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The risk of hiking over lava fields is an obvious risk; falling while hiking is also a possibility….so is suing when you do both…but you won’t win

Plaintiff signed up on a cruise ship to hike on a lava field. She was fully informed of the risks and admitted to knowing the risks in advance which is defined as assumption of the risk.

Andia, M.D., v. Full Service Travel, 2007 U.S. Dist. LEXIS 88247

State: California and Hawaii, the accident occurred in Hawaii but the lawsuit was filed in California

Plaintiff: Ana Maria Andia, M.D.

Defendant: Full Service Travel, a California corporation, Celebrity Cruises, Inc., a foreign corporation, and Arnott’s Lodge and Hike Adventures

Plaintiff Claims: (1) negligence, on grounds that Defendant breached its duty of care to Plaintiff by failing to ensure the safety of participants in their excursions, and (2) negligence, on grounds that Defendant failed to warn Plaintiff of the known dangers and risks associated with the lava hike. & (1) negligence, on grounds that defendant cruise breached its duty of care to Plaintiff by failing to offer reasonably reliable and safe excursions, and (2) negligence, on grounds that defendant cruise failed to warn Plaintiff of the dangers and risks associated with the lava hike.

Defendant Defenses: assumption of the risk

Holding: for the defendant

Year: 2007

Simple case, however, the facts are long because the defendants provided the plaintiff with a ton of information about the risks of the activity which the court reviewed.

The plaintiff signed up for a hike in the lava fields in Hawaii while on a cruise ship. The information about the hike stated the distance of the hike was always changing because of the lava flow. The hikers could return at any time; however, if they did they would return the way they came by themselves.

This information was provided to the plaintiff in a description of the hike provided by the defendant cruise line, in a brochure that plaintiff was given, in a release the plaintiff signed, and during a talk before the hike began.

Plaintiff in her deposition also admitted that she was an experienced hiker, that falling was always a possibility when hiking.

During a point in the hike, the plaintiff decided to turn around. While hiking back to the ranger station she fell breaking her foot. She sued for her injuries.

The lawsuit was started in the Federal District Court of Southern California. The defendant travel company was dismissed earlier in the case. The defendant hiking company cruise line filed motions for summit judgment.

Summary of the case

The court first looked at the claims against the defendant hiking business. (The type of entity or whether it was an entity was never identified, and the court was not sure what the hiking company was also.)

The basis of the motion from the hiking company was that the risk of “…slipping, falling and injuring oneself on uneven, natural terrain is an inherent risk of lava hiking.”

The duty of care owed by the defendant hiking company in this situation is:

…a duty to use due care and avoid injury to others, and may be held liable if they’re careless conduct injures another person. The doctrine of primary assumption of the risk is an exception to this general rule. The doctrine arises where “by virtue of the nature of the activity and the parties’ relationship to the activity; the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury.”

The court then found the doctrine of primary assumption of the risk applied because:

…conditions or conduct that otherwise might be viewed as dangerous often are an integral part” of the activity itself. “The overriding consideration in the application of primary assumption of risk is to avoid imposing a duty which might chill vigorous participation in the implicated activity and thereby alter its fundamental nature.”

Summing up its own analyses of primary assumption of risk the court stated:

If the doctrine of primary assumption of risk applies, a defendant is only liable for a plaintiff’s injuries if the defendant “engages in conduct so reckless as to be totally outside the range of the ordinary activity involved in the sport or activity” or increases the inherent risk involved in the activity.

The plaintiff argued that the hiking company, Arnott’s, was guilty of gross negligence because:

Arnott’s did nothing to provide for Plaintiff’s safety on the lava hike once she determined she could not go forward; Arnott’s did nothing to warn plaintiff of the dangers of approaching too closely to the coastline; Arnott’s did not ensure plaintiff had sufficient water for her trip back to the Rangers station; Arnott’s was understaffed; Arnott’s failed to follow protocol by pressuring plaintiff to return to the ship rather than obtain treatment at the Hilo emergency room; Arnott’s offered misleading information about the trail markings; Arnott’s provided plaintiff with falsely reassuring directions back to the Rangers station; and Arnott’s permitted Plaintiff to hike in sneakers instead of boots. Plaintiff contends that this conduct constituted gross negligence, making the Agreement, which purports to exculpate Arnott’s of liability, unenforceable. Plaintiff also contends that the Agreement is an unconscionable and unenforceable contract of adhesion because it is a pre-printed form, contained multiple signatures and there was no alternative for Plaintiff but to sign it or wait at the Rangers station while the others hiked, losing a day of her cruise vacation.

However, the plaintiff’s arguments were not backed up with any facts. Arguing a point with facts that do not support your argument fails.  

The Court concludes that the doctrine of primary assumption of risk applies, negating Arnott’s general duty to prevent plaintiff from slipping and falling on lava rock, an inherent risk of the activity of lava hiking.

Nor did the actions of the defendant hiking company increase the risk of injury to the plaintiff.

The plaintiff knew the risks of hiking prior to the hike in question and admitted that in her deposition. The plaintiff was given information about the hike and had the risks of the hike explained to her four different ways prior to the hike. The plaintiff assumed the risk of here injuries, and the risk that plaintiff suffered causing her injury were visible to anyone hiking in the lava field.

The next issue the court reviewed with regard to the defendant hiking company was the duty to warn. “It is established law, at least in the exercise of ordinary care, that one is under no duty to warn an-other of a danger equally obvious to both.”

The court found for the hiking company on this issue based on the facts and found the plaintiff assumed the risk of her injuries because she could see the risk and continued on anyway. If you can see the risk, you cannot complain about not knowing about the risk.

The plaintiff’s claims against the cruise ship were then reviewed. A cruise ship has a different duty of care owed to its passengers. “The duty of care of the owner of an excursion ship is a matter of federal maritime law. That duty is to exercise reasonable care under the circumstances.”

Here the plaintiff presented no evidence that the defendant cruise line did not exercise reasonable care to the plaintiff. The same facts when applied to the case also showed the defendant cruise ship had not breached its duty to warn to the plaintiff. The information and brochure were provided by the cruise ship to the plaintiff when she signed up for the hike.

[I]t is generally accepted that where a carrier.  . . has a continuing obligation for the care of its passengers, its duty is to warn of dangers known to the carrier in places where the passenger is invited to, or may reasonably be expected to visit.” However, “there is no duty to warn of a danger that is as obvious to the injured party as to the defendant.”

So Now What?

The case was won on two issues. The first was the risks of the activity were pointed out over and over again by the hiking company to the plaintiff. Information, brochures, safety talks all stated the risks of the activity which the plaintiff accepted when she turned around.

The second issue was the plaintiff in her deposition admitted to hiking experience. Possibly one or the other could have been enough to prove a defense for the defendants in this case; however, since both were so clear, the defense was easily proven.

Many times on hikes, we point out risk, as well as birds and beauty, to others with us. If you are guiding a hike, this requirement should concentrate your attention to these issues and your actions in pointing out risks. You can cover many of the risks of an activity such as hiking with a general talk at the beginning. “We are going to be walking on uneven surfaces. There will be many rocks and roots to trip on. Pay attention to where you are putting your feet and make sure you are on a solid surface when walking.”

As much as releases are an important defense and source of information for your guests, assumption of the risk is making a comeback in the outdoor recreation industry. If your release fails for any reason, assumption of the risk is the best and maybe the only other defense you have available.

Besides the more your gusts know and understand the risks of the activity the less likely the will be to be injured and the better the experience they will have. Leave scaring guests to fun houses at Halloween.

The one confusing issue in the case was the courts use of California law to decide a case that occurred in Hawaii. The federal courts are for situations like this when the parties are from different states. The plaintiff was from California, and the defendants were from Hawaii. However, without an agreement as to the law that should be applied to the case, Hawaiian law, I believe should be applied. Here the court used California law.

What do you think? Leave a comment.

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Andia, M.D., v. Full Service Travel, 2007 U.S. Dist. LEXIS 88247

Andia, M.D., v. Full Service Travel, 2007 U.S. Dist. LEXIS 88247

Ana Maria Andia, M.D., Plaintiff, vs. Full Service Travel, a California corporation, Celebrity Cruises, Inc., a foreign corporation, and Arnott’s Lodge and Hike Adventures, a Hawaiian business of unknown structure, Defendants.

CASE NO. 06cv0437 WQH (JMA)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

2007 U.S. Dist. LEXIS 88247

November 29, 2007, Decided

November 29, 2007, Filed

CORE TERMS: hike, lava, station, terrain, falling, rock, summary judgment, hiking, slipping, uneven, duty of care, assumption of risk, cruise, inherent risk, trail, ship, warn, surface, viewing, passenger, excursion, admits, hiker, duty to warn, failure to warn, negating, minutes, causes of action, totally outside, gross negligence

COUNSEL: [*1] For Ana Maria Andia, an individual, Plaintiff: Harold M Hewell, LEAD ATTORNEY, Hewell Law Firm APC, San Diego, CA; Howard M Rubinstein, LEAD ATTORNEY, Law Offices of Howard Rubinstein, Aspen, CO.

For Celebrity Cruises Inc, a foreign corporation, Arnotts Lodge and Hike Adventures, a Hawaiian business of unknown structure Defendants: Gregory Dean Hagen, Tammara N Tukloff, LEAD ATTORNEYS, Drath Clifford Murphy and Hagen, San Diego, CA.

JUDGES: WILLIAM Q. HAYES, United States District Judge.

OPINION BY: WILLIAM Q. HAYES

OPINION

ORDER

HAYES, Judge:

The matter before the Court is Defendants’ Motion for Summary Judgment, filed by Celebrity Cruises, Inc. and Arnott’s Lodge and Hike Adventures. (Doc. # 40).

Background

Defendant Celebrity Cruises, Inc. (“Celebrity”) is engaged in the business of providing passenger cruises to various destinations. 1 UMF 1. Arnott’s Lodge and Hike Adventures (“Arnott’s”) guides transport cruise ship passengers to Volcanoes National Park (“the Park”), and provide knowledge about where the lava flow is each day. UMF 3. In order to view the active lava flow, individuals must hike over cooled lava. This terrain is rugged and natural, consisting of uneven surfaces. Id. at 4; DMF 4. The Hawaii Volcanoes [*2] National Park Rangers (“Rangers”) place reflective markers and cones on the lava to be used by hikers as reference points. UMF 7.

1 The parties each submitted a statement of facts with their submissions in support of and in opposition to the Motion for Summary Judgment. The Court relies upon the facts from Defendants’ Alleged Undisputed Material Facts (“UMF”), which are undisputed by Plaintiff and supported by the cited evidence, and the facts from Plaintiff s Disputed Material Facts (“DMF”), which are undisputed by Defendants and supported by the cited evidence.

In November, 2005, Plaintiff Ana Maria Andia, M.D. was a passenger on Defendant Celebrity Cruises, Inc.’s (“Celebrity”) passenger cruise ship. Plaintiff is an experienced hiker. Andia Depo, 35: 23-25. On November 27, 2005, Plaintiff signed up to participate in a shore expedition known as the HL 15, the Kilauea Lava Viewing Hike, guided by Arnott’s. UMF 8. On November 27, 2005, there was total visibility for many miles in every direction. Id. at 5.

Prior to beginning the hike, Plaintiff read the description of the hike that states: “This tour involves approximately two to six miles of hiking over very sharp and uneven surfaces.” [*3] Id. at 10. Plaintiff also read, understood and executed the “Lava Hike Participant, Release and Acknowledgment of Risk” (“Agreement”), which provides, in relevant part:

I agree not to hold Arnott’s liable for any accident or injury beyond its control. The hike to the Lava is conducted at a brisk pace and requires physically fit participants in good health who can readily hike on varied surfaces and elevation changes for extended periods. I, as a participant, acknowledge that I am taking this activity of my own free will and that I will not hold Arnott’s responsible for any injury incurred while . . . I am hiking on the paved or natural surfaces of the National Park. . . . I understand by reading this waiver that Arnott’s guides will provide only broad direction and safety guidelines and that I remain responsible for the actual path hiked and whether I choose to take the risks with possibly still hot Lava Flows.

Id. at 11. Plaintiff also received and read a document entitled “Arnotts Adventures proudly presents: The Kilauea Lava Hike Adventure” (“Brochure”), which informed Plaintiff that she may need to turn around and head back to the Rangers station alone, and that she did not need [*4] a trail to return safely. Id. at 14.

Prior to beginning the hike, Arnott’s informed Plaintiff that the lava flow had changed and that the hike was going to be longer than anticipated for that day. Id. at 13. Arnott’s also informed all participants in the hike, including Plaintiff, that they had the option of staying at the Rangers station and not going on the hike, and that there would be four decision points during the hike at which hikers could turn around and head back to the Rangers station. Id. at 13, 18.

Prior to beginning the hike, Plaintiff understood that the marked trail was merely a preferred route, and that the trail was not necessary to safely return to the Rangers station. UMF 15; Andia Depo, 63:1-15. Plaintiff also understood that guides would not stay with her during the hike and that she might be returning to the Rangers station unaccompanied. UMF 15, 16; Andia Depo, 63: 1-15, 64:22-24. Plaintiff understood that the hike would be difficult and strenuous. Andia Depo, 52: 17-19

For the first 30 minutes of the hike, and through the first two decision points, the hike proceeded on paved surfaces. UMF 20. During this period, Plaintiff recalls seeing reflective tabs on the [*5] paved surface. Id. Plaintiff’s companion recalls seeing reflective tabs stuck to the rocks for 10-15 minutes of the hike after leaving the paved road. Plaintiff does not recall whether or not the reflective tabs were stuck to the rocks. Id. at 21. Approximately 45 minutes into the hike, and after approximately 15 minutes of walking on unpaved terrain, Plaintiff decided to return, unaccompanied by a guide, to the Rangers station. Id. at 22. About 15 minutes into her return, Plaintiff slipped on one of the rocks. When Plaintiff slipped, she twisted her ankle. Plaintiff then lifted her foot up, and hit the top of her foot on the lava rock. As a result of these events, Plaintiff fractured her foot. Id. at 23. Plaintiff testified that she then proceeded back to the Rangers station. Andia Depo, 86:22-87:14. The fall itself could have caused the fracture to become displaced and surgery may have been required regardless of whether Plaintiff attempted to walk out of the lava fields. UMF 25. Plaintiff was given the option of going to the ship’s doctor or the Hilo emergency room for treatment, and Plaintiff elected to receive treatment with the ship’s doctor. Id. at 24; Andia Depo, 89:15-25; [*6] 90:1-10. Plaintiff testified that, as a result of the fracture, she was confined to a wheel chair for a period of months, had to take time off of work, and suffers impaired balance. Id. 15:13-14.

On February 24, 2006, Plaintiff filed the First Amendment Complaint (“FAC”) against Defendants Full Service Travel, 2 Celebrity and Arnott’s. (Doc. # 3). The FAC alleges causes of action against Arnott’s for (1) negligence, on grounds that Arnott’s breached its duty of care to Plaintiff by failing to ensure the safety of participants in their excursions, and (2) negligence, on grounds that Arnott’s failed to warn Plaintiff of the known dangers and risks associated with the lava hike. The FAC alleges causes of action against Celebrity for (1) negligence, on grounds that Celebrity breached its duty of care to Plaintiff by failing to to offer reasonably reliable and safe excursions, and (2) negligence, on grounds that Celebrity failed to warn Plaintiff of the dangers and risks associated with the lava hike.

2 On October 5, 2006, Defendant Full Service Travel was dismissed from the case, with prejudice.

On August 18, 2007, Defendants filed the Motion for Summary Judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. [*7] Defendants claim they are entitled to judgment as a matter of law because (1) Arnott’s owed Plaintiff no duty to protect Plaintiff against the assumed risk of slipping and falling on the lava rock, (2) Arnott’s owed Plaintiff no duty to warn Plaintiff of the obvious risk of injury of slipping and falling on the lava rock, (3) Celebrity did not owe Plaintiff a duty to warn of the obvious risk of slipping and falling on lava rock, (4) the alleged negligence of Defendants did not cause Plaintiff’s injuries, and (5) the claim for punitive damages against Arnott’s is not warranted. After receiving evidence and briefing from the parties, the Court heard oral argument on November 9, 2007.

Standard of Review

Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure where the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). A fact is material when, under the governing substantive law, it could affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A dispute over a material [*8] fact is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

A party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323. If the moving party satisfies its initial burden, the nonmoving party must “go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Id. at 324 (quoting Fed. R. Civ. P. 56(e)).

In ruling on a motion for summary judgment, the Court must view all inferences drawn from the underlying facts in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). “Credibility determinations [and] the weighing of evidence . . . are jury functions, not those of a judge, [when] he is ruling on a motion for summary judgment.” Anderson, 477 U.S. at 255.

Choice of Law

The Court has jurisdiction over this action through diversity of citizenship, 28 U.S.C. section 1331. Federal courts exercising diversity jurisdiction must [*9] apply the substantive law of the state in which they are located, except on matters governed by the United States Constitution or federal statutes, or on procedural issues. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). The Complaint alleges causes of action in negligence for breach of due care and for failure to warn. The elements of the tort of negligence are essentially identical under California and Hawaii law. See White v. Sabatino, 415 F. Supp. 2d 1163, 1173 (USDC Haw. 2006); Ladd v. County of San Mateo, 12 Cal. 4th 913, 917, 50 Cal. Rptr. 2d 309, 911 P.2d 496 (1996). Furthermore, the doctrine of primary assumption of risk is a measure of a defendant’s duty of care, and is essentially identical under both Hawaii and California law. Yoneda v. Andrew Tom, 110 Haw. 367, 379, 133 P.3d 796 (2006); Knight v. Jewett, 3 Cal. 4th 296, 314-15, 11 Cal. Rptr. 2d 2, 834 P.2d 696 (1992).

Discussion

I. Plaintiff’s Claims Against Arnott’s

Arnott’s contends that the risk of slipping, falling and injuring oneself on uneven, natural terrain is an inherent risk of lava hiking. Arnott’s contends that without this risk, the means of viewing this natural phenomenon would be severely limited to the general public. Arnott’s also contends that the evidence is uncontroverted that [*10] Arnott’s provided Plaintiff with written disclosures concerning the condition of the terrain, that guides would only give broad direction on the actual hike, that Plaintiff may need to turn around and head to the Rangers station alone, and that Plaintiff did not need a trail to return safely. Arnott’s contends that there is no triable issue of fact as to whether Arnott’s is liable for breach of its duty of care because the doctrine of primary assumption of risk applies, negating any duty of Arnott’s to protect Plaintiff against the inherent risk of slipping and falling while lava hiking. Arnott’s contends that Plaintiff has failed to assert facts or introduce any evidence that demonstrates that the conduct of Arnott’s was totally outside the range of ordinary activity or that the conduct of Arnott’s increased Plaintiff’s risk of slipping and falling on the lava rock. Arnott’s also contends that there is no triable issue of fact as to whether Arnott’s is liable to Plaintiff for breach of the duty of Arnott’s to warn because the risk of slipping and falling on the natural terrain was equally obvious to Plaintiff and Arnott’s.

Plaintiff responds that the conduct of Arnott’s constituted [*11] gross negligence for the following reasons: Arnott’s did nothing to provide for Plaintiff’s safety on the lava hike once she determined she could not go forward; Arnott’s did nothing to warn Plaintiff of the dangers of approaching too closely to the coastline; Arnott’s did not ensure Plaintiff had sufficient water for her trip back to the Rangers station; Arnott’s was understaffed; Arnott’s failed to follow protocol by pressuring Plaintiff to return to the ship rather than obtain treatment at the Hilo emergency room; Arnott’s offered misleading information about the trail markings; Arnott’s provided Plaintiff with falsely reassuring directions back to the Rangers station; and Arnott’s permitted Plaintiff to hike in sneakers instead of boots. Plaintiff contends that this conduct constituted gross negligence, making the Agreement, which purports to exculpate Arnott’s of liability, unenforceable. Plaintiff also contends that the Agreement is an unconscionable and unenforceable contract of adhesion because it is a pre-printed form, contained multiple signatures and there was no alternative for Plaintiff but to sign it or wait at the Rangers station while the others hiked, losing a day [*12] of her cruise vacation. 3

3 Plaintiff does not dispute that the doctrine of primary assumption of risk applies, negating Arnott’s’ duty to prevent Plaintiff from slipping and falling on lava rock. Instead, Plaintiff relies solely on her contention that the Agreement itself is either an unenforceable exculpatory agreement or an unenforceable contract of adhesion. Defendants, however, do “not contend, nor have they even asserted, that the [Agreement] relieves them from liability for any alleged negligence, nor gross negligence.” Reply, p. 1-2.

A. Duty of Care

As a general rule, persons have a duty to use due care and avoid injury to others, and may be held liable if their careless conduct injures another person. Cal. Civ. Code § 1714. The doctrine of primary assumption of the risk is an exception to this general rule. Knight v. Jewett, 3 Cal. 4th 296, 11 Cal. Rptr. 2d 2, 834 P.2d 696 (1992). The doctrine arises where “by virtue of the nature of the activity and the parties’ relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury.” Id. at 315. Whether the doctrine of assumption of risk applies, thereby negating a duty of care, turns on [*13] the “nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport.” Id. at 309. In reviewing the nature of the activity, the doctrine of primary assumption of risk applies where “conditions or conduct that otherwise might be viewed as dangerous often are an integral part” of the activity itself. Id. at 315. “The overriding consideration in the application of primary assumption of risk is to avoid imposing a duty which might chill vigorous participation in the implicated activity and thereby alter its fundamental nature.” Ferrari v. Grand Canyon Dories, 32 Cal. App. 4th 248, 253, 38 Cal. Rptr. 2d 65 (1995).

If the doctrine of primary assumption of risk applies, a defendant is only liable for a plaintiff’s injuries if the defendant “engages in conduct so reckless as to be totally outside the range of the ordinary activity involved in the sport or activity” or increases the inherent risk involved in the activity. Saville v. Sierra College, 133 Cal. App. 4th 857, 866, 36 Cal. Rptr. 3d 515 (4th Dist. 2005); Kane v. National Ski Patrol, 88 Cal. App. 4th 204, 209, 105 Cal. Rptr. 2d 600 (4th Dist. 2001). The relationship between an instructor and student is instructive [*14] on the issue of whether the Arnott’s guides engaged in reckless conduct or increased the inherent risk involved in lava hiking. Kane, for example, involved candidates for a voluntary ski patrol who participated in a skills clinic instructed by Larry Stone, a National Ski Patrol System (“NSPS”) instructor. 88 Cal. App. 4th at 207. Stone led the clinic participants to the most difficult terrain at the resort. When the participants were reluctant to proceed through a portion of the trail, which was icy and spotted with trees, rocks and stumps, Stone asked the clinic participants what they would do “if there was a skier over the side?” Id. at 208. Although both plaintiffs felt uncomfortable with continuing down the terrain, they carried on, following Stone’s direction. Id. One plaintiff ultimately caught an “edge” with his ski, causing him to fall to his death, and the other plaintiff fell and suffered a broken leg. Id. The court granted summary judgment in favor of the defendant, holding that the doctrine of primary assumption of risk applied, negating the defendant’s duty of care. The court reasoned that “an instructor’s assessment errors – either in making the necessarily subjective [*15] judgment of skill level or the equally subjective judgment about the difficulty of the conditions – are in no way ‘outside the range of the ordinary activity involved in the sport.” Id. at 214.

Plaintiff admits that she is an experienced hiker. Andia Depo, 35:23-25. Plaintiff admits that falling is always a risk when engaging in any kind of strenuous hike on steep and uneven terrain. Id. at 153:8-14. Plaintiff admits that prior to starting the hike she was aware that she would be hiking over “very sharp and uneven surfaces.” Id. at 51:8-13. Plaintiff does not introduce any evidence to refute that hiking across uneven and challenging natural terrain is an inherent risk of hiking to active lava flow, without which the general public would be substantially deprived of viewing this natural phenomenon. The Court concludes that the doctrine of primary assumption of risk applies, negating Arnott’s general duty to prevent Plaintiff from slipping and falling on lava rock, an inherent risk of the activity of lava hiking.

Plaintiff admits that, prior to the hike, Arnott’s provided the following written disclosures, which she understood: that the natural terrain was uneven and challenging; that [*16] during the hike she would be responsible for the path she traveled; that the guides would give only broad direction; that she may have to return to the Rangers station alone; and that the trail was merely a preferred route, and not necessary to safely get back to the Rangers station. Despite these disclosures, Plaintiff asserts that the decision to allow Plaintiff to return to the Rangers station alone and subsequent conduct on the part of the Arnott’s guides constituted gross negligence. The Court finds that the decision to allow Plaintiff to return alone and subsequent conduct on the part of Arnott’s guides at most constituted “assessment errors,” but these “subjective judgment[s] about the difficulty of the condition[s],” were “in no way so reckless as to be totally outside the range of the ordinary activity involved” in the activity of lava hiking. See Kane, 88 Cal. App. 4th at 214. Plaintiff emphasizes that Arnott’s’ conduct, such as permitting her to participate in the hike wearing sneakers instead of hiking boots, was grossly negligent. However, the Court finds that there is no evidence in the record to support Plaintiff’s conclusion that Arnott’s conduct, including permitting [*17] Plaintiff to wear improper footwear, hike over thin lava crust, return to the Rangers station alone and without sufficient water, or return to the ship instead of going to the Hilo emergency room, increased the risk of Plaintiff’s injury. The Court concludes that there is no triable issue of fact as to whether Arnott’s conduct was so reckless as to be totally outside the range of the ordinary activity or otherwise increased the inherent risk involved in the activity of lava hiking.

The Court grants summary judgment on Plaintiff’s negligence claim against Arnott’s for breach of duty of care.

B. Duty to Warn

“It is established law, at least in the exercise of ordinary care, that one is under no duty to warn another of a danger equally obvious to both.” Marshall v. United Airlines, 35 Cal. App. 3d 84, 90, 110 Cal. Rptr. 416 (1973).

Plaintiff admits she is an experienced hiker, that she was aware that falling is always a risk involved in any kind of hike on steep and uneven terrain, that she knew that the terrain she would cover during the lava hike was rugged and uneven, and that she read the Agreement and the Brochure, which both emphasize the strenuous nature of the hike, the possibility that Plaintiff would [*18] have to return to the Rangers station alone and nature of the terrain. Viewing the facts in the light most favorable to Plaintiff, the Court finds that Plaintiff has failed to offer any evidence to demonstrate that the risk of slipping and falling on lava rock was any less obvious to Plaintiff than it was to Arnott’s. The Court grants summary judgment on Plaintiff’s negligence claim against Arnott’s for failure to warn.

II. Plaintiff’s Claims Against Celebrity

Celebrity contends that although Plaintiff alleges separate causes of action in negligence for breach of due care and for failure to warn, both of these claims allege only failure to warn. Celebrity contends that it had no duty to warn Plaintiff of the risk of slipping and falling on lava rock during a hike through a lava field because the risk was patently obvious and equally apparent to Plaintiff and Celebrity.

Plaintiff’s Response in Opposition to the Motion for Summary Judgment on all of Plaintiff’s claims against Celebrity states in full:

[P]laintiff relied on Celebrity to provide her with reasonably safe shore excursions. The dangers of the lava hike with Arnott’s were not readily apparent to her or anyone else who had not [*19] taken the hike. Celebrity’s reliance on Deroche is misplaced.

This was not a scooter ride, which a reasonable person knows poses obvious dangers. It was a hike to a uniquely dangerous place. [Plaintiff] reasonably relied on Celebrity to exercise due care in providing her with a safe guide service, and in offering a potentially life-threatening venture. Celebrity had a duty to ensure that Arnott’ s was a reasonable safe and reliable service. Celebrity is liable for breach of that duty.

Opposition, p. 19-20.

A. Duty of Care

The duty of care of the owner of an excursion ship is a matter of federal maritime law. DeRoche v. Commodore Cruise Line, Ltd., 31 Cal. App. 4th 802, 807, 46 Cal. Rptr. 2d 468 (1994). “That duty is to exercise reasonable care under the circumstances.” Id. at 807-8.

Plaintiff fails to introduce any evidence to support her claim that Celebrity did not exercise due care when it enrolled Plaintiff in “excursion HL 15, the Kilauea Lava Viewing Hike, an unreasonably dangerous and poorly run and operated excursion.” See FAC, P 35-36. Viewing the facts in the light most favorable to Plaintiff, the Court finds that Plaintiff has failed introduce any evidence demonstrating Celebrity breached its duty [*20] of due care to Plaintiff. The Court grants summary judgment on Plaintiff’s negligence claim against Celebrity for breach of duty of care.

B. Duty to Warn

“[I]t is generally accepted that where a carrier . . . has a continuing obligation for the care of its passengers, its duty is to warn of dangers known to the carrier in places where the passenger is invited to, or may reasonably be expected to visit.” DeRoche, 31 Cal. App. 4th at 809. However, “there is no duty to warn of a danger that is as obvious to the injured party as to the defendant.” Id. at 810.

As previously discussed, Plaintiff admits she is an experienced hiker, that she was aware that falling is a risk involved in any kind of hike on steep and uneven terrain, that she knew that the terrain she would cover for the lava hike was rugged and uneven, and that she read the Agreement and the Brochure, which both emphasize the strenuous nature of the hike, the challenging nature of the terrain and the possibility that Plaintiff would have to return to the Rangers station alone. Viewing the facts in the light most favorable to Plaintiff, the Court finds that Plaintiff has failed offer any evidence that demonstrates the risk of falling [*21] on lava rock was any less obvious to her than it was to Celebrity. The Court grants summary judgment on Plaintiff’s negligence claim against Celebrity for failure to warn.

Conclusion

Defendants’ Motion for Summary Judgment, filed by Celebrity Cruises, Inc. and Arnott’s Lodge and Hike Adventures (Doc. # 40) is GRANTED. The Court directs the Clerk of the Court to enter JUDGMENT for Defendants and against Plaintiff.

DATED: November 29, 2007

/s/ William Q. Hayes

WILLIAM Q. HAYES

United States District Judge


Hawaii attempts to limit liability increases the amount of money every injured party will recover. Legislation to limit liability lost recreation business the opportunity to use a release

Hawaii attempts to limit liability increases the amount of money every injured party will recover. Legislation to limit liability lost recreation business the opportunity to use a release

Wheelock vs. Sport Kites, 839 F. Supp. 730 (9th Cir. 1993); and,

King v. CJM Country Stables, 315 F. Supp. 2d 1061; 2004 U.S. Dist. LEXIS 7511

Hawaii Revised Statutes, Section 663-1.54

Badly written statute which was already full of holes was turned absolutely worthless by Hawaiian Federal District Court Decision. You cannot give up the best defense you have when you try and gain more defenses.

In Wheelock vs. Sport Kites

Plaintiff: Mary Rose Wheelock, individually, as Administratrix of the Estate of David William Wheelock, as Guardian Ad Litem for Maggie Wheelock and David William Wheelock, minors

Defendant: Sport Kites, Inc., a foreign corporation, dba Wills Wing, Rob Kells, an individual, Kualoa Ranch, Inc., a Hawaii corporation, and Sport Aviation Hawaii, Inc., a Hawaii corporation

Plaintiff Claims: Negligence, Gross Negligence and Product Liability

Defendant Defenses: Release

Holding: Holding for the Defendant on the Negligence claim and for the Plaintiff on the Gross Negligence and Product Liability claims.

In King v. CJM Country Stables

Plaintiff: John King and Patricia King

Defendant: CJM Country Stables

Plaintiff’s Claims: Negligence, Negligence Per Se, Strict Liability, Intentional, Negligent Infliction of Emotional Distress Loss of Consortium, Punitive Damages, Respondeat Superior

Defendant Defenses: release and the Hawaiian Recreational Activity Liability Statute

Holding: For the Plaintiff

Tourists are the life blood of the outdoor recreation industry. No place does that ring any truer than Hawaii. Without tourists who are there for a vacation or as a stop on a cruise ship, Hawaii’s economy would grind to a stop.

In an effort to limit liability for outdoor recreation activities, the recreation providers passed a law attempting to reduce or prevent lawsuits for injuries tourists received recreating.  However, this Hawaiian law backfired by eliminating the use of releases a defense against a claim in the statute.

To set the stage for Hawaii’s move towards recreation legislation, it is important to acknowledge the development of Hawaiian common law.  The landmark case, Wheelock vs. Sport Kites, 839 F. Supp. 730 (9th Cir. 1993), was the first time the Hawaiian courts dealt with whether an express release of liability bars all claims of negligence.  Wheelock plunged to his death while paragliding when all the lines connecting the canopy to his harness broke.  Wheelock’s wife sued, even though her husband signed a waiver releasing Sport Kites.  The court upheld the release for negligence, declaring that Wheelock assumed the risk of paragliding.

The court did not allow the release to bar claims for gross negligence and the product liability claim.

Despite the Wheelock decision, the statewide Activity Owners Association of Hawaii believed litigation over recreation accidents needed to be reduced. The belief was it would lower insurance premiums and promote business growth. (See Ammie Roseman-Orr, Recreational Activity Liability in Hawai’i: Are Waiver Worth the Paper on Which They Are Written?, 21 U. Haw. L. Rev. 715.) Without a law, every accident had the opportunity to test the waters of the legal system in hopes of a reward.  The Recreational Activity Liability Statute was enacted in 1997 to reduce recreation accident litigation’

§ 663-1.54.  Recreational activity liability.

(a) Any person who owns or operates a business providing recreational activities to the public, such as, without limitation, scuba or skin diving, sky diving, bicycle tours, and mountain climbing, shall exercise reasonable care to ensure the safety of patrons and the public, and shall be liable for damages resulting from negligent acts or omissions of the person which cause injury.

(b) Notwithstanding subsection (a), owners and operators of recreational activities shall not be liable for damages for injuries to a patron resulting from inherent risks associated with the recreational activity if the patron participating in the recreational activity voluntarily signs a written release waiving the owner or operator’s liability for damages for injuries resulting from the inherent risks. No waiver shall be valid unless:

(1) The owner or operator first provides full disclosure of the inherent risks associated with the recreational activity; and

(2) The owner or operator takes reasonable steps to ensure that each patron is physically able to participate in the activity and is given the necessary instruction to participate in the activity safely.

(c) The determination of whether a risk is inherent or not is for the trier of fact. As used in this section an “inherent risk”:

(1) Is a danger that a reasonable person would understand to be associated with the activity by the very nature of the activity engaged in;

(2) Is a danger that a reasonable person would understand to exist despite the owner or operator’s exercise of reasonable care to eliminate or minimize the danger, and is generally beyond the control of the owner or operator; and

(3) Does not result from the negligence, gross negligence, or wanton act or omission of the owner or operator.

This statute superseded the common law, which developed through Wheelock and the cases preceding it.

The first case to review the statute was King v. CJM Country Stables, 315 F. Supp. 2d 1061; 2004 U.S. Dist. LEXIS 7511. In this case, the plaintiff was on a seven-day cruise that left Vancouver and went to Hawaii. While in Hawaii, the plaintiff booked a horseback ride through the cruise, with the defendant stable. While riding, the plaintiff was bit by another rider’s horse. She sued.

The court immediately reviewed the above Hawaiian Recreational Activity Liability Statute. Reading the statute the court concluded:

…these sections provide that a trier of fact must determine if injuries were caused by the “inherent risks” of a recreational activity. And if the trier of fact finds that the injuries were “caused solely by the inherent risk and unpredictable nature” of a horse, then there is a rebuttable presumption that the defendant’s negligence did not cause the injuries.

The court looked at the language of the release which states the trier of fact must determine if the injuries were caused by the activity, or in this case, the horse. The court found that under the statute, the court could not support the defendant’s motion for summary judgment because the statute “…explicitly precludes waiving liability for negligence.”

Since there was a genuine issue of material fact, meaning there were facts important to the case that had two different versions or interpretations (duh!) then the jury had to decide the case no matter what. The statute placed a burden on the plaintiff that was greater than the normal burden of proof, however the decision placed a greater burden on defendants in the increased cost of litigating cases.

…whether Defendant was negligent; and the Release Form’s validity as a waiver of liability, which depends on whether the horse-biting incident was an “inherent risk” of the recreational activity that Defendant provided to Plaintiffs. Defendant cannot satisfy its burden and thus, is not entitled to judgment as a matter of law.

So?

The statute left an enormous hole that will allow every injured party to recover something. The statute states that an “inherent risk” must be determined by the trier of fact, and that negligence cannot be an inherent risk. Consequently, the statute is worthless.

It gets worse. Under the previous common law, the judge could determine the inherent risk and grant summary judgment. In the case of Wheelock, the judge determined that, as a matter of law, equipment failure is an obvious risk of paragliding and set this as a precedent for future paragliding cases.  The recreation statute, on the contrary, declares that the trier of fact must determine the inherent risks of the activity. The trier of fact is the jury. Therefore, every claim will go to trial. That increases the cost and increases the chance that a settlement will occur to reduce the cost of litigation.

Summary judgment cannot be granted because a jury trial must be held to determine if the risk is inherent.  The cost of litigating jury trials will be substantially higher than the cost of a motion for summary judgment.  A precedent cannot be set because it is determined, as a matter of fact, so the inherent risks must be determined in every case.

Even cases with identical inherent risks and injuries must be brought before a trier of fact, with the possibility for differing results.  Second, the statute explicitly states that providers will be liable for negligence.  Wheelock previously determined negligence could be an inherent risk that customers assumed when they signed the waiver for, thereby releasing the provider from liability.  The statute no longer allowed the customer to assume the risk of negligence, making the statute a major step backward for activity providers.

So Now What?

Although a good effort by the Activity Owners Association of Hawaiian, they probably wrote the legislation without help from attorneys or those knowledgeable in how the statute would be applied (someone who had been in a courtroom with a suit and briefcase).

The statute is great in its intent; the actual way it was written makes the statute the best thing that could happen for any injured person in Hawaii. No matter what, this statute is going to allow the plaintiff to recover because the cost of fighting every claim through trial is at least $50,000 or more. Consequently, it will always be cheaper to settle than to sue.

What do you think? Leave a comment.

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King v. CJM Country Stables, 315 F. Supp. 2d 1061; 2004 U.S. Dist. LEXIS 7511

King v. CJM Country Stables, 315 F. Supp. 2d 1061; 2004 U.S. Dist. LEXIS 7511

John King and Patricia King, Plaintiffs, vs. CJM Country Stables, Defendant.

Civ. No. 03-00240 ACK/BMK

United States District Court for the District of Hawaii

315 F. Supp. 2d 1061; 2004 U.S. Dist. LEXIS 7511

February 18, 2004, Decided

February 18, 2004, Filed

DISPOSITION: [**1] Defendant’s Motion for Summary Judgment denied.

COUNSEL: For JOHN KING, PATRICIA KING, plaintiffs: David C. Schutter, Christopher A. Dias, Schutter Dias Smith & Wong, Honolulu, HI.

For CJM COUNTRY STABLES, INC., defendant: Gale L.F. Ching, Mitzi A. Lee, Jane Kwan, Hisaka Stone Goto Yoshida Cosgrove & Ching, Honolulu, HI.

JUDGES: Alan C Kay, United States District Judge.

OPINION BY: Alan C Kay

OPINION:

[*1062] ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

BACKGROUND

This matter comes before the Court on Defendant CJM Country Stables’ (“CJM” or “Defendant”) Motion for Summary Judgment. The Motion for Summary Judgment argues that Patricia and John King (collectively, “Plaintiffs”) signed a valid waiver that releases CJM from liability for the injuries Plaintiffs allegedly suffered when they participated in a recreational horseback riding activity provided by the Defendant.

I. Factual History.

On September 16, 2001, Plaintiffs began an 11-night Royal Caribbean cruise sailing from Vancouver to and around the Hawaiian islands. On September 26, 2001, the cruise ship docked in Nawiliwili, on the Island of Kauai. That day, Plaintiffs participated in an organized horseback ride that [**2] they arranged through the shore excursion desk on board their ship.

Upon arriving at the stables, the horseback riding participants were asked to read and sign a form entitled “Participant Agreement, Release, and Acknowledgement of Risk,” (hereinafter the “Release Form”). Both Plaintiffs signed this Release Form. (Motion for Summary Judgment, Exs. A, D). The Release Form provides, in relevant part, that “in consideration of the services of CJM Country Stables, Inc.” the signatory agrees “to release and discharge C.J.M., on behalf of [himself or herself] … as follows:

1. I acknowledge that horseback trailrides entails known and unanticipated risks which could result in physical or emotional injury, … to myself … I understand that such risks simply cannot [*1063] be eliminated without jeopardizing the essential qualities of the activity. The risks include, among other things: … horses, irrespective of their previous behavior and characteristics, may act or react unpredictably based upon instinct, fright, or lack of proper control by rider; latent or apparent defects or conditions in … animals …; acts of other participants in this activity;… contact with plants or animals; [**3] … Furthermore, C.J.M. guides have difficult jobs to perform. They seek safety, but they are not infallible … They may give inadequate warnings or instructions, and the equipment being used might malfunction.

2. I expressly agree and promise to accept and assume all of the risks existing in this activity. My participation in this activity is purely voluntary, and I elect to participate in spite of the risks.

3. I hereby voluntarily release … and hold harmless C.J.M. from any and all claims, demands, or causes of action which are in any way connected with my participation in this activity … including any such Claims which allege negligent acts or omissions of C.J.M … I have had sufficient opportunity to read this entire document, I have read and understood it, and I agree to be bound by its terms.”

Motion for Summary Judgment, Exs. A, D.

After signing the Release Forms, each of the riders was assigned a horse and proceeded on the trail ride. The parties agree that at some point during the ride Mrs. King was bitten by another rider’s horse. Plaintiffs allege that as a result of this incident they have suffered severe and permanent bodily injuries, pain [**4] and suffering, past and future medical expenses, lost wages, and other special and general damages. Plaintiffs claim that Defendant’s negligence was the proximate cause of these damages. Defendant argues that the signed Release Forms validly waive its liability for the Plaintiffs’ alleged injuries.

II. Procedural History.

Plaintiffs filed their Complaint in state court on February 27, 2003 and it was removed to this Court on May 14, 2003. The Complaint sets forth claims of:

I. Negligence; II. Negligence Per Se; III. Strict Liability; IV. Intentional and Negligent Infliction of Emotional Distress; V. Loss of Consortium; VI. Punitive Damages; and VII. Respondeat Superior.

On January 14, 2004, CJM filed this Motion for Summary Judgment. The Motion for Summary Judgment argues that Defendant is entitled to judgment as a matter of law because the Plaintiffs signed a valid waiver of liability. Plaintiffs filed their Opposition to the Motion for Summary Judgment on January 30, 2004.

The Opposition argues that the Motion for Summary Judgment should be denied because the Release Form is unenforceable as a waiver and in any event, does not include negligence claims. If the Court [**5] is inclined to grant Defendant’s Motion for Summary Judgment, Plaintiff alternatively requests that the Court order a continuance of the motion pursuant to Federal Rules of Civil Procedure, Rule 56(f). n1 Defendant filed its Reply on February 5, 2004. The Reply argues that negligence is explicitly covered by the waiver. The Reply does not address Plaintiff’s alternative request for a Rule 56(f) continuance.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n1 The Court need not address this alternative request because it is denying Defendant’s Motion for Summary Judgment.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

STANDARD

The purpose of summary judgment is to identify and dispose of factually unsupported [*1064] claims and defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Summary judgment is therefore appropriate when the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving [**6] party is entitled to judgment as a matter of law.” n2 Fed. R. Civ. P. 56(c).

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n2 Affidavits made on personal knowledge and setting forth facts as would be admissible at trial are evidence. Fed. R. Civ. P. 56(e). Legal memoranda and oral argument are not evidence and do not create issues of fact. See British Airways Bd. v. Boeing Co., 585 F.2d 946, 952 (9th Cir. 1978).

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

“A fact is ‘material’ when, under the governing substantive law, it could affect the outcome of the case. A genuine issue of material fact arises if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’” n3 Thrifty Oil Co. v. Bank of America Nat’l Trust & Sav. Ass’n, 310 F.3d 1188, 1194 (9th Cir. 2002) (quoting Union Sch. Dist. v. Smith, 15 F.3d 1519, 1523 (9th Cir. 1994)) (internal citations omitted). Conversely, where the evidence “could not lead a rational trier of fact to find for the nonmoving party, there is no [**7] ‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986) (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289, 20 L. Ed. 2d 569, 88 S. Ct. 1575 (1968)).

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n3 Disputes as to immaterial issues of fact do “not preclude summary judgment.” Lynn v. Sheet Metal Workers’ Int’l Ass’n, 804 F.2d 1472, 1478 (9th Cir. 1986).

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

The moving party has the burden of persuading the Court as to the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The moving party may do so with affirmative evidence or by “’showing’—that is pointing out to the district court—that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325. All evidence and reasonable inferences drawn therefrom are considered in the light most favorable to the nonmoving party. See, e.g., T.W. Elec. Serv. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626,

630-31 (9th Cir. 1987). [**8] So, too, the Court’s role is not to make credibility assessments. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Accordingly, if “reasonable minds could differ as to the import of the evidence,” summary judgment will be denied. Id. at 250-51.

Once the moving party satisfies its burden, however, the nonmoving party cannot simply rest on the pleadings or argue that any disagreement or “metaphysical doubt” about a material issue of fact precludes summary judgment. See Celotex, 477 U.S. at 322-23, 91 L. Ed. 2d 265; Matsushita Elec., 475 U.S. at 586; California Arch. Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987). Nor will uncorroborated allegations and “self-serving testimony” create a genuine issue of material fact. Villiarmo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002); see also T.W. Elec. Serv., 809 F.2d at 630. The nonmoving party must instead set forth “significant probative evidence tending to support the complaint.” T.W. Elec. Serv., 809 F.2d at 630. Summary judgment [**9] will thus be granted against a party who fails to demonstrate facts’ sufficient to establish an element essential to his case when that party will ultimately bear the burden of proof at proof at trial. See Celotex, 477 U.S. at 322.

[*1065] DISCUSSION

At issue in this Motion for Summary Judgment is whether the Release Form signed by Plaintiffs waives Defendant’s liability for the Plaintiffs’ alleged horseback riding injuries. Plaintiffs assert that the Release Form is unenforceable as a waiver and regardless, does not waive Defendant’s liability for its own negligent conduct allegedly contributing to their injuries.

Defendant claims that the Release Form constitutes a valid waiver of liability for Plaintiffs’ alleged injuries because the form clearly lists the risks associated with horseback riding and the horse-biting incident at issue constitutes one of these risks. Defendant also argues that the waiver explicitly waives liability for negligence.

As movant, Defendant has the burden of establishing that it is entitled to judgment as a matter of law by showing that there are no genuine issues of material fact as to whether the Release Form validly waives its liability [**10] for the Plaintiffs’ alleged injuries.

I. Hawaii Revised Statutes, Section 663-1.54.

Although neither party cites or discusses it, the Court finds that Hawaii Revised Statutes, Section 663-1.54, addressing “Recreational activity liability, “ applies to this case. Section 663-1.54 provides:

(a) Any person who owns or operates a business providing recreational activities to the public, such as, without limitation, scuba or skin diving, sky diving, bicycle tours, and mountain climbing, shall exercise reasonable care to ensure the safety of patrons and the public, and shall be liable for damages resulting from negligent acts or omissions of the person which cause injury.

(b) Notwithstanding subsection (a), owners and operators of recreational activities shall not be liable for damages for injuries to a patron resulting from inherent risks associated with the recreational activity if the patron participating in the recreational activity voluntarily signs a written release waiving the owner or operator’s liability for damages for injuries resulting from the inherent risks. No waiver shall be valid [**11] unless:

(1) The owner or operator first provides full disclosure of the inherent risks associated with the recreational activity; and

(2) The owner or operator takes reasonable steps to ensure that each patron is physically able to participate in the activity and is given the necessary instruction to participate in the activity safely.

(c) The determination of whether a risk is inherent or not is for the

trier of fact. As used in this section an “inherent risk”:

(1) Is a danger that a reasonable person would understand to be associated with the activity by the very nature of the activity engaged in;

(2) Is a danger that a reasonable person would understand to exist despite the owner or operator’s exercise of reasonable care to eliminate or minimize the danger, and is generally beyond the control of the owner or operator; and

(3) Does not result from the negligence, gross negligence, or wanton act or omission of the owner or operator.

HRS § 663-1.54 (emphasis added).

A. Legislative History.

There is no Hawaii case law interpreting Section 663-1.54. The Standing Committee that drafted Section 663-1.54, described its [**12] purpose and function as follows:

“This measure is necessary to more clearly define the liability of providers of commercial recreational activities by statutorily validating inherent risk waivers signed by the participants. Your [*1066] Committee further finds that these inherent risk waivers … do not extend immunity to providers for damages resulting from negligence.”

Haw. Stand. Comm. Rep. No. 1537, in 1997 Senate Journal, at 1476. In substituting the provisions of Senate Bill 647 with those of House Bill number 581, which was codified into Section 663-1.54, the Standing Committee eliminated “the substantive provisions of S.B. No. 647, S.D.1, the Senate companion measure,” including a section “exempting the provisions of Chapter 663B, existing law regarding equine liability.” Id. n4 Thus, equine activities, such as the one at issue here, are covered by Section 663-1.54. n5

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n4 Section 663B-2(a) provides: “In any civil action for injury … of a participant, there shall be a presumption that the injury … was not caused by the negligence of an equine activity sponsor … or their employees or agents, if the injury … was caused solely by the inherent risk and unpredictable nature of the equine. An injured person … may rebut the presumption of no negligence by a preponderance of the evidence.” HRS § 663B-2(a). [**13]

n5 Section 663-1.54, addressing recreational activity liability, and Section 663B, addressing equine activities, are not mutually exclusive. Read together, these sections provide that a trier of fact must determine if injuries were caused by the “inherent risks” of a recreational activity. And if the trier of fact finds that the injuries were “caused solely by the inherent risk and unpredictable nature” of a horse, then there is a rebuttable presumption that the defendant’s negligence did not cause the injuries. The injured plaintiff may then rebut the presumption of no negligence by a preponderance of the evidence.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

Subsection (c), providing that “the determination of whether a risk is inherent or not is for the trier of fact,” is pertinent to the resolution of this Motion for Summary Judgment. HRS § 663-1.54(c). Unfortunately, legislative materials specifically addressing this part of Section 663-1.54 are not helpful to this analysis as they consist of the following: “Now let me say that we have, and I supposed admirably, set out to define what inherent risks are in subsection (c), but whether [**14] this is sufficient is not clear.” Debate on Haw. Stand. Comm. Rep. No. 753, in 1997 House Journal, at 408 (statement of Rep. Pendleton).

It is clear that given the statute’s 1997 enactment and specific focus on exculpatory agreements made with those “who own[ ] or operate[ ] a business providing recreational activities to the public” that on the issue of written waivers, Section 663-1.54 supplants every single case on which the parties rely to make their substantive arguments. These cases, however, may be pertinent to other possibly relevant claims and defenses such as negligence and implied assumption of risk. Most of the cases cited were decided prior to the statute’s enactment n6 and those that [*1067] were decided after 1997 do not address the effect of waivers on recreational activity liability as in Section 663-1.54. n7 Moreover, most of these cases do not interpret Hawaii law. Likewise, Defendant’s citation to Section 663-10.95, addressing the liability of “motorsports facility “ owners and operators, is inapplicable to this case. Motion for Summary Judgment, at 13 (citing HRS § 663-10.95). Based on the foregoing, the Court will apply Section 663-1.54 in resolving Defendant’s Motion [**15] for Summary Judgment.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n6 See Grbac v. Reading Fair Co., 688 F.2d 215 (3rd Cir. 1982); Wheelock v. Sport Kites, Inc., 839 F. Supp. 730 (D. Haw. 1993); Marshall v. Blue Springs Corp., 641 N.E.2d 92 (1994); Huber v. Hovey, 501 N.W.2d 53 (1993); Masciola v. Chicago Metropolitan Ski Council, 257 Ill. App. 3d 313, 628 N.E.2d 1067, 195 Ill. Dec. 603 (1993); Swierkosz v. Starved Rock Stables, 239 Ill. App. 3d 1017, 607 N.E.2d 280, 180 Ill. Dec. 386 (1993); Buchan v. U.S. Cycling Federation, Inc., 227 Cal. App. 3d 134, 277 Cal. Rptr. 887 (1991); Dobratz v. Thomson, 161 Wis. 2d 502, 468 N.W.2d 654 (1991); Guido v. Koopman, 1 Cal. App. 4th 837, 2 Cal. Rptr. 2d 437 (1991); Saenz v. Whitewater Voyages, Inc., 276 Cal. Rptr. 672, 226 Cal. App. 3d 758 (1990); Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781 (Colo. 1989); Harris v. Walker, 119 Ill. 2d 542, 519 N.E.2d 917, 116 Ill. Dec. 702 (1988); Kurashige v. Indian Dunes, Inc., 200 Cal. App. 3d 606, 246 Cal. Rptr. 310 (1988); Madison v. Superior Court, 203 Cal. App. 3d 589, 250 Cal.

Rptr. 299 (1988); Hulsey v. Elsinore Parachute Center, 168 Cal. App. 3d 333, 214 Cal. Rptr. 194 (1985); McAtee v. Newhall Land & Farming Co., 169 Cal. App. 3d 1031, 216 Cal. Rptr. 465 (1985); Krohnert v. Yacht Systems Hawaii, Inc., 4 Haw.

App. 190, 664 P.2d 738 (1983); Hewitt III v. Miller, 11 Wn. App. 72, 521 P.2d

244 (1974); Delta Air Lines, Inc. v. Douglas Aircraft Co., 238 Cal. App. 2d 95,

47 Cal. Rptr. 518 (1965); Lee v. Allied Sports Associates, Inc., 349 Mass. 544,

209 N.E.2d 329 (1965); Ciofalo v. Vic Tanney Gyms, Inc., 10 N.Y.2d 294, 177 N.E.2d 925, 220 N.Y.S.2d 962 (1961). [**16]

n7 Foronda v. Hawaii International Boxing Club, 96 Haw. 51, 25 P.3d 826 (2001) (holding that primary implied assumption of risk, evidenced by a signed waiver and plaintiff’s free participation in a boxing match, is a complete defense to claims of negligence where defendant’s conduct is an inherent risk of the sports activity); Fujimoto v. Au, 95 Haw. 116, 19 P.3d 699 (2001) (finding contract waiving general partners and landowners’ liability unenforceable where limited partners with unequal bargaining power sought to recover their investment in limited partnerships formed to develop real estate).

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

B. Application.

Under Section 663-1.54, the Court must deny Defendant’s Motion for Summary Judgment for two reasons. First, Defendant argues that the Release Form validly waives Plaintiffs’ negligence claims but Section 663-1.54(a) explicitly precludes waiving liability for negligence. Thus, paragraph three (3) of the Release Form is void as to negligence.

Secondly, Section 663-1.54(c)’s provision that the “determination of whether a risk is inherent or not is for the [**17] trier of fact” automatically creates a genuine issue of material fact as to whether the horse-biting incident was an inherent of the horseback riding activity in which Plaintiffs participated. This statutorily-imposed genuine issue of fact precludes summary judgment as a matter of law. The trier of fact will have to decide whether the Release Form constitutes a valid waiver of Defendant’s liability. n8

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n8 The legislative history indicates that the statute’s proponents did not aim for this result. See Ammie I. Roseman-Orr, Comment, Recreational Activity Liability in Hawai’i: Are Waivers Worth The Paper On Which Thev Are Written?, 21. U. Haw. L. Rev. 715, 743-44 (1999) (“From the legislative testimony, it is apparent that the industry did not intend, nor was it aware, that this new law might eliminate summary judgment determinations of whether waivers are valid … Hawai’i’s new recreational activity liability statute, championed by the activity providers to protect the industry has instead eroded the common law protection it otherwise enjoyed.”).

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The Court finds that there are genuine issues of material fact as to: [1] whether Defendant was negligent; and [2] the Release Form’s validity as a waiver of liability, which depends on whether the horse-biting incident was an “inherent risk” of the recreational activity that Defendant provided to Plaintiffs. Defendant cannot satisfy its burden and thus, is not entitled to judgment as a matter of law.

CONCLUSION

The Court holds that there are genuine issues of material fact as to Defendant’s negligence and as to whether the Release Form constitutes a valid waiver of Defendant’s liability and accordingly DENIES Defendant’s Motion for Summary Judgment.

IT IS SO ORDERED.

DATED: Honolulu, Hawii, 18 FEB 2004

Alan C Kay

United States District Judge

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Wheelock v. Sport Kites, Inc, 839 F. Supp. 730; 1993 U.S. Dist. LEXIS 17050

Wheelock v. Sport Kites, Inc, 839 F. Supp. 730; 1993 U.S. Dist. LEXIS 17050

Mary Rose Wheelock, individually, as Administratrix of the Estate of David William Wheelock, as Guardian Ad Litem for Maggie Wheelock and David William Wheelock, minors, Plaintiff, v. Sport Kites, Inc., a foreign corporation, dba Wills Wing, Rob Kells, an individual, Kualoa Ranch, Inc., a Hawaii corporation, and Sport Aviation Hawaii, Inc., a Hawaii corporation, Defendants.

Civ. No. 92-00768 HMF

United States District Court for the District of Hawaii

839 F. Supp. 730; 1993 U.S. Dist. LEXIS 17050

December 1, 1993, Decided

December 1, 1993, Filed

Counsel: [**1] For Mary Rose Wheelock, individually gal, Maggie Wheelock, minor gal, David William Wheelock, minor, plaintiff: Jeffrey R. Buchli, Carroll Smith & Buchli, Honolulu, HI. John S. Carroll, Carroll Smith & Buchli, Honolulu, HI.

For Sport Kites, Inc., a foreign corporation dba Wills Wing, Rob Kells, an individual, defendants: Leighton K. Oshima, Patrick I. Wong, Wong Oshima & Kondo, Honolulu, HI. For Kualoa Ranch, Inc., a Hawaii corporation, defendant:

Sidney K. Ayabe, a, Rodney S. Nishida, Libkuman Ventura Ayabe Chong & Nishimoto, Honolulu, HI. For Sport Aviation Hawaii, Inc., a Hawaii corporation, defendant:

Randolph R. Slaton, Law Offices of Randolph R. Slaton, Honolulu, HI.

For Kualoa Ranch, Inc., cross-claimant: Sidney K. Ayabe, a, Libkuman Ventura Ayabe Chong & Nishimoto, Honolulu, HI.

For Sport Kites, Inc. dba Wills Wing, ROB KELLS, cross-defendants: Leighton K.

Oshima, Patrick I. Wong, Wong Oshima & Kondo, Honolulu, HI.

For Sport Aviation Hawaii, Inc., cross-claimant: Randolph R. Slaton, Law Offices of Randolph R. Slaton, Honolulu, HI.

For Sport Kites, Inc. dba Wills Wing, ROB KELLS, cross-defendants: Leighton K.

Oshima, Patrick I. Wong, Wong Oshima & Kondo, Honolulu, [**2] HI.

Judges: Fong

Opinion by: Harold M. Fong

Opinion:

[*733] Order Granting Plaintiff’s Motion To Dismiss Non-Diverse Parties And Denying Defendants’ Motion To Dismiss For Lack Of Diversity Jurisdiction; Order Granting In Part And Denying In Part Defendants’ Motion For Summary Judgment

Introduction

This is a wrongful death action. On November 1, 1993, the court heard arguments on three motions: (1) defendant Kualoa Ranch, Inc.’s motion for summary judgment; (2) Kualoa Ranch’s motion to dismiss for lack of diversity jurisdiction; and (3) plaintiff’s motion to dismiss non-diverse parties to the complaint to preserve diversity jurisdiction.

Background

This action arises from the accidental death of David Wheelock (“David”). On July 14, 1991, David was paragliding at Kualoa Ranch. He was at a height of between 1,000 and 1,500 feet when the lines connecting him to the parachute-like canopy simultaneously broke, detaching him. He plunged to the earth and died.

Mary Rose Wheelock, David’s wife, brought this action n1 against Kualoa Ranch, owner of the premises where the activity occurred, Sport Aviation Hawaii, provider of the equipment, and Sport Kites, Inc., dba Wills Wing, and Rob Kells, an individual, manufacturers [**3] of the equipment.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n1 Mrs. Wheelock brought the action individually, as administratrix of her husband’s estate, and as guardian ad litem for their children.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

Kualoa Ranch filed a motion to dismiss plaintiff’s complaint for lack of diversity jurisdiction. Plaintiff concedes that there is currently a lack of diversity: plaintiff is a citizen of California and defendant Sports Kites is a California corporation. On July 29, 1993, however, plaintiff reached a settlement agreement with Wills Wing and Rob Kells voluntarily dismissing all claims against them with prejudice. Plaintiff has thus filed a motion to dismiss Sport Kites, Inc., the sole non-diverse party to the complaint, to preserve diversity jurisdiction.

Kualoa Ranch has also filed a motion for summary judgment, joined by Sport Aviation Hawaii, on the grounds that plaintiff is barred from recovery because of an agreement and release of liability signed by David. On June 16, 1991, David signed the agreement as a precondition to use of the facilities and paragliding [**4] equipment. The agreement is a one-page, pre-printed, fill-in-the-blank form. Under its terms, David agreed to release and discharge Kualoa Ranch, Sport Ranch, and others from liability for injuries suffered while paragliding. n2

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n2 The agreement, entitled an ‘Agreement and Release of Liability,” provides, in relevant part, that:

1. I hereby RELEASE AND DISCHARGE [defendants and others] . . . from any and all liability, claims, demands or causes of action that I may have for injuries and damages arising out of my participation in Ultralight activities, including but not limited to, losses CAUSED BY THE NEGLIGENCE OF THE RELEASED PARTIES.

2. I further agree that I WILL NOT SUE OR MAKE A CLAIM against the Released Parties for damages or other losses sustained as a result of my participation in Ultralight activities. I also agree to INDEMNIFY AND HOLD THE RELEASED PARTIES HARMLESS from all claims, judgments and costs, including attorney’s fees, incurred in connection with any action brought as a result of my participation in Ultralight activities.

3. I understand and acknowledge that Ultralight activities have inherent dangers that no amount of care, caution, instruction, or expertise can eliminate and I EXPRESSLY AND VOLUNTARILY ASSUME ALL RISK OF DEATH OR PERSONAL INJURY SUSTAINED WHILE PARTICIPATING IN ULTRALIGHT ACTIVITIES WHETHER OR NOT CAUSED BY THE NEGLIGENCE OF THE RELEASED PARTIES.

5. I hereby expressly recognize that this Agreement & Release of Liability is a contract pursuant to which I have released any and all claims against the Released Parties . . . .

I HAVE READ THIS AGREEMENT & RELEASE OF LIABILITY, FULLY UNDERSTAND

ITS CONTENTS AND MEANING, AND SIGN IT OF MY OWN FREE WILL.

David signed and dated it at the bottom, and initialed at nine pre-printed blank spaces, including one at each paragraph.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [**5]

DISCUSSION

I. KUALOA RANCH’S MOTION TO DISMISS COMPLAINT FOR LACK OF DIVERSITY JURISDICTION AND MARY ROSE WHEELOCK’S COUNTER-MOTION TO DISMISS NON-DIVERSE PARTIES.

The principal requirements of diversity jurisdiction are that the amount in controversy exceed $ 50,000 and that the parties be citizens of different states. 28 U.S.C. § 1332. There is no dispute as to the citizenship of the parties for purposes of diversity: plaintiff n3 and defendant Sport Kites, Inc. are citizens of California, and defendants Kualoa Ranch and Sport Aviation are citizens of Hawaii.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n3 The relevant citizenship of plaintiffs in a wrongful death action is that of the decedent. 28 U.S.C. § 1332(c)(2). It is undisputed that the domicile of David, the decedent, was in California.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

The court will dismiss Sport Kites unless doing so will prejudice the remaining defendants. Rule 19 of the Federal Rules of Civil Procedure, which sets forth the rules for joinder [**6] of persons needed for a just adjudication, provides that in determining whether a party is indispensable, the court should consider “whether in equity and good conscience the action should proceed among the parties before it, or be dismissed.” A dispensable non-diverse party may be dismissed to perfect retroactively the district court’s original jurisdiction. Continental Airlines, Inc. v. Goodyear Tire & Rubber Co., 819 F.2d 1519, 1522-23 (9th Cir. 1987); Othman v. Globe Indem. Co., 759 F.2d 1458, 1463 (9th Cir. 1985); Inecon Agricorporation v. Tribal Farms, Inc., 656 F.2d 498, 500 (9th Cir. 1981). Refusal by the court to dismiss a dispensable, non-diverse party may constitute an abuse of discretion. Kerr v. Compagnie de Ultramar, 250 F.2d 860, 864 (2d Cir. 1958).

Defendants claim that they will be prejudiced because Sports Kites, Inc. designed and manufactured the allegedly defective paraglider, and unless they remain as defendants, they will not be part of the special verdict form submitted to the jury, pursuant to Hawaii Revised Statutes § 663-11 et seq., [**7] for determination of comparative fault. The court, however, may include a non-party on the special verdict form for apportionment of fault. See, e.g., In re Hawaii Federal Asbestos Cases, 960 F.2d 806 (9th Cir. 1992) (where the jury attributed a percentage of fault to non-parties). The statute does not require that fault be apportioned only among parties to the lawsuit.

Plaintiff has already settled with Rob Kells and Wills Wing, the parties destroying diversity, and will not be prejudiced by their dismissal. Defendants are not prejudiced because they may bring a third-party complaint against Sport Kites for indemnification, and their ability to defend plaintiff’s suit is unimpaired. The greatest source of potential prejudice is to plaintiff if the court dismisses for lack of diversity jurisdiction because the statute of limitations has expired on her claims.

II. KUALOA RANCH’S MOTION FOR SUMMARY JUDGMENT.

Plaintiff in a wrongful death action is subject to defenses which could be asserted against the decedent. See Saenz v. Whitewater Voyages, Inc., 226 Cal. App.3d 758, 763-64, 276 Cal. Rptr. 672 (Cal. App. 1990); [**8] Madison v. Superior Court, 203 Cal. App.3d 589, 250 Cal. Rptr. 299 (Cal. App. 1988).

Defendants thus raise the defense which they would have had against David—his agreement. The agreement provided, inter alia, that David agreed to release and discharge defendants Kualoa Ranch, Sport Aviation, and others from any liability, including “losses caused by the negligence of the released parties.”

The issue before the court on the motion for summary judgment is whether to give effect to the release of liability signed by David (and initialed at each paragraph).

A. David Wheelock Expressly Assumed the Risk of Death.

Defendants contend that signing the agreement constituted an assumption of risk by David. If the agreement is valid, they argue, it operates to relieve them of any legal [*735] duty to protect David from the injury-causing risk.

The agreement signed by David was a standardized, pre-printed form. It was an adhesion contract of the sort frequently offered to consumers of goods and services on a “take-it-or-leave-it” basis. In Leong v. Kaiser Found, Hospitals, 71 Haw. 240, 247-48, 788 P.2d 164 (1990), [**9] the Hawaii Supreme Court addressed the problem of such contracts:

An adhesion contract is a form contract created by the stronger of the contracting parties. It is offered on a “take this or nothing” basis. Consequently, the terms of the contract are imposed on the weaker party who has no choice but to conform. These terms unexpectedly or unconscionably limit the obligations of the drafting party. Because of these circumstances, some courts look past the wording of the contract and consider the entire transaction in order to effectuate the reasonable expectations of the parties. Ambiguities in the contract will be construed against the drafters and in plaintiff’s favor. (citing Robin v. Blue Cross Hosp. Serv., Inc., 637 S.W.2d 695, 697 (Mo. 1982).

While the agreement in the case at bar was an adhesion contract, it is not unconscionable. It is of a sort commonly used in recreational settings. See, e.g., Saenz v. Whitewater Voyages, Inc., 226 Cal. App.3d 758, 276 Cal. Rptr. 672 (Cal. App. 1990) (whitewater rafting); Westlye v. Look Sports, Inc., 17 Cal. App. 4th 1715, 22 Cal. Rptr.2d 781 (Cal. App. 1993) [**10] (skiing). Such agreements are generally held to be valid. Adhesion contracts are fully enforceable provided that they are not unconscionable and do not fall outside the reasonable expectations of the weaker or adhering party. See Graham v. Scissor-Tail, Inc., 28 Cal.3d 807, 820, 623 P.2d 165, 171 Cal. Rptr. 604, 612 (1981).

In Saenz, 226 Cal. App.3d at 758, the court barred recovery in a wrongful death action because plaintiff had signed a release expressly assuming the risk of the activity. Saenz had signed a “release and assumption of risk” agreement in order to participate in a three-day whitewater rafting trip on which he drowned. The court found that the release constituted an express assumption of risk and acted as a bar to a wrongful death action. Id. at 765.

Plaintiff argues that Saenz is distinguishable in the extent of the decedent Saenz’s knowledge of the assumed risk. He received extensive warning regarding the risk, extensive preparation, and several opportunities to avoid the particular rapids in which he drowned. [**11] n4 In contrast, David received some, less extensive explanation of the dangers of paragliding. n5 Although David did sign and initial the agreement providing that he assumed all risks, plaintiff argues that there is a question of fact as to David’s state of mind and the parties’ understanding.

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n4 He was given several safety talks on emergency procedures, lessons, explanations of how to run the particular rapid, and a number of opportunities to opt out of riding the rapid in which he drowned. 276 Cal. Rptr. at 678.

n5 William Fulton, president of defendant Sport Aviation, avers that he warned David and informed him of the dangers of paragliding before he signed the release.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

Plaintiff also argues that Saenz is distinguishable in terms of the nature of the risk assumed. The Saenz court referred to the risk of drowning in treacherous rapids as “inherent in whitewater rafting and apparent to anyone.” Id. at 766. According [**12] to plaintiff, while injury or death caused by treacherous winds, improper landings, or collision with an obstacle are “apparent” risks, the risk which befell David—the simultaneous breaking of all lines connecting him to the parachute—was not apparent. The Saenz court held that defendant’s assumption of all risks, known and unknown, made knowledge of the particular risk (death by drowning) unnecessary. Id. The court need not adopt so broad a holding. A risk must be a known risk for it to be properly assumed. Prosser & Keaton, Torts, § 68 at 480-81 (5th ed. 1984).

The court is satisfied that David knowingly assumed the risk at issue. The agreement provided that David “expressly [*736] and voluntarily assume[d] all risk of death or personal injury sustained while participating in ultralight activities whether or not caused by the negligence of the released parties.” (capitalization omitted). The risk which befell David was the risk of death.

David expressly assumed this risk. Plaintiff could characterize it in many different ways, but the fact is that David assumed the risk of death. Moreover, the apparent cause of David’s fall and subsequent death—equipment failure — [**13] is an obvious risk in paragliding and other “air” sports.

B. The Agreement Does Not Affect Plaintiff’s Gross Negligence and Strict Liability Claims.

1. Plaintiff’s Negligence Claims Are Barred.

David’s assumption of risk relieves defendants from any legal duty towards him, except insofar as the law nullifies such a waiver. Plaintiff is thus barred from bringing any negligence claims against defendants.

Hawaii courts permit a waiver of negligence claims. In Krohnert v. Yacht Systems Hawaii, Inc., 4 Haw. App. 190, 198, 664 P.2d 738 (Haw. App. 1983), the court declared that absent a public interest, “a party can contract to exempt himself for harm caused by his negligence.” (citing Restatement (Second) of Contracts and Williston on Contracts). Accord, Madison v. Superior Court, 203 Cal. App.3d 589, 599, 250 Cal. Rptr. 299, 305 (Cal. App. 1988). Although Hawaii courts have not specifically addressed the issue, courts in other jurisdictions have rejected the notion that the public interest is at stake in sport- or recreational-related waivers. See Saenz, supra. [**14] Plaintiff’s claims under negligence theories are effectively barred, and defendants are entitled to summary judgment vis-a-vis these claims.

2. Plaintiff’s Gross Negligence Claims Are Unaffected.

Plaintiff alleges gross negligence on defendant’s part in misrepresenting the safety of the paraglider. This is a distinct theory of liability from negligence. Negligence is the failure to use such care as a reasonably prudent and careful person would use under similar circumstances. Gross negligence, by contrast, is a failure to perform a manifest duty in reckless disregard of the consequences. “Gross negligence involves a risk substantially greater in amount than that which is necessary to make conduct negligent.” Bunting v. United States, 884 F.2d 1143, 1147 (9th Cir. 1989). The Restatement (Second) describes the difference between gross and ordinary negligence as follows: “[Gross negligence] differs from that form of negligence which consists of mere inadvertence, incompetence, unskillfulness, or a failure to take precautions to enable the actor to cope with a possible or probable future emergency.” Restatement (Second) of Torts § 500 cmt. g (1965). [**15]

Hawaii courts have not addressed the issue of whether a party can contract away liability for his own gross negligence. Because this is a diversity action, the court applies the substantive law of the forum state, Hawaii, and uses its best judgment in predicting how the Hawaii Supreme Court would decide this issue. See Takahashi v. Loomis Armored Car Serv., 625 F.2d 314, 316 (9th Cir. 1980). In Krohnert, 4 Haw. App. at 198, the court enunciated the principle that a party can only contract away liability for negligence in the absence of a public interest. The public interest is at stake when a party attempts to contract to exempt himself for harm caused by his gross negligence. See Stuart Rudnick, Inc. v. Jewelers Protection Servs., Ltd., 194 A.D.2d 317, 598 N.Y.S.2d 235, 236 (N.Y. App. Div. 1993); see also Saenz, 226 Cal. App.3d at 765 (“everything short of gross negligence is covered by the release . . . .”). The agreement in the instant case is therefore void against public policy to the extent that it attempts to relieve defendants of liability [**16] for their gross negligence. n6

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n6 Alternatively, the court has grounds to find that the contract is ambiguous as to gross negligence. While the release and discharge agreement is a valid contract, it is an adhesion contract, and the court will interpret it accordingly. Adhesion contracts are construed liberally in favor of the adhering party and any ambiguities are resolved against the drafting party. See State Farm Mut. Auto. Ins. Co. v. Fermahin, 73 Haw. 552, 556, 836 P.2d 1074 (1993) (interpreting an insurance contract) (citation omitted). The court applies this rule only if there is a true ambiguity, and not merely because the parties disagree over its interpretation. Id. at 556. “Ambiguity exists ‘only when the contract taken as a whole, is reasonably subject to differing interpretation. A court must respect the plain terms of the policy and not create ambiguity where none exists.’” Id. at 556-57 (citations omitted). The release agreement, however, addresses only negligence and not gross negligence. The court will construe this as not barring a claim in gross negligence.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [**17]

[*737] 3. Plaintiff’s Strict Liability Claims.

The remaining question is whether the waiver of plaintiff’s strict products liability claims is effective. This is also an issue of first impression in Hawaii. See Takahashi v. Loomis Armored Car Serv., 625 F.2d at 316.

In Madison, 203 Cal. App.3d at 596, the California court of appeals held that the waiver constituted a “complete defense” to any claims in plaintiff’s actions. Accord, Saenz, 226 Cal. App.3d at 763. Neither court addressed the issue of strict products liability claims. More recently, however, a California appellate court held that an agreement relieving a product supplier from strict products liability is void. In Westlye v. Look Sports, Inc., 17 Cal. App. 4th 1715, 22 Cal. Rptr.2d 781 (Cal. App. 1993), the court held that a release agreement did not bar plaintiff who suffered skiing injuries from suing under a strict products liability theory in tort:

there is a strong policy against allowing product suppliers to disclaim liability for injuries caused [**18] by defects in products they place on the market. To allow product suppliers to achieve this prohibited result merely by substituting assumption of risk language for disclaimer language would too easily allow circumvention of these policies. In effect, such an agreement is nothing more than a disclaimer. Id. at 17-18.

The court rejected defendants’ argument that the express assumption of risk was good against the whole world. Id. at 1716 (“we have not discovered any authority for this proposition. The doctrine of express assumption is founded on express agreement.”). Westlye is well reasoned and solidly grounded in relevant policy considerations. The essence of the doctrine of strict liability, as enunciated by Justice Traynor in Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 461, 150 P.2d 436 (1944) (Traynor, J., concurring), is that a manufacturer who places a product on the market should be absolutely liable if it knows that the product will be used without inspection and is shown to have an injury-causing defect. See also Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 62, 377 P.2d 897, 27 Cal. Rptr. 697 (1963) [**19] (applying the doctrine of strict liability as formulated by Traynor in Escola). The doctrine of strict liability is based not only on the public policy of discouraging the marketing and distribution of defective products, but also on the reasoning that a manufacturer is in a far better position than individual consumers to insure against the risk of injury and to distribute costs among consumers.

The court sees no reason to permit defendants to insulate themselves from strict liability by means of a release when they could not do so otherwise.

Insofar as the agreement signed by David attempts to relieve product suppliers of their responsibility for injuries caused by defective products, it is squarely at odds with the strict products liability doctrine. The very reason for the growth of products liability law was a perceived need to protect consumers from defective products and from attempts by product suppliers to disclaim responsibility for such defects by way of contractual provisions. See Seely v. White Motor Co., 63 Cal.2d 9, 16-17, 403 P.2d 145, 45 Cal. Rptr. 17 (1965); Vandermark v. Ford Motor Co., 61 Cal.2d 256, 391 P.2d 168, 37 Cal. Rptr. 896 (1964) [**20] (“since [the dealer] is strictly liable in tort, the fact that it restricted its contractual liability to [plaintiff] is immaterial.”); Greenman, 59 Cal.2d at 57, 377 P.2d at 897. With respect to claims for strict liability, David’s waiver is thus void as against public policy.

Hawaii courts have recognized that lessors of products who are in the business of leasing are subject to strict products liability. Stewart [*738] v. Budget Rent-A-Car Corp., 52 Haw. 71, 75, 470 P.2d 240 (1970). Accord, Price v. Shell Oil Co., 2 Cal.3d 245, 250, 466 P.2d 722, 725, 85 Cal. Rptr. 178, 181 (1970). Plaintiff’s claims in strict liability against Kualoa Ranch and Sport Aviation are not precluded by the release agreement.

C. The Agreement Is Not Ambiguous.

Plaintiff claims that the agreement is ambiguous because it includes the following paragraph:

6. It is understood that the purchase of this waiver does not constitute a contract of insurance but only a waiver of the contractual defenses that would otherwise be available to the Released Parties.

[**21]

Plaintiff claims that this paragraph indicates that David was purchasing a waiver of the contractual defenses available to defendants, and that the agreement itself would constitute a defense which is being waived. She argues that it is thus ambiguous as to whether such defenses are being waived.

Plaintiff points out correctly that courts regard attempts to contract away tort liability with skepticism, Gardner v. Downtown Porsche Audi, 180 Cal. App.3d 713, 716, 225 Cal. Rptr. 757 (Cal. App. 1986), and that an attempt to do so must be “clear, explicit, and comprehensible in each of its details.” Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd., 147 Cal. App.3d 309, 319, 195 Cal. Rptr. 90 (Cal. App. 1983). The court will resolve ambiguities in such contracts against the drafting party. See State Farm Mut. Auto. Ins. Co. v. Fermahin, 73 Haw. 552, 556, 836 P.2d 1074 (1992) (interpreting an insurance contract) (citation omitted).

Before an exculpatory clause may be enforced against a party, it must be established that he clearly and unequivocally [**22] agreed to the disclaimer with knowledge of its contents. Krohnert, 4 Haw. App. at 200, 664 P.2d at 744 (citations omitted). The court, however, only applies this rule in the event of a true ambiguity, and not merely because of a confusing passage. “Ambiguity exists ‘only when the contract taken as a whole, is reasonably subject to differing interpretation. A court must respect the plain terms of the policy and not create ambiguity where none exists.’” Id. at 556-57 (citations omitted). In this case, the contract, taken as a whole is unambiguous.

D. There Is No Genuine Issue of Material Fact as to Whether the Decedent Agreed to the Release with Knowledge of Its Contents.

Plaintiff contends that it is unclear whether David signed the agreement with clear and unequivocal knowledge of its terms. David is dead and thus unavailable to testify.

Defendants have come forward, however, with the affidavit of William Fulton, president of Sport Aviation, averring that he explained and warned David of the dangers at length before David signed the agreement. Moreover, there is no dispute that David signed the agreement and initialed it at the [**23] title and each paragraph. Plaintiff has not come forward with any evidence contradicting the Fulton affidavit and the signed agreement. There thus appears to be no genuine issue of material fact as to whether David signed the agreement with knowledge of its terms and of the dangers involved in paragliding.

CONCLUSION

For the reasons given, the court GRANTS plaintiff’s motion to dismiss non-diverse parties and DENIES defendants’ motion to dismiss for lack of diversity jurisdiction. Plaintiff has already settled with Sport Kites, Inc., dba Wills Wing and Rob Kells, the non-diverse defendants, and Sport Kites is not indispensable within the meaning of Rule 19 of the Federal Rules of Civil Procedure. n7

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n7 The court understands that the remaining defendants will seek to prosecute a third-party complaint against Sport Kites as designers and manufacturers of the equipment. In the event that a third-party complaint may not be prosecuted, Sport Kites may still be included as non-parties on the special jury forms for assessment of its share of liability under Hawaii’s comparative negligence framework.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [**24]

For the reasons given, the court GRANTS in part and DENIES in part defendants ‘ [*739] motion for summary judgment. The release and discharge agreement signed by David Wheelock is valid and enforceable, and a plain reading of the agreement indicates that David expressly assumed the risk of death—the risk which befell him—and waived his right to any negligence claims against defendant. Plaintiff’s negligence claims are barred on this basis. The release and discharge is void, however, as it applies to plaintiff’s claims for gross negligence and strict liability, because the assumption of risk is ineffective vis-a-vis these claims.

IT IS SO ORDERED.

DATED: Honolulu, Hawaii, December 1, 1993

Harold M. Fong

UNITED STATES DISTRICT JUDGE

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Hawaii Recreational Activity Liability

DIVISION 4. COURTS AND JUDICIAL PROCEEDINGS

TITLE 36 Civil Remedies And Defenses And Special Proceedings

CHAPTER 663 Tort Actions

PART I. Liability; Survival of Actions

Go to the Hawaii Code Archive Directory

HRS § 663-1.54 (2013)

§ 663-1.54. Recreational activity liability.

(a) Any person who owns or operates a business providing recreational activities to the public, such as, without limitation, scuba or skin diving, sky diving, bicycle tours, and mountain climbing, shall exercise reasonable care to ensure the safety of patrons and the public, and shall be liable for damages resulting from negligent acts or omissions of the person which cause injury.

(b) Notwithstanding subsection (a), owners and operators of recreational activities shall not be liable for damages for injuries to a patron resulting from inherent risks associated with the recreational activity if the patron participating in the recreational activity voluntarily signs a written release waiving the owner or operator’s liability for damages for injuries resulting from the inherent risks. No waiver shall be valid unless:

(1) The owner or operator first provides full disclosure of the inherent risks associated with the recreational activity; and

(2) The owner or operator takes reasonable steps to ensure that each patron is physically able to participate in the activity and is given the necessary instruction to participate in the activity safely.

(c) The determination of whether a risk is inherent or not is for the trier of fact. As used in this section an “inherent risk”:

(1) Is a danger that a reasonable person would understand to be associated with the activity by the very nature of the activity engaged in;

(2) Is a danger that a reasonable person would understand to exist despite the owner or operator’s exercise of reasonable care to eliminate or minimize the danger, and is generally beyond the control of the owner or operator; and

(3) Does not result from the negligence, gross negligence, or wanton act or omission of the owner or operator.


Hawaii’s deceptive trade practices act sends this case and release back to the trial court

Courbat v. Dahana Ranch, Inc., 111 Haw. 254; 141 P.3d 427; 2006 Haw. LEXIS 386

Court agrees that the issue of not finding out that you had to sign a waiver until the time of the activity might be a deceptive practice.

This is a very interesting case. A couple booked several activities through a third party booking agency. The activity in question was a horseback ride. The plaintiffs had booked the ride several months in advance of the ride and upon showing up, were handed a release.

Upon arriving at the defendants, the plaintiff read the waiver and signed it and passed it on to her husband. The husband signed it, testifying in his deposition that he relied on his wife to read such documents.

The record demonstrates that the Courbats were given adequate time and opportunity to fully review the waiver presented to them before they signed it and that both knew that by signing it; they were waiving legal rights in return for being allowed to participate in the ride.

Of note was a statement made by the court that no guest of the defendant had ever refused to sign the waiver.

During the ride, one horse kicked the plaintiff in the shin causing her an injury. She and her husband sued for negligence, gross negligence and for unfair and deceptive practices.

The defendant responded with the plaintiff assumed the risk, the release barred the plaintiff’s claims and the ranch had done nothing to bring it into the purview of the Hawaiian Deceptive Trade Practices Act. (HRS §§ 480-2 and 480-13)

The trial court had granted the defendant’s motion for summary judgment, and the decision was appealed.

Summary of the case

The court spent the most time on the issue that booking a ride several months in advance and not finding out that a waiver had to be signed on arrival was a deceptive practice.

…they assert that the Ranch’s practice of booking ride reservations through an activity company, receiving payment prior to the arrival of the guest, and then, upon the guest’s arrival at the Ranch, requiring the guest to sign a liability waiver as a precondition to horseback riding is an unfair and deceptive business practice to which the remedies of HRS ch. 480 apply.

The plaintiffs did not argue that the waiver was deceptive, only the fact that they were not informed that a waiver had to be signed. If the practice was found to be deceptive, then the waiver would be void.

The Courbats do not allege that the waiver itself is deceptive; rather, they urge that the deceptive practice at issue was the booking agent’s failure to inform them of the waiver requirement during the negotiation and execution of the underlying contract. Nevertheless, if any deceptive omission occurred with respect to the negotiation and execution of the original contract, the operation of HRS § 480-12, see supra note 1, would render both the original contract and the waiver, signed afterward, void.

After analyzing the fact the court found that there was an issue: “…whether a waiver requirement would be materially important in booking a horseback tour remains one for the trier of fact.

However, if the trier of fact (jury) finds that a failure to warn the plaintiff was not deceptive, then the waiver would be valid.

The court then looked at the wavier to determine if met Hawaiian law. The court found that if the plaintiff signed the wavier, then the plaintiff was bound by its terms. Waivers, exculpatory contracts, are valid if they are “knowingly and willingly made and free from fraud.”

Waivers can be voided for three reasons in Hawaii.

“‘exculpatory clauses will be held void if the agreement is

(1) violative of a statute,

(2) contrary to a substantial public interest, or

(3) gained through inequality of bargaining power.'”

The court then looked at what was a public interest and found a public interest had the following characteristics:

[1] It concerns a business of a type generally thought suitable for public regulation.

 [2] The party seeking exculpation is engaged in performing a service of great importance to the public, which is often [***30]  a matter of practical necessity for some members of the public.

 [3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards.

 [4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive ad-vantage of bargaining strength against any member of the public who seeks his services.

 [5] In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence.

 [6] Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller of the service, subject to the risk of carelessness by the seller or his agents.

Recreational activities are unsuitable for public regulation; therefore, they do not violate the Hawaiian public interest definition that would void a release.

…while such waivers may be contracts of adhesion, in that they are presented on a “take-it-or-leave-it” basis, they are not unconscionable, but “are of a sort commonly used in recreational settings” and “are generally held to be valid.

Contracts of adhesion are ‘unenforceable if two conditions are present: (1) the contract is the result of coercive bargaining between parties of unequal bargaining strength; and (2) the contract unfairly limits the obligations and liabilities of, or otherwise unfairly advantages, the stronger party.

Because the plaintiffs had time to read and review the waiver, there was no coercion.

The court reviewed one final issue, waivers under Hawaiian law, like most other states do not stop claims for gross negligence or willful misconduct.

Consequently, the case was sent back for a jury to determine if the acts of the defendant, by and through its booking agency, acted deceptively or if the acts of the defendant were grossly negligent. If so the plaintiff would win the suit. If the acts of the defendant were not deceptive or the defendant was not grossly negligent the defendants would win at trial.

There was a dissent which found that the acts were not deceptive by law.

So Now What?

It is so easy to avoid most of the issues that were part of this appeal. One some signs up for a trip or activity, whether through you or a third party, they must be informed that they are going to sign a release.

It is that easy. Put it on the receipt, put it on the website, put it on the paperwork, in the brochure; put it everywhere. If you are in a state where the release is valid you will not go through the time, cost and expense of this type of litigation.

Every state has a deceptive trade practice’s statute. The statutes are enacted to protect consumers from dishonest businesses. The court did not examine the facts in light of an intentional act; just the practice alone was deceptive.

Don’t learn the act, just inform your guests.

 

Plaintiff: Lisa Courbat and Steven Courbat

 

Defendant: Dahana Ranch, Inc.

 

Plaintiff Claims: negligence, gross negligence, violation of the Hawaiian Deceptive Trade Practices statute.

 

Defendant Defenses: assumption of the risk, release, did not violate the deceptive practices act

 

Holding: reversed and sent back for trial

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

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