Idaho Supreme Court blows the Idaho Skier Safety Act up.

Posted: January 15, 2024 | Author: Recreation Law | Filed under: Assumption of the Risk, Idaho, Ski Area, Skiing / Snow Boarding | Tags: Idaho Responsibilities and Liabilities of Skiers and Ski Area Operators Act, Idaho Ski Area Liability Act, Idaho Supreme Court, Responsibilities and Liabilities of Skiers and Ski Area Operators Act, Ski Area Liability Act, Sun Valley, Sun Valley ski resort | 3 Comments

Ski Area Liability Act now becomes a road map for plaintiffs to sue ski areas

Milus v. Sun Valley Co., 49693-2022 (Idaho Dec 19, 2023)

State: Idaho; Supreme Court of Idaho

Plaintiff: Laura Milus, in her individual capacity and as Guardian of the Minor Child Plaintiff, D.L.J., Plaintiff-Appellant

Defendant: Sun Valley Company, a Wyoming corporation

Plaintiff Claims: 1. Whether the district court erred in holding that the yellow padding on Snow Gun 16 constituted a warning implement.

2. Whether the district court erred in holding that Sun Valley had no duty to provide a conspicuous notice at the top of Lower River Run because no snow was being actively discharged from the snowmaking equipment.

3. Whether Mr. Milus assumed the risk of his ski accident under Idaho Code section 6-1106.

4. Whether Sun Valley is entitled to attorney fees on appeal.

Defendant Defenses: Responsibilities and Liabilities of Skiers and Ski Area Operators Act, (“Ski Area Liability Act“). See I.C. §§ 6-1101 through 6-1109

Holding: for the Plaintiff

Year: 2023

Summary

The Idaho Supreme Court just turned the Ski Area Liability Act into a plaintiff checklist for winning money from Idaho Resorts.

Facts

On November 30, 2019, Stewart Milus (“Mr. Milus”) was skiing at the Sun Valley Ski Resort when he collided with snowmaking equipment identified as Snow Gun 16, located in the middle of the Lower River Run on Bald Mountain. Mr. Milus died as a result of the collision. Snow Gun 16 was not actively discharging snow at the time of the collision.

Laura Milus (“Ms. Milus”) is the widow of Mr. Milus and D.L.J. is the stepson of Mr. Milus. Ms. Milus filed a wrongful death action on behalf of herself and D.L.J. (collectively referred to as “Milus”) against Sun Valley Company (“Sun Valley”), the operator of the Sun Valley Ski Resort. Milus alleged that Sun Valley breached its duties under Idaho Code section 6-1103(2) and (6). Idaho Code section 6-1103(2) imposes a duty on ski operators to mark with a “visible sign” or “warning implement” the location of snowmaking equipment on ski slopes and trails. Idaho Code section 6-1103(6) imposes a duty to place a conspicuous notice at or near the top of a trail or slope that is open to the public when snowgrooming or snowmaking operations are being undertaken.

Sun Valley filed a motion for summary judgment, arguing that it had satisfied its duty to warn of the snowmaking equipment under Idaho Code section 6-1103(2) because Snow Gun 16 was covered in yellow padding, which constituted a “warning implement.” Additionally, Sun Valley argued that it had no duty under Idaho Code section 6-1103(6) to place a notice at the top of the Lower River Run because no snowmaking was being actively undertaken on the day of the collision. Sun Valley further argued that, even if it did have such a duty, it complied with that duty by placing a sign that read “CAUTION SNOWMAKING IN PROGRESS” near what Sun Valley contends is the unloading area of the Lower River Run ski lift. Lastly, Sun Valley argued that, under Idaho Code section 6-1106, Mr. Milus had assumed the risk of injury while skiing.

The district court granted Sun Valley’s motion for summary judgment in part, holding that the yellow padding on Snow Gun 16 satisfied the duty under section 6-1103(2) to mark snowmaking equipment with a “warning implement.” The district court interpreted section 61103(6) as creating a duty only when snowmaking equipment is actively discharging snow and allowed discovery to take place regarding whether snow was being made on the day of the accident. Following discovery, the district court granted Sun Valley’s renewed motion for summary judgment in full regarding section 6-1103(6), holding that Sun Valley had no duty to place a notice at or near the top of the ski run because no active snowmaking was being undertaken when the accident occurred. The district court held that Milus was unable to establish that Sun Valley breached a duty owed to Mr. Milus and therefore Milus’s claim failed. Having resolved the motion on other grounds, the district court did not rule on Sun Valley’s assumption of risk defense.

Milus timely appealed the final judgment.

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

The Idaho Supreme Court took a very different approach to examining the Ski Area Liability Act. They said the statute creates a list of things a ski resort must do and if they fail to do them they are liable. They also stated that although the Ski Area Liability Act says a skier assumes the risk of skiing, that must mean a jury must examine the risks to see if the risk was assumed. Finally, the court looked at a prior decision and because it was not unanimous it was not valid anymore.

Let’s start with the change in how a prior decision is held by later courts.

Because the majority opinion in Northcutt is only a plurality holding on this issue, it is not binding precedent on this Court.

Stare Decisis —a Latin term that means “let the decision stand” or “to stand by things decided”—is a foundational concept in the American legal system. To put it simply, stare decisis holds that courts and judges should honor “precedent”—or the decisions, rulings, and opinions from prior cases. Respect for precedents gives the law consistency and makes interpretations of the law more predictable—and less seemingly random.

Stare Decisis is accepted and upheld by all courts across the United States, except for the Idaho Supreme Court. Nowhere have I read a decision that states that since the prior decision was less than unanimous it did not count. I would suspect that 90% of the decisions of any court are unanimous.

Stare decisis is the doctrine that courts will adhere to precedent in making their decisions. Stare decisis means “to stand by things decided” in Latin.

When a court faces a legal argument, if a previous court has ruled on the same or a closely related issue, then the court will make their decision in alignment with the previous court’s decision. The previous deciding-court must have binding authority over the court; otherwise, the previous decision is merely persuasive authority. In Kimble v. Marvel Enterprises, the U.S. Supreme Court described the rationale behind stare decisis as “promot[ing] the evenhanded, predictable, and consistent development of legal principles, foster[ing] reliance on judicial decisions, and contribut[ing] to the actual and perceived integrity of the judicial process.”

The doctrine operates both horizontally and vertically. Horizontal stare decisis refers to a court adhering to its own precedent. For example, if the Seventh Circuit Court of Appeals adhered to the ruling of a previous Seventh Circuit Court of Appeals case, that would be horizontal stare decisis. A court engages in vertical stare decisis when it applies precedent from a higher court. For example, if the Seventh Circuit Court of Appeals adhered to a previous ruling from the U.S. Supreme Court, that would be vertical stare decisis. Or, additionally, if the Federal District Court for the Southern District of New York adhered to a previous ruling by the Second Circuit, that would be vertical stare decisis.

Although courts seldom overrule precedent, the U.S. Supreme Court in Seminole Tribe of Florida v. Florida explained that stare decisis is not an “inexorable command.” When prior decisions are “unworkable or are badly reasoned,” then the Supreme Court may not follow precedent, and this is “particularly true in constitutional cases.” For example, in deciding Brown v. Board of Education, the U.S. Supreme Court explicitly renounced Plessy v. Ferguson, thereby refusing to apply the doctrine of stare decisis.

This change by the Idaho Supreme Court is without precedence and will mean that there is no decision from a multi-panel court you can rely on unless that decision is unanimous. This will create havoc in the law in Idaho.

The next issue the court addressed is how sections of the Ski Area Liability Act are to be applied

See I.C. § 6-1103(10) (emphasis added). Rather, a close examination of the language demonstrates that the duties set forth in subsections (1) through (9) and the first clause in subsection (10) are the only duties imposed on operators in section 6-1103, and that ski operators owe no additional duty to eliminate, alter, control, or lessen the risks inherent in skiing. The last clause in subsection (10) simply explains that, to the extent a ski operator undertakes an additional duty (which they are not obligated to), there is no standard of care applicable to the additional duty.

Every other court has interpreted this statute to mean the ski area operator owes no duty to the skier. So, the Idaho Supreme Court interpreted the statute so that it creates a duty.

The plain language of section 6-1103(10) differentiates between the duties enumerated in subsections (1) through (9) and any additional duty to “eliminate, alter, control[,] or lessen such risks[.]” It only eliminates a standard of care for any additional duty not set forth in subsections (1) through (9), which the ski operator voluntarily undertakes. Therefore, we hold that ski area operators are held to a standard of care when acting to fulfill the duties enumerated in section 61103(1) through (9). [emphasize added]

So, what was a safe harbor for ski areas, is now a list of ways they can be sued and stated as such by the court.

The question now becomes what standard of care ski area operators are held to when acting to fulfill their enumerated duties under section 6-1103(1) through (9). “The second element of a negligence cause of action, that of breach of duty by the allegedly negligent party, requires measuring the party’s conduct against that of an ordinarily prudent person acting under all the circumstances and conditions then existing. What circumstances and conditions existed is a factual question to be determined by the trier of fact.” superseded by statute on other grounds as recognized in Therefore, we hold that ski area operators are held to the standard of an “ordinarily prudent person acting under all the circumstances and conditions then existing,” id., when complying with the duties enumerated in subsections (1) through (9). [emphasize added]

From protection to the standard of care of an ordinarily prudent person.

Next, the court looked at the statute affecting snow-making equipment and the definition of snow-making warning: warning implement. I.C. § 6-1103(2). In this case, Sun Valley had placed yellow padding around the snow-making equipment. As defined by the statute the lower court held that yellow padding was a warning implement. The Supreme Court did not see it that way and held that whether or not yellow padding constituted a warning implement is a question for the jury.

We hold that the district court erred because the question of whether the yellow padding around Snow Gun 16 constitutes a warning implement is a question of fact for the jury.

Now based on a broad definition in the statute, warning implement, every case must go to trial so the jury can decide what is a warning implement. This means the cost of insurance for ski areas is going to skyrocket because there is no way to win without a trial. That means larger settlements.

The next two issues were whether Sun Valley placed a warning notice concerning the snow-making equipment where a skier could see it. The court first held that the statute required a warning whether snow-making was going or not.

Then the court looked at whether or not Sun Valley had placed a warning and found it had not. Sun Valley supplied affidavits, pictures, and statements showing that the warning was there. The plaintiff supplied an affidavit stating there was no sign. The court went with the plaintiff.

As screwy as the prior decisions of the court have been, this one is over the top.

Sun Valley argues that, under the plain language of Idaho Code section 6-1106, Mr. Milus expressly assumed the risk and legal responsibility of an injury that occurred from his participation in the sport of skiing at Sun Valley Ski Resort, including any injury caused by snowmaking equipment. In response, Milus argues that the issue is not appropriately before this Court because it was not sufficiently addressed by the district court. Because the district court determined that Sun Valley had no duty or had fulfilled its duties under section 6-1103(2) and (6), the district court did not rule on the applicability of Idaho Code section 6-1106.

The court took the assumption of the risk defense off the table and stated a skier, skiing in Idaho only assumes the risk IF the ski area has met all of its requirements under the act.

For the reasons discussed previously in this opinion, there is a genuine issue of material fact concerning whether the snowmaking equipment was plainly visible or plainly marked in accordance with section 6-1103(2). Because the defense is only available if the equipment was marked in accordance with section 6-1103(2), a jury will have to determine whether the snowmaking equipment met the requirements of that section before Sun Valley may avail itself of this defense. Therefore, Sun Valley is not entitled to summary judgment under section 6-1106.

Again, every ski injury lawsuit is not going to trial. Only the trier of fact, the jury in most cases can determine if a skier assumed the risk causing his injuries.

So Now What?

Either the Idaho legislature has to re-write the Ski Area Liability Act or Idaho ski areas are going to pay. Once moderately priced lift tickets in Idaho are going to climb to cover the increased cost of signage and insurance.

Look for signs, permanent signs, at the tops of all lists and runs stating that skiers might encounter snow-making on a run. Look for larger warning signs and notices around all snow-making equipment, wherever it may be located. Sitting in the maintenance yard I would still pad it now.

Even more interesting, there are five justices on the Idaho Supreme Court and only four justices agreed with this decision. Does that mean it is non-binding?

Chief Justice BEVAN, and Justices BRODY, STEGNER, and MOELLER CONCUR.

What a mess.

G-YQ06K3L262

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Milus v. Sun Valley Co., 49693-2022 (Idaho Dec 19, 2023)

Posted: January 15, 2024 | Author: Recreation Law | Filed under: Assumption of the Risk, Idaho, Ski Area, Skiing / Snow Boarding | Tags: Idaho, Idaho Ski Safety Act, Idaho Supreme Court, Sun Valley, Sun Valley ski resort, Supreme Court | Leave a comment

LAURA MILUS, in her individual capacity and as Guardian of the Minor Child Plaintiff, D.L.J., Plaintiff-Appellant,
v.
SUN VALLEY COMPANY, a Wyoming corporation, Defendant-Respondent.

No. 49693-2022

Supreme Court of Idaho, Boise

December 19, 2023

Appeal from the District Court of the Fifth Judicial District of the State of Idaho, Blaine County. Ned C. Williamson, District Judge.

The decision of the district court is reversed.

Rossman Law Group, PLLC, Boise, for Appellant.

Mathew G. Gunn argued.

Lake City Law Group PLLC, Coeur d’Alene, for Respondent.

Katharine B. Brereton argued.

ZAHN, JUSTICE

This case concerns the interpretation of the Responsibilities and Liabilities of Skiers and Ski Area Operators Act. Appellant Laura Milus brought a wrongful death action on behalf of herself and her minor child against Respondent Sun Valley Company after her husband’s death following his collision with snowmaking equipment while skiing at Sun Valley Ski Resort.

Milus alleged that Sun Valley Company had breached a duty arising under Idaho Code section 6-1103(2) and (6). The district court granted Sun Valley’s summary judgment motion, holding that Sun Valley (1) fulfilled its duty under Idaho Code section 6-1103(2) to mark snowmaking equipment by surrounding the snowmaking equipment with yellow padding, and (2) did not have a duty under Idaho Code section 6-1103(6) to place a conspicuous notice at the top of the ski trail because the snowmaking equipment was not actively discharging snow. We reverse the district court’s grant of summary judgment and remand for further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

Milus timely appealed the final judgment.

II. ISSUES ON APPEAL

1. Whether the district court erred in holding that the yellow padding on Snow Gun 16 constituted a warning implement.

3. Whether Mr. Milus assumed the risk of his ski accident under Idaho Code section 6-1106.

4. Whether Sun Valley is entitled to attorney fees on appeal.

III. STANDARD OF REVIEW

“The standard of review on appeal from an order granting summary judgment is the same standard that is used by the district court in ruling on the summary judgment motion.” Berglund v. Dix, 170 Idaho 378, 384, 511 P.3d 260, 266 (2022) (quoting Hoke v. Neyada, Inc., 161 Idaho 450, 453, 387 P.3d 118, 121 (2016)). The trial court “must grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” I.R.C.P. 56(a). “All disputed facts are to be construed liberally in favor of the non-moving party, and all reasonable inferences that can be drawn from the record are to be drawn in favor of the non-moving party.” Manning v. Micron Tech., Inc., 170 Idaho 8, 12, 506 P.3d 244, 248 (2022). “A mere scintilla of evidence or only slight doubt as to the facts is not sufficient to create a genuine issue of material fact for the purposes of summary judgment.” Finholt v. Cresto, 143 Idaho 894, 897, 155 P.3d 695, 698 (2007) (quoting Jenkins v. Boise Cascade Corp., 141 Idaho 233, 238, 108 P.3d 380, 385 (2005)). “If the evidence reveals no disputed issues of material fact, then only a question of law remains, over which this Court exercises free review.” Arambarri v. Armstrong, 152 Idaho 734, 738, 274 P.3d 1249, 1253 (2012).

IV. ANALYSIS

A. Ski area operators are held to an ordinarily prudent person standard of care when undertaking the duties enumerated in Idaho Code section 6-1103(1) through (9).

Before addressing the district court’s order dismissing Milus’s claim, we must first discuss the duties in tort and the corresponding standards of care encompassed by Milus’s claim. Milus’s negligence claim is premised on duties arising under the Responsibilities and Liabilities of Skiers and Ski Area Operators Act (“Ski Area Liability Act”). See I.C. §§ 6-1101 through 6-1109.

Idaho Code section 6-1103 is titled, “Duties of ski area operators with respect to ski areas,” and contains ten subsections. Subsections (1) through (9) each state a specific duty that a ski area operator has with respect to its operation of the ski area. Subsection (10) differs from the first nine because, after stating a duty, it then describes exceptions to that duty:

Every ski area operator shall have the following duties with respect to their operation of a skiing area:

….

(10) Not to intentionally or negligently cause injury to any person; provided, that except for the duties of the operator set forth in subsections (1) through (9) of this section and in section 6-1104, Idaho Code, the operator shall have no duty to eliminate, alter, control or lessen the risks inherent in the sport of skiing, which risks include, but are not limited to, those described in section 6-1106, Idaho Code; and, that no activities undertaken by the operator in an attempt to eliminate, alter, control or lessen such risks shall be deemed to impose on the operator any duty to accomplish such activities to any standard of care.

I.C. § 6-1103(10).

This Court interpreted section 6-1103(10) in Northcutt v. Sun Valley Company, 117 Idaho 351, 787 P.2d 1159 (1990). We held that the Ski Area Liability Act limits the liability of ski operators to only the enumerated duties in section 6-1103(1) through (9) when acting to eliminate, alter, control or lessen the inherent risks of skiing. See id. at 354-55, 787 P.2d at 1162-63. Significantly, we also held that the Act eliminates any standard of care for a ski operator when undertaking any of the duties found in subsections (1) through (9). See id. (“We construe the last clause of this portion of [Idaho Code section] 6-1103(10) to eliminate any standard of care for a ski area operator in carrying out any of the duties described in [Idaho Code sections] 6-1103 and 6-1104.”). In other words, even though ski operators owe a duty to perform certain tasks, there is no standard of care applicable to how they perform those tasks.

Sun Valley argues that, under this Court’s holding in Northcutt, if a ski area operator takes any step to fulfill the duties enumerated under Idaho Code section 6-1103(1) through (9), any potential plaintiffs are barred from recovery. Milus argues that this Court’s interpretation in Northcutt makes it nearly impossible to hold a ski area operator liable, in contradiction with the legislature’s intent to “define those areas of responsibility and affirmative acts for which ski area operators shall be liable for loss, damage or injury ….” I.C. § 6-1101. We agree with Milus and hold that the ordinarily prudent person standard applies to the duties set forth in Idaho Code section 6-1103(1) through (9).

A careful reading of Northcutt reveals that the standard of care portion of the decision failed to draw a majority of votes and therefore is only a plurality holding. Justice Bakes’s special concurrence in Part II of the Northcutt opinion explains his disagreement with the plurality’s holding eliminating any standard of care for the duties enumerated in subsections (1) through (9):

Had appellant Northcutt’s injury been proximately caused by an inaccurate description of the relative degree of difficulty of the slope, or had the sign not been sufficiently “conspicuous” so that it could not reasonably have been observed, and as a result Northcutt descended a slope which exceeded his ability to negotiate, then in my view there would have been a violation of the duty provided in [section] 61103(3) for which liability would be imposed under [Idaho Code section] 6-1107, and which would not have been excused by [Idaho Code section] 6-1103(10).

117 Idaho at 358, 787 P.2d at 1166 (Bakes, J., specially concurring) (emphasis added). Because the majority opinion in Northcutt is only a plurality holding on this issue, it is not binding precedent on this Court.

A close reading of the separate clauses contained in section 6-1103(10) demonstrates that it does not eliminate any standard of care for the duties set forth in subsections (1) through (9):

Every ski area operator shall have the following duties with respect to their operation of a skiing area:

….

(10) Not to intentionally or negligently cause injury to any person;

• provided, that except for the duties of the operator set forth in subsections (1) through (9) of this section and in section 6-1104, Idaho Code,

• the operator shall have no duty to eliminate, alter, control or lessen the risks inherent in the sport of skiing, which risks include, but are not limited to, those described in section 6-1106, Idaho Code; and,

• that no activities undertaken by the operator in an attempt to eliminate, alter, control or lessen such risks shall be deemed to impose on the operator any duty to accomplish such activities to any standard of care.

See I.C. § 6-1103(10) (emphasis added). Rather, a close examination of the language demonstrates that the duties set forth in subsections (1) through (9) and the first clause in subsection (10) are the only duties imposed on operators in section 6-1103, and that ski operators owe no additional duty to eliminate, alter, control, or lessen the risks inherent in skiing. The last clause in subsection (10) simply explains that, to the extent a ski operator undertakes an additional duty (which they are not obligated to), there is no standard of care applicable to the additional duty.

The plain language of section 6-1103(10) differentiates between the duties enumerated in subsections (1) through (9) and any additional duty to “eliminate, alter, control[,] or lessen such risks[.]” It only eliminates a standard of care for any additional duty not set forth in subsections (1) through (9), which the ski operator voluntarily undertakes. Therefore, we hold that ski area operators are held to a standard of care when acting to fulfill the duties enumerated in section 61103(1) through (9).

The question now becomes what standard of care ski area operators are held to when acting to fulfill their enumerated duties under section 6-1103(1) through (9). “The second element of a negligence cause of action, that of breach of duty by the allegedly negligent party, requires measuring the party’s conduct against that of an ordinarily prudent person acting under all the circumstances and conditions then existing. What circumstances and conditions existed is a factual question to be determined by the trier of fact.” Brooks v. Logan, 127 Idaho 484, 490-91, 903 P.2d 73, 79-80 (1995) (citations omitted), superseded by statute on other grounds as recognized in Stoddart v. Pocatello Sch. Dist. #25, 149 Idaho 679, 239 P.3d 784 (2010). Therefore, we hold that ski area operators are held to the standard of an “ordinarily prudent person acting under all the circumstances and conditions then existing,” id., when complying with the duties enumerated in subsections (1) through (9).

B. Whether the yellow padding surrounding Snow Gun 16 constitutes a “warning implement” under Idaho Code section 6-1103(2) is a question of fact for the jury.

Having determined the applicable standard of care, we turn to the merits of Milus’s appeal. Milus filed a wrongful death action alleging Sun Valley breached its duty arising under Idaho Code section 6-1103(2). That section requires that ski area operators mark snowmaking equipment located on ski slopes and trails with a visible sign or warning implement. I.C. § 6-1103(2).

Sun Valley concedes that it did not mark Snow Gun 16 with a visible sign. Sun Valley argues that the yellow padding that surrounded Snow Gun 16 constitutes a warning implement under Idaho Code section 6-1103(2) Milus argued that whether the yellow padding constituted a warning implement was a question for the jury. The district court held that interpreting the phrase “warning implement” and whether it included the yellow padding was a question of statutory interpretation for the court and concluded that the yellow padding around Snow Gun 16 met the statutory requirement. We hold that the district court erred because the question of whether the yellow padding around Snow Gun 16 constitutes a warning implement is a question of fact for the jury.

The elements of a negligence action are “(1) a duty, recognized by law, requiring the defendant to conform to a certain standard of conduct; (2) a breach of that duty; (3) a causal connection between the defendant’s conduct and the resulting injury; and (4) actual loss or damage.” Black Canyon Racquetball Club, Inc. v. Idaho First Nat’l Bank, N.A., 119 Idaho 171, 175-76, 804 P.2d 900, 904-05 (1991). The district court treated the question of whether the yellow padding constitutes a warning implement as an issue of duty. “The existence of a duty is a question of law for this Court.” Harrigfeld v. Hancock, 140 Idaho 134, 138, 90 P.3d 884, 888 (2004); see Udy v. Custer County, 136 Idaho 386, 389, 34 P.3d 1069, 1072 (2001).

However, whether the yellow padding effectively constitutes a “warning implement” is not an issue of duty, but rather one of breach. By enacting section 6-1103(2), the legislature imposed on Sun Valley a duty “[t]o mark with a visible sign or other warning implement the location of any hydrant or similar equipment used in snowmaking operations ….” In light of our holding that ski area operators are held to an “ordinarily prudent person” standard of care when performing the duties enumerated in subsections (1) through (9), it is a question of fact for the jury whether the yellow padding met the ordinarily prudent person standard of care to mark the gun with a visible sign or other warning implement. In this instance, breach is a question of fact for the jury. See Stephens v. Stearns, 106 Idaho 249, 256, 678 P.2d 41, 48 (1984) (holding that “it is a jury question as to whether [a] duty was breached”); Freeman v. Juker, 119 Idaho 555, 557, 808 P.2d 1300, 1302 (1991) (reversing the district court’s grant of summary judgment because whether the highway district had breached its duty by not maintaining the runaway escape ramp was a disputed question of fact); Thomson v. Idaho Ins. Agency, Inc., 126 Idaho 527, 530, 887 P.2d 1034, 1037 (1994) (concluding that summary judgment should have been denied solely because triable disputed factual issues existed whether a duty was breached).

“[I]f the evidence reveals no disputed issues of material fact, the trial court should grant the motion for summary judgment.” Duncan v. Long, 167 Idaho 853, 856, 477 P.3d 907, 910 (2020). Sun Valley put forth an Incident Report describing the accident and an Incident Photo Log with pictures of the yellow padding on Snow Gun 16 as evidence that the yellow padding constituted a warning implement. Milus presented a declaration by a ski area safety expert that snowmaking equipment should not be placed in the middle of a beginner level trail such as Lower River Run. There is a genuine issue of material fact whether Sun Valley breached its duty under section 6-1103(2) by wrapping Snow Gun 16 with yellow padding, and this question should go to a jury. Therefore, the district court’s grant of summary judgment is reversed.

C. Idaho Code section 6-1103(6) imposes a duty on ski area operators to place a conspicuous notice at or near the top of the trail or slope when snowmaking equipment is placed on the ski run or slope.

Milus claims Sun Valley also breached its duty under Idaho Code section 6-1103(6), which requires ski operators to place a “conspicuous notice” at or near the top of a ski trail or slope under certain circumstances:

Every ski area operator shall have the following duties with respect to their operation of a skiing area:

….

(6) To place, or cause to be placed, whenever snowgrooming or snowmaking operations are being undertaken upon any trail or slope while such trail or slope is open to the public, a conspicuous notice to that effect at or near the top of such trail or slope[.]

(Emphasis added.)

The district court held that the statutory language “snowmaking operations are being undertaken” is unambiguous and means “when snow is being made.” The district court concluded that the purpose of subsection (6) is to warn skiers of changed snow conditions or reduced visibility due to active snowmaking operations. Because no snow was actively being discharged from Snow Gun 16 on the day of Mr. Milus’s collision, the district court held that Sun Valley had no duty under section 6-1103(6) to place a notice at or near the top of the Lower River Run. Milus argues that the district court’s interpretation is too narrow because snowmaking equipment is dangerous both when actively shooting snow and when not actively shooting snow if the snowmaking equipment is in the middle of a beginner ski run.

“Statutory interpretation is a question of law over which this Court exercises free review.” Est. of Stahl v. Idaho State Tax Comm’n, 162 Idaho 558, 562, 401 P.3d 136, 140 (2017) (quoting Carrillo v. Boise Tire Co., 152 Idaho 741, 748, 274 P.3d 1256, 1263 (2012)). “Statutory interpretation begins with the literal language of the statute. If the statutory language is unambiguous, we need not engage in statutory construction and are free to apply the statute’s plain meaning.” Nordgaarden v. Kiebert, 171 Idaho 883, 890, 527 P.3d 486, 493 (2023) (alteration omitted) (quoting Callies v. O’Neal, 147 Idaho 841, 847, 216 P.3d 130, 136 (2009)). However, if the statutory language is ambiguous, this Court must “look to rules of construction for guidance and consider the reasonableness of proposed interpretations.” Id. (quoting City of Idaho Falls v. H-K Contractors, Inc., 163 Idaho 579, 582, 416 P.3d 951, 954 (2018)). “Statutory language is ambiguous where reasonable minds might differ or be uncertain as to its meaning.” Id. (alteration omitted) (quoting H-K Contractors, Inc., 163 Idaho at 582, 416 P.3d at 954).

The phrase “snowmaking operations are being undertaken” is ambiguous. The phrase “snowmaking operations” is broad and encompasses more than the discharge or production of snow. Interpreting subsection (6) as only applying when the snow was being actively discharged would effectively eliminate the word “operations” from the statute. But the statute does not impose the duty when “snowmaking is being undertaken,” rather the duty applies when “snowmaking operations are being undertaken.” When interpreting a statute, this Court has an obligation to give effect to all the words and provisions so that none are rendered superfluous. Moser v. Rosauers Supermarkets, Inc., 165 Idaho 133, 136, 443 P.3d 147, 150 (2019).

We are persuaded by Milus’s argument that subsection (6) creates a duty to warn skiers at the top of a ski slope or run of snowmaking equipment located further down the slope. Warning skiers of dangerous obstacles on the ski run or slope gives a skier the opportunity to choose a different ski run or to ski in a more cautious manner. The district court reasoned that this interpretation of section 6-1103(6) would be redundant because it would require two warnings for snowmaking equipment-one on the equipment itself, as required by subsection (2), and one at the top of the ski run, as required by our interpretation of subsection (6). This is not redundant- both warnings serve a purpose. Providing a warning at or near the top of the ski run or trail gives a skier the opportunity to choose a different ski run or to ski more cautiously, while a warning on or near the snowmaking equipment itself informs and warns the skier of the actual location of the snowmaking equipment on the ski run.

D. There is a genuine issue of material fact whether Sun Valley placed a conspicuous notice at or near the top of the Lower River Run trail on the day of the accident.

In light of our holding that the duty to place a notice at or near the top of the ski run or trail under section 6-1103(6) applies even when snow is not being actively discharged from snowmaking equipment, the question now becomes whether there is a genuine issue of material fact as to whether Sun Valley complied with that duty.

In support of its motion for summary judgment, Sun Valley submitted evidence that it placed a sign that read “CAUTION SNOWMAKING IN PROGRESS” at what it claims was the top of the River Run lift on the day of the accident. Sun Valley also submitted a declaration by Peter Stearns, the Director of Mountain Operations of Sun Valley Ski Resort, stating that, at all times during the ski season, the CAUTION SNOWMAKING IN PROGRESS sign is posted at the top of each ski lift. Additionally, Sun Valley presented a photograph showing the sign located at what it claims is the unloading area of the Lower River Run lift and a ski trail map showing the location of the sign relative to the top of Lower River Run.

In opposition to the motion, Ms. Milus submitted a declaration stating she did not see the sign on the day the accident occurred. Milus argued that it was possible the sign had been knocked down on the day of the accident. Milus additionally argued that the picture of the sign presented by Sun Valley does not show that the sign was “at or near the top” of Lower River Run.

The district court concluded that Ms. Milus’s statement that she did not personally observe a sign against Mr. Stearns’s declaration that a sign was posted at the top of every ski lift all season at Sun Valley only created a scintilla of evidence that would not preclude summary judgment.

On appeal, Milus argues that the district court erred because the evidence submitted was sufficient to establish a genuine issue of material fact concerning whether Sun Valley breached its duty under section 6-1103(6). We agree with Milus and reverse the district court’s grant of summary judgment on this claim.

For the reasons previously discussed, Sun Valley is held to the standard of care of an ordinarily prudent person when complying with subsection (6). We hold there is a genuine issue of material fact as to whether the “CAUTION SNOWMAKING IN PROGRESS” sign met the applicable standard of care. Sun Valley did not present sufficient evidence that its sign is at or near the top of the Lower River Run. The picture presented by Sun Valley shows the loading area of the Lookout Express lift, not the top of the Lower River Run. The trail map presented by Sun Valley does not show the location of the sign or an accurate distance between the River Run ski lift unloading area and the top of the Lower River Run. Moreover, Ms. Milus testified in her deposition that she did not see the sign on the day of the accident. As a result, there is a genuine issue of material fact whether Sun Valley’s sign complied with the requirements of subsection (6). We reverse the district court’s grant of summary judgment on this issue.

E. There is a genuine issue of material fact whether Sun Valley may avail itself of the assumption of the risk defense provided in Idaho Code section 6-1106.

However, the district court’s failure to address the argument does not prevent us from considering it in this instance.

Idaho formerly required an appealing party to obtain an adverse ruling on an issue to preserve the issue for appeal. However, we have now rejected the adverse ruling requirement in favor of a broader standard where “[i]t is not mandatory for a party-appellant to obtain an adverse ruling from the trial court to preserve an issue for appellate review, so long as the party’s position on that issue was presented to the trial court with argument and authority and noticed for hearing.”

Rich v. Hepworth Holzer, LLP, 172 Idaho 696, 703 n.4, 535 P.3d 1069, 1076 n.4 (2023) (internal citations omitted). Both parties presented their positions to the district court with argument and authority. Therefore, Sun Valley’s assumption of risk argument was preserved for appeal. Additionally, because we apply the same standard as the district court on a motion for summary judgment, we can consider this argument in the first instance because “[w]e review a district court’s grant of summary judgment de novo, and apply the same standard used by the district court in ruling on the motion.” Mattson v. Idaho Dep’t of Health &Welfare, 172 Idaho 66, 529 P.3d 731, 737 (2023) (quoting Marek v. Hecla, Ltd., 161 Idaho 211, 214, 384 P.3d 975, 978 (2016)).

Sun Valley contends that, even if we reverse the district court’s grant of summary judgment on its duties under section 6-1103, it is still entitled to summary judgment under section 6-1106, which describes the duties of skiers and provides that Mr. Milus expressly assumed the risk of injury resulting from skiing, and specifically the risk of injury from snowmaking equipment that was clearly marked in accordance with the provisions of section 6-1103:

Each skier expressly assumes the risk of and legal responsibility for any injury to person or property that results from participation in the sport of skiing including any injury caused by the following, all whether above or below snow surface: variations in terrain; any movement of snow including, but not limited to, slides, sloughs or avalanches; any depths of snow, including tree wells, or any accumulations of snow, whether natural or man made, including snowmaking mounds; freestyle terrain; surface or subsurface snow or ice conditions; bare spots, rocks, trees, other forms of forest growth or debris, lift towers and components thereof; utility poles, and snowmaking and snowgrooming equipment which is plainly visible or plainly marked in accordance with the provisions of section 61103, Idaho Code. Therefore, each skier shall have the sole individual responsibility for knowing the range of his own ability to negotiate any slope or trail, and it shall be the duty of each skier to ski within the limits of the skier’s own ability, to maintain reasonable control of speed and course at all times while skiing, to heed all posted warnings, to ski only on a skiing area designated by the ski area operator and to refrain from acting in a manner which may cause or contribute to the injury of anyone.

I.C. § 6-1106 (emphasis added). Sun Valley argues that the plain language of section 6-1106 bars recovery by Milus as a matter of law because the snowmaking equipment that Mr. Milus collided with was plainly visible or plainly marked in accordance with Idaho Code section 6-1103.

F. Sun Valley is not entitled to attorney fees.

Sun Valley requests attorney fees on appeal pursuant to Idaho Code section 12-121, which permits the prevailing party to recover its reasonable attorney fees if the Court finds that the nonprevailing party brought, defended, or pursued the case frivolously, unreasonably, or without foundation. However, Sun Valley is not the prevailing party on appeal and, therefore, is not entitled to an award of attorney fees under the statute.

V. CONCLUSION

We reverse the district court’s grant of summary judgment in favor of Sun Valley and remand for further proceedings consistent with this opinion. As the prevailing party, Milus is awarded costs on appeal pursuant to Idaho Appellate Rule 40.

Chief Justice BEVAN, and Justices BRODY, STEGNER, and MOELLER CONCUR.

Idaho Ski Area Statutes

Posted: January 15, 2024 | Author: Recreation Law | Filed under: Idaho, Legal Case, Skiing / Snow Boarding | Tags: Idaho Ski Area Statutes, Idaho Ski Safety Act | Leave a comment

Idaho Ski Area Statutes

6-1101. LEGISLATIVE PURPOSE 1

6-1102. DEFINITIONS 1

6-1103. DUTIES OF SKI AREA OPERATORS WITH RESPECT TO SKI AREAS 2

6-1104. DUTIES OF SKI AREA OPERATORS WITH RESPECT TO AERIAL PASSENGER TRAMWAYS 3

6-1107. LIABILITY OF SKI AREA OPERATORS 4

6-1108. LIABILITY OF PASSENGERS 5

6-1109. LIABILITY OF SKIERS 5

6-1101. LEGISLATIVE PURPOSE

The legislature finds that the sport of skiing is practiced by a large number of citizens of this state and also attracts a large number of nonresidents, significantly contributing to the economy of Idaho. Since it is recognized that there are inherent risks in the sport of skiing which should be understood by each skier and which are essentially impossible to eliminate by the ski area operation, it is the purpose of this chapter to define those areas of responsibility and affirmative acts for which ski area operators shall be liable for loss, damage or injury, and to define those risks which the skier expressly assumes and for which there can be no recovery.

Source:

[6-1101, added 1979, ch. 270, sec. 1, p. 701.]…

Idaho Code 6-1101 Legislative Purpose (Idaho Statutes (2023 Edition))

6-1102. DEFINITIONS

The following words and phrases when used in this chapter shall have, unless the context clearly indicates otherwise, the meanings given to them in this section.

(1) “Aerial passenger tramway” means any device operated by a ski area operator used to transport passengers, by single or double reversible tramway; chair lift or gondola lift; T-bar lift, J-bar lift, platter lift or similar device; a fiber rope or wire rope tow or a conveyor, which is subject to regulations adopted by the proper authority.

(2) “Passenger” means any person who is lawfully using an aerial passenger tramway, or is waiting to embark or has recently disembarked from an aerial passenger tramway and is in its immediate vicinity.

(3) “Ski area” means the property owned or leased and under the control of the ski area operator within the state of Idaho.

(4) “Ski area operator” means any person, partnership, corporation or other commercial entity and their agents, officers, employees or representatives, who has operational responsibility for any ski area or aerial passenger tramway.

(5) “Skiing area” means all designated slopes and trails but excludes any aerial passenger tramway.

(6) “Skier” means any person present at a skiing area under the control of a ski area operator for the purpose of engaging in activities including, but not limited to, sliding downhill or jumping on snow or ice on skis, a snowboard, or any other sliding device, or who is using any ski area including, but not limited to, ski slopes, trails and freestyle terrain but does not include the use of an aerial passenger tramway.

(7) “Ski slopes and trails” mean those areas designated by the ski area operator to be used by skiers for the purpose of participating in the sport of skiing.

(8) “Freestyle terrain” means terrain parks and terrain features including, but not limited to, jumps, hits, ramps, banks, fun boxes, jibs, rails, half-pipes, quarter pipes and any other natural or constructed features.

Source:

[6-1102, added 1979, ch. 270, sec. 1, p. 701; am. 2014, ch. 187, sec. 1, p. 497.]

History:

Amended by 2014 Session Laws, ch. 187, sec. 1, eff. 7/1/2014.

Idaho Code 6-1102 Definitions (Idaho Statutes (2023 Edition))

6-1103. DUTIES OF SKI AREA OPERATORS WITH RESPECT TO SKI AREAS

Every ski area operator shall have the following duties with respect to their operation of a skiing area:

(1) To mark all trail maintenance vehicles and to furnish such vehicles with flashing or rotating lights that shall be in operation whenever the vehicles are working or are in movement in the skiing area;

(2) To mark with a visible sign or other warning implement the location of any hydrant or similar equipment used in snowmaking operations and located on ski slopes and trails;

(3) To mark conspicuously the top or entrance to each slope or trail or area, with an appropriate symbol for its relative degree of difficulty; and those slopes, trails, or areas which are closed, shall be so marked at the top or entrance;

(4) To maintain one (1) or more trail boards at prominent locations at each ski area displaying that area’s network of ski trails and slopes with each trail and slope rated thereon as to its relative degree of difficulty;

(5) To designate by trail board or otherwise which trails or slopes are open or closed;

(6) To place, or cause to be placed, whenever snowgrooming or snowmaking operations are being undertaken upon any trail or slope while such trail or slope is open to the public, a conspicuous notice to that effect at or near the top of such trail or slope;

(7) To post notice of the requirements of this chapter concerning the use of ski retention devices. This obligation shall be the sole requirement imposed upon the ski area operator regarding the requirement for or use of ski retention devices;

(8) To provide a ski patrol with qualifications meeting the standards of the national ski patrol system;

(9) To post a sign at the bottom of all aerial passenger tramways which advises the passengers to seek advice if not familiar with riding the aerial passenger tramway; and

Source:

[6-1103, added 1979, ch. 270, sec. 1, p. 702; am. 2014, ch. 187, sec. 2, p. 498.]

History:

Amended by 2014 Session Laws, ch. 187, sec. 2, eff. 7/1/2014.

Idaho Code 6-1103 Duties of Ski Area Operators With Respect To Ski Areas (Idaho Statutes (2023 Edition))

6-1104. DUTIES OF SKI AREA OPERATORS WITH RESPECT TO AERIAL PASSENGER TRAMWAYS

Every ski area operator shall have the duty to construct, operate, maintain and repair any aerial passenger tramway in accordance with the American national standards safety requirements for aerial passenger tramways.

Source:

[6-1104, added 1979, ch. 270, sec. 1, p. 703.]…

Idaho Code 6-1104 Duties of Ski Area Operators With Respect To Aerial Passenger Tramways (Idaho Statutes (2023 Edition))

6-1105. DUTIES OF PASSENGERS

Every passenger shall have the duty not to:

(1) Board or embark upon or disembark from an aerial passenger tramway except at an area designated for such purpose;

(2) Drop, throw or expel any object from an aerial passenger tramway;

(3) Do any act which shall interfere with the running or operation of an aerial passenger tramway;

(4) Use any aerial passenger tramway if the passenger does not have the ability to use it safely without instruction until the passenger has requested and received sufficient instruction to permit safe usage;

(5) Embark on an aerial passenger tramway without the authority of the ski area operator;

(6) Use any aerial passenger tramway without engaging such safety or restraining devices as may be provided.

Source:

[6-1105, added 1979, ch. 270, sec. 1, p. 703.]…

Idaho Code 6-1105 Duties of Passengers (Idaho Statutes (2023 Edition))

6-1106. DUTIES OF SKIERS

It is recognized that skiing as a recreational sport is hazardous to skiers, regardless of all feasible safety measures that can be taken.

Each skier expressly assumes the risk of and legal responsibility for any injury to person or property that results from participation in the sport of skiing including any injury caused by the following, all whether above or below snow surface: variations in terrain; any movement of snow including, but not limited to, slides, sloughs or avalanches; any depths of snow, including tree wells, or any accumulations of snow, whether natural or man made, including snowmaking mounds; freestyle terrain; surface or subsurface snow or ice conditions; bare spots, rocks, trees, other forms of forest growth or debris, lift towers and components thereof; utility poles, and snowmaking and snowgrooming equipment which is plainly visible or plainly marked in accordance with the provisions of section 6-1103, Idaho Code. Therefore, each skier shall have the sole individual responsibility for knowing the range of his own ability to negotiate any slope or trail, and it shall be the duty of each skier to ski within the limits of the skier’s own ability, to maintain reasonable control of speed and course at all times while skiing, to heed all posted warnings, to ski only on a skiing area designated by the ski area operator and to refrain from acting in a manner which may cause or contribute to the injury of anyone. The responsibility for collisions by any skier while actually skiing, with any person, shall be solely that of the individual or individuals involved in such collision and not that of the ski area operator.

No person shall place any object in the skiing area or on the uphill track of any aerial passenger tramway that may cause a passenger or skier to fall; cross the track of any T-bar lift, J-bar lift, platter lift or similar device, a fiber rope or wire rope tow and a conveyor, except at a designated location; or depart when involved in a skiing accident, from the scene of the accident without leaving personal identification, including name and address, before notifying the proper authorities or obtaining assistance when that person knows that any other person involved in the accident is in need of medical or other assistance.

No skier shall fail to wear retention straps or other devices to help prevent runaway equipment.

Source:

[6-1106, added 1979, ch. 270, sec. 1, p. 703; am. 2014, ch. 187, sec. 3, p. 498.]

History:

Amended by 2014 Session Laws, ch. 187, sec. 3, eff. 7/1/2014.

Idaho Code 6-1106 Duties of Skiers (Idaho Statutes (2023 Edition))

6-1107. LIABILITY OF SKI AREA OPERATORS

Any ski area operator shall be liable for loss or damages caused by its failure to follow the duties set forth in sections 6-1103 and 6-1104, Idaho Code, where the violation of duty is causally related to the loss or damage suffered. The ski area operators shall not be liable to any passenger or skier acting in violation of their duties as set forth in sections 6-1105 and 6-1106, Idaho Code, where the violation of duty is causally related to the loss or damage suffered; nor shall a ski area operator be liable for any injury or damage to a person who is not legally entitled to be in the ski area; or for any loss or damages caused by any object dropped, thrown or expelled by a passenger from an aerial passenger tramway.

Source:

[6-1107, added 1979, ch. 270, sec. 1, p. 704.]…

Idaho Code 6-1107 Liability of Ski Area Operators (Idaho Statutes (2023 Edition))

6-1108. LIABILITY OF PASSENGERS

Any passenger shall be liable for loss or damages resulting from violations of the duties set forth in section 6-1105, Idaho Code, and shall not be able to recover from the ski area operator for any losses or damages where the violation of duty is causally related to the loss or damage suffered.

Source:

[6-1108, added 1979, ch. 270, sec. 1, p. 704.]…

Idaho Code 6-1108 Liability of Passengers (Idaho Statutes (2023 Edition))

6-1109. LIABILITY OF SKIERS

Any skier shall be liable for loss or damages resulting from violations of the duties set forth in section 6-1106, Idaho Code, and shall not be able to recover from the ski area operator for any losses or damages where the violation of duty is causally related to the loss or damage suffered.

Source:

[6-1109, added 1979, ch. 270, sec. 1, p. 704.]…

Idaho Code 6-1109 Liability of Skiers (Idaho Statutes (2023 Edition))

Idaho Businesses are Stingy: at least with the new Outfitter bill

Posted: February 20, 2023 | Author: Recreation Law | Filed under: Activity / Sport / Recreation, Idaho | Tags: Bill, Guide, Idaho, Inhernet Risk, Legislature, Outfitter, Outfitter and Guide, statute | Leave a comment

https://rec-law.us/3YUmQeq

State: Idaho

There is a new law that is trying to get passed in Idaho. The law wants outfitters to be able to use a release. Idaho law currently allows a release to be used to block a lawsuit. See
Plaintiff raised argument in work/team building situation that they were forced to sign release. release. The state is not a stalwart of release law but the few cases, I’ve read support the release.

The bill wants to make the use of a release ONLY for outfitters and guides a law, not just judicial decision. Here is the statute as of 3/16/21.

6-1206. LIABILITY OF OUTFITTERS AND GUIDES. (1) No outfitter or guide licensed under the provisions of chapter 21, title 36, Idaho Code, and acting in the course of his employment shall be liable to a participant for damages or injuries to such participant unless such damage or injury was directly or proximately caused by failure of the outfitter or guide to comply with the duties placed on him by the negligent, reckless, or intentional conduct of the outfitter or guide.

An outfitter or guide has no duty to eliminate, alter, control, or lessen the risks inherent with recreational activities provided by outfitters and guides. A participant who takes part in a recreational activity provided by outfitters and guides assumes all risks inherent in that activity.

Any person may, by express written consent, prospectively waive negligence claims against licensed outfitters and guides. It is the policy of this state that such written liability waivers are enforceable to the same degree as similar waivers for other activities.

Click on the Link Above and Click On Bill Text to see the latest version. Be careful it is written in legislative legalese, which I have cleaned up above.

I’m not sure what prompted this bill. However, there are several issues with it.

You cannot sue for the inherent risks of an activity. The issue in a case like this is was the risk that caused the injury inherent or man-made. This bill does nothing to clarify what an inherent risk is so that is not going to change anything. Plaintiffs are still going to sue; they are just going to argue the outfitter changed the risk or created the risk, and it was not inherent.

If you want to protect yourself from that “what is inherent” lawsuit you need to define them in the statute. There seems to be a reluctance to do this because even the Idaho Ski Safety Act does not define the inherent risks. See Idaho Ski Safety Act.

Most other ski safety acts do. See the Colorado Ski Safety Act which identifies inherent risks in 33-44-103. Definitions. (3.5)

(3.5) “Inherent dangers and risks of skiing” means those dangers or conditions that are part of the sport of skiing, including changing weather conditions; snow conditions as they exist or may change, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, extreme terrain, and trees, or other natural objects, and collisions with such natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, or other man-made structures and their components; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including but not limited to roads, freestyle terrain, jumps, and catwalks or other terrain modifications; collisions with other skiers; and the failure of skiers to ski within their own abilities. The term “inherent dangers and risks of skiing” does not include the negligence of a ski area operator as set forth in section 33-44-104 (2). Nothing in this section shall be construed to limit the liability of the ski area operator for injury caused by the use or operation of ski lifts.

Avalanches were added to that list by the Colorado Supreme Court in Colorado Supreme Court rules that an inbounds Avalanche is an inherent risk assumed by skiers based upon the Colorado Skier Safety Act.

As such, a skier and skier’s attorney quickly know if they have a case or not. Versus in Idaho where you have to sue to have the judge decided if the risk that caused your injury on the slopes or by an outfitter were inherent. That costs money.

Part of the act outlines how a plaintiff can sue the outfitter or guide. By the “negligent, reckless, or intentional conduct” of the outfitter or guide. Never tell the opposition how to sue you. Besides in this case they already know. That part of the act does not change anything. That is the law in Idaho and every other state.

Consequently, the bill is pretty weak or better has no real value.

On top of that the bill is very narrow. Outfitters and Guides licensed by the state are not the only groups that can be sued because of the risks of an activity. I would think they would gather more support if the included other groups such as:

Youth Groups Youth Camps Sports Activities Coaches Volunteer Youth Leaders

Recreational Activities such as Indoor Climbing Walls, Trampoline parks, etc.

Little League and Youth Football programs alone would bring a lot of additional support.

To get a bill to pass, in most state legislatures, you have to give the legislators a reason not to vote against the bill. Having the outfitters and guides contacting their legislators is probably a small group of legislators since the areas the outfitters and guides are based is pretty sparse.

Having little league coaches in Boise, Moscow and other suburban areas would add a lot of voices in support.

Good luck on passing the bill; however, I think a lot of time; money and energy will be invested with little or no return.

For more about “inherent risks” see:

2015 SLRA – Inherent Risk: Should the Phrase be in your Release?

A season pass release for a Pennsylvania ski are was limited to the inherent risks of skiing. Consequently, the plaintiff was able to argue his injury was not due to an inherent risk.

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Statements made to keep a sold trip going come back to haunt defendant after whitewater rafting death.

Posted: May 1, 2017 | Author: Recreation Law | Filed under: Idaho, Paddlesports, Whitewater Rafting | Tags: Boy Scouts, Epley's, Epley’s Whitewater, fatality, Muliti-day trip, Slide Rapid, Whitewater Rafting | Leave a comment

Never forget, Marketing makes promises risk management has to pay for. Statement made about the water level dropping by the time a certain rapid was to be reached at issue in litigation but allows the plaintiff to add claims for punitive damages.

The Estate of Joseph R. Kane, v. Epley’s Inc., 2017 U.S. Dist. LEXIS 48179

State: Idaho, United States District Court for the District of Idaho

Plaintiff: The Estate of Joseph R. Kane, deceased; Stacie Kane, individually, and as guardian of Joseph P. Kane; and Thomas Kane, individually,

Defendant: Epley’s Inc.

Plaintiff Claims: Motion to add punitive damages to the complaint

Defendant Defenses: Evidence does not support the motion

Holding: Plaintiff’s motions were granted

Year: 2017

This case concerns statements made prior to a Whitewater rafting trip in Idaho on the Lower Salmon River. A group of Boy Scouts and their adult volunteers booked this trip with the defendant. The majority of the Boy Scouts on the trip did not have any Whitewater experience.

The deceased was ejected from the raft in this section of the lower Salmon River known the slide wrap. Idaho has an outfitters and guide’s statute that says an outfitter is liable if they breach the standard of care for their industry.

Through this action, Plaintiffs (to include the estate of Mr. Kane, his wife Stacie Kane, and sons Thomas and Joseph P. Kane) claim that Epley’s conduct — in particular, its decision to run the Slide Rapid at flows above 23,000 cubic feet per second (“cfs”) — breached the standard of care applicable to outfitters and guides under chapter 12, Title 6, Idaho Code and that said breach was a direct and proximate result of Mr. Kane’s death.

The issue for the plaintiffs when they arrived at the defendant’s office was the volume of water flowing on the river. It is slightly confusing, but it seems the Bureau of Land Management or the outfitting association on the river had set a cutoff of 23,000 CFS as the maximum level, the river could be rafted. There was discussion at the time Boy Scouts arrived as to what the actual river flow was and what the flow would be in a few days when the group reached the big rapid.

The plaintiffs argued to the appellate court that the defendant intentionally misrepresented the flow of the river and whether not the flow would go up or down. This misrepresentation made by the defendant was the basis for the plaintiff’s motion to amend their complaint and add a claim requesting punitive damages.

According to Plaintiffs, Epley’s not only ignored and misrepresented to the group the extreme risks presented by the water levels forecasted to be encountered at Slide Rapid on June 27, 2014 (thus permitting the trip’s June 24, 2014 launch in the first instance), its later decision to actually continue through Slide Rapid on June 27, 2014 at flows in excess of 23,500 cfs represented an extreme deviation from industry standards.

The arguments made by the plaintiffs are that the manager for the defendant misled them on the river volume and what the volume of the river would be on the date when the group encountered slide wrap. The plaintiffs also argued that the defendants had an opportunity to avoid slide rapid by taking out or going on a different trip.

As of this date, this case has not gone to trial. This is only a preliminary motion’s hearing. What it takes to prove the plaintiff’s case at trial may be totally different than what the facts in this decision are. There is also higher likelihood that the case will settle now.

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

The court first looked into the requirements under Idaho statutes add a claim for punitive damages and what punitive damages were in Idaho.

In any action seeking recovery of punitive damages, the claimant must prove, by clear and convincing evidence, oppressive, fraudulent, malicious or outrageous conduct by the party against whom the claim for punitive damages is asserted.

To prove a claim and receive punitive damages in Idaho the plaintiff must prove by clear and convincing evidence that the defendant made fraudulent misstatement or engaged in outrages conduct. There is a high standard of proof to build a case to recover punitive damages.

That definition includes a defendant acting in such a way that is extreme deviated from the reasonable standard of care or acted maliciously fraudulently or outrageously.

Ultimately, an award of punitive damages requires a bad act and a bad state of mind. The defendant must (1) act in a manner that was an extreme deviation from reasonable standards of conduct with an understanding of — or disregard for — the likely consequences, and must (2) act with an extremely harmful state of mind, described variously as with malice, oppression, fraud, or outrageousness.

However, that requirement of proof set out above does not need to be met to allege punitive damages in the complaint. To add a claim for punitive damages in the complaint, plaintiff needs only prove a reasonable likelihood of proving facts at trial to support a claim.

However, for purposes of a motion to amend, the party seeking to add a claim for punitive damages does not need to meet this high burden; rather, the party need only show “a reasonable likelihood of proving facts at trial sufficient to support an award of punitive damages.”

These requirements are balanced by the theory that under Idaho law, punitive damages were not favored and should only be awarded in most unusual compelling circumstances.

As a matter of substantive law, it is well established in Idaho that punitive damages are not favored and should be awarded only in the most unusual and compelling circumstances, and are to be awarded cautiously and within narrow limits.

The plaintiff’s argument centered on the river flows on the dates of the trip. The defendant argued that by the time the party reached the slide rapid the water levels would have decreased. The plaintiff argued that the opposite occurred, that the water levels had increased. The Plaintiff also argued that the guides could have called or should have called for more help.

Still, Defendant decided to proceed through Slide Rapid with allegedly unqualified guides, foregoing options to use an available satellite phone to discuss potentially safer options for the relatively inexperienced group, portage around Slide Rapid, or altogether exit the river on land at Eagle Creek (the last place where the group could have readily done so).

The court found the plaintiff had produced enough evidence to prove there was a likelihood that they could prevail on their punitive damages claim at trial.

The court then looked at the plaintiff’s claim that the defendant acted with the bad state of mind court or an extremely harmful state of mind. They argued that the manager of the defendant’s river operation purposely misled them about the river levels.

In other words, Plaintiffs argue that Mr. Blackner purposely misled Ms. Schaefer and, thus, the group by failing to inform them of actual (as of the June 24, 2014 launch date) and projected (for the anticipated encounter with Slide Rapid on June 27, 2014) river flows — that is, it was fraudulent and outrageous for Mr. Blackner to say that the forecasted flow for Slide Rapid on June 27, 2014 was 17,000 cfs, when, in actuality, it was much higher.

Again, even though the defendant disputed the allegations. There was enough evidence in addition to the witness statements to support the claim. In fact, the court found that there was more enough evidence to support the claim and that the defendant had acted with the bad state of mind.

Consequently, the plaintiff’s motion to amend the complaint and add a claim for punitive damages was upheld by the court.

So Now What?

Honestly, it is hard to believe that the river outfitter intentionally misled the plaintiffs in this case. I do suspect that the river outfitter was making statements an attempt to hold onto the trip without either checking the facts or understanding what was really going on with river flows.

Water levels are a constant source of discussion between River outfitters. You want the water levels high enough to attract clients and low enough not to hurt anyone. The best River outfitters figure out, which claims to market to which groups for river levels they are expecting.

Things always change when a fatality occurs. Whatever the trip leader says about what is going to be expected will be adopted by the clients. So if river guides say the rivers okay, clients know the river is okay.

Never forget, marketing makes promises that risk management has to pay for. Here, in an attempt to hold onto a group of clients for a multi-day whitewater rafting trip, marketing might’ve taken over when risk management might’ve been the road.

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

The Idaho Supreme Court holds there is no relationship between signs posted on the side of the indoor trampoline park, and a duty owed to the injured plaintiff

Posted: April 24, 2017 | Author: Recreation Law | Filed under: Idaho | Tags: Causation, Idaho Supreme Court, Indoor Trampoline Park, JumpTime, Proximate Cause, Trampoline | Leave a comment

The Plaintiff in attempting to do a triple front flip broke his neck. Plaintiff argued that the manual of the indoor trampoline park, and the signs on the walls created a duty on the part of the employees of the defendant to stop him from doing the flips.

Griffith v. Jumptime Meridian, LLC, 2017 Ida. LEXIS 90

State: Idaho, Supreme Court of Idaho

Plaintiff: Seth Griffith

Defendant: Jumptime Meridian, LLC

Plaintiff Claims: Negligence

Defendant Defenses: No Causation

Holding: For the Defendant

Year: 2017

This is a sad case; the 17-year-old plaintiff was injured attempting front flips at the defendants’ indoor trampoline park. The plaintiff went there with his girlfriend and his girlfriend’s siblings. Eventually, the plaintiff ended up near a foam pit where you could land after attempting maneuvers on the trampoline. The pit was near where his girlfriend was located.

He had been performing several double flips successfully. At two different time’s employees of the defendant commented about his double flips. One said it was pretty cool and the other one said, “oh that was pretty sweet.” At no time, did anyone from the defendant admonished him to not to perform the flips he was doing. He was landing in the foam pit with his legs extended downward and on his butt, so he wouldn’t hit his face on his knees. Signs are on the wall said that the plaintiff could not land that way.

The plaintiff filed this complaint alleging that because he was under the age of 18, the defendant had a duty to supervise him. He could show that the defendant’s written policy manual instructed employees to enforce the rules written on the walls of the defendants trampoline park in several places.

The defendant moved for summary judgment alleging that there was no relationship between the duty allegedly owned to the plaintiff and the plaintiff’s accident. In proving negligence one must prove duty, a breach the duty, an injury, and the injury was proximately caused by the breach of the duty.

The defendant filed a motion for summary judgment, which was granted. The plaintiff appealed to the Idaho Supreme Court. Idaho does not have an intermediate appellate court.

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

The court first looked at the requirements under Idaho law to prove negligence.

The court then reviewed the actions of the plaintiff leading up to his injury. He did not tell anyone that is going to attempt to do the flip that caused his injury. Nor was any evidence introduced stating that the employee of the defendant could have or should have known that the plaintiff was going to do a triple flip. The plaintiff argued that he should be entitled to reasonable inference that if the defendant had enforced its rules when he was landing improperly, then he would have never attempted the triple flip.

…Plaintiff attempted the triple front flip. He did not tell anyone he was going to attempt it, nor is there any evidence indicating that the monitor knew or should have known that he would try a triple front flip. Plaintiff argues on appeal that he is “entitled to the reasonable inference that had JumpTime enforced its rules and interceded when [he] was landing improperly and dangerously on his back, [he] would not have felt emboldened and would never have attempted a triple flip.”

However, the court did not buy that argument. The court did find that there was no evidence that landing on your back was more dangerous than landing any other way. The plaintiff even testified that he felt safer to land the way he was because it avoided the risk of hitting his face of his knees.

Nor could the plaintiff prove or produce any evidence that he would’ve changed his actions if he had been admonished by an employee. Nothing in the record of the depositions of the plaintiff remotely suggested that idea.

The court simply held that there was no way the defendant could be responsible for the accident giving rise to his injury because it was solely the decision of the injured plaintiff.

Plaintiff’s testimony does not support an inference that JumpTime was in any way responsible for his decision to try the triple front flip. Therefore, the district court did not err in granting summary judgment to JumpTime based upon the lack of evidence regarding causation.

So Now What?

Honestly, it takes a tough court to look at an injured plaintiff, possibly one wheelchair, and not want to award him some damages for his injuries. However, in this case the action of the plaintiff was such a stretch in trying to tie in his injury to something that the defendant had done.

What was of interest in this case was one of the arguments the plaintiff made saying that the signs on the wall describing to the patrons of the defendant how to land in the foam pit established a standard of care that was the defendant’s employee’s duty to monitor and enforce.

In response, Plaintiff contended that the signs on the wall stating how to land in the foam pit established the standard of care and that because of the attendant’s failure to admonish him for landing incorrectly, he was not discouraged from attempting a more difficult maneuver like a triple front flip.

Thankfully, the court did not buy this argument. It is a fine line we walk when we’re trying to train young employees and having them work with even younger patrons to keep safe. You write the rules, tell the employees to enforce the rules, but in some cases there is no way that you can guess what a patron is going to do. Here the plaintiff expected the defendant to guess what his actions would be and the court would not accept that.

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

The Estate of Joseph R. Kane, v. Epley’s Inc., 2017 U.S. Dist. LEXIS 48179

Posted: April 23, 2017 | Author: Recreation Law | Filed under: Idaho, Legal Case, Paddlesports, Rivers and Waterways, Whitewater Rafting | Tags: Commercial Raft Company, Commercial Whitewater Rafting, Epley's, Epley’s Whitewater, Lower Salmon Rivder, Salmon River, Slide Rapid, Whitewater Rafting | Leave a comment

The Estate of Joseph R. Kane, v. Epley’s Inc., 2017 U.S. Dist. LEXIS 48179

The Estate of Joseph R. Kane, deceased; Stacie Kane, individually, and as guardian of Joseph P. Kane; and Thomas Kane, individually, Plaintiffs, vs. Epley’s Inc., an Idaho corporation, Defendant.

Case No.: 3:15-cv-00105-EJL-REB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

2017 U.S. Dist. LEXIS 48179

March 28, 2017, Decided

March 28, 2017, Filed

PRIOR HISTORY: Estate of Kane v. Epley’s Inc., 2016 U.S. Dist. LEXIS 170316 (D. Idaho, Dec. 5, 2016)

COUNSEL: [*1] For Estate of Joseph R Kane, deceased, Stacie Kane, individually, and as guardian of Joseph P Kane, Joseph P Kane, Thomas Kane, individually, Plaintiffs: Theron A Buck, LEAD ATTORNEY, Frey Buck, P.S., Seattle, WA; Thomas Daniel Frey, LEAD ATTORNEY, PRO HAC VICE, Frey Buck, P.S., Seattle, WA.

For Epley’s, Inc., an Idaho corporation, Defendant: Caitlin Elizabeth O’Brien, LEAD ATTORNEY, Winston & Cashatt, Lawyers, Coeur d’Alene, ID; Patrick J Cronin, LEAD ATTORNEY, Winston & Cashatt, Lawyers, Spokane, WA.

JUDGES: Honorable Ronald E. Bush, Chief United States Magistrate Judge.

OPINION BY: Ronald E. Bush

OPINION

MEMORANDUM DECISION AND ORDER RE:

PLAINTIFFS’ MOTION TO AMEND COMPLAINT TO ASSERT PUNITIVE DAMAGE CLAIM

(Docket No. 17)

PLAINTIFFS’ MOTION TO STRIKE DEFENDANT’S “SUR REPLY” TO PLAINTIFFS’ MOTION TO AMEND COMPLAINT TO ADD PUNITIVE DAMAGES

(Docket No. 39)

Now pending before the Court is Plaintiffs’ (1) Motion to Amend Complaint to Assert Punitive Damage Claim (Docket No. 17), and (2) Motion to Strike Defendant’s “Sur Reply” to Plaintiffs’ Motion to Amend Complaint to Add Punitive Damages (Docket No. 39). Having carefully considered the record, heard oral argument, and otherwise being fully advised, the Court enters the [*2] following Memorandum Decision and Order:

I. BACKGROUND

Joseph R. Kane died after being ejected from a raft on a section of the Lower Salmon River known as “Slide Rapid.” Mr. Kane was part of a Boy Scouts of America (“BSA”) group, composed of minors and other adults — the majority of whom had no “whitewater” experience whatsoever. The group booked their trip with Defendant Epley’s Inc. (“Epley’s”), a licensed outfitter in the state of Idaho that offers guided rafting tours on the Salmon River and Snake River.

Defendant’s conduct was wrongful and otherwise breached its standard of care by taking Joseph R. and Thomas down the river and through the Slide when they knew or [*3] should have known that the river’s flow was in excess of 23,500 cfs, and knowing that these extreme conditions would produce incredibly dangerous Class V or Class VI rapids. Defendant’s guides’ decision to run these rapids not only ignored the rafter’s inexperience, it was also contrary to the express written recommendations of the BLM’s published handbook for rafting the Lower Salmon River. Defendant’s actions were wrongful in the face of a known, significant risk that was unknown to the Plaintiffs.

Id. at ¶ 4.5. Since the action’s inception, the above-referenced breach-of-the-standard-of-care allegations have further evolved into the bases for Plaintiff’s at-issue Motion to Amend Complaint to Assert Punitive Damage Claim.1

1 Even so, these allegations were preliminarily tested in the context of Defendant’s intervening Motion for Summary Judgment. See MSJ (Docket No. 16). U.S. District Judge Edward J. Lodge denied that Motion, concluding that questions of fact populated the interwoven issues of (1) the proper standard of care involved, (2) whether Defendant breached such standard of care, and (3) whether Defendant’s conduct proximately caused Plaintiffs’ injury and/or any actual loss or damage. See generally 12/6/16 MDO, pp. 16-30 (Docket No. 44).

Despite the dangerous conditions produced by the high flow levels, Defendant authorized the trip to commence as planned on June 24, 2014. Defendant’s manager [(Blackner)] admits that he told the group that the river level would slacken by the time they reached the Slide on the fourth day of the trip, a fact admitted by Blackner and reflected in pre-trip emails by group members. Notably, Blackner told the group he expected the river would be down to 17,000 cfs by the time they hit the Slide. Blackner asserts he was relying on on-line river forecasts by the National Weather Service (“NWS”) vis-a-vis [National Oceanic and Atmospheric Administration] (“NOAA”) and [U.S. Geological Survey] (“USGS”), in making this claim.

In fact, however, the water level forecasted by the NWS model as of the morning of the trip launch (June 24) for June 27 — the day the group was scheduled to hit the Slide — was not 17,000; it was approximately 21,000 cfs, Class V-VI water. Moreover, while earlier forecast modeling had predicted that the flow levels might recede below 20,000 cfs, the actual flow measurements taken by the . . . USGS show [*5] that the river had remained steadily above 23,000 cfs for the four days before launch date, flatly belying the earlier forecast models. Defendant’s manager and guides were aware of this flow before the trip began. Moreover, rain was forecast for the area during the trip. In short, there was no earthly reason to believe the water level would decrease significantly from the 23,400 cfs level on launch date by the time the Boy Scouts hit the Slide; all extant evidence and forecasts unequivocally established the Slide would be Class V water on June 27. Notwithstanding the extreme water level, the inexperienced, unfit passengers and the want of cause to believe the river volume would drop, Defendant launched the excursion.

Prior to launch, the Defendant prepared no plan whatsoever to avoid or safely transit the Slid should the water level remain at ClassV level. There were several options available. Defendant could have arranged to take the group off the river at Eagle Creek, the last overnight stop before the Slide. It could have arranged for a larger, motorized raft to transit the group. It could have arranged for jet boat transit at the Slide. Defendant took none of these prudent steps. [*6]

On June 26,2014, the scout group landed and took out at Eagle Creek to spend the night. This was the group’s last overnight location before reaching the Slide. Eagle Creek was also the last place where the group could have readily exited the river on land. The guides were aware that the river had not changed appreciably since the launch level of 23,400 cfs. Indeed, on the morning of June 27, after spending the night at Eagle Creek, Epley’s guides could see with the naked eye that the river flow had actually increased overnight. Defendant’s guides knew that these extreme flows would produce Class V or VI rapids at the Slide. Despite this knowledge, prior to and after reaching Eagle Creek, the Defendant’s agents made no plan to avoid the Slide in the event the water level did not recede, no plan to remove the group at Eagle Creek, and no plan to bring extra assets to the area of the Slide to relieve the obvious risk posed by the rapid. The guides had access to a satellite phone, but they opted to not use it to verify water levels or explore options for avoiding the Slide, notwithstanding that it had “constantly” rained following the June 24 launch. . . . .

Id. at pp. 5-6 (internal citations omitted, [*7] italics in original, underlining added); see also id. at pp. 14, 16 (“Based on the evidence presented here, it can be inferred that Blackner intentionally or with gross negligence misled the group (and possibly his lead guide) to believe the Slide would be safely navigable by June 27. . . . . There [was] no rational justification for allowing this group to launch on June 24, other than for financial gain.”); id. at p. 16 (“Simply put, once the group left on June 24, Epley’s plan was to send the group through the Slide regardless of conditions, risk of injury or death to riders, or industry standards. . . . . The decision by the guides to authorize the trip to continue through the Slide after reaching Eagle Creek on June 26 also constitutes an extreme deviation from industry standards. The trip should have unquestionably been terminated when the guides recognized that the flows had not dropped since June 24.”).2

2 Plaintiffs also claims that Epley’s use of inexperienced and inadequately trained guides contributes to the milieu of conduct auguring in favor of a punitive damages claim against Epley’s. See Mem. in Supp. of Mot. to Am., pp. 14, 16 (Docket No. 17, Att. 1) (“There is no dispute that the guides selected by lead boatman Mike Cornforth for the trip had never transited the Slide at levels near 23,000 cfs. Accordingly, they lacked any training or experience whatsoever to manage the extreme conditions presented by the Slide at that level. . . . . Epley’s decision to permit commencement of the trip on June 24, with minors as young as 14 and unfit 50-year-olds, at flows in excess of 23,000 cfs, under the supervision of inexperienced and unqualified guides, with no alternative safety plan in place, constituted an extreme deviation from the standard of care.”).

Epley’s disputes these claims outright, but alternatively argues that, even if true, they operate only to support claims that it was grossly negligent or reckless. See generally Opp. to Mot. to Am., pp. 12-19 (Docket No. 22). In short, attacking the quantum of Plaintiffs’ proffered evidence, Epley’s argues [*8] that, “[t]he mere fact of a tragic death during a high risk recreational activity does not create the necessary fraud, malice, outrage, or oppression” to warrant a claim for punitive damages. Id. at p. 12; see also id. at p. 15 (“Ultimately, even Plaintiffs’ evidence regarding the water levels do not rise to any necessary level of proof that Epley’s acted maliciously, outrageously, fraudulently, or oppressively.”); id. at p. 17 (“The Plaintiffs’ evidence fails to rise to the level of reasonable likelihood of proving fraud, oppression, malice, or outrage.”); id. at p. 19 (“[Plaintiffs’] evidence in this motion at best claims that [Epley’s] was grossly negligent or reckless, but nowhere explains or establishes fraud, oppression, malice, or outrage necessary to amend to add punitives.”).

II. DISCUSSION

A. Punitive Damages: Legal Standard

Claims for punitive damages are governed by Idaho Code § 6-1604, which provides:

I.C. § 6-1604(1).

Whether to allow a claim of punitive damages is a substantive question controlled by Idaho law. See Windsor v. Guarantee Trust Life Ins. Co., 684 F. Supp. 630, 633 (D. Idaho 1988). Ultimately, [*9] an award of punitive damages requires a bad act and a bad state of mind. See Todd v. Sullivan Const. LLC, 146 Idaho 118, 191 P.3d 196, 201 (Idaho 2008). The defendant must (1) act in a manner that was an extreme deviation from reasonable standards of conduct with an understanding of — or disregard for — the likely consequences, and must (2) act with an extremely harmful state of mind, described variously as with malice, oppression, fraud, or outrageousness. See Myers v. Workmen’s Auto Ins. Co., 140 Idaho 495, 95 P.3d 977, 983 (Idaho 2004); see also I.C. § 6-1604.3

3 The Idaho Supreme Court has recognized that, since the enactment of Idaho Code § 6-1604 in 1987, gross negligence or deliberate or willful conduct is not sufficient for an award of punitive damages. See Cummings v. Stephens, 157 Idaho 348, 336 P.3d 281, 296, n.5 (Idaho 2014) (“Since the enactment of the statute, gross negligence or deliberate or willful conduct is not sufficient for an award of punitive damages.”). Accordingly, the undersigned disagrees with Plaintiffs’ to the extent they ask the Court to infer that a harmful state of mind can be satisfied by a defendant’s gross negligence. See, e.g., Mem. in Supp. of Mot. to Am., p. 10 (Docket no. 17, Att. 1); compare with Opp. to Mot. to Am., p. 10 (Docket No. 22) (“A party seeking punitive damages must prove defendant’s action constituted an extreme deviation from reasonable standards of conduct, which was done with knowledge of the likely consequences, and an ‘extremely harmful state of mind.’ However, that ‘extremely harmful state’ can no longer be termed gross negligence or recklessness.”) (internal citations omitted, emphasis in original).

At trial, the party alleging punitive damages must satisfy this standard by clear and convincing evidence. See I.C. § 6-1604(1). However, for purposes of a motion to amend, the party seeking to add a claim for punitive damages does not need to meet this high burden; rather, the party need only show “a reasonable likelihood of proving facts at trial sufficient to support an award of punitive damages.” See I.C. § 6-1604(2). Therefore, although FRCP 15(a) encourages the trial court to liberally grant motions to amend pleadings, this policy is substantially tempered by the requirements under Idaho law. That is, plaintiff may add a claim for punitive damages only if they establish a reasonable likelihood of proving, by clear and convincing evidence, that the defendant’s conduct was oppressive, fraudulent, [*10] malicious, or outrageous.

Since plaintiffs are only required to demonstrate a “reasonable likelihood” of establishing their entitlement to punitive damages, on motions to amend to assert a claim for punitive damages under Idaho Code § 6-1604(2), courts apply the same standard it would apply in resolving an FRCP 50 motion at the close of plaintiffs’ case. See Bryant v. Colonial Sur. Co., 2016 U.S. Dist. LEXIS 22414, 2016 WL 707339, *3 (D. Idaho 2016). That is, evidence is viewed in the light most favorable to plaintiffs, with the benefit of all legitimate inferences without assessing credibility. See id. (citing E.E.O.C. v. Go Daddy Software, Inc., 581 F.3d 951, 961 (9th Cir. 2009)).

It is in the trial court’s discretion to decide whether to submit the punitive damages issue to the jury. See Manning v. Twin Falls Clinic & Hosp., Inc., 122 Idaho 47, 830 P.2d 1185, 1190 (Idaho 1992). As a matter of substantive law, it is well established in Idaho that punitive damages are not favored and should be awarded only in the most unusual and compelling circumstances, and are to be awarded cautiously and within narrow limits. See id. at 1185; see also Jones v. Panhandle Distribs., Inc., 117 Idaho 750, 792 P.2d 315 (Idaho 1990); Soria v. Sierra Pac. Airlines, Inc., 111 Idaho 594, 726 P.2d 706 (Idaho 1986); Cheney v. Palos Verdes Inv. Corp., 104 Idaho 897, 665 P.2d 661 (Idaho 1983); Linscott v. Rainier Nat’l Life Ins. Co., 100 Idaho 854, 606 P.2d 958 (Idaho 1980).

B. Plaintiffs May Assert a Claim for Punitive Damages Against Epley’s

This lawsuit and the instant Motion to Amend are focused on the decisions surrounding the events leading up to June 27, 2014 — the day Mr. Kane, his son, and the rest of the rafters in their group encountered Slide Rapid. The evidentiary record about such decisions [*11] (viewed in light most favorable to Plaintiffs), gives rise to a reasonable likelihood of proving, by clear and convincing evidence, that Epley’s engaged in a bad act, with a bad state of mind, so as to warrant a claim for punitive damages.

1. Bad Act: Extreme Deviation From Reasonable Standards of Conduct

Plaintiffs point out that, in the days leading up to, and including, the June 24, 2014 launch, Defendant’s manager and guides were aware that water levels on the Salmon River consistently measured higher than 23,000 cfs and that, on June 24, 2014, the water level forecasted for June 27, 2014 (the day the group was scheduled to reach Slide Rapid) was approximately 21,000 cfs. See Mem. in Supp. of Mot. to Am., pp. 2-6, 11, 14 (Docket No. 17, Att. 1) (citing Ex. D (Blackner Dep. at p. 96) to Frey Decl. (Docket No. 17, Att. 3); Ex. F (Cornforth Dep. at p. 21) to Frey Decl. (Docket No. 17, Att. 3); Ex. L (USGS Discharge Data), to Frey Decl. (Docket No. 17, Att. 4); Ex. M (Northwest River Forecast Center (“NWRFC”) River Flow Forecast), to Frey Decl. (Docket No. 24)).4 Still, Epley’s decided to proceed with the trip and, according to Plaintiffs, did so with “no plan whatsoever” to address the [*12] anticipated flow levels at Slide Rapid in the event water flow volumes remained dangerously high. See Mem. in Supp. of Mot. to Am., pp. 6-7, 15-16 (Docket No. 17, Att. 1) (citing Ex. D (Blackner Dep. at pp. 107-08) to Frey Decl. (Docket No. 17, Att. 3)).5

4 It is undisputed that, at levels over 20,000 cfs, Slide Rapid represents either Class V (expert) or Class VI (extreme and exploratory) waters. See Mem. in Supp. of Mot. to Am., pp. 4, 7, 14 (Docket No. 17, Att. 1) (citing Ex. B (BLM Guide) to Frey Decl. (Docket No. 17, Att. 3); Ex. D (Blackner Dep. at p. 86) to Frey Decl. (Docket No. 17, Att. 3); Ex. Q (Ranck Dep. at pp. 16-17) to Frey Decl. (Docket No. 17, Att. 6); Ex. E (Estes Dep. at pp. 18-19) to Frey Decl. (Docket No. 17, Att. 3)).

5 According to Defendant’s lead guide, Mr. Cornforth, “regardless of the height of the river when [the party] got to Slide [Rapid],” his only plan was “to try to stay river left and go through it.” Ex. F (Cornforth Dep. at p. 22) to Frey Decl. (Docket No. 17, Att. 3).

Flow levels did not appreciably change over the course of the trip and, on the morning of June 27, 2014, Defendant’s guides could see that the river flow had actually increased overnight as the party camped at Eagle Creek (the last overnight location before reaching Slide Rapid). See Mem. in Supp. of Mot. to Am., p. 7 (Docket No. 17, Att. 1) (citing Ex. F (Cornforth Dep. at pp. 59-60) to Frey Decl. (Docket No. 17, Att. 3); Ex. G (Sharp Dep. at pp. 34-36) to Frey Decl. (Docket No. 17, Att. 4); Ex. P (Sharp Witness Statement) to Frey Decl. (Docket No. 17, Att. 6)). Still, Defendant decided to proceed through Slide Rapid with allegedly unqualified guides, foregoing options to use an available satellite phone to discuss potentially safer options for the relatively inexperienced group, portage around Slide Rapid,6 or altogether exit the river on land at Eagle Creek (the last place where the group could have readily done so). See Mem. in [*13] Supp. of Mot. to Am., pp. 6-7, 15-16 (Docket No. 17, Att. 1) (citing Ex. D (Blackner Dep. at p. 154) to Frey Decl. (Docket No. 17, Att. 3; Ex. F (Cornforth Dep. at pp. 22, 29-30) to Frey Decl. (Docket No. 17, Att. 3); Ex. O (Sears Expert Report, p. 6) to Frey Decl. (Docket No. 17, Att. 6); Ex. W (Nicolazzo Report, p. 3), to Frey Decl. (Docket No. 17, Att. ).

6 Plaintiffs claim that another outfitter, Exodus River Adventures, ran the Lower Salmon River during the same time frame and, on June 26, 2014, portaged around Slide Rapid rather than running it at similar flows. See Mem. in Supp. of Mot. to Am., p. 7 (Docket No. 17, Att. 1) (citing Ex. D (Blackner Dep. at p. 154) to Frey Decl. (Docket No. 17, Att. 3)); but see Ex. Q (Ranck Dep. at p. 30) to Frey Decl. (Docket No. 17, Att. 6) (testifying that portaging Slide Rapid was not a viable option: “It is a steep slope with sharp rocks. Lots of ledges. Loose rocks. Having middle-aged parents. Some of which were overweight. They would have been more than capable to do so on maybe a beach or a smaller rock outcropping. But they wouldn’t have been able to get safely over that rock slide by themselves. Especially carrying gear.”).

For its part, Epley’s disputes Plaintiffs’ contentions about forecasted flows for Slide Rapid in the days leading up to June 27, 2014, believing them to be lower. See Opp. to Mot. to Am., pp. 4-5, 14 (Docket No. 22) (“Despite Plaintiffs’ incorrect assertions, the Northwest River Forecast website continued to predict that the Lower Salmon River water level would drop to below 20,000 cfs by the time the group was to reach the Slide.”) (citing Ex. L (National Oceanic and Atmospheric Administration’s National Weather Service, Northwest River Forecast Center River Flow and Stage Forecasts) to Cronin Decl. (Docket No. 22, Att. 3). Consistent with this, the BLM officials present at the launch site on June 24, 2014, neither warned the group not to go, nor stated any concern about the water levels whatsoever. See Opp. to Mot. to Am., [*14] p. 6 (Docket No. 22) (citing Ex. A (Blackner Dep. at p. 113) to Cronin Decl. (Docket No. 22, Att. 2). And, as to precautions taken before hitting Slide Rapid itself, Epley’s notes that its guides (who it contends were state-licensed and experienced) conducted a safety talk on the morning of June 27, 2014 and, before reaching the rapids, pulled the group’s rafts to shore to scout and pick the safest line to run — the “Sneak” down the left bank, with identified spots to “eddy out” at the bottom of the run “in case any individuals fell out during the rapid and they needed to perform a rescue.” Opp. to Mot. to Am., pp. 6, 15-17 (Docket No. 22) (citing Ex. P (Ranck Dep. at pp. 29-31) to Cronin Decl. (Docket No. 22, Att. 3)).

The extent to which the parties’ above-referenced arguments define the standard of care orbiting Defendant’s actions leading up to Mr. Kane’s death is clearly disputed. Judge Lodge stated as much when considering Defendant’s Motion for Summary Judgment, discussing the relevant standard of care as follows:

A question of fact exists, however, concerning what the standard of care is in this case; i.e., what ordinary care Epley’s, as an outfitter, owed to Plaintiffs, as its [*15] customers/participants. The parties dispute the testimony of the expert witnesses offered to opine regarding the standards of the profession and the use/relevance of certain public information and industry publications to define the standard of care — in particular the standard of care in the profession for outfitters running the Slide Rapid above 20,000 cfs.

Each sides’ expert witnesses offer differing opinions concerning the standard of care applicable to the circumstances presented in this case. In his report, the Defendant’s expert, Gary Lane, states that he used a 25,000 cfs cut-off for running commercial trips at the Slide Rapid but that “it has long been the standard practice and is the practice today for commercial outfitters on the Lower Salmon River to take commercial trips down the Lower Salmon, including the Slide Rapid, at flows up to and exceeding 25,000 cfs” and concludes that Epley’s conformed to the standard of care expected of outfitters and guides rafter the Lower Salmon at the Slide Rapid with this group, gear, and at water levels higher than 20,000 cfs. Plaintiffs’ expert, on the other hand, conclude the Defendant violated the standard of care with regard to running [*16] the Slide Rapid above 20,000 cfs under the circumstances of this case. Resolving the disputed questions presented by the experts’ testimonies requires the weighing of evidence and credibility determinations which must be done at trial.

12/6/16 MDO, pp. 19-20 (Docket No. 44) (internal citations omitted).7 And, whether these same arguments reflect Defendant’s breach of any duty owed to Plaintiffs is also disputed, with Judge Lodge similarly ruling:

For the same reasons discussed above with regard to duty, the Court finds a genuine issue of material fact exists as to whether Defendant breached the standard of care applicable in this case. This case presents the classic example of a battle of experts where both sides have presented contradicting testimony from experts concerning whether the Defendant breached a duty of care owed to Plaintiffs. Further, the facts surrounding events in question relevant to the breach issue are in dispute. For instance, the conditions presented on the day in question; what the guides knew regarding the water flow level of the Slide Rapid; whether there was a rescue plan and if that plan was followed; and any safety procedures in place and used by the guides. [*17] The jury, as the finder of fact, must consider all of the disputed facts, the credibility of the witnesses, and the weight of the evidence in order to determine whether Defendant breached its duty. Therefore, summary judgment is denied on this question.

Id. at p. 23.

7 Judge Lodge also considered the “public information and industry publications” for the purposes of determining the appropriate standard of care for Idaho outfitters running commercial trips on the Lower Salmon River generally, and when Slide Rapid experiences high flows. See 12/6/16 MDO, pp. 20-22 (Docket No. 44). This examination included the BLM’s Lower Salmon River Boater’s Guide, the American Whitewater Safety Code, outfitter websites, and industry blogs (including one by Defendant’s expert, Gary Lane). However, they also didn’t highlight the standard of care as a matter of law. See id. at p. 22 (“While these materials do not, in and of themselves, define the standard of care, and their admissibility and/or use at trial is not decided here, the materials do show a genuine issue of material fact is present in this case concerning the applicable standard of care.”).

Viewing the evidence in the light most favorable to Plaintiffs, and giving Plaintiff the benefit of all legitimate inferences without assessing credibility, Plaintiffs have established a reasonable likelihood of proving by clear and convincing evidence that Defendant acted in a manner that was an extreme deviation from reasonable standards of conduct with an understanding (as an experienced outfitter) of — or disregard for — the likely consequences of those actions. See, e.g., Morningstar Holding Corp. v. G2, LLC, 2012 U.S. Dist. LEXIS 12355, 2012 WL 287517, at *14 (D. Idaho 2012) (“It is true that ‘[w]here evidence is conflicting, and where it can be said that if one theory of the case is correct there may be ground for the imposition of exemplary damages, the matter is properly submitted to the jury’ to determine the correct theory.”) (quoting Williams v. Bone, 74 Idaho 185, 259 P.2d 810, 813 (Idaho 1953)). As already indicated by Judge Lodge, it will be for the jury to resolve the issue of the actual standard of care involved and, relatedly, whether Epley’s breached [*18] that same standard in the days and moments leading up to Mr. Kane’s death. See supra.

2. Bad State of Mind: Acting With An Extremely Harmful State of Mind

Plaintiffs assert that Epley’s, through its manager, Mr. Blackner, told Marelene Schaefer, who organized the event for the BSA, that (1) Defendant followed “BLM criteria” in determining whether to launch on the Lower Salmon Rive, and (2) they would not launch if the water was above 20,000 cfs. See Reply in Supp. of Mot. to Am., p. 2 (Docket No. 27) (citing Ex. B (Schaefer Dep. at pp. 25-28, 30) to Buck Decl. (Docket No. 21, Att. 3)). Plaintiffs also contend that Mr. Blackner assured Ms. Schaefer that he was monitoring river flows, even expressing concern that they might not be able to launch on the date planned and that they may have to “take an alternative trip if the water was over 20,000 cfs.” See Reply in Supp. of Mot. to Am., p. 2 (Docket No. 27) (citing Ex. B (Schaefer Dep. at pp. 27-29) to Buck Decl. (Docket No. 21, Att. 3)).

But, according to Plaintiffs, at the June 24, 2014 launch Mr. Blackner did not tell Ms. Schaefer (who was also present with the inspection team at the launch) that the water level was above 23,000 cfs, but [*19] did say that the water levels would be dropping to 17,000 cfs at Slide Rapid and, if they did not drop in time, they could alter the plan and take out at Eagle Creek or run a different route. See Reply in Supp. of Mot. to Am., p. 2 (Docket No. 27) (citing Ex. B (Schaefer Dep. at p. 46) to Buck Decl. (Docket No. 21, Att. 3);8 Ex. D (Blackner Dep. at pp. 91- 93) to Frey Decl. (Docket No. 17, Att. 3)). Mr. Blackner allegedly made these representations despite the fact that river level forecasts for June 27, 2014 (the day the group was scheduled to reach Slide Rapid) was, in reality, approximately 21,000 cfs. See Reply in Supp. of Mot. to Am., pp. 2-3 (Docket No. 27) (“Blackner admitted that he checked the USGS website that provided actual and forecasted river levels; consequently, he knew his statement that the river would be at 17,000 cfs by June 27 was false.”) (citing Ex. D (Blackner Dep. at pp. 91-93) to Frey Decl. (Docket No. 17, Att. 3); Ex. M (NWRFC River Flow Forecast), to Frey Decl. (Docket No. 24)). In other words, Plaintiffs argue that Mr. Blackner purposely misled Ms. Schaefer and, thus, the group by failing to inform them of actual (as of the June 24, 2014 launch date) and [*20] projected (for the anticipated encounter with Slide Rapid on June 27, 2014) river flows — that is, it was fraudulent and outrageous for Mr. Blackner to say that the forecasted flow for Slide Rapid on June 27, 2014 was 17,000 cfs, when, in actuality, it was much higher.

8 Whether Ms. Schaefer actually understood if Defendant would either take out at Eagle Creek or cancel the as-planned trip altogether is unclear, with Ms. Schaefer testifying:

Q: Okay. And that if [the river levels did not drop], according to what you’ve testified earlier, they could alter the plan and take out before they got to the Slide?

A: Yes.

Q: Okay.

A: Well, their alternate plan was to run a different route, not to pull out before the Slide. There’s a place to pull out I think.

Ex. B (Schaefer Dep. at p. 46) to Buck Decl. (Docket No. 21, Att. 3). Even so, the gist of this testimony is that Ms. Schaefer understood that, at certain flows, there would be no launch. See id. at p. 63 (“Well, I’m saying you saw where [Mr. Blackner] had an alternative if they could not launch and run the river the way that we had planned.”). The Court understands that the alternative trip was from Vinegar Creek to Pine Bar. See Ex. D (Blackner Dep. at pp. 92-93) to Frey Decl. (Docket No. 17, Att. 3).

Again, Epley’s takes issue with Plaintiffs’ representation of what was actually forecasted for Slide Rapid as of June 24, 2014. See supra. Epley’s does acknowledge the dueling factual accounts of what was said between Mr. Blackner and Ms. Schaefer surrounding the circumstances in which the group would (or would not) proceed with the as-planned trip, in the face of dangerous high river flow levels. See Reply in Supp. of MSJ, p. 3 (Docket No. 25) (“While it is disputed what Roger Blackner may have told Marlene Schaefer regarding what level he would run the Slide Rapid at prior to the June 24, 2014 trip, nothing [*21] that the Plaintiffs cite establishes that Roger, or any other Epley’s personnel, testified the water was over the Epley’s limit, or the industry standard.”).

And, as before, such evidence and inferences must be viewed to Plaintiffs’ benefit when considering Plaintiffs’ efforts to amend their Complaint to assert a claim for punitive damages. When doing so, Plaintiffs have established a reasonable likelihood of proving by clear and convincing evidence that Epley’s not only acted in a manner that was an extreme deviation from reasonable standards of conduct with an understanding of — or disregard for — the likely consequences of those actions (see supra), but also did so with a harmful state of mind when viewing Mr. Blackner’s statements to Ms. Schaefer as fraudulent and/or outrageous. See Morningstar, 2012 U.S. Dist. LEXIS 12355, 2012 WL 287517 at *14 (discussing role of jury to resolve conflicting evidence in context of exemplary damages). Whether Epley’s actually acted with such a harmful state of to support an award of punitive damages is therefore a question for the jury, and not the subject of this Memorandum Decision and Order.9

9 To be clear, the undersigned is granting Plaintiffs’ Motion to Amend Complaint to Assert Punitive Damages Claim. However, the fact of doing so does not guarantee the claim will go to the jury. Judge Lodge will preside over the trial of the case and it will be within Judge Lodge’s province to decide, after hearing the evidence, whether the jury should decide the issue of punitive damages at trial. See, e.g., Clark v. Podesta, 2016 U.S. Dist. LEXIS 103637, 2016 WL 4179851, at *8 (D. Idaho 2016) (Judge Lodge stating on that facts of that case: “It is premature for the Court to make a binding decision on punitive damages until the close of evidence. Only then can the Court determine if evidence has been presented that Podesta acted with the requisite state of mind to allow punitive damages to be considered by the jury. Accordingly, the Court will allow the motion to amend the Complaint but will reserve ruling on whether such claim will be decided by the jury. . . .”).

III. ORDER

Based on the foregoing, IT IS HEREBY ORDERED that:

1. Plaintiffs’ Motion to Amend Complaint to [*22] Assert Punitive Damage Claim (Docket No. 17) is GRANTED; and

2. Plaintiffs’ Motion to Strike Defendant’s “Sur Reply” to Plaintiffs’ Motion to Amend Complaint to Add Punitive Damages (Docket No. 39) is DENIED as moot.

DATED: March 28, 2017

/s/ Ronald E. Bush

Honorable Ronald E. Bush

Chief U. S. Magistrate Judge

Griffith v. Jumptime Meridian, LLC, 2017 Ida. LEXIS 90

Posted: April 23, 2017 | Author: Recreation Law | Filed under: Idaho, Legal Case | Tags: Causation, Minor, Negligence, Trampoline | Leave a comment

Griffith v. Jumptime Meridian, LLC, 2017 Ida. LEXIS 90

Seth Griffith, Plaintiff-Appellant, v. Jumptime Meridian, LLC, an Idaho Limited Liability Company, Defendant-Respondent.

Docket No. 44133-2016, 2017 Opinion No. 29

SUPREME COURT OF IDAHO

2017 Ida. LEXIS 90

April 10, 2017, Filed

PRIOR HISTORY: [*1] Appeal from the District Court of the Fourth Judicial District of the State of Idaho, in and for Ada County. Hon. Deborah A. Bail, District Judge.

DISPOSITION: The judgment of the district court is affirmed.

COUNSEL: Eric Clark, Clark & Associates, Eagle, argued for appellant.

William Fletcher, Hawley Troxell Ennis & Hawley LLP, Boise, argued for respondent.

JUDGES: EISMANN, Justice. Chief Justice BURDICK, and Justices JONES, HORTON and BRODY CONCUR.

OPINION BY: EISMANN

OPINION

EISMANN, Justice.

This is an appeal out of Ada County from a judgment dismissing an action brought against JumpTime Meridian, LLC, by Seth Griffith seeking damages for an injury he received while attempting a triple front flip when he was seventeen years of age. We affirm the judgment of the district court.

Factual Background.

On January 11, 2014, seventeen-year-old Seth Griffith (“Plaintiff”) was seriously injured when he attempted a triple front flip into a pit filled with foam blocks (“foam pit”) at an indoor trampoline park owned and operated by JumpTime Meridian, LLC (“JumpTime”). Plaintiff went to the facility with his girlfriend and her younger brother and sister. Plaintiff initially played with the brother on trampolines for about ten or fifteen minutes, and [*2] then they went to an area where there were runway trampolines. Plaintiff spent about fifteen to twenty minutes doing front flips, back flips, and cartwheels on the runway trampolines, and he taught the brother to do a front flip. He then started showing off to the brother, doing various gymnastic tricks. He jumped up, did a back flip, jumped up, and did another back flip, and a female JumpTime employee, who was monitoring the foam pit area, told him it was pretty cool.

The facility had foam pits, one large (sixteen feet by eighteen feet) and one small (nine feet by sixteen feet). The large foam pit had twin trampolines that were each twelve feet long leading to it, and the small foam pit had a 58-foot-long trampoline runway leading to it.

Plaintiff’s girlfriend and her sister were near the large foam pit. He walked over to where they were and talked to them. While he was there, he jumped into the large foam pit a few times. He then spent about 45 minutes “kind of horsing around on both the runway trampoline and the foam pit and the twin trampolines.” After he did a double front flip into the small foam pit, the monitor came up to him and asked if he had ever done a double before. He [*3] answered that he had, and she said, “Oh, that was pretty sweet.” As he continued performing double front flips into the small foam pit, he noticed that doing them was easier than it used to be for him. He decided to try a triple front flip. When he attempted it, he did not rotate far enough and landed on his head and neck, suffering a cervical dislocation and fracture, which required a fusion of his C6 and C7 vertebrae.

Plaintiff filed this action alleging that JumpTime negligently caused his injury. He contended that because he was under the age of eighteen, JumpTime had a duty to supervise him. He had been intentionally landing the double front flips on his back in the pit. He testified that he did so “because you don’t want to land on your feet because you can bash your head against your knees.” JumpTime’s written policy manual instructed its employees with respect to the foam pit to “[f]ollow the rules outlined on the wall and continuously enforce it.” There were signs on the walls near the two pits that instructed customers to land on their feet. A large sign painted on the wall next to where the runway trampoline ended at the small foam pit said:

• Jump feet first into the pit

• Land on [*4] your feet and seat

• No landing on your head or Stomach

Just past the small foam pit was a sign titled “FOAM PIT RULES,” which included the admonition: “WHILE YOU JUMP: DO NOT land on head, neck or belly. NO DIVING; FEET FIRST.” A third sign located on the wall near the large foam pit was titled “FOAM PIT PATRON RESPONSIBILITY CODE,” and it included the admonition, “Jump and land on two feet.” Plaintiff contended that had the attendant told him to land on his feet, he would not have attempted the triple front flip.

JumpTime moved for summary judgment alleging that there was no negligence, based upon the opinion of an expert that industry standards permitted landing a front flip into a foam pit on one’s feet, buttocks, or back, and that there was no evidence of causation. In response, Plaintiff contended that the signs on the wall stating how to land in the foam pit established the standard of care and that because of the attendant’s failure to admonish him for landing incorrectly, he was not discouraged from attempting a more difficult maneuver like a triple front flip. The district court granted JumpTime’s motion for summary judgment, holding that Plaintiff had failed to produce evidence [*5] of negligence and causation. Plaintiff then timely appealed.

II.

Did the District Court Err in Granting JumpTime’s Motion for Summary Judgment?

When reviewing on appeal the granting of a motion for summary judgment, we apply the same standard used by the trial court in ruling on the motion. Infanger v. City of Salmon, 137 Idaho 45, 46-47, 44 P.3d 1100, 1101-02 (2002). We construe all disputed facts, and draw all reasonable inferences from the record, in favor of the non-moving party. Id. at 47, 44 P.3d at 1102. Summary judgment is appropriate only if the evidence in the record and any admissions show that there is no genuine issue of any material fact regarding the issues raised in the pleadings and that the moving party is entitled to judgment as a matter of law. Id.

The elements of common law negligence have been summarized as (1) a duty, recognized by law, requiring a defendant to conform to a certain standard of conduct; (2) a breach of that duty; (3) a causal connection between the defendant’s conduct and the resulting injuries; and (4) actual loss or damage.” Alegria v. Payonk, 101 Idaho 617, 619, 619 P.2d 135, 137 (1980). In this case, there were no facts in the record showing a causal connection between JumpTime’s alleged negligence and Plaintiff’s injury.

The issue of causation is why Plaintiff attempted the triple front flip. He did not tell [*6] anyone he was going to attempt it, nor is there any evidence indicating that the monitor knew or should have known that he would try a triple front flip. Plaintiff argues on appeal that he is “entitled to the reasonable inference that had JumpTime enforced its rules and interceded when [he] was landing improperly and dangerously on his back, [he] would not have felt emboldened and would never have attempted a triple flip.”

First, there is no evidence that it was dangerous to land on one’s back. Even Plaintiff testified that he believed it was safer because it avoided the risk of hitting his face with his knees.

Second, Plaintiff did not testify during his deposition that had the monitor admonished him to land on his feet that he would not have attempted the triple front flip, nor did he testify that the conduct of the monitor was part of that decision. He testified that he decided to attempt the triple front flip because completing the double front flips was easier than previously had been for him, that he was having to come out of his rotation earlier than he previously had to, and that he was confident he was in the air long enough to do a triple front flip, which would be exciting. [*7]

Plaintiff testified that performing the double front flips was easier than it previously had been for him.

Q. Well, tell me everything. Let’s just move in chronological order about what is happening and work up to the incident. So if you are at that point, then go ahead.

A. After about 45 minutes of just kind of horsing around on both the runway trampoline and the foam pit and the twin trampolines, I got onto the runway trampoline, plus the foam pit, and I kind of noticed I had been doing doubles easier than what I was normally used to, like I was just either spinning faster or getting higher. It was just easier than what I was accustomed to. So I decided to go for a triple.

He was asked why he attempted the triple front flip, and he did not answer that JumpTime was in any way responsible for that decision. He said that when doing double front flips he had to come out of his rotation earlier than he previously had to and he thought he had enough air to perform a triple front flip.

Q. Okay. So was the reason that you attempted this triple flip in the small foam pit just because it had a longer runway?

A. No. I had been doing doubles easier, like I was—I had to break from my rotation earlier [*8] than I previously would have to. So it was like I was having more time in the air to actually do the flips. So I kind of thought that I would be able to have enough air to do a triple.

He also stated that he was confident he could perform the triple front flip and was excited to try.

Q. Did you have any concerns about being able to do the triple without hurting yourself?

A. No. The time when I was about to do it I was pretty confident that I could.

. . . .

Q. Were you nervous at all before attempting the triple?

A. No. I was actually pretty excited about it.

Q. Why would you say that?

A. Just because, like I used to be an avid gymnastics person, so doing a new trick, like if I could—like if I added a 360 onto a front flip, I’d get pretty excited. If I did like an aerial for the first time, like I got excited. So new things kind of excited me.

III.

Is Either Party Entitled to an Award of Attorney Fees on Appeal?

Both parties [*9] request an award of attorney fees on appeal pursuant to Idaho Code section 12-121..An award of attorney fees under that statute will be awarded to the prevailing party on appeal only when this Court is left with the abiding belief that the entire appeal was brought, pursued, or defended frivolously, unreasonably, or without foundation. McGrew v. McGrew, 139 Idaho 551, 562, 82 P.3d 833, 844 (2003); Benz v. D.L. Evans Bank, 152 Idaho 215, 231-32, 268 P.3d 1167, 1183-84 (2012). Because Plaintiff is not the prevailing party on appeal, he is not entitled to an award of attorney fees under that statute. VanderWal v. Albar, Inc., 154 Idaho 816, 824, 303 P.3d 175, 183 (2013). Although it is a close question, we decline to award attorney fees on appeal to JumpTime because we do not find that this appeal meets the requirements for such an award.

IV.

Conclusion.

We affirm the judgment of the district court, and we award Respondent costs, but not attorney fees, on appeal.

Chief Justice BURDICK, and Justices JONES, HORTON and BRODY CONCUR.

Federal Court in Idaho holds camp not liable for assault on third party by runaway minors.

Posted: March 16, 2015 | Author: Recreation Law | Filed under: Idaho, Minors, Youth, Children, Summer Camp | Tags: assault, Big Sky Summer Adventure Program, Camp, Custody and Control, Explorations, Float Trip, Idaho, LLC., Montana, Phoenix Mountain Collaborative, Run away, Runaway, Summer Camp, Treatment Program, Trout Creek, Youth Camp | Leave a comment

The Court did find that the camp was still in the custody and control of the minors during the assault which occurred three days after the youth had run away from the camp.

Gadman v. Martin, 2014 U.S. Dist. LEXIS 83883

State: Idaho, United States District Court for the District of Idaho

Plaintiff: Vera Gadman

Defendant: Joseph Martin; Marshall Dittrich; Penelope James; and Phoenix Mountain Collaborative, LLC.

Plaintiff Claims: Negligence

Defendant Defenses: No duty

Year: 2014

Holding: for the defendant

This case is about the escape of two boys from a summer program for “troubled” youth. These programs have achieved fame and notoriety based on various issues of successes and failures, as well as abuse. However, this legal issue is important to anyone who is taking care of youth at a camp… In this one two kids at the camp ran away and then assaulted a third party. The person the runaway kids assaulted then sued the camp for her injuries.

The defendant camp was operated in Montana. During one part of the session, the youth were rafting the Clark Fork River. The Clark Fork flows from Montana to Idaho. One night during the river trip the campers were on property owned by the defendant camp. The youth ran away.

Neither of the youth who ran away from the camp had a history of violence. They seemed to be enrolled in the program because of drug use and generally being really stupid kids. Both youth has been on a run-away watch a system developed by the camp and had their journals and shoes removed. However, their shoes were returned to them for the rafting trip.

The school had a “Run Watch Policy” which the court pointed out, quoted from and found the school had not followed. “Explorations will take all reasonable precautions pertinent to each individual student so as to reduce the possibility of their escape from our custody.”

The defendant camp filed a motion for summary judgment, and this decision is based on that motion.

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

The defense was based on two theories.

1) they owed no duty to Ms. Gadman [plaintiff] and

2) the actions of Mr. Dittrich and Mr. Martin (youth runaways) were not foreseeable [to cause injury to the plaintiff] to either Explorations or Ms. James [defendants].

The determination under Idaho law as to whether the defendants owed a duty of care to the plaintiff’s when they are in charge of youth “who are dangerous or who have dangerous propensities“ is a two-part test.

The first part requires a determination of whether the supervising body actually has control over the individual in question, and then secondly, if so, a determination must be made whether the harm caused by the individual was foreseeable.

The court then looked at the first part of the test.

One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.

The first part of the test is whether or not the supervising authority has actual control over the youth. Here the youth were not allowed to leave the camp without the camps or the youth’s parent’s permissions. Even though the youth had voluntarily, and without permission, left the campsite and been away from the camp for two days at the time of the attack, the court held the camp was still in control, for the purposes of the test, of the youth.

Ordinarily, there is no affirmative duty to assist or protect someone unless special circumstances exist. The analysis is not what is the relationship between the affected third party and the youth in this case, but the relationship between the youth and the camp. “Thus, the duty alleged in this case would have to arise from a supervisory relationship where Ms. James/Explorations exercised some level of control over Mr. Martin and Mr. Dittrich.”

The fact the youth ran away was not valid excuse or abrogation of control by the camp.

Explorations was responsible for the care and custody of the youth participants in its programs. The minor participants could not leave the program without their parents’ permission. When asked if the participants of the outdoor program were “free to leave,” Ms. James stated in her deposition that participants who were minor could only leave if they had their parents’ permission, otherwise they were not free to leave. Ms. James went on to state that the steps taken to assure participants do not leave are that “care is provided, oversight and care, with our instructor team the entire time the students are there.”

Most of this analysis was based on the camps Run Watch Policy and Run Watch Kit for leaders. Because the camp knew the kids would run away and prepared for it, they knew it was possible and consequently, the court felt they did not give up control over a kid when the kid did run. “The Court finds upon these undisputed facts that Mr. Martin and Mr. Dittrich were in the custody and control of Explorations at the time of the attack.”

The next issue was the foreseeability question. In this case, the question was not whether it was foreseeable that the kids would run away, but whether it was foreseeable, the kids would assault a third party.

Foreseeability, ‘contemplates more than the mere possibility of aggressive tendencies…. The concept of foreseeability is much more narrowly drawn in this circumstance, … i.e. violence, particularly of a sexual nature, toward members of the public … must be manifest or ostensible, and highly likely to occur.

The plaintiff argued the violent acts of the defendant were foreseeable because of the youth’s drug use and prior attendance at treatment facilities. However, the court did not agree with this.

Although the boys had struggled in various aspects of their lives before attending Explorations, there is nothing in their histories that was known to Explorations that made their actions on July 31, 2011 [date of the attack] foreseeable.

The theft of drugs by one participant who had run away in the past, nor the fact that the kids had been planning to run away did not change the court’s opinion of this. The planning though, was only discovered the history of the youth, after the youth had been caught. Both arguments by the plaintiffs were too speculative according to the court.

The court held therefore, that the defendant camp was not liable.

So Now What?

Although the defendant won this case, it was a close one. All camps should read this with the understanding that a minor that has been delivered to them by their parents are in their custody and control until they are delivered back to their parents.

Whether or not this can be moderated by contract, I’m not sure.

This case would have gone the other way if the youth had a history of violence. The defendant notified the boy’s parents and law enforcement within 90 minutes of the discovery the boys were missing. Even calling law enforcement did not change the issue of control.

What do you think? Leave a comment.

Jim Moss

Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us

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Gadman v. Martin, 2014 U.S. Dist. LEXIS 83883

Posted: February 26, 2015 | Author: Recreation Law | Filed under: Idaho, Legal Case, Minors, Youth, Children, Youth Camps | Tags: assault, Big Sky Summer Adventure Program, Camp, Custody and Control, Explorations, Float Trip, Idaho, LLC., Montana, Phoenix Mountain Collaborative, Run away, Runaway, Summer Camp, Treatment Program, Trout Creek, Youth Camp | 3 Comments

To Read an Analysis of this decision see

Federal Court in Idaho holds camp not liable for assault on third party by runaway minors.

Gadman v. Martin, 2014 U.S. Dist. LEXIS 83883

Vera Gadman, Plaintiff, v. Joseph Martin; Marshall Dittrich; Penelope James; and Phoenix Mountain Collaborative, LLC., Defendants.

Case No. 2:13-CV-00327-EJL

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

2014 U.S. Dist. LEXIS 83883

June 17, 2014, Decided

June 17, 2014, Filed

CORE TERMS: foreseeable, violent, summary judgment, staff, violence, genuine, youth, ran, violent acts, deposition, non-moving, custody, owed, van, issue of material fact, adverse party, citation omitted, propensity, foreseen, commit, runaway, duty of care, undisputed, instructor, detention, outdoor, missing, assault, shoes, violent behavior

COUNSEL: [*1] For Vera Gadman, Plaintiff: James M Bendell, Grupp Law Office, Coeur D’Alene, ID.

For Marshall Dittrich, Defendant: Michael L Haman, LEAD ATTORNEY, Haman Law Office, Coeur d’Alene, ID.

For Penelope James, Phoenix Mountain Collaborative, LLC, Defendants: Mark A Ellingsen, LEAD ATTORNEY, WITHERSPOON KELLEY, Coeur d’Alene, ID.

JUDGES: Honorable Edward J. Lodge, U. S. District Judge.

OPINION BY: Edward J. Lodge

OPINION

MEMORANDUM DECISION AND ORDER

INTRODUCTION

Pending before the Court in the above-entitled matter are Defendants’, Phoenix Mountain Collaborative, LLC and Penelope James, Motion for Summary Judgment and related Motions. The parties have filed their responsive briefing and the matters are ripe for the Court’s consideration.¹ Having fully reviewed the record, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, this matter shall be decided on the record before this Court without oral argument.

1 Mr. Dittrich filed a response to Plaintiff’s opposition to the Motion for Summary Judgment wherein [*2] he takes no position on the Motion but responds only to clarify the record. (Dkt. 17.)

FACTUAL AND PROCEDURAL BACKGROUND

In the summer of 2011, Defendants Joseph Martin and Marshall Dittrich were participants in a 52-day outdoor program known as the Big Sky Summer Adventure Program operated by Explorations in Trout Creek, Montana. Explorations is an entity that offers both full time residential programs and summer outdoor adventure programs for youths who may have struggled in the past either academically, socially, with interpersonal relationships, or with substance use/experimentation issues. Explorations also offers counseling sessions and life skills training. Explorations is owned and operated by Defendant Phoenix Mountain Collaborative, LLC.² The Defendant Penelope James is the managing member of Explorations who reviews the applications for enrollment at Explorations’ camps.

2 The Court will refer to Phoenix Mountain Collaborative, LLC as “Explorations” in this Order. The Court also refers to both Ms. James and Explorations collectively as “Explorations” in this Order.

On July 29, 2011, the Explorations outdoor program was finishing a float trip down the Clark Fork River which runs [*3] from Montana to Idaho. That evening, around 10:00 p.m., the students and staff camped out on the Explorations’ property. The next morning around 8:00 a.m., an Explorations’ staff member noticed Mr. Martin and Mr. Dittrich were missing. A search was conducted but the boys were not found on the property. At 9:30 a.m. Ms. James notified local law enforcement and the boys’ parents that they had run away and were missing.

The location of the two boys was not known until July 31, 2011. On that day the Plaintiff, Vera Gadman, was driving her vehicle in Clark Fork, Idaho when she saw Mr. Martin and Mr. Dittrich, hitchhiking along Highway 200. Ms. Gadman stopped her car and offered them a ride. The boys asked Ms. Gadman to take them somewhere they could camp. After driving to a couple of locations, Ms. Gadman stopped at the east end of David Thompson Road and showed the boys where they could camp on a map. At that stop, Mr. Martin and Mr. Dittrich then brutally assaulted and battered Ms. Gadman including allegedly choking, strangling, and striking her in the head with a glass bottle, throwing and striking her with rocks, and committing other acts of violence and terror against her. (Dkt. 1 at [*4] ¶ 13.) As a result, Ms. Gadman claims she suffered serious physical and emotional injuries and incurred significant damages. Ms. Gadman has filed this action raising a negligence claim against the Defendants seeking to recover for the damages she suffered from the attack. Defendants Exploration and Ms. James have filed this Motion for Summary Judgment which the Court takes up in this Order.

STANDARD OF REVIEW

Motions for summary judgment are governed by Rule 56 of the Federal Rules of Civil Procedure. Rule 56 provides, in pertinent part, that judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).

The Supreme Court has made it clear that under Rule 56 summary judgment is mandated if the non-moving party fails to make a showing sufficient to establish the existence of an element which is essential to the non-moving party’s case and upon which the non-moving party will bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). [*5] If the non-moving party fails to make such a showing on any essential element, “there can be no ‘genuine issue of material fact,’ since a completely failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 323.³

3 See also, Rule 56(e) which provides, in part: When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleadings, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

Moreover, under Rule 56, it is clear that an issue, in order to preclude entry of summary judgment, must be both “material” and “genuine.” An issue is “material” if it affects the outcome of the litigation. An issue, before it may be considered “genuine,” must be established by “sufficient evidence supporting the claimed factual dispute . . . to require a jury or judge to resolve the parties’ differing [*6] versions of the truth at trial.” Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir. 1975) (quoting First Nat’l Bank v. Cities Serv. Co. Inc., 391 U.S. 253, 289, 88 S. Ct. 1575, 20 L. Ed. 2d 569 (1968)). The Ninth Circuit cases are in accord. See, e.g., British Motor Car Distributors, Ltd. v. San Francisco Automotive Industries Welfare Fund, 882 F.2d 371 (9th Cir. 1989).

According to the Ninth Circuit, in order to withstand a motion for summary judgment, a party

(1) must make a showing sufficient to establish a genuine issue of fact with respect to any element for which it bears the burden of proof; (2) must show that there is an issue that may reasonably be resolved in favor of either party; and (3) must come forward with more persuasive evidence than would otherwise be necessary when the factual context makes the non-moving party’s claim implausible.

Id. at 374 (citation omitted).

Of course, when applying the above standard, the court must view all of the evidence in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Hughes v. United States, 953 F.2d 531, 541 (9th Cir. 1992).

ANALYSIS

1. Motion for Extension of Time to File Statement of Genuine issues of Fact

Plaintiff’s Motion asks [*7] for leave of the Court to file a late Statement of Genuine Issues of Fact in response to the Motion for Summary Judgment. (Dkt. 23.) Plaintiff mistakenly failed to file the Statement of Fact as required by the rules. Defendants oppose the Motion arguing the proposed Statement of Facts fails to satisfy the requirements of Federal Rule of Civil Procedure 56(c) and Local Civil Rule 7.1. (Dkt. 24.) The Court has reviewed the briefing and materials on this issue and will grant the Plaintiff’s Motion and allow her to file the late Statement of Facts. While the filings is untimely, the Court finds the interests of justice are best served by deciding the Motion for Summary Judgments on its merits and there is little prejudice suffered by Defendants as a result of the late filing.

2. Defendants’ Motion for Summary Judgment

Explorations and Ms. James seek dismissal of the negligence claim against them arguing 1) they owed no duty to Ms. Gadman and 2) the actions of Mr. Dittrich and Mr. Martin were not foreseeable to either Explorations or Ms. James. (Dkt. 16.) Ms. Gadman opposes the Motion and asserts that a genuine issue of material fact exists as to whether Explorations and/or Ms. James owed [*8] a duty to her. (Dkt. 19.)

On the question of whether Ms. James and/or Explorations owed a duty of care to Ms. Gadman under Idaho law, both parties cite to and discuss Caldwell v. Idaho Youth Ranch, Inc., 132 Idaho 120, 968 P.2d 215 (Idaho 1998) but arrive at opposite conclusions. In Caldwell, the Idaho Supreme Court held that the Idaho Youth Ranch did not owe a duty of care to a third-party for the violent acts committed upon the third-party by a minor who had, several months prior, been released from an Idaho Youth Ranch program. There the court concluded that the minor was not in the custody or control of the Youth Ranch at the time he committed the violent acts upon the third-party.

In reaching this conclusion, the Idaho Supreme Court discussed the “duty owed by those in charge of persons who are dangerous or who have dangerous propensities,” quoting the duty is as described in the Restatement (Second) of Torts, § 319, which provides:

§ 319. Duty of Those in Charge of Person Having Dangerous Propensities. One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third [*9] person to prevent him from doing such harm.

Caldwell, 968 P.2d at 218 (quoting Restatement (Second) of Torts, § 319 (1977)). The court then identified the two components of the duty:

Id. at 218-19. The parties in this case dispute both components — whether Ms. James/Explorations had control over the boys and whether the harm caused by the boys was foreseeable.

A. Control

“No liability exists under the law of torts unless the person from whom relief is sought owed a duty to the allegedly injured party.” Jones v. Starnes, 150 Idaho 257, 245 P.3d 1009, 1012 (Idaho 2011) (quoting Vickers v. Hanover Constr. Co., Inc., 125 Idaho 832, 875 P.2d 929, 932 (Idaho 1994)). “Ordinarily, ‘there is no affirmative duty to act to assist or protect another absent unusual circumstances, which justifies imposing such an affirmative responsibility. An affirmative duty to aid or protect arises only when a special relationship exists between the parties.'” Rees v. State, Dept. of Health and Welfare, 143 Idaho 10, 137 P.3d 397, 402 (Idaho 2006) [*10] (quoting Coghlan v. Beta Theta Pi Fraternity, 133 Idaho 388, 987 P.2d 300, 311 (1999)) (citations omitted). “Determining when a special relationship exists sufficient to impose an affirmative duty requires an evaluation of ‘the sum total of those considerations of policy which lead the law to say that a particular plaintiff is entitled to protection.'” Id. (quoting Coghlan, 987 P.2d at 311 (quoting W. Prosser, Law of Torts 333 (3d ed. 1964))).

The general duty which arises in many relations to take reasonable precautions for the safety of others may include the obligation to exercise control over the conduct of third persons…. [Some] relationships are custodial by nature, requiring the defendant to control his charge and to guard other persons against his dangerous propensities…. The same rule has been applied to hospitals and psychotherapists who have charge of dangerous mental patients, and to those who have charge of dangerous criminals. … Yet, in the absence of the requisite relationship, there generally is no duty to protect others against harm from third persons.

Caldwell, 968 P.2d at 218 (quoting Sterling, 723 P.2d at 768-69) (citation omitted). “[T]he key to this duty is the supervising [*11] individual’s relationship to the supervised individual, rather than a direct relationship with the endangered person or class of persons.” Caldwell, 968 P.2d at 218 (discussing Sterling v. Bloom, 111 Idaho 211, 723 P.2d 755, 769 (Idaho 1986) superseded in part on other grounds by Idaho Code § 6-904A)). Thus, the duty alleged in this case would have to arise from a supervisory relationship where Ms. James/Explorations exercised some level of control over Mr. Martin and Mr. Dittrich.

The parties in this case disagree on the level of “control” Explorations had over the youths. Explorations argues that it provides “recreational programs and counseling for children” but maintains it is “not a state run juvenile detention center or institution.” (Dkt. 16 at 1, 9.) Participation in Exploration is voluntarily and there is no physical detention or connection to the criminal justice system. (Dkt. 16 at 2, 9.) Explorations’ briefing argues that the attendees may leave the Exploration program at any time. (Dkt. 16 at 9.)

Ms. Gadman counters that Explorations and Ms. James exercised supervisory control over the students such that a special relationship was formed which gives rise to a duty. (Dkt. 19.) Ms. Gadman [*12] points out that Ms. James testified in her deposition that students are not free to leave Explorations once they are enrolled, there had been kids in the past who had ran away from camp but were caught, and described the procedures Explorations had in place for preventing kids from escaping.

The Court finds facts in this case are distinct from those in Caldwell where it was undisputed that the violent offender had been released from the Idaho Youth Ranch several months before committing the murder. There the Idaho Supreme Court found the Idaho Youth Ranch did not have control over the offender such that a duty of care was owed. In contrast here, Explorations did have control over Mr. Martin or Mr. Dittrich and had not released them from its custody — they ran away.

Although it is not akin to a juvenile detention facility, Explorations was responsible for the care and custody of the youth participants in its programs. The minor participants could not leave the program without their parents’ permission. When asked if the participants of the outdoor program were “free to leave,” Ms. James stated in her deposition that participants who were minor could only leave if they had their parents’ [*13] permission, otherwise they were not free to leave.⁴ (Dkt. 19-10 at 12.) Ms. James went on to state that the steps taken to assure participants do not leave are that “care is provided, oversight and care, with our instructor team the entire time the students are there.” (Dkt. 19-10 at 13.)

4 Both Mr. Martin and Mr. Dittrich were seventeen at the time they were at Explorations.

Participants have ran away from Explorations in the past. Explorations has run away prevention measures called “Run Watch” which are written set of procedures and guidelines designed for responding to a runaway or missing student. (Dkt. 19-10 at 28-29) (Dkt. 19-6, Ex. F.) The Run Watch Policy states: “Explorations will take all reasonable precautions pertinent to each individual student so as to reduce the possibility of their escape from our custody.” (Dkt. 19-10 at 30) (Dkt. 19-6, Ex. F.) Under the Run Watch guidelines, one instructor in each group has a “run kit” which is intended to provide the instructor in pursuit of the student with whatever equipment that would be necessary to ensure the safety of the instructor. (Dkt. 19-10 at 30) (Dkt. 19-6, Ex. F.) A student is placed on Run Watch when: the student just [*14] had a run attempt; the student verbalized a threat to do so; the instructional team perceives a student to be a run threat; or escorts, operations directors, or a therapist suggests it. (Dkt. 19-6, Ex. F.) Explorations also has written procedures for handling the situations involving an “Accompanied Runaway” and an “Unaccompanied Runaway/Missing Student.” (DKt. 19-6, Ex. F.)

In this case, Explorations was aware the boys had planned to leave and actually took measures to thwart their plan by taking their shoes and journals. When their shoes were later returned, the boys executed their plan to run away from Explorations. The attack upon Ms. Gadman occurred two days after the boys left Explorations. While Explorations may not be akin to a juvenile detention facility, it is in charge of the custody and care of the children who are participating in its programs. This includes more than merely providing shelter, food, and programing. The relationship between Explorations and Mr. Dittrich and Mr. Martin was custodial. The Court finds upon these undisputed facts that Mr. Martin and Mr. Dittrich were in the custody and control of Explorations at the time of the attack. The Court next considers [*15] the second duty requirement: whether the harm caused by the individual was foreseeable.

B. Foreseeable Actions

“The question whether a risk of harm is foreseeable is generally a question for the trier of fact. Summary judgment is appropriate, however, if evidence is presented establishing the absence of any genuine issue of material fact concerning the general risk of harm.” Caldwell, 968 P.2d at 220 (citation omitted). Under the Idaho Tort Claims Act, “Foreseeability, ‘contemplates more than the mere possibility of aggressive tendencies…. The concept of foreseeability is much more narrowly drawn in this circumstance, … i.e. violence, particularly of a sexual nature, toward members of the public … must be manifest or ostensible, and highly likely to occur.'” Caldwell, 968 P.2d at 220 (quoting Harris v. State Dep’t of Health and Welfare, 123 Idaho 295, 847 P.2d 1156, 1160 (Idaho 1992)). In Caldwell, the Idaho Supreme Court recognized that “human behavior is difficult to predict with certainty, leading to the necessity for claimants to demonstrate that the harmful behavior should have been highly predictable based upon demonstrated past conduct.” 968 P.2d at 220 (citing cases).

Ms. Gadman argues [*16] Mr. Martin’s and Mr. Dittrich’s violent acts were foreseeable because both had a prior history of drug abuse and had previously attended treatment programs. (Dkt. 19.) Mr. Dittrich had also previously ran away from home and his school records include a history of “explosive and unpredictable behavior.” While at Explorations, Ms. Gadman points out that Mr. Martin had stole medications from an unlocked Explorations travel van which he ingested and then went an entire week without sleeping causing him to behave erratically and hallucinate. These factors known to Explorations, she argues, made their attack on her foreseeable.

i. Mr. Martin’s and Mr. Dittrich’s Prior Histories

Prior to attending Explorations, Mr. Martin had serious substance abuse issues that his parents knew of and he had been enrolled in different treatment programs. (Dkt. 19-8 at 7-16, 32-33.) Explorations and Ms. James were aware of Mr. Martin’s prior drug problems. In his deposition, Mr. Martin testified that after arriving at Explorations he talked with Ms. James about the problems that had brought him to the program including his prior drug use. (Dkt. 16-4 at 33-34.) Mr. Dittrich also had behavior issues having been [*17] previously kicked out of school, ran away from home, and had also previously attended treatment programs. (Dkt. 19-9 at 7-9.)

Prior to the assault on Ms. Gadman, however, neither Mr. Martin nor Mr. Dittrich had any criminal history. (Dkt. 16-4 at 39, 54) (Dkt. 18 at 56.) Mr. Martin testified in his deposition that he was “unaware” he had any type of propensity for violent behavior prior to the attack and stated he had never been violent before the incident with Ms. Gadman. (Dkt. 16-4 at 39-40.) Mr. Dittrich testified that neither he nor his parents ever told Explorations about any propensity for violence. (Dkt. 18 at 57.)

ii. Conduct at the Explorations Program

a. No Violent or Threatening Behavior

There is no evidence that either Mr. Martin or Mr. Dittrich engaged in any threatening or violent actions while at Explorations. In his deposition, Mr. Martin denied having committed any violent acts or threatening anyone while at the Explorations camp. [*18] (Dkt. 16-4 at 40-41.) Mr. Martin also testified he never observed Mr. Dittrich commit any violent acts or threaten anyone while he was at Explorations. (Dkt. 16-4 at 41.) In her affidavit, Ms. James states that she had not witnessed and there had been no reports that either boy had demonstrated any acts of aggression or violence to anyone at Explorations. (Dkt. 16-2 at ¶¶ 12-14.)

b. Mr. Martin’s Theft of Drugs

When he arrived at Explorations, Mr. Martin had been off drugs for less than two months. (Dkt. 16-4 at 46-47.) Mr. Martin stated he began using drugs again within a few days of being at Explorations by taking drugs located in the Explorations van. (Dkt. 16-4 at 18-19, 47-48, 62-63.) The Explorations’ staff learned that someone had taken drugs from the van and they confronted the group about it. (Dkt. 19-8 at 49-52.) At that time, Mr. Martin denied taking the drugs but testified that a couple of days before he ran away from camp he vaguely told one of the staff members that he had taken the drugs from the van and was “freaking out,” or “bugging out a little” and “hearing things.” (Dkt. 19-8 at 50-52, 64, 70.) Ms. James also testified that Mr. Martin had admitted to stealing pills [*19] from the Explorations van approximately ten days before he walked away from the program. (Dkt. 19-10 at 55-56.) Ms. James testified that after Mr. Martin admitted to taking the pills, she assumed that someone had ingested the pills. (Dkt. 19-10 at 106.) Mr. Martin testified that he had taken the drugs before Explorations knew of the boys’ plan to runaway. (Dkt. 19-10 at 97.)

The theft and taking of the medications from the Explorations’ van does not make the violence committed upon Ms. Gadman foreseeable. Clearly Mr. Martin’s behavior was out of line, but there were no indications that he would soon become aggressively violent such that the actions he took on July 31, 2011 were foreseeable to Explorations.⁵

5 In support of her response brief, Ms. Gadman has filed articles discussing the side effects of the drug Adderall, lack of sleep, and the connection between drugs and violence. (Dkt. 19, Ex. A, B, C.) Defendants have objected to the Court’s consideration of these exhibits arguing they are inadmissible. The Court agrees that the articles are not appropriate for consideration pursuant to Federal Rule of Civil Procedure 56(c).

As to the fact that Mr. Martin was hallucinating from the [*20] drugs, again the Court finds the undisputed facts do not give rise to anything that would have made Mr. Martins’ later violent actions foreseeable. Mr. Martin testified that after he had lied to the Explorations’ staff and repeatedly denied being the one who took the drugs, a day or two before they ran away he “mentioned” to staff that he was “freaking out” and “bugging out.” (Dkt. 19-8 at 51-53.) In describing what he told the Explorations’ staff, Mr. Martin testified that he “wouldn’t even call it a conversation. I mentioned I was freaking out a little” and that he “didn’t tell them I needed anything. I didn’t ask for help.” (Dkt. 19-8 at 52-53.) There is simply no basis from these facts from which Explorations could have predicted Mr. Martin would soon commit the violent assault upon Ms. Gadman. The fact that he stole drugs, ingested them, and was experiencing the side effects of the drugs does not make it highly predictable or likely that he would become violent; particularly since there was no known history of any violent behavior either prior to Mr. Martin attending Explorations program or while he was at the program.

c. The Plan to Run Away

Explorations’ field staff had learned [*21] of Mr. Dittrich’s and Mr. Martin’s plan to runaway on either July 19th or 20th. (Dkt. 19-10 at 40, 96.) Once they learned of the boys’ plan to leave, the Explorations’ staff confronted the boys about their plan and then instituted a lockdown. (Dkt. 19-8 at 22, 70-71) (Dkt. 19-9 at 19.) During the lockdown the two were separated in the campsite, the staff took away their shoes and journals, and did not allow them to talk to anyone else. (Dkt. 19-9 at 19.) Mr. Dittrich testified that they were later given back their shoes to use on the white-water rafting trip. (Dkt. 19-9 at 30-31.)

That they had planned to run away from Explorations and find drugs does not make their subsequent violent attack upon Ms. Gadman foreseeable. If anything, the plan and the drug use without any violence was consistent with the boys’ known histories. Ms. Gadman asserts that the violence was foreseeable because the boys would necessarily have to steal in order to obtain the drugs and other life necessities. The Court finds that argument is too speculative. In fact just the opposite proved to be true in light of the fact that the boys were given rides and marijuana from others when they were on the run all without [*22] them having to commit any violent acts. (Dkt. 19-9 at 37.)

Ms. Gadman also argues Mr. Dittrich’s second journal contained a list of items and supplies they would need when they left the program making the resulting assault foreseeable. (Dkt. 19 at 15.) (Dkt. 19-9 at 20-30, 78.) Mr. Dittrich testified that the staff at Explorations was not aware of his list. (Dkt. 18 at 78.) He further stated that the references to a knife, gun, and weapon in general were not intended to be used as a weapon against another person but for protection. (Dkt. 18 at 79-81.) Ms. Gadman asserts the staff should have looked at Mr. Dittrich’s second journal and discovered the “disturbing information.” (Dkt. 19 at 15.) This argument is also too speculative. The journal entries were started two to four days before the boys ran away and then later completed after the boys had left Explorations. (Dkt. 19-9 at 29.) While it may seem obvious in hindsight to argue that Explorations should have looked at Mr. Dittrich’s second journal, the fact remains that Explorations was not aware of the journal entries and there are no facts going to show that they should have foreseen any future violent acts by these boys.

C. [*23] Conclusion

The Court finds there is no genuine issue of material fact that supports a finding that Explorations and/or Ms. James could have foreseen the violent attack committed upon Ms. Gadman. Even considering the cumulative facts known by Explorations — i.e. the boys’ prior history, Mr. Martin’s theft and use of the drugs while at the camp, and their plan to run away — the violent assault on Ms. Gadman was not foreseeable. It is simply too attenuated to expect Explorations to have foreseen the attack based on what they knew about the boys prior to their running away.

Neither boy had any history of violent behavior or any criminal history. In reviewing both boys’ applications, Ms. James interviewed each of the boys’ parents, therapists, and educational consultants. None of these contacts conveyed any concerns that either boy was violent, likely because neither boy had any prior history of violence. While at Explorations, the boys did not commit any acts of violence or demonstrate any aggression. Although Explorations was aware of Mr. Martin’s history of substance abuse, that fact, even when considered in the context of the totality of the circumstances known by Explorations, does not [*24] make his later violent actions foreseeable. As to the fact that one of Mr. Dittrich’s schools had scored him at the highest end of “explosive and unpredictable behavior,” that notation was made eleven years before he attended the Explorations program. (Dkt. 19-10 at 80.) The Court finds the undisputed facts establish that the boys’ violent attack was not highly predictable or likely and, therefore, was not foreseeable. See Caldwell, 968 P.2d at 220.

It is notable that at the time they left the program the boys themselves had not even decided where they were going let alone contemplated attacking anyone. Mr. Martin testified that when they left Explorations his intention was just to get to a city so he could use drugs again but denied he had any intention of committing violence on anyone. (Dkt. 16-4 at 42.) It was not until after the boys had left Explorations that they discussed stealing a car and assaulting someone to get a car. (Dkt. 16-4 at 43-44.) If they themselves did not know or had not yet decided to commit a violent action, there certainly is no way the staff at Explorations could have foreseen the actions such that anyone could say the violence was “highly likely to occur.” [*25] Caldwell, 968 P.2d at 220 (citation omitted). Because there is no genuine issue of material fact in dispute that show Explorations and/or Ms. James could have foreseen the violent actions of Mr. Martin and Mr. Dittrich, the Court finds they did not owe a duty of care to Ms. Gadman. The Motion for Summary Judgment is granted.

ORDER

NOW THEREFORE IT IS HEREBY ORDERED as follows:

1) Plaintiff’s Motion to Extend Time (Dkt. 23) is GRANTED.

2) Defendants’ Motion for Summary Judgment (Dkt. 16) is GRANTED. The claim against Defendants Phoenix Mountain Collaborative, LLC and Penelope James is HEREBY DISMISSED.

DATED: June 17, 2014

/s/ Edward J. Lodge

Honorable Edward J. Lodge

U. S. District Judge

G-YQ06K3L262

http://www.recreation-law.com

Commercial Summer Fatalities: 2014

Posted: July 9, 2014 | Author: Recreation Law | Filed under: Arizona, Colorado, Idaho, Paddlesports, Whitewater Rafting | Tags: Chattooga River, Colorado, Commercial, Commercial Guide Service, Commercial Raft Company, Mountaineering, Rafting, Rock climbing, Whitewater, Whitewater Rafting | Leave a comment

Our condolences to the families of the deceased.

This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. If you have a source for information on any fatality please leave a comment.

Whitewater fatalities are light blue

Medical fatalities are light red

This is up to date as of July 1, 2014

If this information is incorrect or incomplete please let me know. Thank You.

Date	State	Activity	Where	How	Outfitter or Guide Service	Sex	Home	Age	Source	Source
5/28	AZ	Whitewater Kayaking	Colorado River, Grand Canyon, Badger Rapid	Did not right his kayak		M		43	http://rec-law.us/SVpdfb
6/3	AZ	Whitewater Rafting	Colorado River, Grand Canyon	Allergic reaction		F	Seattle, WA	54	http://rec-law.us/1l4xk4K
6/7	CO	Whitewater Rafting	Clear Creek	Fell out of raft, possible respirator problems		M	Brighton, CO	41	http://rec-law.us/1uEp3Fc	http://rec-law.us/1rafOwq
6/10	CO	Whitewater Rafting	Arkansas River, Salt Lick	boat flipped or dump trucked	Royal Gorge Rafting	M	Enid, OK	48	http://rec-law.us/1spBsRI	http://rec-law.us/1niITC2
6/14	CO	Whitewater Rafting	Arkansas River, Royal Gorge	respiratory problems before he and five other rafters were tossed out		M	Colorado Springs, CO	44	http://rec-law.us/1nl63ZF	http://rec-law.us/1lXMEAj
6/16	CO	Whitewater Rafting	Roaring Fork river	Fell out of raft	Blazing Adventures	M	Denver, CO	44	http://rec-law.us/1lB7jey
6/27	ID	Whitewater Rafting	Salmon River, The Slide	Ejected from raft	Epley’s Whitewater Adventure	M	Poulsbo, WA	50	http://rec-law.us/1x79IAj	http://rec-law.us/1qPcLds

Several of the water fatalities can be medical. A sudden full body cold water immersion can cause vasoconstriction in the hear resulting in death. See the Wikipedia listing Cold shock response.

If you are unable to see this graph, please email me at Rec-law@recreation-law.com and I will send you a PDF of the page.

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

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Idaho Ski Safety Act

Posted: July 22, 2013 | Author: Recreation Law | Filed under: Idaho, Skiing / Snow Boarding | Tags: Alpine skiing, Idaho, Idaho Ski Safety Act, Outdoors, Recreation, Ski, ski area, Ski Resort, Ski Safety Act, Skier, Snowboarder | Leave a comment

Idaho Ski Safety Act

IDAHO CODE

CODE OF CIVIL PROCEDURE

TITLE 6. ACTIONS IN PARTICULAR CASES

CHAPTER 11. RESPONSIBILITIES AND LIABILITIES OF SKIERS AND SKI AREA OPERATORS

Go to the Idaho Code Archive Directory

Idaho Code § 6-1101 (2012)

§ 6-1101. Legislative purpose

HISTORY: I.C., § 6-1101, as added by 1979, ch. 270, § 1, p. 701.

NOTES:

ANALYSIS

When the legislature stated the legislative purpose of this chapter, it included the statement that “the sport of skiing is practiced by a large number of citizens of this state and also attracts a large number of nonresidents, significantly contributing to the economy of Idaho,” and since this was a legitimate legislative goal and satisfies the rational basis test, this chapter does not violate the equal protection clause of the constitution. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).

In enacting this chapter, the legislature intended to limit rather than expand the liability of ski area operators. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).

The government of Idaho clearly has a legitimate interest in promoting the sport of skiing, because the sport “significantly contribut[es] to the economy of Idaho.” This chapter bears a rational relationship to this interest because it clarifies the allocation of risks and responsibilities between ski area operators and skiers. Collins v. Schweitzer, Inc., 21 F.3d 1491 (9th Cir.), cert. denied, 513 U.S. 962, 115 S. Ct. 422, 130 L. Ed. 2d 337 (1994).

This chapter immunizes ski area operators only from liability arising from risks inherent in the sport of skiing. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).

CITED IN: Kirkland ex rel. Kirkland v. Blain County Med. Ctr., 134 Idaho 464, 4 P.3d 1115 (2000).

§ 6-1102. Definitions

The following words and phrases when used in this chapter shall have, unless the context clearly indicates otherwise, the meanings given to them in this section.

(1) “Aerial passenger tramway” means any device operated by a ski area operator used to transport passengers, by single or double reversible tramway; chair lift or gondola lift; T-bar lift, J-bar lift, platter lift or similar device; or a fiber rope tow, which is subject to regulations adopted by the proper authority.

(3) “Ski area” means the property owned or leased and under the control of the ski area operator within the state of Idaho.

(5) “Skiing area” means all designated slopes and trails but excludes any aerial passenger tramway.

(6) “Skier” means any person present at a skiing area under the control of a ski area operator for the purpose of engaging in the sport of skiing by utilizing the ski slopes and trails and does not include the use of an aerial passenger tramway.

(7) “Ski slopes and trails” mean those areas designated by the ski area operator to be used by skiers for the purpose of participating in the sport of skiing.

HISTORY: I.C., § 6-1102, as added by 1979, ch. 270, § 1, p. 701.

NOTES:

§ 6-1103. Duties of ski area operators with respect to ski areas

Every ski area operator shall have the following duties with respect to their operation of a skiing area:

(1) To mark all trail maintenance vehicles and to furnish such vehicles with flashing or rotating lights which shall be in operation whenever the vehicles are working or are in movement in the skiing area;

(2) To mark with a visible sign or other warning implement the location of any hydrant or similar equipment used in snowmaking operations and located on ski slopes and trails;

(4) To maintain one or more trail boards at prominent locations at each ski area displaying that area’s network of ski trails and slopes with each trail and slope rated thereon as to it [its] relative degree of difficulty;

(5) To designate by trail board or otherwise which trails or slopes are open or closed;

(8) To provide a ski patrol with qualifications meeting the standards of the national ski patrol system;

(9) To post a sign at the bottom of all aerial passenger tramways which advises the passengers to seek advice if not familiar with riding the aerial passenger tramway; and

(10) Not to intentionally or negligently cause injury to any person; provided, that except for the duties of the operator set forth in subsections (1) through (9) of this section and in section 6-1104, Idaho Code, the operator shall have no duty to eliminate, alter, control or lessen the risks inherent in the sport of skiing, which risks include but are not limited to those described in section 6-1106, Idaho Code; and, that no activities undertaken by the operator in an attempt to eliminate, alter, control or lessen such risks shall be deemed to impose on the operator any duty to accomplish such activities to any standard of care.

HISTORY: I.C., § 6-1103, as added by 1979, ch. 270, § 1, p. 701.

NOTES: COMPILER’S NOTES. The national ski patrol provides training and education programs for emergency rescuers serving the outdoor recreation community. See http://www.nsp.org.

The bracketed word “its” in subsection (4) was inserted by the compiler.

When a skier ignores the ski area’s instructions to ski only on designated trails and embarks on an enterprise too difficult for someone of his ability, the ski area is not liable for his mishaps. Long v. Bogus Basin Recreational Ass’n, 125 Idaho 230, 869 P.2d 230 (1994).

Under this chapter, a ski area operator is not liable for the improper placement of a sign erected to eliminate, alter, control or lessen the inherent risks in skiing or for the improper design, construction or padding of a signpost that supported the sign. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).

In personal injury action by skier injured when she tripped over a rope intended to guide people away from the exit ramp of a chair lift, summary judgment was properly granted to ski resort, as the rope was intended to eliminate, alter, control, or lessen the inherent risk of skiing. The accident was not caused by the construction, operation, maintenance or repair of the chairlift. Withers v. Bogus Basin Rec. Ass’n, 144 Idaho 78, 156 P.3d 579 (2007).

Setting up a NASTAR race course is a normal part of running a ski area, and thus, anything a ski area does to eliminate or lessen the inherent risks of skiing in connection with setting up the race course or protecting skiers from hazardous obstacles cannot be the basis of liability for negligence. Collins v. Schweitzer, Inc., 774 F. Supp. 1253 (D. Idaho 1991), aff’d, 21 F.3d 1491 (9th Cir.), cert. denied, 513 U.S. 962, 115 S. Ct. 422, 130 L. Ed. 2d 337 (1994).

Under § 6-1106, anyone who strikes a ski lift tower while skiing is considered to have expressly assumed the risk and legal responsibility for any injury which results, and in addition, under subsection (10) of this section, anything a ski area operator does to eliminate, alter, control or lessen the risks associated with lift towers — such as placing a fence around a tower or padding it — could not result in the operator being held liable for negligence. Collins v. Schweitzer, Inc., 774 F. Supp. 1253 (D. Idaho 1991), aff’d, 21 F.3d 1491 (9th Cir.), cert. denied, 513 U.S. 962, 115 S. Ct. 422, 130 L. Ed. 2d 337 (1994).

Ski area operator owed amateur race skier no duty to reduce the risk of his striking and injuring himself on a lift tower. Collins v. Schweitzer, Inc., 21 F.3d 1491 (9th Cir.), cert. denied, 513 U.S. 962, 115 S. Ct. 422, 130 L. Ed. 2d 337 (1994).

If a ski area operator has no duty to accomplish any activity undertaken in an attempt to eliminate, alter, control or lessen the inherent risks of skiing and if the duties described in this section and § 6-1104 are the only duties an operator has with regard to the inherent risks of skiing, then it necessarily follows that any activity of an operator to fulfill those duties may not be held to be negligence, since the operator had no duty to accomplish the activity to any standard of care. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).

A ski area operator’s duty not to negligently cause injury refers to the failure to follow (1) any of the duties set forth in this section and § 6-1104 or (2) any duty that does not relate to eliminating, altering, controlling or lessening the inherent risks of skiing. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).

While one of the duties imposed on ski area operators by this section is to mark conspicuously the top or entrance to each slope or trail or area, with an appropriate symbol for its relative degree of difficulty, even assuming that a ski area operator may not have properly located a sign or properly designed, constructed or padded the signpost, this chapter excludes any liability of ski area operator to the plaintiffs as a result of these activities; while subdivision (3) of this section did require ski area operator to mark the entrance to each of its slopes, trails or areas, subsection (10) of this section negates any duty to accomplish this marking to any standard of care. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).

The duties described in this section and § 6-1104 are the only duties a ski area operator has with respect to the inherent risks of skiing and even anything an operator does to fulfill those duties cannot be held to be negligence because the operator had no duty to accomplish the activity to any standard of care, and in addition, anything else a ski area operator does to attempt to lessen the inherent risks of skiing cannot result in liability for negligence for that action. Collins v. Schweitzer, Inc., 774 F. Supp. 1253 (D. Idaho 1991), aff’d, 21 F.3d 1491 (9th Cir.), cert. denied, 513 U.S. 962, 115 S. Ct. 422, 130 L. Ed. 2d 337 (1994).

In conducting training sessions, the defendant foundation did not have the responsibility to fulfill the duties under this section; the mere fact that the defendant foundation set up the course within the ski area did not make them a “ski operator.” By setting up the course the defendant foundation was not engaged in any duties or activities of a “ski area operator.” By making use of the ski area for training, defendant foundation did not exercise “operational responsibility” for the ski area, and the court correctly denied defendant’s summary judgment on that basis. Davis v. Sun Valley Ski Educ. Found., Inc., 130 Idaho 400, 941 P.2d 1301 (1997).

A ski area operator does not have the duty to provide a ski patrol that will determine the identity of a skier who was involved in a ski accident with another skier. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).

An injury to the body caused by falling while skiing in an unmarked, ungroomed area is an inherent risk of skiing and a ski resort had no duty to take some kind of affirmative steps to have prevented skier from being injured. Long v. Bogus Basin Recreational Ass’n, 125 Idaho 230, 869 P.2d 230 (1994).

§ 6-1104. Duties of ski area operators with respect to aerial passenger tramways

HISTORY: I.C., § 6-1104, as added by 1979, ch. 270, § 1, p. 701.

NOTES: COMPILER’S NOTES. The American national standards institute’s current publication covering tramway safety is ANSI B77.1-2006, “Passenger Ropeway & Aerial Tramways, Aerial Lifts, Surface Lifts, Tows and Conveyors — Safety Requirement.”

ANALYSIS

If a ski area operator has no duty to accomplish any activity undertaken in an attempt to eliminate, alter, control or lessen the inherent risks of skiing and if the duties described in § 6-1103 and this section are the only duties an operator has with regard to the inherent risks of skiing, then it necessarily follows that any activity of an operator to fulfill those duties may not be held to be negligence, since the operator had no duty to accomplish the activity to any standard of care. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).

A ski area operator’s duty not to negligently cause injury refers to the failure to follow (1) any of the duties set forth in § 6-1103 and this section or (2) any duty that does not relate to eliminating, altering, controlling or lessening the inherent risks of skiing. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).

The duties described in § 6-1103 and this section are the only duties a ski area operator has with respect to the inherent risks of skiing and even anything an operator does to fulfill those duties cannot be held to be negligence because the operator had no duty to accomplish the activity to any standard of care; in addition, anything else a ski area operator does to attempt to lessen the inherent risks of skiing cannot result in liability for negligence for that action. Collins v. Schweitzer, Inc., 774 F. Supp. 1253 (D. Idaho 1991), aff’d, 21 F.3d 1491 (9th Cir.), cert. denied, 513 U.S. 962, 115 S. Ct. 422, 130 L. Ed. 2d 337 (1994).

§ 6-1104. Duties of ski area operators with respect to aerial passenger tramways

HISTORY: I.C., § 6-1104, as added by 1979, ch. 270, § 1, p. 701.

If a ski area operator has no duty to accomplish any activity undertaken in an attempt to eliminate, alter, control or lessen the inherent risks of skiing and if the duties described in § 6-1103 and this section are the only duties an operator has with regard to the inherent risks of skiing, then it necessarily follows that any activity of an operator to fulfill those duties may not be held to be negligence, since the operator had no duty to accomplish the activity to any standard of care. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).

§ 6-1105. Duties of passengers

Every passenger shall have the duty not to:

(1) Board or embark upon or disembark from an aerial passenger tramway except at an area designated for such purpose;

(2) Drop, throw or expel any object from an aerial passenger tramway;

(3) Do any act which shall interfere with the running or operation of an aerial passenger tramway;

(5) Embark on an aerial passenger tramway without the authority of the ski area operator;

(6) Use any aerial passenger tramway without engaging such safety or restraining devices as may be provided.

HISTORY: I.C., § 6-1105, as added by 1979, ch. 270, § 1, p. 701.

NOTES:

§ 6-1106. Duties of skiers

It is recognized that skiing as a recreational sport is hazardous to skiers, regardless of all feasible safety measures which can be taken.

Each skier expressly assumes the risk of and legal responsibility for any injury to person or property which results from participation in the sport of skiing including any injury caused by the following, all whether above or below snow surface: variations in terrain; surface or subsurface snow or ice conditions; bare spots, rocks, trees, other forms of forest growth or debris, lift towers and components thereof; utility poles, and snowmaking and snowgrooming equipment which is plainly visible or plainly marked in accordance with the provisions of section 6-1103, Idaho Code. Therefore, each skier shall have the sole individual responsibility for knowing the range of his own ability to negotiate any slope or trail, and it shall be the duty of each skier to ski within the limits of the skier’s own ability, to maintain reasonable control of speed and course at all times while skiing, to heed all posted warnings, to ski only on a skiing area designated by the ski area operator and to refrain from acting in a manner which may cause or contribute to the injury of anyone. The responsibility for collisions by any skier while actually skiing, with any person, shall be solely that of the individual or individuals involved in such collision and not that of the ski area operator.

No person shall place any object in the skiing area or on the uphill track of any aerial passenger tramway which may cause a passenger or skier to fall; cross the track of any T-bar lift, J-bar lift, platter lift or similar device, or a fiber rope tow, except at a designated location; or depart when involved in a skiing accident, from the scene of the accident without leaving personal identification, including name and address, before notifying the proper authorities or obtaining assistance when that person knows that any other person involved in the accident is in need of medical or other assistance.

No skier shall fail to wear retention straps or other devices to help prevent runaway skis.

HISTORY: I.C., § 6-1106, as added by 1979, ch. 270, § 1, p. 701.

NOTES:

§ 6-1107. Liability of ski area operators

HISTORY: I.C., § 6-1107, as added by 1979, ch. 270, § 1, p. 701.

NOTES:

This chapter immunizes ski area operators only from liability arising from risks inherent in the sport of skiing. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).

In enacting this chapter, the legislature intended to limit rather than expand the liability of ski area operators. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).

If a ski area operator has no duty to accomplish any activity undertaken in an attempt to eliminate, alter, control or lessen the inherent risks of skiing and if the duties described in §§ 6-1103 and 6-1104 are the only duties an operator has with regard to the inherent risks of skiing, then it necessarily follows that any activity of an operator to fulfill those duties may not be held to be negligence, since the operator had no duty to accomplish the activity to any standard of care. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).

§ 6-1108. Liability of passengers

HISTORY: I.C., § 6-1108, as added by 1979, ch. 270, § 1, p. 701.

NOTES:

§ 6-1109. Liability of skiers

HISTORY: I.C., § 6-1109, as added by 1979, ch. 270, § 1, p. 701.

NOTES:

A.L.R.

Skier’s liability for injuries to or death of another person. 75 A.L.R.5th 583.

2012-2013 In bound ski/board fatalities

Posted: January 9, 2013 | Author: Recreation Law | Filed under: Avalanche, California, Colorado, Idaho, Michigan, Ski Area, Skiing / Snow Boarding | Tags: alpine Meadwos, Boyne Highlands Resort, Copper Mountain, Donner Ski Ranch, helmet, Keystone Resort, Keystone Ski Resort, SEATTLE, Ski, ski season, Snowboard, Snowmass, Squaw Valley Ski Resort, Sun Valley, Sun Valley Idaho, Sun Valley ski resort, Vail, Vail Colorado | Leave a comment

This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. Those references are part of the chart. If you have a source for information on any fatality please leave a comment or contact me. Thank you.

Several Corrections have been made to items reported earlier.

If this information is incorrect or incomplete please let me know. This is up to date as of January 8, 2013. Thanks.

Skiing and Snowboarding are still safer than your kitchen or bathroom. This information is not to scare you away from skiing but to help you understand the risks and to study.

2012 – 2013 Ski Season Deaths

Red is a probable death due to medical issues unrelated to skiing

Dark blue is a death of an employee while working

Tab through the Table to See the Entire Table

Date

State

Resort

Where

How

Cause

Ski/Board

Age

Sex

Name

Home town

Helmet

Reference

11/29/12

Sun Valley ski resort

Bald Mountain Chairlift

Fell off (Medical?)

Dana Mower

Sun Valley, ID & Seattle, WA

http://rec-law.us/Vi4ims

http://rec-law.us/TyVnKu

12/1/12

Keystone Resort

River Run Gondola Maze

Standing in Maze (Medical)

Skier

Rex Brian Burton

Castle Rock, CO

http://rec-law.us/SCZHXJ

http://rec-law.us/YkDioj

http://rec-law.us/UjBMfK

12/2/12

Boyne Highlands Resort

Camelot, (Beginner)

fell within the slope boundaries and did not collide with any type of obstacle

Boarder

Kasandra Knapp

Alanson, MI

http://rec-law.us/11JFVOo

12/9

Vail

Born Free trail

Hiking before resort opened (Medical)

Denver

http://rec-law.us/Zg0OC1

12/9

Vail

Eagle Bahn Gondola (Medical)

Douglas Voisard

Vail

http://rec-law.us/Zg0OC1

12/21

Squaw Valley

KT-22

strike the tree, hitting the left side of his head

Skier

Theodore Stanley Sorensen

Auburn, CA

Yes

http://rec-law.us/10ctrSt

12/24

Donner Ski Ranch

Avalanche

Boarder

Steven Mark Anderson

Hirschdale

http://rec-law.us/UCaHJz

http://rec-law.us/Sgjsbi

12/24

Alpine Meadows

Sherwood Bowl

Avalanche

Skier

Bill Foster

http://rec-law.us/13eiU72

http://rec-law.us/VGsqh5

12/30

Snowmass

Hanging Valley Headwall

Avalanche

Swept over cliff

Skier

Patricia “Patsy” Hileman

http://rec-law.us/RCv6fd

http://rec-law.us/VOCr8H

1/4

Copper Mountain

Vein Glory

Hit tree

Tristan Bartlett

Houston, TX

http://rec-law.us/RCy03u

http://rec-law.us/VyzVnU

http://rec-law.us/WoJEf5

Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the areas who have to deal with these tragedies.

What do you think? Leave a comment.

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Plaintiff raised argument in work/team building situation that they were forced to sign release

Posted: December 3, 2012 | Author: Recreation Law | Filed under: Challenge or Ropes Course, Idaho | Tags: Climbing Wall, Coercion, Employee, Employment, Idaho, Idaho Supreme Court, Northwest Nazarene University, Release, Team Building | 3 Comments

Morrison, v. Northwest Nazarene University, 273 P.3d 1253; 2012 Ida. LEXIS 82

Argument that plaintiff was forced to sign a release by an employer did not prevail, but it was taken seriously by the court.

I’ve worried and written on the issue that when a “team-building” exercise is undertaken by an employer how the issue of a release should be handled. If the

employer uses an employer or rope’s course or climbing wall release is this going to give the employee the argument that they were coerced into the act? Where does worker’s compensation arise in employers “required” team building activity? What if the release the employee signs, is one required by the employer?

A defense to a contract is coercion. You cannot be held to a contract if you were forced to enter into the contract.

In this case, the employer contracted with the defendant university to run a team-building exercise. The team-building exercise included using a climbing wall. Prior to the activity, the employer gave the employee a release prepared by the defendant to sign. The release relieved the defendant university of any liability for negligence.

While climbing the belayer, a coworker failed, and the plaintiff was injured. The plaintiff sued the university for failing to train and supervise the belayer. The university moved for summary judgment based upon the release signed by the employee.

Summary of the case

The Idaho Supreme Court first looked at the basis for release law in Idaho. In Idaho, releases are upheld unless one party owes the other party a public duty created by statute or there is an obvious disadvantage in the bargaining power between the parties. The bargaining power must be so unequal that “the party injured has little choice, as a practical matter, but to use the services offered by the party seeking exemption.”

The plaintiff argued the release was void because of the disadvantage of bargaining power between the employee and the employer. The plaintiff argued that:

· all employees were expected to sign the release

· he was not given an option not to sign the release

However, the court pointed out that at no time did the plaintiff say, “that he did not want to climb the climbing wall and that his employer ordered him to do so anyway.”

The release had a statement in it that said:

The undersigned has read and voluntarily signs this release and waiver of liability and indemnity agreement. The undersigned further agrees that no oral representations, statements or inducements apart from the foregoing agreement have been made.”

Between the facts, the plaintiff did not object to signing the release, the team-building exercise or climbing on the wall along with the statement in the release that

he had not been coerced his defense failed.

The plaintiff also argued that the release was overly broad and should not be upheld. In Idaho, the court set forth the requirements on how contracts and releases would be interpreted. “Clauses which exclude liability must speak clearly and directly to the particular conduct of the defendant who caused the harm at issue.” However, the language need not “list the specific, allegedly negligent conduct at issue.” In Idaho, that language must be broad enough to cover future negligence.

The parties to a release need not have contemplated the precise occurrence that caused the plaintiff’s injuries but rather may adopt language to cover a broad range of accidents by specifying injuries involving negligence upon the part of the defendant.

In Idaho, the language must not cover every possible accident but have language that allows the plaintiff to understand the board range of possible accidents. As I say, the life-changing ones should be listed as well as the everyday ones. On a frequency and severity scale, you want the ones with high severity and the ones with high frequency listed on your release.

The court upheld the release as a bar to the plaintiff’s claims. However, it was apparent in the decision that the court took seriously both claims raised by the plaintiff.

There was a dissent about the language of the release which would have ruled for the plaintiff on the issue of the language being broad enough to cover the injuries claimed by the plaintiff.

So Now What?

There are many states where I believe this case would not have survived. In this case if the plaintiff would have asked what happens if I don’t sign or said I don’t want to participate; the release would not have worked.

If you are running team building exercises this places you in an ethical as well as a legal conundrum. How do you protect yourself when the people coming to you

First make sure everyone knows they have an out that they can say public or privately that if they don’t want to do something, they don’t have too. That may defeat the purpose of the team-building exercise in your or the employer’s mind but the long-term costs of litigation over the issue should exceed that issue.

This also places you, the business to take a position, which is against your client. However, I believe you have to protect the participant who does not want to participate from your client. This is a dangerous conflict of interest.

Two, decide advance who will take care of the issue of what to do if someone is sued. It might be easier to have the employer indemnify you for any injuries of employees.

Employees should probably be covered under a worker’s comp policy in situations like this so you might always be subject to a subrogation claim for an injury. Releases stop subrogation claims, and indemnification does not. However, if the worker’s compensation carrier realizes they will be suing their insured because of an indemnification policy it might make a difference.

Three, work everything out in advance. Getting the release to the employer in advance of the activity was great. However, there was still a gap in what to do if someone is injured. Obviously, the employer and the university really never contemplated that someone would get injured, other than their insurance company and legal counsel telling them they must use a release. However, people get hurt all the time; bathrooms can only be avoided for so long. If you and the employer understand who insurance is going to step up and what defenses are available to both parties in advance it might eliminate some suits.

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Morrison, v. Northwest Nazarene University, 273 P.3d 1253; 2012 Ida. LEXIS 82

Posted: December 3, 2012 | Author: Recreation Law | Filed under: Challenge or Ropes Course, Idaho, Legal Case | Tags: Canyon County, Canyon County Idaho, Climbing Wall, Coercion, Employee, Idaho, Indemnity, Negligence, Northwest Nazarene University, Release, Team Building | Leave a comment

Morrison, v. Northwest Nazarene University, 273 P.3d 1253; 2012 Ida. LEXIS 82

Paul Morrison, Plaintiff-Appellant, v. Northwest Nazarene University, Defendant-Respondent.

Docket No. 37850-2010, 2012 Opinion No. 52

SUPREME COURT OF IDAHO

273 P.3d 1253; 2012 Ida. LEXIS 82

March 22, 2012, Filed

PRIOR HISTORY: [**1]

Appeal from the District Court of the Third Judicial District of the State of Idaho, in and for Canyon County. The Hon. Juneal C. Kerrick, District Judge.

DISPOSITION: The judgment of the district court is affirmed.

COUNSEL: John C. Doubek; Doubek & Pyfer, LLP; Helena, Montana; argued for appellant.

John A. Bailey; Racine Olson Nye Budge & Bailey, Chtd; Pocatello; argued for respondent.

JUDGES: EISMANN, Justice. Chief Justice BURDICK, Justices W. JONES, and HORTON CONCUR. J. JONES, J., concurring in part and dissenting in part.

OPINION BY: EISMANN

OPINION

[*1254] EISMANN, Justice.

This is an appeal challenging the district court’s ruling on summary judgment that the plaintiff’s action for personal injuries suffered when he fell from a climbing wall was barred by the hold harmless agreement he signed prior to engaging in that activity. We affirm the judgment of the district court.

Factual Background.

As a team building exercise, Paul Morrison’s employer wanted him and his coworkers to participate in a program at Northwest Nazarene University that included a climbing wall activity. Several days prior to doing so, Morrison’s employer required him to sign an agreement prepared by the University holding it harmless from any loss or damage he might incur [**2] due to the University’s negligence or that of its employees.

Morrison was severely injured when he fell while on the climbing wall. He filed this action alleging that his injuries were caused by the negligence of the University employees who were supervising the climbing wall activity. One of Morrison’s coworkers was assigned to control the safety rope used to keep the wall climber from falling, and Morrison alleges that his fall was caused by the negligent failure of a University employee to train and supervise that coworker.

The University moved for summary judgment on the ground that Morrison’s cause of action was barred by the hold harmless agreement. The district court agreed and dismissed this action. Morrison then timely appealed.

II.

Did the District Court Err in Failing to Invalidate the Hold Harmless Agreement Due to the Inequality in Bargaining Power

[HN1] “Freedom of contract is a fundamental concept underlying the law of contracts and is an essential element of the free enterprise system.” Rawlings v Layne & Bowler Pump Co., 93 Idaho 496, 499, 465 P.2d 107, 110 (1970). Agreements exempting a party from liability for negligence will be upheld unless the party owes to the other party [**3] a public duty created by statute or the other party is at an obvious disadvantage in bargaining power. Lee v. Sun Valley Co., 107 Idaho 976, 978, 695 P.2d 361, 363 (1984).

In this case, there is no allegation of any public duty that the University owed to Morrison. However, he contends that there was an obvious disadvantage in bargaining power because his employer required that he sign the hold harmless agreement. [HN2] The existence of unequal bargaining power is not, by itself, sufficient to relieve a party from the provisions of a hold harmless agreement. Rather, the party must be “compelled to submit to a provision relieving the other from liability for future negligence [because] . . . the party injured has little choice, as a practical matter, but to use the services offered by the party seeking exemption.” 57A Am. Jur. 2d Negligence § 63 (2004). It is essentially the same test for determining whether unequal bargaining power between parties to a contract is sufficient to constitute procedural unconscionability. See Lovey v. Regence BlueShield of Idaho, 139 Idaho 37, 42, 72 P.3d 877, 882 (2003) (“Lack of voluntariness can be shown . . . by great imbalance on the [*1255] parties’ bargaining [**4] power with the stronger party’s terms being nonnegotiable and the weaker party being prevented by market factors, timing, or other pressures from being able to contract with another party on more favorable terms or to refrain from contracting at all.”)

In this case, Morrison stated in his affidavit: “My said employer told us before we went to the team building exercises that I needed to sign the release in order to participate. All employees were expected to participate and I signed it.” He also stated that he was not given the option of refusing to sign the release and it was required by his employer. Morrison was not injured by signing the release. He was injured by falling from the climbing wall. Absent from his affidavit is any statement that he told his employer that he did not want to climb the climbing wall and that his employer ordered him to do so anyway.¹

1 We need not decide whether an employer’s demand that an employee participate in a hazardous activity would be sufficient to void a hold harmless agreement between the employee and the third party that conducted such activity.

[HN3] “With respect to adult participants, the general rule is that releases from liability for injuries [**5] caused by negligent acts arising in the context of recreational activities are enforceable.” 57A Am. Jur. 2d Negligence § 65 (2004). The agreement that Morrison signed stated as a separate paragraph: “The undersigned has read and voluntarily signs this release and waiver of liability and indemnity agreement. The undersigned further agrees that no oral representations, statements or inducements apart from the foregoing agreement have been made.” Morrison has not demonstrated a genuine issue of material fact showing that there was an obvious disadvantage in bargaining power sufficient to relieve him of the provisions of the hold harmless agreement that he signed.

III.

Did the District Court Err in Ruling that the Hold Harmless Agreement Was Valid and that It Applied to the Cause of Action Alleged in the Complaint

Morrison contends that the hold harmless agreement is invalid because it is overly broad and is ineffective to bar his claim because it does not clearly identify the conduct that caused his injuries. [HN4] “Interpretation of unambiguous language in a contract is an issue of law.” McDevitt v. Sportsman’s Warehouse, Inc., 151 Idaho 280, 283, 255 P.3d 1166, 1169 (2011).

The agreement is [**6] entitled “Release / Hold Harmless / Indemnity / Assumption of Risk Agreement,” and it states as follows:

Release: The undersigned, in consideration of being permitted to participate in the Northwest Nazarene University Challenge Course Adventure Program, for educational purposes does irrevocably, personally and for his or her heirs, assigns and legal representatives, release and waive any and all past, present or future claims, demands, and causes of action which the undersigned now has or may in the future have against Northwest Nazarene University, its members, directors, administrators, representatives, officers, agents, employees, and assigns, and each of them (hereinafter jointly and severally referred to as “Releasees”), for any and all past, present or future loss of or damage to property, and/or bodily injury, including death, however caused, resulting from, arising out of or in any way connected with his/her participation in or use of the Northwest Nazarene University Challenge Course Adventure Program.

Hold Harmless/Indemnity: The undersigned agrees to defend, indemnify and hold harmless the Releasees and each of them from any loss, liability, damage or cost she/he might incur [**7] due to her/his participation in or use of the Northwest Nazarene University Challenge Course Adventure Program whether caused by the negligence of the Releasees or otherwise. The undersigned further covenants not to cause any action at law or in equity to be brought or permit such to be brought in his or her behalf, either directly or indirectly, on account of loss or damage to property and/or bodily injury, including death, against the Releasees, resulting [*1256] from, or arising out of, or in any way connected with any claims, demands, and causes of action which now or in the future may be asserted against the Releasees arising out of or by reason of said course described above, including any injury, loss or damage that might occur at any place in connection therewith.

Assumption of Risk: The undersigned further states and affirms that he/she is aware of the fact that the aforesaid course, even under the safest conditions possible, may be hazardous, that he/she assumes the risks of any and all loss or of damage to property and/or bodily injury, including death, however caused, resulting out of or in any way connected with the Northwest Nazarene University Challenge Course Adventure Program; [**8] that he/she is of legal age and is competent to sign this Waiver of Claims and Release of Liability; and that he/she has read and understands all of the provisions herein contained. Risks include but are not limited to the following: [a list of various types of actions that can cause injury and various types of injuries].

Morrison contends that the hold harmless agreement is invalid because it is overbroad. It exempts the University and “its members, directors, administrators, representatives, officers, agents, employees, and assigns, and each of them” from “any and all past, present or future claims, demands, and causes of action which the undersigned now has or may in the future have” for all “bodily injury, including death, however caused, resulting from, arising out of or in any way connected with his/her participation in or use of the Northwest Nazarene University Challenge Course Adventure Program.” It also specifically mentions negligence. The hold harmless agreement is not overbroad. It only applies to all causes of action “resulting from, arising out of or in any way connected with his/her participation in or use of the Northwest Nazarene University Challenge Course Adventure [**9] Program.”² Due to the dangers inherent in climbing the climbing wall, the University can certainly require such a release from anyone choosing to engage in that activity.

2 There is no contention that the conduct of the University employee was reckless or that the employee intentionally injured Morrison.

The agreement is likewise not inapplicable because of its failure to mention the specific conduct that is alleged to have constituted negligence in this case. In Anderson & Nafziger v. G. T. Newcomb, Inc., 100 Idaho 175, 178, 595 P.2d 709, 712 (1979), this Court stated, “Clauses which exclude liability must speak clearly and directly to the particular conduct of the defendant which caused the harm at issue.” That language can be misinterpreted, because neither that case nor the cases it cited nor our subsequent cases have held that an exculpatory clause must list the specific, allegedly negligent conduct at issue.

The Anderson & Nafziger Court cited three cases as support for the statement. The first one was Valley National Bank v. Tang, 18 Ariz. App. 40, 499 P.2d 991 (Ariz. Ct. App. 1972). In that case, the court stated “that clauses which purport to exclude liability for negligence must speak clearly [**10] and directly to the conduct at issue,” id. at 994, which it explained as meaning that an exculpatory clause would not cover negligence unless the wording was broad enough to include future negligent conduct within its scope. It stated, “The principal reason for such a construction is to assure that there has been actual agreement between the parties that the defendant shall not be liable for the consequences of future conduct which would otherwise be negligent.” Id. The second case was Missouri Pac. R. Co. v. City of Topeka, 213 Kan. 658, 518 P.2d 372 (Kan. 1974). The court held that a contract requiring a railroad to “save the said City of Topeka harmless from all costs, damages and expenses for the payment of which the said city may become liable to any person or persons or corporation by reason of the granting of said right of way to said railway company,” id. at 375, was not broad enough to require the city to pay the railroad the cost of relocating its tracks due to an urban renewal project. The court stated, “As we view the ‘hold harmless’ clause, to which the railroad is deemed to have agreed, there is no suggestion it was intended to [*1257] provide protection against liability for expenses, loss [**11] or damage created or made necessary by actions of the city-franchisor.” Id. at 376. The third case was Walker Bank & Trust Co. v. First Sec. Corp, 9 Utah 2d 215, 341 P.2d 944 (Utah 1959), in which the beneficiary of a life insurance policy sued a bank for damages because the policy had lapsed due to the bank’s failure to charge the insured’s account with drafts for the monthly premiums. The insured had signed an authorization to pay the drafts from her account, but the bank misplaced it. The authorization included a provision stating, “I understand and agree that your compliance herewith shall constitute a gratuity and courtesy accorded me as your customer, and that you assume or incur no liability whatsoever in the premises, and I further agree to hold you harmless of and from any and all claims arising hereunder.” Id. at 947. The court held that the hold harmless agreement only barred claims resulting from the bank’s “compliance herewith,” not its failure to comply with the agreement. The court stated:

It will be noted that the language quoted above purports only to protect the bank from liability arising from its compliance with the authorization, indicating that if it did so it would “incur no [**12] liability whatsoever.” . . . But there is no provision that it would be protected in the event of entire failure to fulfill the arrangement.

Id. (emphasis theirs). None of the cases held that an exculpatory clause was ineffective because the specific conduct that gave rise to the cause of action was not listed.

In Anderson & Nafziger, the buyer contracted to purchase three pivots that the seller agreed to deliver and install in mid-May, and the buyer brought an action for damages when the seller failed to do so. The purchase contract included a provision limiting the seller’s liability which stated as following:

It is hereby understood and agreed that all work ordered hereunder is precarious and uncertain in its nature, and all pulling of pumps, reinstalling pumps, repair work, alterations, well work, sand pumping, corrections, or other work herein specified, etc., shall be strictly at the Purchaser’s risk. The Seller will not be liable for damage of any kind, particularly including loss or damage for diminuation or failure of crop, shortage of water, inability or failure to supply same, or for diminuation or cessation of water flow; nor shall the Seller be liable for any damages or delays [**13] of any kind on account of sticking of pump in the well in any position, either when being pulled out or being reinstated nor shall the Seller be liable for any damages on account of delay in making repairs or installing by virtue of some defect in the well, or by virtue of the well not being in condition to receive the machinery, or by virtue of unforeseen or changing conditions in the well or in or about the premises on which the well is located.

Anderson v. Nafziger, 100 Idaho at 178, 595 P.2d at 712. This Court held that the clause did not preclude liability for crop loss caused by the failure to deliver the pivots because “[a] reading of the total clause indicates that the clause is aimed at limiting the seller’s liability for crop loss which is caused by installation or repair work done by seller.” Id. The clause listed specific types of conduct and causes of damage to which it applied. It did not have a general provision excluding liability for any delay in delivering or installing the equipment.

A review of this Court’s other cases shows that the hold harmless agreement need not specify the exact conduct that was allegedly negligent or caused harm. In H. J. Wood Co. v. Jevons, 88 Idaho 377, 400 P.2d 287 (1965), [**14] a landowner had entered into a contract for the purchase and installation of an irrigation pump in her well. The sales contract included a hold harmless agreement stating as follows:

Seller shall not be liable for damage or for consequential damage, particularly including loss or damage for diminution or failure of crops, shortage of water, or inability or failure to supply same, whether due to improper installation or performance of the machinery or otherwise . . . it being understood and agreed by Buyer that this work is uncertain and precarious in its nature.

[*1258] Id. at 378, 400 P.2d at 289. The landowner sought damages, alleging that she suffered crop losses because “the pump never functioned properly,” because the seller “removed the pump to make repairs and failed to provide appellant with a substitute pump,” and because “in making repairs to said pump [the seller] carelessly and negligently lost the tail pipe of said pump in the well, causing an inadequate flow or supply of water during the irrigation season.” Id. at 380, 400 P.2d at 288. The trial court sustained the seller’s objection to any evidence of crop loss, and then dismissed the landowner’s claim. On appeal, this Court held [**15] that it was not error to exclude evidence of crop loss because “[t]he foregoing quoted portion of the contract is unambiguous and clearly exempts respondent from liability for crop damage.” Id. at 381, 400 P.2d at 289. There was nothing in the exculpatory clause specifying that the seller would not be liable for failing to provide the landowner with a substitute pump while hers was being repaired or for negligently losing the tail pipe in the well, both of which were conduct that she alleged caused her damage. In fact, the clause did not even include the word “negligence.”

In Rawlings v Layne & Bowler Pump Co., 93 Idaho 496, 465 P.2d 107 (1970), the landowner entered into a contract for the purchase and installation of irrigation pumping machinery. He later brought an action seeking damages on the ground that he suffered crop loss because of the allegedly negligent installation of the pumping equipment. Paragraph 10 of the contract between the parties included an exculpatory clause stating:

Seller or Holder shall not be liable for consequential damage particularly including loss or damage for diminution or failure of crops, shortage of water, or inability or failure to supply same, due [**16] to installation or performance of the property sold hereunder, or repair work, pump or well service, nor shall Seller be liable for collapsing, telescoping, separating or otherwise injuring the well or pump, for any cause whatsoever, including negligence, since the Buyer and Seller agree that the work is hazardous and precarious in its nature . . . .

Id. at 497, 465 P.2d at 108. The trial court dismissed the landowner’s claim based upon the above contract provision, and the landowner appealed. In upholding the dismissal, we stated, “It is our opinion that the language contained in paragraph 10 of the contract is clear and unambiguous and its effect is to preclude the seller’s liability for consequential damages such as are sought by the appellant.” Id. at 499, 465 P.2d at 110. We did not require that the exculpatory clause mention the specific conduct that was allegedly negligent. In fact, the specific conduct that allegedly constituted negligent installation was not even identified in the opinion.

In Steiner Corp. v. American District Telegraph, 106 Idaho 787, 683 P.2d 435 (1984), the plaintiff contracted with the defendant to install and maintain a fire alarm system in the plaintiff’s [**17] building. The system failed to detect a fire because the defendant had not checked the electrolyte levels in the system’s batteries for eight months even though they were to be inspected monthly. The parties’ contract included a provision stating that the defendant “shall be exempt from liability for loss or damage due directly or indirectly to occurrences, or consequences therefrom, which the service is designed to detect or avert,” and that the exculpatory clause applied if the loss or damage “results directly or indirectly to person or property from performance or nonperformance of obligations imposed by this contract or from negligence, active or otherwise, of the [defendant], its agents or employees.” Id. at 789, 683 P.2d at 437. The plaintiff sued for strict liability, breach of warranty, and negligence. This Court first held that the complaint did not allege a cause of action under those theories, but then stated that even if the plaintiff could allege a cause of action it was barred by the exculpatory clause. Id. at 791, 683 P.2d at 439. We stated, “This unambiguous clause was clearly intended to apply to exclude liability under any of the bases urged by Steiner.” Id. The clause [**18] did not specifically mention the failure to inspect or maintain the batteries.

In Lee v. Sun Valley Co., 107 Idaho 976, 695 P.2d 361 (1984), the plaintiff, prior to going on a trail ride, signed a rental agreement [*1259] that included an exculpatory clause stating:

Upon my acceptance of horse and equipment, I acknowledge that I assume full responsibility for my safety. I further understand that I ride at my own risk, and I agree to hold the above entity, its officers, employees, etc., harmless from every and all claim which may arise from injury, which might occur from use of said horse and/or equipment, in favor of myself, my heirs, representatives or dependents. I understand that the stable does not represent or warrant the quality or character of the horse furnished.

Id. at 977, 695 P.2d at 362. Prior to the plaintiff mounting his horse, the defendant’s employee adjusted the cinch on the saddle. During the ride, the saddle loosened, and the plaintiff was injured when it rotated and the horse reared as he was attempting to dismount. We upheld the dismissal of the plaintiff’s claim on the ground that it was barred by the exculpatory clause, stating, “The agreement clearly and simply states [**19] that Sun Valley should be held ‘harmless for every and all claim which may arise from injury, which might occur from use of said horse and/or equipment,’ which is both unambiguous and applicable to the facts alleged by plaintiff.” Id. at 978, 695 P.2d at 363. The exculpatory clause did not even mention negligence, nor did it specifically list the failure to properly adjust the cinch as being within its scope. Justice Bistline dissented for that very reason. Id. at 981, 695 P.2d at 366.

Finally, in Empire Lumber Co v Thermal-Dynamic Towers, Inc., 132 Idaho 295, 971 P.2d 1119 (1998), a warehouse lease contained a provision stating, “Except for reasonable wear and tear and damage by fire or unavoidable casualty, Lessee will at all times preserve said premises in as good repair as they now are or may hereafter be put to . . . .” Id. at 297, 971 P.2d at 1121. We held that the clause did not exempt the lessee from liability for fire damage caused by the lessee’s negligence, stating, “The lease language does not clearly indicate, as required by this Court’s decision in Anderson & Nafziger, that the parties intended to release TDT from liability for its negligent acts.” Id. at 300, 971 P.2d at 1124. [**20] The clause made no mention of negligence, nor could its language be construed to apply to negligence. [HN5] Hold harmless agreements are strictly construed against the person relying upon them. Anderson & Nafziger, 100 Idaho at 178, 595 P.2d at 712.

The decisions of this Court have not held that a hold harmless agreement must describe the specific conduct or omission that is alleged to be negligent in order for it to bar recovery. That is consistent with the general law. [HN6] “The parties to a release need not have contemplated the precise occurrence that caused the plaintiff’s injuries but rather may adopt language to cover a broad range of accidents by specifying injuries involving negligence on the part of the defendant.” 57A Am. Jur. 2d Negligence § 53 (2004). In this case, the agreement stated that Morrison held the University harmless “from any loss, liability, damage or cost she/he might incur due to her/his participation in or use of the Northwest Nazarene University Challenge Course Adventure Program whether caused by the negligence of the Releasees or otherwise.” That language clearly stated that the clause applied to negligence and to any loss or damage he might incur from his participation [**21] in the program. The district court did not err in dismissing his negligence claim because it was barred by the hold harmless agreement.

IV.

Is the Defendant Entitled to an Award of Attorney Fees

In its issues on appeal, the University states that it “requests attorney fees on appeal pursuant to Idaho Code § 12-120(3), Idaho Code § 12-121, and/or Idaho Rule of Civil Procedure 54(e)(1).” However, it did not again mention attorney fees until it states in the conclusion section of its brief, “Respondent further requests an award of attorney fees on appeal pursuant to Idaho Code § 12-120 (3), Idaho Code § 12-121, and/or I.R.C.P Rule 54(e)(1).” As we held in Weaver v. Searle Brothers, 129 Idaho 497, 503, 927 P.2d 887, 893 (1996), [HN7] where a party requests attorney fees on appeal but does not address the issue in the argument section of [*1260] the party’s brief, we will not address the issue because the party has failed to comply with Idaho Appellate Rule 35.

Conclusion.

We affirm the judgment of the district court. We award the respondent costs, but not attorney fees, on appeal.

Chief Justice BURDICK, Justices W. JONES, and HORTON CONCUR.

CONCUR BY: J. JONES (In Part)

DISSENT BY: J. JONES (In Part)

DISSENT

J. JONES, J., concurring in [**22] part and dissenting in part.

I concur in Part II of the Court’s opinion but dissent with respect to Part III. In my view, the Release/Hold Harmless/Indemnity/Assumption of Risk Agreement (Agreement) does not contain language effective to release Northwest Nazarene University (NNU) from liability for its own negligent actions; the release language in the Agreement is overly broad; and it would be contrary to public policy to provide immunity under the particular facts of this case.

Although this Court disfavors contracts purporting to absolve parties from certain duties and liabilities, contracting parties are free to enter into such agreements if they comply with strict criteria. As this Court summarized in Jesse v. Lindsley, 149 Idaho 70, 75, 233 P.3d 1, 6 (2008):

Freedom of contract is a fundamental concept underlying the law of contracts. Rawlings v. Layne & Bowler Pump Co., 93 Idaho 496, 499, 465 P.2d 107, 110 (1970). A contracting party may absolve himself from certain duties and liabilities under the contract, subject to certain limitations. Anderson & Nafziger v. G.T. Newcomb, Inc., 100 Idaho 175, 178, 595 P.2d 709, 712 (1979). However, courts look with disfavor on such attempts [**23] to avoid liability and construe such provisions strictly against the person relying on them, especially when that person is the preparer of the document. Id. Clauses which exclude liability must speak clearly and directly to the particular conduct of the defendant which caused the harm at issue. Id.

Where a party seeks to obtain contractual absolution from the consequences of that party’s own negligence, the release language must be particularly clear. As stated in 57A American Jurisprudence, 2d Negligence § 52 (2004):

Because the law does not favor contract provisions that relieve a person from his or her own negligence, and such provisions are subject to close judicial scrutiny, a greater degree of clarity is required to make such provisions effective. The exculpatory provision must be expressed in clear, explicit, and unequivocal language showing that this was the intent of the parties. The wording of such an agreement must be so clear and understandable that an ordinarily prudent and knowledgeable party to it will know what he or she is contracting away; it must be unmistakable.

American Jurisprudence continues the discussion in section 53:

To be effective, the intentions of the parties [**24] with regard to an exculpatory provision in a contract should be delineated with the greatest of particularity, and the clause must effectively notify the releasor that he or she is releasing the other person from claims arising from that person’s own negligence.

An exculpatory clause will be given effect if the agreement clearly and unambiguously expresses the parties’ intention to exonerate by using the word “negligence” and specifically including injuries definitely described as to time, place, and the like. Thus, the better practice is to expressly state the word “negligence” somewhere in the exculpatory provision. However, a specific reference to the “negligence” of the maker of the clause or agreement is not required if the clause clearly and specifically indicates an intent to release the defendant from liability for a personal injury caused by the defendant’s negligence, if protection against negligence is the only reasonable construction, or if the hazard experienced was clearly within the contemplation of the provision. However, words conveying a similar import must appear; the provision must specifically and explicitly [*1261] refer to the negligence of the party seeking a release [**25] from liability. A preinjury release will not cover negligence if it neither specifically enumerates negligence, nor contains any other language that could relate to negligence.

A general release will not bar claims outside the parties’ contemplation at the time it was executed. For example, a claim for negligence will not be barred by using broad and sweeping language, as by an agreement to release from “any and all responsibility or liability of any nature whatsoever for any loss of property or personal injury occurring on this trip.” Thus, an exculpatory clause must clearly set out the negligence for which liability is to be avoided.

Id. § 53.

The Agreement addresses four subjects–release, hold harmless, indemnity, and assumption of risk. The first paragraph of the Agreement, entitled “Release,” is a general release of liability,³ whereby participants in NNU’s Challenge Course Adventure Program (Program) release and waive claims against [**26] NNU and its agents and employees for property damage or bodily injury arising out of the Program. The word “negligence” does not appear anywhere in the Release. The second paragraph of the Agreement is a hold harmless/indemnity provision,⁴ whereby the participant “agrees to defend, indemnify and hold harmless” NNU and its agents and employees from liability incurred due to participation in the Program “whether caused by the negligence of the Releasees or otherwise.” Thus, the participant is obligated to defend and hold harmless the releasees against claims arising out of his or her participation in the Program. This paragraph specifically includes indemnity for claims alleging negligence on the part of NNU and its agents and employees. The last paragraph deals with assumption of risk,⁵ stating that the participant is aware that the course may be hazardous and that participants assume the risk of property damage and bodily injury. However, as with the Release, this paragraph makes no mention of negligence on the part of NNU and its agents and employees.

3 According to Black’s Law Dictionary, a “release” is “[t]he relinquishment or concession of a right, title, or claim.” Black’s Law Dictionary [**27] 1403 (9th ed. 2009).

4 According to Black’s, a “hold-harmless clause” is synonymous with an “indemnity clause,” which is “[a] contractual provision in which one party agrees to answer for any specified or unspecified liability or harm that the other party might incur.” Id. at 800, 837-38.

5 According to Black’s, “assumption of the risk” is “[t]he principle that one who takes on the risk of loss, injury, or damage cannot maintain an action against a party that causes the loss, injury, or damage.” Id. at 143. Although implied assumption of the risk has been abolished as a defense in Idaho, this Court still recognizes that express assumption of risk may preclude a negligence claim. Salinas v. Vierstra, 107 Idaho 984, 989-90, 695 P.2d 369, 374-75 (1985).

It is significant that only the hold harmless/indemnity paragraph of the Agreement includes a provision relating to the negligence of NNU. The word “negligence” appears nowhere else in the Agreement, particularly not in the Release nor in the assumption of risk paragraph. It is important to keep in mind that a hold harmless/indemnity clause does not operate as a bar to a claim in the same way as a “release” or “assumption of risk” clause might. [**28] So, where the party seeking immunity faces the double whammy of our construction principles–construing release provisions strictly against the person relying on them and requiring such provisions to speak clearly and directly to the particular instrumentality that caused the harm–I simply cannot find that the release language here is sufficient to waive Morrison’s claim. NNU could have included a provision in the Release absolving it and its agents and employees from liability, but it did not. It could have done likewise in the assumption of risk paragraph, but it did not. Where such language is specifically included in one paragraph dealing with specific subject matter [*1262] and not in the other paragraphs, both of which deal with other specific subject matter, I think we ought to give weight to that fact, particularly when required to construe such agreements against the avoidance of liability.

Therefore, in my view, the release paragraph of the Agreement is insufficient to immunize against claims asserting injury for negligent acts by NNU and its agents and employees. In my estimation, NNU had a duty to operate the program in a non-negligent manner and Morrison has asserted sufficient [**29] facts to survive summary judgment as to whether NNU breached such duty. Morrison claims that he was not properly instructed on how to scale down the climbing wall and that the person holding the rope, which is apparently designed to keep a participant from falling, was not properly instructed and supervised in performing that task. According to Morrison:

I had very little knowledge of climbing before [the accident]. I trusted and relied that the people running the course would properly instruct me and the people who were holding the rope that allowed me to scale down the wall. I do not believe that they gave me nor Donna Robbins, who was holding my rope, adequate instruction before this event nor do I believe that they adequately supervised Donna in properly handling the rope while I descended the wall.

The person holding the rope, Donna Robbins, agreed that she had not been properly instructed nor supervised. According to her affidavit, “I did feel that I had not been given adequate training to act as the belayer and I felt that I was neglected by the employees at the Rope Course when I was needing help.” In her statement made immediately after the accident, which was incorporated into [**30] her affidavit, she expanded:

The female assistant on site asked me to balet [sic] if I wasn’t going to climb the wall. I wasn’t comfortable working the equipment but I knew I should be a part of the team and help [belay]. I remember feeling like I was thrown in there and did not receive any further instruction other than where to hold my hands. After she strapped me in I was good to go. Soon she realized I was having trouble knowing what to do and informed me that I needed to pull the rope tight and slide the extra rope through my other hand to make it tight. She then placed another girl to my right and instructed her to coil the rope. I was the only one baleting [sic] and had one girl to my right holding the extra rope. As soon as they pulled the [ladder] away and Paul started climbing, I began to have trouble with the rope. The assistant assured me I was strapped down to the pole behind me and that I needed to walk forward away from the pole until I felt it was tight enough to not leave any slack. As soon as Paul reached the middle of the wall, his legs began to get tired and he would rest a little. But every time he would stop to rest, the rope pulled me into the air and the others [**31] around were laughing and joking around about the [sight] of me and my feet being off the ground and my body being pulled into the air. At first, it was comical but I felt like I couldn’t control him. I knew he had to keep climbing or else this strain on me would begin to hurt. So I just cheered him on. I looked around and everyone was just smiling so I figured I wasn’t going anywhere and there was nothing to worry about. Paul looked down and looked a little worried. He asked me if I was ok. I said yes. When Paul finally got to the top, he rang the bell and was ready to let go. When he did, if felt like an extreme pull on me and the assistant came quickly to briefly explain what to do. She told me to hold onto the [brake] (that also releases the rope). I think she thought she was explaining it to me–but she wasn’t. I told her I didn’t know how to use it. She said “its really easy,” just make sure you pull down the level.” She was walking away from me as she was saying this and she seemed very busy with other people. I didn’t think it would be too difficult. As I pulled the lever, Paul began to come down fast and I honestly don’t remember what I was thinking. I tried to grab the rope [**32] but it just stung my fingers and I knew I couldn’t stop it that way. I kept trying to figure it out quickly. The girl to my right [*1263] was helpless as well. The rope was just flying out her hands. I looked up and Paul’s feet, then butt, hit the rocks very fast and head hit very hard on the wooden frame around the rocks.

My feeling throughout the rock-climbing activity was that I was alone and assigned to do it because I had to. I wasn’t comfortable at all but the assistant felt I was well taken care of. Even though I didn’t answer her twice when she asked for volunteers, so she called me out and handed me the [belay]. But I did want to be a part of the team and help but had never done it before and was pretty intimidated.

Even if we were permitted to import the specific reference to negligent conduct from the hold harmless/indemnity paragraph into the Release, that paragraph suffers from another infirmity. It is overly broad. It purports to release NNU and its agents and employees from any claims for property damage or bodily injury “however caused, resulting from, or arising out of or in any way connected with his/her participation in or use of the Northwest Nazarene University Challenge [**33] Course Adventure Program.” The sweeping nature of the provision runs afoul of the specificity requirements noted in sections 52 and 53 of American Jurisprudence. This Court has found a similar all-encompassing provision in a lease agreement to be overly broad. In Jesse v. Lindsley, we dealt with an exculpatory clause that attempted “to relieve the landlord of liability for any type of injury, wherever it may occur.” 149 Idaho at 76, 233 P.3d at 7. We held, “The clause is too broad and does not speak clearly and directly to the particular conduct of the defendant intended to be immunized,” citing Anderson & Nafziger, 100 Idaho 175, 178, 595 P.2d, 709, 712 (1970). We stated:

While we have not considered the question of the enforceability of an overbroad exculpatory clause, we have considered the issue of enforceability of an overbroad contract provision in another area where a contractual provision is disfavored and strictly construed–covenants not to compete in contracts of employment. See Freiburger v. J-U-B Engineers, Inc., 141 Idaho 415, 420, 111 P.3d 100, 105 (2005). A covenant not to compete is reasonable and enforceable only if the covenant “(1) is not greater than necessary to [**34] protect the employer in some legitimate business interest; (2) is not unduly harsh or oppressive to the employee; and (3) is not injurious to the public.” Id. Applying the same principle here, it appears that the language absolving Lindsley of any liability for any occurrence anywhere on his property is simply too broad.

Id. at 76-77, 233 P.3d at 7-8.

In its opinion, the Court nicely summarizes some of our pre-Jesse cases regarding the degree of specificity required in a lease provision, and in my view none of those cases preclude the result I suggest here. In Lee v. Sun Valley Co., 107 Idaho 976, 695 P.2d 361 (1984), the plaintiff was injured when the saddle on a rented horse slipped, causing the horse to buck. Id. at 977, 695 P.2d at 362. The Court found that the plaintiff’s action was precluded by an agreement he signed acknowledging that he assumed the risk of riding and holding the defendant “harmless from every and all claim which may arise from injury, which might occur from use of said horse and/or equipment.” Id. Although the Court articulated little reasoning for its holding, a fall from a horse due to a loose saddle is a danger inherent in horseback riding itself. Thus, the [**35] agreement’s language was sufficient to put the plaintiff on notice of that risk. Of interest, however, is that the release specifically identified the “equipment” as a potential source of injury, which is not the case here.⁶ In H. J. Wood Co. [*1264] v. Jevons, the Court evaluated a sales contract for an irrigation pump stating the seller “shall not be liable for damage or for consequential damage, particularly including loss or damage for diminution or failure of crops … whether due to improper installation or performance of the machinery or otherwise.” 88 Idaho 377, 378, 400 P.2d 287, 289 (1965). The plaintiff’s claims for crop loss in that case all stemmed from the allegation that “the pump never functioned properly” and the consequences of that malfunction, which is clearly and directly contemplated by the “performance of the machinery” language in the agreement. See id. Thus, the Court correctly applied the rule.

6 In this regard, a case cited in section 53 of American Jurisprudence is relevant. In Beardslee v. Blomberg, 70 A.D.2d 732, 733, 416 N.Y.S.2d 855 (N.Y. App. Div. 1979), a spectator at a stock car race volunteered to take part in a “Powder Puff Derby,” a stock car race for women. When the spectator’s [**36] car struck a retaining wall of the race track, she alleged the defendant raceway was negligent in “providing her with an unsafe vehicle, a defective helmet, and in failing to supply her with a fire suit.” Id. The defendant relied on a release she had signed to bar her claim (the language of which is not entirely quoted in the opinion), but the New York Supreme Court, Appellate Division, stated:

The release absolves the defendants from liability for any injury plaintiff might sustain while in the “restricted area”, which includes the race track proper. It does not, however, specifically refer to equipment furnished by the defendants. Releases from liability for negligence are closely scrutinized and strictly construed, and a release general in its terms will not bar claims outside the parties’ contemplation at the time it was executed …. Furthermore, since the release herein is not entirely free of ambiguity, an issue of fact exists as to whether the risk of faulty equipment or the failure to furnish essential equipment was within the contemplation of the parties at the time it was executed ….

Id.

Another irrigation equipment contract case, Rawlings v. Layne & Bowler Pump Co., was [**37] similar. 93 Idaho 496, 465 P.2d 107 (1970). There, the claim for crop loss was based on negligent installation of pumping equipment, and the Court barred the claim based on an agreement exculpating the seller from liability for consequential damage “due to installation … of the property sold hereunder.” Id. at 497, 465 P.2d at 108.⁷ Although the particular negligent conduct was not addressed, further specificity was not necessary to put the buyer on reasonable notice of the claim he was waiving. Id. Buying any item under a contract specifically limiting liability for defects in installation clearly brings to mind the discrete array of possible installation-related conduct that entails. Such a contract does far more to notify the signer than simply including blanket language barring liability for any type of negligent conduct imaginable.

7 The contract later specifically identified negligence of the seller as a possible cause. Id.

Similarly, in Steiner Corp. v. American District Telegraph, the defendant contracted with the plaintiff to perform two discrete services–to install and maintain a fire detection system. 106 Idaho 787, 683 P.2d 435 (1984). When the defendant failed to check [**38] the batteries of the system for eight months, the system failed to detect a fire in the plaintiff’s building. Again, the Court found that such negligence fell under an exculpatory clause holding the defendant harmless for “loss or damage due … to occurrences … which the service is designed to detect or avert” resulting from “performance or nonperformance of obligations imposed by this contract or from negligence” of the defendant. Id. at 789, 683 P.2d at 437. This agreement specifically spoke to the alleged conduct by expressly referring to the discrete duties under the contract–to install and maintain. In signing the agreement, the plaintiff undoubtedly understood he was giving up claims for fire damage arising from failure to maintain the system, which reasonably included checking the batteries.

Conversely, in Anderson & Nafziger, the Court refused to find that a sales agreement for irrigation pivots contemplated liability for crop loss caused by delay in delivering the pivots, based on a strict reading of the agreement’s language. 100 Idaho at 178, 595 P.2d at 712. Although the agreement contained blanket language stating that “[t]he Seller will not be liable for damage of any [**39] kind, particularly including loss or damage for diminuation [sic] or failure of crop,” the Court held that the agreement did not apply. Id. The Court stated, “A reading of the total clause indicates that the clause is aimed at limiting the seller’s liability for crop loss which is caused by installation or repair work done by seller.” Id. With a loose reading, the Court might have found that the blanket language exempting liability “for damage of any kind” extended not only to that caused by installation and repair, but also by delay in delivery. However, the Court declined such a broad reading, focusing strictly on the language in the contract.⁸

8 Another case, Empire Lumber Co. v. Thermal-Dynamic Towers, Inc., also shows the Court taking a closer look at an exculpatory clause, although the result there was more obvious. 132 Idaho 295, 971 P.2d 1119 (1998). In Empire Lumber, a lessee sought to apply a lease provision to excuse its liability for a fire allegedly caused by its negligence. Id. The Court disagreed because the lease merely stated, “Except for reasonable wear and tear and damage by fire or unavoidable casualty, Lessee will at all times preserve said premises in as good repair [**40] as they now are or may hereafter be put to ….” Id. at 297, 971 P.2d at 1121. As the Court properly found, that clause clearly only contemplated incidental or unavoidable damage–not negligence. Id.

[*1265] The upshot of these pre-Jesse cases is that where the dangers or risks inherent in a particular undertaking are, or should be, apparent to a reasonable person and where the release agreement employs clear and direct language to negate liability for such risks or dangers, the release will be effective to shield the releasee from liability. On the other hand, where a reasonable releasor cannot be expected to comprehend the risk or danger that results in injury and where the release does not contain language that speaks directly to limitation of liability for injury caused by such risk or danger, the release will not be enforced.

In the situation at hand, it cannot be said that the danger of falling from the rock wall was not readily apparent to any reasonable person. Morrison would surely have known that he could lose his grip or footing and fall. However, the activity involved a danger that was not so readily apparent. This activity involved equipment and a procedure that may have appeared [**41] on the surface to alleviate or eliminate the risk. The belaying rope, like a trapeze artist’s safety net, was there, apparently to protect participants from the danger of a fall. This certainly would give a participant a certain measure of comfort and well being–knowing that the element of danger might well be alleviated or eliminated by the safety equipment. It is one thing to expose a participant to the “dangers inherent” in a particular activity and ask him to waive a consequent claim for damages, but it is quite another to give the participant the illusion of protective measures–thereby providing a false sense of security–and then fail to properly implement those protective measures. It is akin to a bait and switch. If protective measures are carried out in a competent manner, then an accident occurring in the course of the proceedings cannot be held against the sponsor. However, if those protective measures are inherently inadequate, by reliance on untutored or incapable personnel in their handling, the sponsors should not be shielded from responsibility by a waiver signed by an unwitting participant.

It makes sense to encourage sponsors of risky activities to adopt safety measures [**42] designed to alleviate or eliminate the risk to participants. It is not particularly good policy, however, to allow sponsors to escape liability when those safety measures are handled in an incompetent or negligent manner, unless participants are clearly put on notice that safety measures or equipment may not provide the margin of safety that one might reasonably anticipate. Nothing in the Release here indicates the employment of “equipment,” as the language in Lee did, nor of the possibility that any safety equipment might be operated in a faulty manner. Sponsors should be encouraged to adopt safety measures, but they should be held accountable where those measures are performed in a negligent fashion.

In the past, this Court has not been reluctant to embrace concepts of this nature, designed to provide redress where it may not have been previously available. For instance, the Court has adopted the doctrine that, “[e]ven when an affirmative duty generally is not present, a legal duty may arise if ‘one voluntarily undertakes to perform an act, having no prior duty to do so.'” Baccus v. Ameripride Services, Inc., 145 Idaho 346, 350, 179 P.3d 309, 313 (2008). “In such case, the duty is [**43] to perform the voluntarily-undertaken act in a non-negligent manner.” Id. As with a voluntarily assumed duty, it makes good sense and policy to require that an activity sponsor who purports to make a risky activity safe, by the apparent incorporation of protective measures, be required to ensure the protective measures are carried out in a non-negligent manner or provide specific warning to participants that a risk of negligence in that regard inheres in the activity.⁹

9 As we have noted on a number of occasions, “Public policy may be found and set forth in the statutes, judicial decisions or the constitution.” Jesse v. Lindsley, 149 Idaho at 75, 233 P.3d at 6 (quoting Bakker v. Thunder Spring-Wareham, LLC, 141 Idaho 185, 189, 108 P.3d 332, 336 (2005)).

[*1266] For all or any one of the foregoing reasons, I would vacate the judgment of the district court on the ground that the Agreement was ineffective to shield NNU from liability for Morrison’s claim. I would therefore remand for further proceedings.

You don’t ask for help, you don’t pay, you aren’t a member but you sue when you were not properly trained.

Posted: October 3, 2012 | Author: Recreation Law | Filed under: Climbing Wall, Idaho | Tags: AdventureTravel, Grigri, Idaho, Jim Moss, Outdoor recreation, Rock climbing, YMCA | Leave a comment

Settlement in the Wood River, ID YMCA lawsuit

I wrote about this lawsuit, and the injury right after it happened. See Climbing accident at Ketchum Idaho indoor Climbing Wall and Update on climbing wall accident at Wood River YMCA Climbing Wall. A lot, more facts came out in this latest article that makes the plaintiff’s position look weak if not worse.

In this suit, the plaintiff claimed:

He contended that the Y was negligent in not training him how to use the climbing equipment and that the rope and self-belay device that he was using suddenly detached from the climbing wall while he was 20 feet up

The YMCA defended saying, “Hopfenbeck had signed a liability release. Furthermore, the Y claimed, he had considerable experience at climbing on indoor walls.”

However, this is the statement that drives me “up a wall.”

In a deposition, Hopfenbeck acknowledged that he had not paid a fee to use the wall, was not a member of the Y in Ketchum and had not asked anyone’s permission to climb. He said he began climbing on his own after taking a ballet class at the Y, but a Y employee did ask him to sign a liability waiver.

When you go use a climbing wall without being a member, without telling anyone, without getting permission to use the wall, how is the Y supposed to train you?

The plaintiff also stated:

Hopfenbeck said another climber there showed him how to use a Grigri belaying device, which can be used to self-belay. He said he practiced with it some, then climbed to the top of the wall and lay back in his harness to rest.

It was the YMCA’s fault he never knew how to use the complicated belay device?

Results – probably not good

This lawsuit was brought in Idaho and settled before the defendant’s motion for summary judgment on the release had been decided by the court. However, I can’t believe that an Idaho jury would allow this plaintiff to recover any money.

How can you trespass, use a device and get hurt then argue you were not trained in how to use the device?

The real problem is there is probably a gate at the Y and the people on the climbing wall probably have a wrist band. YMCA’s all over the world having instituted stricter

polices (however, I doubt they have updated their releases) to make sure no one climbs the wall without signing a release and receiving instruction.

Any settlement is better than a trial, but sometimes you just want to win because the claims are so outlandish.

I hope they deducted the fee for a YMCA membership the year he was hurt from his settlement.

See YMCA settles negligence lawsuit

What do you think? Leave a comment.

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I write sometimes about emotions: anger, frustration or grief

Posted: May 14, 2008 | Author: Recreation Law | Filed under: Climbing, Idaho | Tags: Anger, Family, Grief Loss and Bereavement, health, Idaho, Mental Health, Support group | Leave a comment

In this case a family has taken their grief over the loss of a mountain climbing son and created an organization to assist in finding lost climbers. The Jon Francis Foundation was set up to help families search for missing loved ones.

Jon Francis was a 24 year old climber who was missing for a year on an Idahomountain.

Image via Wikipedia

Jon’s father is also writing a book detailing the year long search for his son.

In all the family has undertaken a lot of work to help others they do not know. It has very real and well founded goals of helping others. All of the work is driven over the loss of a loved one. Always remember when you are dealing in this situation you are dealing with more emotion than many people can deal with. This emotion does not fade like most, in some cases it may continue to build.

In this case it has resulted in helping others who may be in the same terrible situation.

Stillwater family turns grief into purpose

It's not what I write, It's what you Learn

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To Read an Analysis of this decision see

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§ 6-1101. Legislative purpose

§ 6-1102. Definitions

§ 6-1103. Duties of ski area operators with respect to ski areas

§ 6-1104. Duties of ski area operators with respect to aerial passenger tramways

§ 6-1104. Duties of ski area operators with respect to aerial passenger tramways

§ 6-1105. Duties of passengers

§ 6-1106. Duties of skiers

§ 6-1107. Liability of ski area operators

§ 6-1108. Liability of passengers

§ 6-1109. Liability of skiers

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Argument that plaintiff was forced to sign a release by an employer did not prevail, but it was taken seriously by the court.

Summary of the case

So Now What?

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Morrison, v. Northwest Nazarene University, 273 P.3d 1253; 2012 Ida. LEXIS 82

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Settlement in the Wood River, ID YMCA lawsuit

Results – probably not good

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Copyright 2012 Recreation Law (720) Edit Law,

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