height, weight, and skill level information provided by Benford, Cooper set the bindings of the skis at 5 1/2. This setting was based on a chart used in the business which the person doing the settings consults and then makes adjustments to the bindings, toes and heels of the boots.

[**112] Benford picked the skis up on December 26 and left with his wife [*802] and some friends on a ski trip. On the first day of the [***4] trip, Benford had made six or seven ski runs and had fallen uneventfully a couple of times. These falls did not cause the bindings to release. On his last run, Benford was in the process of coming to a stop to assist his wife who had fallen. Because of a change in the slope where he stopped, his center of gravity got out over his skis and he fell. While the right ski did release, the left one did not and he tore ligaments in his left knee. When he returned the skis to the shop, he was given a free week ski rental, good any time.

Because Benford was injured and contended the skis did not release, Jackson, the store manager, had the bindings tested with the Vermont Calibrator, a device used to measure the torque it takes to remove a boot from its binding, and the skis rented by Benford passed the test. All skis rented by the ski shop were tested on this device once a year, and randomly selected sets were tested periodically.

2. Benford acknowledges that these facts establish the relationship of bailor-bailee, pursuant to O.C.G.A. § 44-12-60. Therefore, the relationship between them is governed by the terms of the Rental Agreement and the statutory obligations of a bailor under O.C.G.A. § [***5] 44-12-63. Mark Singleton Buick v. Taylor, 194 Ga. App. 630, 632 (1) (391 S.E.2d 435) (1990); Hall v. Skate Escape, Ltd., 171 Ga. App. 178 (319 S.E.2d 67) (1984).

3. Benford has failed totally to come forward with evidence concerning negligence by the ski shop. Lau’s Corp., supra; Prince v. Atlanta Coca-Cola Bottling Co., 210 Ga. App. 108, 109 (1) (435 S.E.2d 482) (1993). 1

1 Even had he been able to do so, this is one of those rare cases where, as a matter of law, it can be said that Benford assumed the risk of exactly what happened to him. Beringause v. Fogleman Truck Lines, 200 Ga. App. 822, 823 (409 S.E.2d 524) (1991).

Also, even assuming some negligence had been shown, [HN1] “in Georgia, the general rule is that a party may exempt himself by contract from liability to the other party for injuries caused by his negligence, and the agreement is not void for contravening public policy. [Cits.]” Hall, supra at 179. Here, the agreement clearly and prominently did just that. Mercedes-Benz [***6] Credit Corp. v. Shields, 199 Ga. App. 89, 91 (403 S.E.2d 891) (1991).

4. Benford’s claims of breach of warranty and contract suffer the same fate. There is no showing by Benford of any latent defect in the skis or bindings, such as that in Hall, supra. Therefore, the covenant not to sue is not in contravention of O.C.G.A. § 44-12-63 (3). Mercedes-Benz, supra; Citicorp Indus. Credit v. Rountree, 185 Ga. App. 417, 422 (2) (364 S.E.2d 65) (1987). It is difficult to envision how the waiver language here could have been any clearer.

[*803] Judgment affirmed. Pope, P. J., and Smith, J., concur.

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By Recreation Law          Rec-law@recreation-law.com   James H. Moss                  Jim Moss

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