Release signed previously for different event by same defendant used to defeat claim at new event in Georgia
Posted: November 14, 2022 Filed under: Georgia, Indoor Recreation Center, Release (pre-injury contract not to sue) | Tags: Floor Mats, Floor Padding, Georgia, Georgia All Stars, Georgia Recreational Use Statute, Gym, Mats, Recreational Use Statute, Release, Tumbling Leave a commentGeorgia Recreational Use Statute also stops claims for slip and fall by spectator at event.
Shields v. RDM, LLC, 355 Ga. App. 409, 844 S.E.2d 297 (Ga. App. 2020)
State: Georgia: Court of Appeals of Georgia
Plaintiff: Kimberly and James Shields
Defendant: RDM, LLC d/b/a Georgia All Stars
Plaintiff Claims: negligence and loss of consortium, and seeking attorney fees, litigation costs, and damages
Defendant Defenses: Release and Recreational Use Statute
Holding: For the Defendant
Year: 2020
Summary
A mother watching her daughter perform in a gym tripped and fell breaking here leg stepping off mats. The gym raised the defenses of release, which the mother had signed at a previous event and the Georgia Recreational Use statute to successfully stop the claims of the mother.
Facts
…the record shows that Georgia All Stars offers tumbling instruction and provides competitive all-star cheerleading team programs in its Roswell, Georgia gym.3 On the day in question, November 19, 2015, Georgia All Stars hosted an exhibition of participants’ routines for parents to view in the practice area of the gym. And for this exhibition, the concrete gymnasium floor was covered with purple practice mats, and at least two vendors were there to promote their goods or services.
The Shieldses’ daughter was a participant in Special Twist, which is a “special needs all star cheer and dance team.” Special Twist is not part of the Georgia All Stars facility or teams, but is instead an independent 501 (3) (c) organization that, under previous ownership, had been permitted to practice in the Georgia All Stars facility with volunteer coaches and leadership. Georgia All Stars then adopted and continued the agreement, and Special Twist is charged nothing to use the facilities. Special Twist members were invited to participate in the exhibition on the night in question.
That evening, Special Twist performed an hour later than scheduled, and due to the number of people in attendance and the resulting crowd in the gym, spectators whose children had yet to perform were asked to wait outside. So, when Kimberly was eventually permitted inside the gym to watch Special Twist, she and “about a hundred [other] people” were “crammed into a corner” and stood to watch the performance.
When Special Twist finished performing, the coach took the members to watch other teams perform from the sidelines; but Kimberly and her daughter could not stay for the entire program due to another obligation they had early the next morning. As a result, Kimberly went to look for her daughter, who at the time was less than five feet tall. And as she was walking toward her daughter’s team, while attempting to look over other people and navigating through the crowd, Kimberly suddenly fell from the mats at a distance of what she described as two feet onto the concrete floor.
The area where Kimberly fell had not been marked off physically with rope, tape, or cones. And after she fell, a Georgia All Stars employee came over to assist Kimberly and called for an ambulance because she was unable to get up on her own. Then, at the hospital, Kimberly was diagnosed with four breaks between her leg and ankle that required surgery and many months of recovery.
Kimberly was familiar with the layout of the gym and the use of the purple mats because she watched her daughter perform or practice there on at least ten other occasions. But on the night in question, she noticed the mats were stacked in ways she had never seen before, and so she was not expecting the drop off where she fell. Nevertheless, it is undisputed that Georgia All Stars had parents sign releases containing warnings about potential hazards in the gym, and verbal warnings were given at the evening’s exhibition.
Prior to her daughter’s participation in a daily, one-week-long camp at the Georgia All Stars gym, Kimberly signed a medical-release form on July 30, 2015.5 In doing so, Kimberly understood that the medical release applied to her and her daughter, and that the document applied to her and her daughter’s participation in events at the gym.
The mother and her husband sued the gym for negligence and loss of consortium.
Analysis: making sense of the law based on these facts.
The court started out by reviewing the requirements for a contract to be effective under Georgia law.
The first step is to decide whether the language of the contract is clear and unambiguous. If so, the contract is enforced according to its plain terms, and the contract alone is looked to for meaning. Second, if the language of the contract is ambiguous in some respect, the rules of contract construction must be applied by the court to resolve the ambiguity. And finally, if ambiguity remains after applying the rules of construction, the issue of what the ambiguous language means and what the parties intended must be resolved by a jury.10
The court then looked at the four issues under Georgia’s law for a release to be valid.
Suffice it to say, the cardinal rule of contract construction is to “ascertain the intention of the parties, as set out in the language of the contract.” Additionally, it is the “paramount public policy of this state that courts will not lightly interfere with the freedom of parties to contract.” And a contracting party may “waive or renounce that which the law has established in his or her favor, when it does not thereby injure others or affect the public interest.” Finally, exculpatory clauses in Georgia are “valid and binding, and are not void as against public policy when a business relieves itself from its own negligence.”
In this case the court found the release was valid. The plaintiff then argued the release was only valid for the camp the defendant’s daughter had participated in where the release was signed. However, the court noted there was nothing in the release that limited its application to a specific event or a date certain.
In this case, although Kimberly argues that the medical-release form was only applicable to her daughter’s participation in a temporary camp program, nothing in the language of the release limits it to any specific program, event, or time period. Indeed, the plain language of the release states that it is applicable to “the activities that I or my child engage in while on the premises or under the auspices of GA,” “all of the risks, known and unknown, connected with GA related activities,” and “participation in GA-related activities.”
Always remember, there is no reason to limit the time frame of your release, doing so simply puts an end to your defenses when there is no t need to do so.
Find the release valid for a different time and location then the plaintiff argued the court then looked at whether the Georgia Recreational Use Act, OCGA § 51-3-20 et seq applied.
Recreational Use Statutes were created by legislatures to encourage land owners to open their land to other for recreational purposes. In general, the use must be free, or with no benefit to the land owner and for recreational purposes. Under Georgia’s law that meant:
(1) the nature of the activity that constitutes the use of the property in which people have been invited to engage, and (2) the nature of the property that people have been invited to use.” In other words, “the first asks whether the activity in which the public was invited to engage was of a kind that qualifies as recreational under the Act, and the second asks whether at the relevant time the property was of a sort that is used primarily for recreational purposes or primarily for commercial activity.”
Here, watching a child’s gymnastic routine was considered recreational by the court. There was also no fee charged by the defendant for the children to use the facility or for the parent to watch the child perform.
The plaintiffs argued that since there were vendors at the event, the defendant received a benefit for the use of the facility. The court looked at Georgia Supreme Court decisions over the type of charge and determined:
“[i]t is not the law—and we have never said that it was—that inviting people to use recreational property for recreational activities could still fail to qualify for immunity under the Act solely because the landowner had some sort of subjective profit motive in doing so.” Instead, the relevant question is whether “the landowner actually invited people onto the property (directly or indirectly) to do something ‘recreational,’ or whether people have instead been allowed onto the property to engage in commercial activity.” And in this case, the evidence shows that “both the nature of the activity and the nature of the property at the time of the [gymnastics exhibition] were purely recreational.”
Although the defendant may or may not have made some type of money from the vendors. There was no payment by the defendant to the facility to be there. There was no requirement that a purchase had to be made from a vendor or the vendors received any benefit from the exhibition. In fact, the court summed up its analysis of the facts in the case as:
To put it plainly, this case is the poster child for immunity under the RPA, and the trial court did not err in concluding that the Shieldses’ claims were barred under the statute.
The court stated both defenses would have stopped the claims of the plaintiffs. In fact, the court used an analysis I have never seen to describe the situation.
If the medical-release form is the belt of Georgia All Stars’s defense to this lawsuit, the protections afforded to property owners by the Recreational Property Act are its suspenders.
So Now What?
Too many times I see releases that have an ending date or a date when the release is no longer valid. Just the opposite needs to be made clear. That the release is valid for longer than one year. Many times, showing valid releases signed each year by the plaintiff is proof that the plaintiff knew and understood what they were signing, the risks and each release was another bar to the plaintiffs’ claims.
Do not limit the value of your release by putting a date on the release ending its effectiveness.
What do you think? Leave a comment.
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Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
To see Jim’s complete bio go here and to see his CV you can find it here.
Copyright 2022 Recreation Law (720) 334 8529
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Georgia Recreational Use Statutes
Posted: November 14, 2022 Filed under: Georgia | Tags: Georgia Recreational Use Statutes, Recreational Use Statute Leave a commentGeorgia Recreational Use Statutes
§ 51-3-20. Purpose of article 1
51-3-22. Duty of owner of land to those using same for recreation generally 1
51-3-23. Effect of invitation or permission to use land for recreation 1
51-3-25. Certain liability not limited 2
51-3-26. Construction of article 2
§ 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.” GA. Code 51-3-20 Purpose of article (Georgia Code (2022 Edition))
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.
History:
Amended by 2014 Ga. Laws 658, §2, eff. 10/1/2014.
GA. Code 51-3-21 Definitions (Georgia Code (2022 Edition))
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.
GA. Code 51-3-22 Duty of owner of land to those using same for recreation generally (Georgia Code (2022 Edition))
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.
GA. Code 51-3-23 Effect of invitation or permission to use land for recreation (Georgia Code (2022 Edition))
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.
GA. Code 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 (Georgia Code (2022 Edition))
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) On a date when the owner of land charges any individual who lawfully enters such land for recreational use and any individual is injured in connection with the recreational use for which the charge was made, provided 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.
History:
Amended by 2018 Ga. Laws 554, §1, eff. 7/1/2018.
GA. Code 51-3-25 Certain liability not limited (Georgia Code (2022 Edition))
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.
GA. Code 51-3-26 Construction of article (Georgia Code (2022 Edition))
| Creation Date | 11/10/22 | File Name | Georgia Recreational Use Statutes.docx |
| Save Date | 11/10/22 | File Location | D:\1. Legal\1.2.1 Laws\Recreational Use\Georgia Recreational Use Statutes.docx |
Shields v. RDM, LLC, 355 Ga.App. 409, 844 S.E.2d 297 (Ga. App. 2020)
Posted: November 14, 2022 Filed under: Georgia, Indoor Recreation Center, Release (pre-injury contract not to sue) | Tags: All Stars, Floor Padding, Georgia, Georgia All Stars, Georgia Recreational Use Statute, Gym, Padding, Recreational Use Statute, Release, Slip and Fall, Tumbling Leave a commentShields v. RDM, LLC, 355 Ga.App. 409, 844 S.E.2d 297 (Ga. App. 2020)
355 Ga.App. 409
844 S.E.2d 297
SHIELDS et al.
v.
RDM, LLC .
A20A0465
Court of Appeals of Georgia.
June 5, 2020
Costyn Law, Joseph M. Costyn, Zachary B. Johnson, for appellants.
Freeman Mathis & Gary, Wayne S. Melnick, Jason A. Kamp, for appellee.
Dillard, Presiding Judge.
Kimberly and James Shields appeal from the trial court’s grant of summary judgment to RDM, LLC d/b/a Georgia All Stars on claims based on personal injuries Kimberly sustained during an event at Georgia All Stars’s facility. Specifically, the Shieldses argue that the trial court erred in granting summary judgment to Georgia All Stars and, in doing so, finding that their claims were barred by the terms of a medical release form signed by Kimberly and the Georgia Recreational Property Act (”RPA”).1 For the reasons set forth infra , we affirm.
Viewed de novo in the light most favorable to the Shieldses (i.e. , the nonmoving parties),2 the record shows that Georgia All Stars offers tumbling instruction and provides competitive all-star cheerleading team programs in its Roswell, Georgia gym.3 On the day in question, November 19, 2015, Georgia All Stars hosted an exhibition of participants’ routines for parents to view in the practice area of the gym. And for this exhibition, the concrete gymnasium floor was covered with purple practice mats, and at least two vendors were there to promote their goods or services.
The Shieldses’ daughter was a participant in Special Twist, which is a “special needs all star cheer and dance team.” Special Twist is not part of the Georgia All Stars facility or teams, but is instead an independent 501 (3) (c) organization that, under previous ownership, had been permitted to practice in the Georgia All Stars facility with volunteer coaches and leadership. Georgia All Stars then adopted and continued the agreement, and Special Twist is charged nothing to use the facilities. Special Twist members were invited to participate in the exhibition on the night in question.
That evening, Special Twist performed an hour later than scheduled, and due to the number of people in attendance and the resulting crowd in the gym, spectators whose children had yet to perform were asked to wait outside. So, when Kimberly was eventually permitted inside the gym to watch Special Twist, she and “about a hundred [other] people” were “crammed into a corner” and stood to watch the performance.
When Special Twist finished performing, the coach took the members to watch other teams perform from the sidelines; but Kimberly and her daughter could not stay for the entire program due to another obligation they had early the next morning. As a result, Kimberly went to look for her daughter, who at the time was less than five feet tall. And as she was walking toward her daughter’s team, while attempting to look over other people and navigating through the crowd, Kimberly suddenly fell from the mats at a distance of what she described as two feet onto the concrete floor.
The area where Kimberly fell had not been marked off physically with rope, tape, or cones. And after she fell, a Georgia All Stars employee came over to assist Kimberly and called for an ambulance because she was unable to get up on her own. Then, at the hospital, Kimberly was diagnosed with four breaks between her leg and ankle that required surgery and many months of recovery.
Kimberly was familiar with the layout of the gym and the use of the purple mats because she watched her daughter perform or practice there on at least ten other occasions. But on the night in question, she noticed the mats were stacked in ways she had never seen before, and so she was not expecting the drop off where she fell. Nevertheless, it is undisputed that Georgia All Stars had parents sign releases containing warnings about potential hazards in the gym, and verbal warnings were given at the evening’s exhibition.
The Shieldses later filed suit against Georgia All Stars on October 4, 2017, asserting claims of simple negligence and loss of consortium, and seeking attorney fees, litigation costs, and damages. Georgia All Stars answered and filed a counterclaim against the Shieldses for breach of contract based on a medical release Kimberly signed some months prior to the incident in question. Georgia All Stars later moved for summary judgment on the Shieldses’ claims, contending that (1) Kimberly contractually released it, barring her claims of negligence, and (2) the claims were also barred by the Recreational Property Act.4 As a result, Georgia All Stars likewise argued that the Shieldses’ derivative claims should be dismissed. The trial court agreed that the Shieldses’ claims were barred by the medical release and the Recreational Property Act, granting summary judgment in favor of Georgia All Stars. This appeal follows.
1. For starters, the Shieldses argue that the trial court erred by concluding their claims were barred by a medical-release form Kimberly signed months prior to the night of the exhibition. We disagree.
Prior to her daughter’s participation in a daily, one-week-long camp at the Georgia All Stars gym, Kimberly signed a medical-release form on July 30, 2015.5 In doing so, Kimberly understood that the medical release applied to her and her daughter, and that the document applied to her and her daughter’s participation in events at the gym.
The medical release provides, in relevant part:
In consideration of the services of Georgia All-Star Cheerleading, Inc., its owners, agents, officers, employees, and all other persons or entities acting in any capacity on their behalf (hereinafter collectively referred to as ”GA”), I hereby agree to release, discharge, and hold harmless GA on behalf of myself, my children, my parents, my heirs, assigns, personal representative and estates as follows:
1. I understand and acknowledge that the activities that I or my child engage in while on the premises or under the auspices of GA pose known and unknown risks which could result in injury, paralysis, death, emotional distress, or damage to me, my child, to property, or to third parties. The following describes some, but not all of those risks:
Cheerleading and gymnastics, including performances of stunts and use of trampolines, entail certain risks that simply cannot be eliminated without jeopardizing the essential qualities of the activity. Without a certain degree of risk, cheerleading students would not improve their skills and the enjoyment of the sport would be diminished. Cheerleading and gymnastics expose participants to the usual risk of cuts and bruises, and other more serious risks as well. Participants often fall, sprain or break wrists and ankles, and can suffer more serious injuries. Traveling to and from shows, meets and exhibitions, raises the possibilities of any manner of transportation accidents. In any event, if you or your child is injured, medical assistance may be required which you must pay for yourself.
2. I expressly agree and promise to accept and assume all of the risks, known and unknown, connected with GA related activities, including, but not limited to performance of stunts and the use of trampolines. …
3. I hereby voluntarily release, forever discharge, and agree to hold harmless and indemnify GA from any and all liability, claims, demands, actions or rights of action, which are related to, arise out of, or are in any way connected with my child’s participation in GA-related activities.
In considering the trial court’s grant of summary judgment in favor of Georgia All Stars, we note that summary adjudication is only proper when “there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.”6 And we review a grant or denial of summary judgment de novo , viewing all evidence in the light most favorable to the nonmoving party.7 Furthermore, the party opposing summary judgment is “not required to produce evidence demanding judgment for it, but is only required to present evidence that raises a genuine issue of material fact.”8
Here, the trial court’s grant of summary judgment in favor of Georgia All Stars was based, in part, on the medical release signed by Kimberly. The construction of this contract is, of course, “a question of law for the court”9 that involves three steps:
The first step is to decide whether the language of the contract is clear and unambiguous. If so, the contract is enforced according to its plain terms, and the contract alone is looked to for meaning. Second, if the language of the contract is ambiguous in some respect, the rules of contract construction must be applied by the court to resolve the ambiguity. And finally, if ambiguity remains after applying the rules of construction, the issue of what the ambiguous language means and what the parties intended must be resolved by a jury.10
Suffice it to say, the cardinal rule of contract construction is to “ascertain the intention of the parties, as set out in the language of the contract.”11 Additionally, it is the “paramount public policy of this state that courts will not lightly interfere with the freedom of parties to contract.”12 And a contracting party may “waive or renounce that which the law has established in his or her favor, when it does not thereby injure others or affect the public interest.”13 Finally, exculpatory clauses in Georgia are “valid and binding, and are not void as against public policy when a business relieves itself from its own negligence.”14
In this case, although Kimberly argues that the medical-release form was only applicable to her daughter’s participation in a temporary camp program, nothing in the language of the release limits it to any specific program, event, or time period. Indeed, the plain language of the release states that it is applicable to “the activities that I or my child engage in while on the premises or under the auspices of GA,” “all of the risks, known and unknown, connected with GA related activities,” and “participation in GA-related activities.” Accordingly, the trial court properly granted summary judgment to Georgia All Stars on the ground that the medical-release form signed by Kimberly barred the claim for negligence related to her fall inside the gym during her daughter’s participation in an exhibition.15 Likewise, the trial court also properly granted summary judgment on the derivative claims for loss of consortium and damages.16
2. If the medical-release form is the belt of Georgia All Stars’s defense to this lawsuit, the protections afforded to property owners by the Recreational Property Act are its suspenders. Indeed, the trial court correctly determined that the Shieldses’ claims are also foreclosed by the RPA,17 whose codified purpose is “to encourage both public and private landowners to make their property available to the public for recreational purposes by limiting the owners’ liability.”18
To that end, the RPA provides, inter alia , that
[e]xcept 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 … [a]ssume responsibility for or incur liability for any injury to person or property caused by an act of omission of such persons.19
The RPA defines “charge” to mean “the admission price or fee asked in return for invitation or permission to enter or go upon the land.”20 So, in order to determine whether immunity is available to a property owner under the RPA, a court must make a determination “of the true scope and nature of the landowner’s invitation to use its property.”21 And in making this determination, the analysis is “properly informed” by “two related considerations: (1) the nature of the activity that constitutes the use of the property in which people have been invited to engage, and (2) the nature of the property that people have been invited to use.”22 In other words, “the first asks whether the activity in which the public was invited to engage was of a kind that qualifies as recreational under the Act, and the second asks whether at the relevant time the property was of a sort that is used primarily for recreational purposes or primarily for commercial activity.”23
Here, the Shieldses do not dispute that the activity in question—attending a free exhibition of cheerleading participants’ routines—was “recreational” within the meaning of the RPA. Instead, they maintain that “a material question of fact exists [as] to the purpose behind [Georgia All Stars’s] allowance of [their] daughter’s use of its facility, which relates directly to whether the operation of [the] gym constitutes a commercial or recreational venture.” This argument is a nonstarter.
There is no evidence or suggestion that Georgia All Stars charged an admission price or fee to attend the exhibition in question. To the contrary, the evidence shows that Georgia All Stars did not charge the members of Special Twist anything to use the facilities for practice at any time.24 And the presence of vendors at the exhibition does not change our conclusion. Indeed, as our Supreme Court recently explained in Mercer University v. Stofer ,25 “[i]t is not the law—and we have never said that it was—that inviting people to use recreational property for recreational activities could still fail to qualify for immunity under the Act solely because the landowner had some sort of subjective profit motive in doing so.”26 Instead, the relevant question is whether “the landowner actually invited people onto the property (directly or indirectly) to do something ‘recreational,’ or whether people have instead been allowed onto the property to engage in commercial activity.”27 And in this case, the evidence shows that “both the nature of the activity and the nature of the property at the time of the [gymnastics exhibition] were purely recreational.”28 There is no evidence that any attendees were required to make purchases from the vendors, that the exhibition was held for the benefit of the vendors, or that Georgia All Stars in any way profited from vendor sales.29 To put it plainly, this case is the poster child for immunity under the RPA, and the trial court did not err in concluding that the Shieldses’ claims were barred under the statute.
For all these reasons, we affirm the trial court’s grant of summary judgment to Georgia All Stars.
Judgment affirmed.
Rickman and Brown, JJ., concur.
——–
Notes:
2
See, e.g. , Gayle v. Frank Callen Boys and Girls Club, Inc. , 322 Ga. App. 412, 412, 745 S.E.2d 695 (2013) (“A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” (punctuation omitted)).
3 Georgia All Stars rents the gymnasium space and is an “owner” within the meaning of the Recreational Property Act. See OCGA § 51-3-21 (3) (defining “Owner” as the “possessor of a fee interest, a tenant, a lessee, an occupant, or a person in control of the premises”).
5 Although the deposition transcripts in the appellate record indicate that various exhibits were identified and used during the depositions, including the relevant medical-release form, no exhibits were included with these depositions. Nevertheless, Kimberly read the relevant language contained in the medical-release form into the record during her deposition testimony, and Georgia All Stars included a scanned photograph of what it purports to be the medical-release form with the same language in one of its pleadings below. And because it is undisputed that the form exists and was signed by Kimberly, we will consider the language as reflected by what is in the record before us.
6
Sadlowski v. Beacon Mgmt. Servs., Inc. , 348 Ga. App. 585, 587-88, 824 S.E.2d 42 (2019) (punctuation omitted); accord
Navy Fed. Credit Union v. McCrea , 337 Ga. App. 103, 105, 786 S.E.2d 707 (2016).
7
Sadlowski , 348 Ga. App. at 588, 824 S.E.2d 42 ; McCrea , 337 Ga. App. at 105, 786 S.E.2d 707.
8
Montgomery Cty. v. Hamilton , 337 Ga. App. 500, 502-03, 788 S.E.2d 89 (2016) (punctuation omitted); accord
Sadlowski , 348 Ga. App. at 588, 824 S.E.2d 42.
9
Bd. of Cm’rs of Crisp Cty. v. City Cm’rs of the City of Cordele , 315 Ga. App. 696, 699, 727 S.E.2d 524 (2012) ; accord
Shelnutt v. Mayor of Savannah , 349 Ga. App. 499, 505 (3), 826 S.E.2d 379 (2019).
10
Bd. of Cm’rs of Crisp Cty. , 315 Ga. App. at 699, 727 S.E.2d 524 (punctuation and footnotes omitted); accord
Y.C. Dev. Inc. v. Norton , 344 Ga. App. 69, 73 (1), 806 S.E.2d 662 (2017).
11
Stanley v. Gov’t Emps. Ins. Co. , 344 Ga. App. 342, 344 (1), 810 S.E.2d 179 (2018) (punctuation omitted); see also
Yash Sols., LLC v. New York Glob. Consultants Corp. , 352 Ga. App. 127, 140 (2) (b), 834 S.E.2d 126 (2019) (same).
12
2010-1 SFG Venture LLC v. Lee Bank & Trust Co. , 332 Ga. App. 894, 897 (1) (a), 775 S.E.2d 243 (2015) (punctuation omitted); accord
Neighborhood Assistance Corp. v. Dixon , 265 Ga. App. 255, 256 (1), 593 S.E.2d 717 (2004) ; My Fair Lady of Ga. v. Harris , 185 Ga. App. 459, 460, 364 S.E.2d 580 (1987).
13
2010-1 SFG Venture LLC , 332 Ga. App. at 897 (1) (a), 775 S.E.2d 243 (punctuation omitted); accord
Dixon , 265 Ga. App. at 256 (1), 593 S.E.2d 717 ; Harris , 185 Ga. App. at 460, 364 S.E.2d 580.
14
2010-1 SFG Venture LLC , 332 Ga. App. at 897 (1) (a), 775 S.E.2d 243 (punctuation omitted); accord
Dixon , 265 Ga. App. at 256 (1), 593 S.E.2d 717 ; Harris , 185 Ga. App. at 460, 364 S.E.2d 580.
15
See
Lovelace v. Figure Salon, Inc. , 179 Ga. App. 51, 53 (1), 345 S.E.2d 139 (1986) (holding that trial court properly granted summary judgment on plaintiff’s claims for personal injury due to alleged negligence when plaintiff signed a release in which she assumed the risk of injury and the defendant disclaimed any liability, and in which the plaintiff agreed not to file suit against the defendant for any injuries she might incur). Cf.
Harris , 185 Ga. App. at 461, 364 S.E.2d 580 (“Under this factual predicate, where a cause of action is based on the alleged negligence of the club, and there being a valid contractual waiver and release for any action arising out of [the plaintiff’s] use of the facilities, which sounded in negligence, the trial court erred in denying [the defendant’s] motion for summary judgment.”).
16
See
Lovelace , 179 Ga. App. at 53 (3), 345 S.E.2d 139 (“The right of the husband to recover for loss of consortium being dependent upon the right of the wife to recover, the court did not err in granting summary judgment to defendant as to the husband’s cause of action.”).
18
S. Gwinnett Athletic Ass’n Inc. v. Nash , 220 Ga. App. 116, 117 (1), 469 S.E.2d 276 (1996) ; accord
Gwinnett Cty., Ga. v. Ashby , 354 Ga.App. ––––, ––––, 842 S.E.2d 70, 73 (2020) ; see OCGA § 51-3-20 (“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.”).
19 OCGA § 51-3-23 (3) (emphasis supplied).
21
Mercer Univ. v. Stofer , 306 Ga. 191, 191, 830 S.E.2d 169 (2019).
22
Id. at 191, 830 S.E.2d 169.
23
Id. at 196 (2), 830 S.E.2d 169.
24
See
Nash , 220 Ga. App. at 117-18 (1), 469 S.E.2d 276 (“In the current case, the Association charges a little league registration fee, although this fee is waived as to any child in need of free service. The fee covers expenses such as uniforms for the children, umpires, lights, water and sanitation. Because the fee is needed to defray the costs of operating the league, and is not an admission price required for permission to enter onto the land, it is not a charge to the public as contemplated by the Act.”).
25 306 Ga. 191, 830 S.E.2d 169 (2019).
26
Id. at 200 (3), 830 S.E.2d 169 ; accord
Mercer Univ. v. Stofer , 354 Ga. App. 458, 461, 841 S.E.2d 224, 226 (1) (2020) (“Importantly, a landowner’s subjective profit motivations are irrelevant to the analysis.”).
27
Stofer , 306 Ga. at 196 (2), 830 S.E.2d 169.
28
Stofer , 354 Ga. App. at 461, 841 S.E.2d 224, 227-28 (1).
29
See id. at 462, 841 S.E.2d 224, 228 (1) (“To the extent that the concert series may have increased Mercer [University]’s name recognition and good will in the community, potential student interest in attending the university, or the likelihood that it would receive future grant funding, such speculative considerations and subjective motivations are not relevant to our analysis. Notably, there is no evidence that Mercer made a profit from the vendors, the sponsors, or … branded give-aways, nor is there evidence that it received a direct financial benefit from the concert series whatsoever. The fact that there might have been an indirect commercial benefit is not sufficient to create a factual question.” (citation omitted)).
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.
Posted: April 1, 2019 Filed under: Assumption of the Risk, Georgia, Swimming | Tags: #AdventureTourism, #JamesHMoss, #Rec-Law, #RecLaw, assumption of the risk, beach, Coasta Rica, Coercion, College, College Course, Course, Current, Drowned, drowning, duty, For Credit, Gross negligence, Inc., Inherent Risk, JimMoss, Knowledge, Law, Legal Duty, Lifeguard, Negligence, Ocean, Oglethorpe University, OutdoorLaw, OutdoorRecreationLaw, Pacific Ocean, Playa Ventanas, Professor, RecreationLaw, Rip Tide, Student, Study Abroad, Summary judgment, Swimmer, Swimmers, swimming Leave a commentStudent 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)
Posted: March 12, 2019 Filed under: Assumption of the Risk, Georgia, Legal Case, Swimming | Tags: #AdventureTourism, #JamesHMoss, #Rec-Law, #RecLaw, assumption of the risk, beach, Coasta Rica, Coercion, College, College Course, Course, Current, Drowned, drowning, duty, For Credit, Gross negligence, Inc., Inherent Risk, JimMoss, Knowledge, Law, Legal Duty, Lifeguard, Negligence, Ocean, Oglethorpe University, OutdoorLaw, OutdoorRecreationLaw, Pacific Ocean, Playa Ventanas, Professor, RecreationLaw, Rip Tide, Student, Study Abroad, Summary judgment, Swimmer, Swimmers, swimming Leave a commentDownes 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.
Posted: November 13, 2017 Filed under: Cycling, Georgia | Tags: actual knowledge, barricade, bicycle, bicyclist, block, captain, cone, Dangerous Condition, distance, evidence sufficient, feet, genuine, Georgia Recreational Use Statute, guard, injured party, issues of material fact, matter of law, Non-governmental Park, prong, property owners, punctuation, recreational, recreational purposes, Recreational Use, stationed, Stone Mountain Memorial Association, stream, subjective, Summary judgment, user, visible, warn, Warning, willful Leave a commentBecause 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.
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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barricade, actual knowledge, dangerous condition, prong,
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Georgia Recreational Use Statute
Posted: November 12, 2017 Filed under: Georgia | Tags: Failure to Guard, Failure to Warn, Georgia Recreational Use Statute, Landowner, Landowner Immunity, Landowner Liability, Limitation of Landowner's Liability, malicious, Open and Obvious, Recreational Use, Recreational Use Act, Recreational Use Statute, Wilful Leave a comment 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
§ 51-3-22. 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
§ 51-3-25. Certain liability not limited
§ 51-3-26. Construction 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.
Georgia Limited Liability of Owners and Operators of Sport Fishing Locations
Posted: March 9, 2015 Filed under: Georgia | Tags: Fishing, Georgia, Immunity, Limited Liability Leave a commentOFFICIAL 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 Federal Court finds that assumption of the risk is a valid defense in a head injury case against a bicycle helmet manufacturer.
Posted: September 22, 2014 Filed under: Assumption of the Risk, Cycling, Georgia | Tags: assumption of the risk, bicycle, Bicycle South, Bike, Cycling, Florida, Georgia, Head injury, helmet, Inc., Incorporated, Open and Obvious, Opportunities, Product liability, Skid Lid Manufacturing Company, Trek Bicycle Corporation, Wheel Leave a commentIf 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.
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
Posted: September 21, 2014 Filed under: Assumption of the Risk, Cycling, Georgia, Legal Case | Tags: assumption of the risk, bicycle, Bicycle South, Bike, Cycling, helmet, Inc., Incorporated, Open and Obvious, Opportunities, Product liability, Skid Lid Manufacturing Company, Trek Bicycle Corporation, Wheel 1 CommentWilson 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
Posted: November 11, 2013 Filed under: Georgia, Health Club, Release (pre-injury contract not to sue) | Tags: Addendum, Contract, Douglasville Health & Athletic Club, Fitness Club, Gordon Johnson, Gym, Health club, James Haddle d/b/a Douglasville Health & Athletic Club, New York City, Public Policy, Release, Rock climbing, Summary judgment, Waiver Leave a commentLanguage of addendum was sufficient to bind husband to contract – but a risky legal move.
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.
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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
Posted: November 11, 2013 Filed under: Georgia, Health Club, Legal Case, Release (pre-injury contract not to sue) | Tags: Addendum, Douglasville Health & Athletic Club, Fitness Club, Georgia, Gordon Johnson, Gym, Health club, Hembree, James Haddle d/b/a Douglasville Health & Athletic Club, Public Policy, Release, Summary judgment, Waiver Leave a commentHembree 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
Posted: July 22, 2013 Filed under: Georgia, Ski Area, Skiing / Snow Boarding | Tags: Alpine skiing, Georgia, Georgia Ski Safety Act, Recreation, Ski, Ski Resort, Skier, Skier Safety Act, Snowboarder Leave a commentGeorgia 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.
Posted: March 18, 2013 Filed under: Georgia, Release (pre-injury contract not to sue), Skiing / Snow Boarding | Tags: Defendant, GA, Georgia, Inc., Lawsuit, Negligence, Plaintiff, RDL, Rocky Mountain Ski Shop, Ski Rental, skiing, Summary judgment Leave a commentRelease 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
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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
Posted: March 18, 2013 Filed under: Georgia, Legal Case, Release (pre-injury contract not to sue), Skiing / Snow Boarding | Tags: Benford, GA, Georgia, Inc., RDL, Recreation, Rocky Mountain Ski Shop, Ski Rental, skiing, Summary judgment Leave a commentBenford 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.
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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