States that allow a parent to sign away a minor’s right to sue.
Posted: March 25, 2024 Filed under: Alaska, Arizona, California, Colorado, Florida, Indiana, Maryland, Massachusetts, Minnesota, Nebraska, New York, North Carolina, North Dakota, Ohio, Release (pre-injury contract not to sue), Utah, Virginia, Wisconsin | Tags: Exculpatory Agreement, guardian, Minor, parent, Parents right to waive minor's right to sue, releases, waivers Leave a commentUnless listed here, your state does not allow a parent or guardian to sign away a minor’s right to sue.
Check with your local attorney before relying on any information on this website.
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 |
Jim is the author or co-author of six books about legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management, and Law.
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
G-YQ06K3L262
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.
Author: Outdoor Recreation Insurance, Risk Management, and Law To Purchase Go Here:
Facebook Page: Outdoor Recreation & Adventure Travel Law
Email: Jim@Rec-Law.US
By Recreation Law Rec-law@recreation-law.com James H. Moss
@2008-2024 Summit Magic Publishing, LLC
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, minor, release, Parent Signature, NC, North Carolina, Alaska, AK, AZ, Arizona, CO, Colorado, Florida, FL, CA, California, MA, Massachusetts, Minnesota, MN, ND, North Dakota, OH, Ohio, WI, Wisconsin, Hohe, San Diego, San Diego Unified School District, Global Travel Marketing, Shea, Gonzalez, City Of Coral Gables, Sharon, City of Newton, Moore, Minnesota Baseball Instructional School, McPhail, Bismark Park District, Zivich, Mentor Soccer Club, Osborn, Cascade Mountain, Atkins, Swimwest Family Fitness Center, Minor, Minors, Right to Sue, Utah, UT, Equine, Equine Safety Act, North Carolina, New York,
Release validity was based on whether brother had authorized brother to sign electronic release for him.
Posted: January 29, 2024 Filed under: Massachusetts, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: Electronic Release, Release, Rental Release, Ski Rental, Wachusett Mountain Ski Area, Waiver Leave a commentThe issue revolved around the authority of one brother to sign the electronic release on behalf of the other brother.
Marken v. Wachusett Mountain Ski Area, Inc., 21-P-667 (Mass. App. May 02, 2022)
State: Massachusetts; Appeals Court of Massachusetts
Plaintiff: Charles Marken
Defendant: Wachusett Mountain Ski Area, Inc.
Plaintiff Claims: Negligence
Defendant Defenses: Release
Holding: Ski Area Defendant
Year: 2022
Summary
One brother signed the release for himself and his other brother when renting ski equipment at the resort. The non-signing brother was injured and sued. The release was upheld because the non-injured brother stated during his deposition that he had the authority to sign for his brother.
Facts
On January 7, 2017, the plaintiff, a beginner skier, met his brother, Anthony Marken, at Wachusett Mountain for a day of skiing. When Charles arrived, Anthony was at the rental shop. Anthony had already rented ski equipment for both of them by the time Charles arrived.
In order to rent equipment, a renter must agree to the terms of a rental agreement using a digital kiosk system. After reviewing the rental agreement, which contains a release from “any legal liability,” renters must click “I agree” on the screen. The renter then enters personal information including height, weight, age, boot size, and skier type. The system uses this information to calculate the appropriate ski binding release setting. Once the rental agreement is signed, the system prints a sticker with the renter’s information, including the binding release setting. The ski technician uses the information on the sticker to select ski boots that are fitted to match the renter’s boot size and binding release setting. Charles and Anthony obtained their equipment consistent with the foregoing process, and began to ski. Charles, an admitted beginner, fell twice while skiing prior to the injury at issue; on both occasions, his bindings released properly. At some point, Charles decided to ski a black diamond trail which is for expert skiers. During that run, Charles tried to slow down. He fell, sustained serious injuries to his left leg, and was transported to a hospital. Thereafter, the defendants tested the equipment that Charles had used. The equipment passed inspection and testing, and was returned to the rental inventory.
Analysis: making sense of the law based on these facts.
Releases in Massachusetts are supported and normally upheld.
Generally, we will enforce a release disposing of all claims and demands arising out of any transactions between parties. Indeed, “Massachusetts law favors the enforcement of releases. This is true even where, as here, the party signing the release either does not read it or does not understand it.
Since the non-suing brother signed the release for the brother who was injured, the issue became one of authority. Did the brother that got injured authorize his brother to sign the release for him.
The non-injured brother said unequivocally yes his brother gave him the authority to sign. The injured brother argued on appeal he had not given his brother the authority to sign the release.
Charles does not challenge the validity or enforceability of the release itself. Instead, he claims that the release is unenforceable because he did not sign it, and did not authorize Anthony to sign it on his behalf. However, this claim is belied by Charles’s sworn deposition testimony. Charles was asked, “Had you authorized your brother to [complete the rental agreement] for you?” He answered, “Yes.” He did not equivocate and did not amend his deposition answers. Charles cannot now create an issue of material fact by claiming that he did not authorize Anthony to sign the release on his behalf.
Since the non-injured brother was so firm with his answer, that testimony was accepted by the courts and the release was valid.
So Now What?
This is a tough situation that resorts, outfitters, and rental programs face every day. More so with releases being signed online. Who is signing the release.
Your options for solving this problem are multiple, however none of them lend themselves to great customer service.
You can have each person complete their information and sign the release for themselves and only themselves.
You could have the person signing on the computer state they have the legal authority to sign for the other people listed on the release at that point.
To verify who is signing the release, you need to make sure you know who is signing the release. The secure way of doing this is to have the person fill out their credit card information first and then agree to the release. Their contract with the credit card company states that since it is their credit card they are the ones that are using it.
Either way, it is a mess. However, for your releases to be valid, you need to know who has signed the release when they enter your establishment and those who have not signed, complete the information and sign the release.
G-YQ06K3L262
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.
Author: Outdoor Recreation Insurance, Risk Management and Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
Email: Jim@Rec-Law.US
By Recreation Law Rec-law@recreation-law.com James H. Moss
@2024 Summit Magic Publishing, LLC
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,
Marken v. Wachusett Mountain Ski Area, Inc., 21-P-667 (Mass. App. May 02, 2022)
Posted: January 29, 2024 Filed under: Massachusetts, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: Electronic Release, Release, Rental Equipment, skiing, Wachusett Mountain Associates, Wachusett Mountain Ski Area Leave a commentTo Read an Analysis of this decision see: Release validity was based on whether brother had authorized brother to sign electronic release for him.
CHARLES MARKEN
v.
WACHUSETT MOUNTAIN SKI AREA, INC., & another.[1]
No. 21-P-667
Appeals Court of Massachusetts
May 2, 2022
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel’s decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Charles Marken, filed a complaint in the Superior Court against Wachusett Mountain Ski Area, Inc. and Wachusett Mountain Associates, Inc. (the defendants or Wachusett) for injuries he sustained while skiing.[2] On cross motions for summary judgment, the judge allowed the defendants’ motion and dismissed the complaint. This appeal followed. We affirm.
Background.
As the party against whom summary judgment entered, we recite the facts in the light most favorable to the plaintiff. See Cesso v. Todd, 92 Mass.App.Ct. 131, 132 (2017). On January 7, 2017, the plaintiff, a beginner skier, met his brother, Anthony Marken, at Wachusett Mountain for a day of skiing. When Charles arrived, Anthony was at the rental shop. Anthony had already rented ski equipment for both of them by the time Charles arrived.[3]
In order to rent equipment, a renter must agree to the terms of a rental agreement using a digital kiosk system. After reviewing the rental agreement, which contains a release from “any legal liability,” renters must click “I agree” on the screen. The renter then enters personal information including height, weight, age, boot size, and skier type. The system uses this information to calculate the appropriate ski binding release setting. Once the rental agreement is signed, the system prints a sticker with the renter’s information, including the binding release setting. The ski technician uses the information on the sticker to select ski boots that are fitted to match the renter’s boot size and binding release setting. Charles and Anthony obtained their equipment consistent with the foregoing process, and began to ski. Charles, an admitted beginner, fell twice while skiing prior to the injury at issue; on both occasions, his bindings released properly. At some point, Charles decided to ski a black diamond trail which is for expert skiers. During that run, Charles tried to slow down. He fell, sustained serious injuries to his left leg, and was transported to a hospital. Thereafter, the defendants tested the equipment that Charles had used. The equipment passed inspection and testing, and was returned to the rental inventory.
Discussion.
“We review a motion for summary judgment de novo. … In doing so, we must determine ‘whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law.'” Psychemedics Corp. v. Boston, 486 Mass. 724, 731 (2021), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). Here, the defendants claim that the release of liability in the rental agreement is valid and enforceable against the plaintiff. Generally, we will enforce a release disposing of all claims and demands arising out of any transactions between parties. See Leblanc v. Friedman, 438 Mass. 592, 597-598 (2003). Indeed, “Massachusetts law favors the enforcement of releases.” Sharon v. Newton, 437 Mass. 99, 105 (2002). This is true even where, as here, the party signing the release either does not read it or does not understand it. See Id. at 103.
Charles does not challenge the validity or enforceability of the release itself. Instead, he claims that the release is unenforceable because he did not sign it, and did not authorize Anthony to sign it on his behalf.[4] However, this claim is belied by Charles’s sworn deposition testimony. Charles was asked, “Had you authorized your brother to [complete the rental agreement] for you?” He answered, “Yes.”[5] He did not equivocate and did not amend his deposition answers. See Tarn v. Federal Mgt. Co., 99 Mass.App.Ct. 41, 46-50 (2021). Charles cannot now create an issue of material fact by claiming that he did not authorize Anthony to sign the release on his behalf. See O’Brien v. Analog Devices, Inc., 34 Mass.App.Ct. 905, 90 6 (1993) (party cannot create disputed issue of fact by contradicting statements previously made under oath at deposition). As such, summary judgment was properly granted to the defendants.[6] See Tarn, supra (summary judgment proper where plaintiff was bound by deposition testimony and where binding admission established she could not prevail at trial).
Request for attorney’s fees and costs.
The defendants’ request for attorney’s fees and costs is allowed. The defendants may submit a petition for appellate attorney’s fees to this court in the manner prescribed in Fabre v. Walton, 441 Mass. 9, 10-11 (2004), within twenty days of the issuance of this memorandum and order. The plaintiff may respond to the petition within twenty days of said filing.
Judgment affirmed.
Blake, Lemire & Hershfang, JJ. [7]
———
Notes:
[1] Wachusett Mountain Associates, Inc. All claims against third-party defendant Head USA, Inc. were voluntarily dismissed prior to the entry of summary judgment, and it is not a party to this appeal.
[2] The complaint asserted claims for negligence, breach of express and implied warranty, breach of contract, breach of the implied covenant of good faith and fair dealing, and negligent misrepresentation.
[3] Because the plaintiff and his brother share a surname, we use their first names to avoid confusion.
[4] Charles testified that on previous ski trips he had signed a release, and therefore he expected to sign a release at Wachusett.
[5] To the extent that Charles argues that this question and answer must be viewed in context with the entire line of questioning, we agree. In so doing, we conclude that Charles authorized Anthony to sign the rental agreement containing the release on his behalf. See Fergus v. Ross, 477 Mass. 563, 567 (2017) (“Apparent authority exists when the principal, by his . . . words or conduct, causes a third person to reasonably believe that the principal consents to the agent acting on the principal’s behalf”).
[6] Because of the result we reach, we do not consider Charles’s spoliation of evidence claim.
[7] The panelists are listed in order of seniority.
G-YQ06K3L262
Massachusetts accepts releases and in this case, there was no argument about the validity of the release.
Posted: May 1, 2023 Filed under: Massachusetts, Release (pre-injury contract not to sue), Sports | Tags: Athlete, Batter, College Athlete, Drills, Gross negligence, Massachusetts, Practice, recklessness, Release, softball, student athlete, Waiver Leave a commentA college softball player was struck in the head during batting practice. No negligence because a release stopped simple negligence claims and there was no proof of gross negligence.
Brandt v. Davis, 98 Mass. App. Ct. 734, 159 N.E.3d 191 (Mass. App. 2020)
State: Massachusetts: Appeals Court of Massachusetts, Suffolk
Plaintiff: Brooke A. Brandt
Defendant: Jaclyn Davis & others
Plaintiff Claims: negligence, gross negligence, and recklessness
Defendant Defenses: Release and no duty
Holding: For the Defendants
Year: 2020
Summary
Massachusetts law allows a trial court to dismiss a case when a release is used, and the pleadings do not have the facts necessary to prove reckless conduct or gross negligence on the part of the defendant.
In this case, a batter, the coaches and a university were not liable for the injuries of a player when she walked into the range of a batter.
Facts
The plaintiff played softball as a member of the Suffolk University women’s team, a National Collegiate Athletic Association Division III team. As a condition of her participation on the team, the plaintiff signed a participant waiver and release of liability form. The waiver released Suffolk University and its employees and agents from liability for any claims arising from her participation in the athletic program to the extent “permitted by the law of the Commonwealth of Massachusetts.”
On the day of the accident, the team was practicing in an indoor practice facility. The team engaged in the same general pattern of activities during practices. After warming-up, the team would leave the playing area to get their equipment, and then meet on the field. The players had to leave the playing area to get their equipment, because they hung their equipment outside the playing area on a fence. During their practices, the players would run through a series of rotating stations to develop different skills, each requiring different personal equipment. Before the players began their next station, the head coach would say “go” when she was sure everyone was in position and wearing the proper equipment.
Typically, the batting tees would be set up in batting cages, but they were not on the day of the accident. Moveable screens were available to use as protective barriers, but there was no such barrier between the tees and the field entrance on the day of the accident.
At one of the practice stations, players practiced hitting balls off tees into the netting surrounding the field. The tees were placed off to one side of an opening in the netting, which is where players would enter the area. A portable divider was placed on the opposite side of the opening to separate this station from the live hitting station. The players rotated among stations at the direction of the coaches, and were given between two and five minutes to transition before the coaching staff signaled them to start.
During the March 7, 2014, practice, when it was time for the plaintiff to rotate to the live hitting station, she left the field to retrieve her batting helmet and began jogging back with her helmet in her hand. The plaintiff testified in a deposition that she had to go retrieve her batting equipment, because her first station had been fielding. The plaintiff was “moving quickly” to get back to her station.
When the plaintiff returned to the practice area, the teammate was practicing hitting at the “last tee near the door. [The teammate] was the last to get to [her] tee because of the additional time [she] spent practicing [her] footwork.” The teammate was a left-handed batter, and she chose the tee nearest to the door so that the right-handed players in the station would not be within her swinging radius.
In her deposition, the plaintiff testified that she saw that the teammate had a bat in her hand at the tee station and was preparing to bat. The teammate’s back was to the plaintiff when the plaintiff jogged back on the field. The plaintiff did not know whether the teammate could see her because the teammate’s batting helmet limited her peripheral vision. The plaintiff testified that she saw the teammate’s face, but could not say whether that was when she was leaving the field or upon reentering it. She “didn’t feel like [she] was going to get hit” when she ran behind the teammate.
The plaintiff testified that she yelled, “Wait.” However, she could not remember when she said wait or even whether she said it out loud. She admitted that it was possible that she “said wait only in [her] own head.”
The teammate testified in a deposition that she did not begin swinging until instructed to do so by her coaches, and an assistant coach testified that the players were already swinging before the accident. The teammate stated that she “always look[ed] around … before … every single swing.” She did not see the plaintiff.
After the teammate hit the ball off the tee, the teammate’s swing hit the plaintiff in the back of the head. As a result, the plaintiff suffered a concussion and required four stitches at a hospital. She was released from the emergency department the same evening. Because the plaintiff and the teammate were best friends, the teammate stayed with the plaintiff in her dormitory room the night of the accident. A few days later, however, it became evident that the plaintiff was suffering long-term effects from the accident, including difficulty reading.
Analysis: making sense of the law based on these facts.
The court only looked at whether the summary judgment was correct. The trial court found the plaintiff had not pled or proven any claims that would rise to the level of gross negligence or recklessness. The release was presumed valid and was enforced eliminating any basic claims.
The appellate court first looked at the duty owed by participants in athletic events. That means participants must refrain from reckless conduct. “As is well established, “participants in an athletic event owe a duty to other participants to refrain from reckless misconduct.””
This higher level of care is required because to have a lower standard of care would create litigation anytime players interacted physically. When one engages in a sport, one must accept the level of physical contact to be higher. Failure to do so takes the fun out of the play.
The court found that this same level of care or standard also applied to practices. If the players did not practice at a high level, they would not compete at a higher level.
…the Supreme Judicial Court determined that participants in an athletic event owe each other only a duty to avoid reckless conduct. The court did so because it was “wary of imposing wide tort liability on sports participants, lest the law chill the vigor of athletic competition.”
The same reasoning applies to athletic practices. During such practices, players train to improve their competitive performance. Teammates often play against each other as though it is a game through scrimmages and other drills at practice.
The court then proceeded to exam the claims of the plaintiff that the conduct was reckless. Reckless conduct is one person knowing that their actions create a high degree of risk of physical harm and still proceeds to act.
The plaintiff has the burden to prove “the actor knows, or has reason to know … of facts which create a high degree of risk of physical harm to another, and deliberately proceeds to act, or to fail to act, in conscious disregard of, or indifference to, that risk.”
The court reviewed the facts and found there was no reckless conduct on the part of the teammate. The actions of the batter were such that there was no time from when she attempted to swing at the ball until when she made contact with the plaintiff to alter her actions. There was no knowledge of the high degree of physical harm because the batter did not know the plaintiff was behind her. And without that knowledge, there is no recklessness.
The final issue reviewed was whether to the coach, and the universities’ actions were grossly negligent or reckless. The plaintiff’s ordinary or simple negligence claims were barred by the release. Therefore, only the gross negligence claim remained against the university and coaches.
Massachusetts law defines gross negligence as:
“[G]ross negligence is substantially and appreciably higher in magnitude than ordinary negligence. … It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care” The ‘voluntary incurring of obvious risk’ and ‘persistence in a palpably negligent course of conduct over an appreciable period of time’ are among ‘the more common indicia of gross negligence.’ ”
“Gross negligence … is materially more want of care than constitutes simple inadvertence”
Recklessness in this context was defined as:
“[R]eckless conduct involves a degree of risk and a voluntary taking of that risk so marked that, compared to negligence, there is not just a difference in degree but also a difference in kind.”
For the coaches and thus their employer the university to be found liable, the coaches had to have known of the propensity of the batter to act reckless or with intent to harm.
“[I]n order to impose liability on a coach for the conduct of a player, there must be, at the least, evidence of ‘specific information about [the] player suggesting a propensity to engage in violent conduct, or some warning that [the] player … appeared headed toward such conduct as the game progressed.
The trial court and the appellate court found none of the facts necessary to apply either a reckless or gross negligence definition to the actions of the batter or the coaches. In fact, the court found just the opposite.
Here, there is no indication that the teammate intentionally struck the plaintiff or that the teammate had a history of reckless conduct. The plaintiff testified that she and the teammate were best friends, and that she did not think the teammate hit her on purpose.
So Now What?
In some states, releases are part of the law and are rarely challenged unless the release is poorly written. Because of that, colleges and universities are using release to stop claims by student athletes for their injuries.
However, several other courts have indicated they are not sure that releases are the way proceed fearing a release will allow the defendants not to keep their businesses as risk free as possible. It is a constantly changing legal landscape.
For other articles about student athletes see:
For other articles about Massachusetts and releases see:
Massachusetts’s Supreme Court holds that wrongful-death claims are derivative.
Poorly written release in Massachusetts stop lawsuit for falling off a horse during riding lessons.
Duty of care for a Massachusetts campground is to warn of dangerous conditions.
A federal district court in Massachusetts upholds indemnification clause in a release.
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
Copyright 2022 Recreation Law (720) 334 8529
Word Count: 166
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
Email: Jim@Rec-Law.US
By Recreation Law Rec-law@recreation-law.com James H. Moss
@2023 Summit Magic Publishing, LLC
G-YQ06K3L262
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,
Brandt v. Davis, 98 Mass.App.Ct. 734, 159 N.E.3d 191 (Mass. App. 2020)
Posted: May 1, 2023 Filed under: Massachusetts, Release (pre-injury contract not to sue), Sports | Tags: Athlete, College University, Gross negligence, Massachusetts, Practice, recklessness, Release, softball, Softball Drills, student athlete, Suffolk University, Waiver Leave a commentTo Read an Analysis of this decision see Massachusetts accepts releases and in this case, there was no argument about the validity of the release.
98 Mass.App.Ct. 734
159 N.E.3d 191
Brooke A. BRANDT
v.
Jaclyn DAVIS & others.1
No. 19-P-1189
Appeals Court of Massachusetts, Suffolk..
Argued May 22, 2020.
Decided November 2, 2020.
Robert A. Curley, Jr., Braintree, for the plaintiff.
Robert B. Smith, Boston, for Jaclyn Davis & another.
Paul F. Lynch, Boston, for Meredith Ball.
Present: Wolohojian, Maldonado, & Ditkoff, JJ.
DITKOFF, J.
[98 Mass.App.Ct. 734]
The plaintiff, Brooke A. Brandt, appeals from a summary judgment dismissing her complaint against her softball teammate, Meredith Ball (teammate), and Suffolk University and her softball head coach Jaclyn Davis (collectively, the Suffolk defendants), arising out of the plaintiff’s injuries sustained during softball practice. We conclude that, like players in an athletic contest, players in an athletic practice owe a duty not to engage in reckless conduct but are not subject to suit for simple negligence. Because of a waiver signed by the plaintiff, the Suffolk defendants are liable only for gross negligence or recklessness. Concluding that the summary judgment record did not raise a triable issue that either the teammate or the Suffolk defendants engaged in reckless conduct or gross negligence, we affirm.
1. Background. The plaintiff played softball as a member of the Suffolk University women’s team, a National Collegiate Athletic Association Division III team. As a condition of her participation on the team, the plaintiff signed a participant waiver and release of liability form. The waiver released Suffolk University and its employees and agents from liability for any claims arising from her participation in the athletic program to the extent “permitted by the law of the Commonwealth of Massachusetts.”
On the day of the accident, the team was practicing in an indoor practice facility. The team engaged in the same general pattern of activities during practices. After warming-up, the team would leave the playing area to get their equipment, and then meet on the field. The players had to leave the playing area to get their equipment, because they hung their equipment outside the playing area on a fence. During their practices, the players would run through a series of rotating stations to develop different skills, each requiring different personal equipment. Before the players began their next station, the head coach would say “go” when she was sure everyone was in position and wearing the proper equipment.
Typically, the batting tees would be set up in batting cages, but they were not on the day of the accident. Moveable screens were available to use as protective barriers, but there was no such barrier between the tees and the field entrance on the day of the accident.
At one of the practice stations, players practiced hitting balls off tees into the netting surrounding the field. The tees were placed off to one side of an opening in the netting, which is where players would enter the area. A portable divider was placed on the opposite side of the opening to separate this station from the live hitting station. The players rotated among stations at the direction of the coaches, and were given between two and five minutes to transition before the coaching staff signaled them to start.
During the March 7, 2014, practice, when it was time for the plaintiff to rotate to the live hitting station, she left the field to retrieve her batting helmet and began jogging back with her helmet in her hand. The plaintiff testified in a deposition that she had to go retrieve her batting equipment, because her first station had been fielding. The plaintiff was “moving quickly” to get back to her station.
When the plaintiff returned to the practice area, the teammate was practicing hitting at the “last tee near the door. [The teammate] was the last to get to [her] tee because of the additional time [she] spent practicing [her] footwork.” The teammate was a left-handed batter, and she chose the tee nearest to the door so that the right-handed players in the station would not be within her swinging radius.
In her deposition, the plaintiff testified that she saw that the teammate had a bat in her hand at the tee station and was preparing to bat. The teammate’s back was to the plaintiff when the plaintiff jogged back on the field. The plaintiff did not know whether the teammate could see her because the teammate’s batting helmet limited her peripheral vision. The plaintiff testified that she saw the teammate’s face, but could not say whether that was when she was leaving the field or upon reentering it. She “didn’t feel like [she] was going to get hit” when she ran behind the teammate.
The plaintiff testified that she yelled, “Wait.” However, she could not remember when she said wait or even whether she said it out loud. She admitted that it was possible that she “said wait only in [her] own head.”
The teammate testified in a deposition that she did not begin swinging until instructed to do so by her coaches, and an assistant coach testified that the players were already swinging before the accident. The teammate stated that she “always look[ed] around … before … every single swing.” She did not see the plaintiff.
After the teammate hit the ball off the tee, the teammate’s swing hit the plaintiff in the back of the head. As a result, the plaintiff suffered a concussion and required four stitches at a hospital. She was released from the emergency department the same evening. Because the plaintiff and the teammate were best friends, the teammate stayed with the plaintiff in her dormitory room the night of the accident. A few days later, however, it became evident that the plaintiff was suffering long-term effects from the accident, including difficulty reading.
The plaintiff asserted claims against the teammate for negligence, gross negligence, and recklessness. The plaintiff asserted claims against the Suffolk defendants for gross negligence and recklessness. In a thoughtful decision, a Superior Court judge determined that the plaintiff needed to show recklessness on the part of the teammate to prevail. Concluding that the summary judgment record did not raise a triable issue of recklessness or gross negligence on the part of either the teammate or the Suffolk defendants, the judge granted summary judgment and dismissed the plaintiff’s complaint. This appeal followed.
2. Standard of review. “Our review of a motion judge’s decision on summary judgment is de novo, because we examine the same record and decide the same questions of law.” Boston Globe Media Partners, LLC v. Department of Criminal Justice Info. Servs., 484 Mass. 279, 286, 140 N.E.3d 923 (2020), quoting Kiribati Seafood Co. v. Dechert LLP, 478 Mass. 111, 116, 83 N.E.3d 798 (2017). “The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law.” Bank of N.Y. Mellon v. Morin, 96 Mass. App. Ct. 503, 506, 136 N.E.3d 396 (2019), quoting Molina v. State Garden, Inc., 88 Mass. App. Ct. 173, 177, 37 N.E.3d 39 (2015). See Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). “Usually, negligence and recklessness involve questions of fact left for the jury. … However, where no rational view of the evidence would permit a finding of negligence or recklessness, summary judgment is appropriate.” Borella v. Renfro, 96 Mass. App. Ct. 617, 622, 137 N.E.3d 431 (2019).
3. Claims against the teammate. a. Standard of care. As is well established, “participants in an athletic event owe a duty to other participants to refrain from reckless misconduct.” Borella, 96 Mass. App. Ct. at 622, 137 N.E.3d 431, quoting Gauvin v. Clark, 404 Mass. 450, 451, 537 N.E.2d 94 (1989). Accord Gray v. Giroux, 49 Mass. App. Ct. 436, 439, 730 N.E.2d 338 (2000) (“wilful, wanton, or reckless standard of conduct, and not ordinary negligence, is the appropriate standard of care in noncontact sports”). We must determine whether this standard, rather than the ordinary negligence standard, applies to participants in an athletic practice. “Whether a party owes a duty of care to another is a legal question, ‘determine[d] “by reference to existing social values and customs and appropriate social policy.” ‘ ” Williams v. Steward Health Care Sys., LLC, 480 Mass. 286, 290, 103 N.E.3d 1192 (2018), quoting Jupin v. Kask, 447 Mass. 141, 143, 849 N.E.2d 829 (2006). We conclude that the same level of duty — to refrain from reckless conduct — applies to athletic practices as well as to athletic contests.
In Gauvin, 404 Mass. at 454, 537 N.E.2d 94, the Supreme Judicial Court determined that participants in an athletic event owe each other only a duty to avoid reckless conduct. The court did so because it was “wary of imposing wide tort liability on sports participants, lest the law chill the vigor of athletic competition.” Id. This standard “furthers the policy that ‘[v]igorous and active participation in sporting events should not be chilled by the threat of litigation.’ ” Id., quoting Kabella v. Bouschelle, 100 N.M. 461, 465, 672 P.2d 290 (1983).
The same reasoning applies to athletic practices. During such practices, players train to improve their competitive performance. Teammates often play against each other as though it is a game through scrimmages and other drills at practice. See Gauvin, 404 Mass. at 454, 537 N.E.2d 94 (“Players, when they engage in sport, agree to undergo some physical contacts which could amount to assault and battery absent the players’ consent”). Batting practice, for example, requires focus for players to increase the strength and accuracy of their swings. If the players could not practice as vigorously as they play, they would — at best — be unprepared for the challenges of actual competition. At worst, their inability to practice vigorously would expose them to an increased risk of injury during games, especially if they competed against out-of-State teams not so constrained. See Kavanagh v. Trustees of Boston Univ., 440 Mass. 195, 205, 795 N.E.2d 1170 (2003).
We find support for this conclusion in decisions in other States. In Bowman v. McNary, 853 N.E.2d 984, 991 (Ind. Ct. App. 2006), the Indiana Court of Appeals rejected the application of ordinary negligence to an injury caused by an errant swing during a practice for a high school golf team. See id. at 992 (“the rule applies to injuries sustained by any co-participants in a sporting activity, which would include teammates injured during a practice”).2 Moreover, other jurisdictions have applied the recklessness standard for noncontact or noncompetitive athletic activities. See, e.g., Ford v. Gouin, 3 Cal. 4th 339, 345, 11 Cal.Rptr.2d 30, 834 P.2d 724 (1992) (“the general rule limiting the duty of care of a coparticipant in active sports to the avoidance of intentional and reckless misconduct, applies to participants engaged in noncompetitive but active sports activity, such as a ski boat driver towing a water-skier”); Pressler v. U, 70 Ohio App. 3d 204, 205-206, 590 N.E.2d 873 (1990) (yacht race). Accord Ritchie-Gamester v. Berkley, 461 Mich. 73, 89, 597 N.W.2d 517 (1999) (declining to apply ordinary negligence where ice skater skated backwards into plaintiff).
b. Reckless conduct. “The imposition of tort liability for reckless disregard of safety can be based on either a subjective or objective standard for evaluating knowledge of the risk of harm.” Boyd v. National R.R. Passenger Corp., 446 Mass. 540, 546, 845 N.E.2d 356 (2006). The plaintiff has the burden to prove “the actor knows, or has reason to know … of facts which create a high degree of risk of physical harm to another, and deliberately proceeds to act, or to fail to act, in conscious disregard of, or indifference to, that risk.” Id. at 546-547, 845 N.E.2d 356, quoting Restatement (Second) of Torts § 500 comment a, at 588 (1965). We examine the record to determine whether there is evidence from which a jury could conclude that the teammate “engaged in extreme misconduct outside the range of the ordinary activity inherent in the sport.” Borella, 96 Mass. App. Ct. at 624, 137 N.E.3d 431. Viewing the summary judgment record in the light most favorable to the plaintiff, she had no reasonable expectation of proving that the teammate’s actions rose to this level of misconduct.
Contrary to the plaintiff’s claim, a jury could not find that the teammate saw the plaintiff before the injury with enough time to prevent the accident. The plaintiff jogged onto the field near where the teammate was preparing to bat. The plaintiff testified at a deposition that the teammate had her back to the entrance, and she wore a batting helmet that limited her peripheral vision. Although the players were supposed to look around before swinging, the plaintiff did not remember whether the teammate looked around. The plaintiff’s failure of memory in this regard does not directly contradict the teammate’s affirmative recollection that she looked around her before she swung the bat. See Gray, 49 Mass. App. Ct. at 440 n.4, 730 N.E.2d 338 (plaintiff’s assertion that golfer “could have and should have been able to see the plaintiff” did not rebut defendant’s deposition testimony that he did not see plaintiff). But even were we to assume that there was a sufficient factual dispute over whether the teammate looked before she swung, and that the plaintiff was “capable of being seen from at least the time she was passing by the chain link gate until she was hit” (as the plaintiff’s expert opined), there is no rational view of the evidence that the teammate in fact saw the plaintiff before the teammate swung the bat with enough time to prevent the accident. Accordingly, this scenario, as a matter of law, did not rise to the level of recklessness. See id. (golfer was not reckless where he did not see plaintiff before taking his shot and plaintiff was not in intended path of golfer’s shot); Bowman, 853 N.E.2d at 996-997 (plaintiff’s conduct was not reckless where she struck coparticipant with backswing without ascertaining coparticipant’s precise location during high school golf practice).
The plaintiff disputes that the coach had given the “go” signal for the teammate to begin batting. Viewing the evidence in favor of the nonmoving party, even if the teammate swung her bat before the coach told players to start, the teammate’s actions were at most negligent. The plaintiff was a collegiate softball player who had played for fourteen years at the time of her injury. The plaintiff acknowledged that the coaches did “not necessarily hav[e] to micromanage every part” of the practice, and players could begin practicing at their station before the coach said “go.” Based on the players’ experience and skill level, this conduct, as a matter of law, was not reckless. See Borella, 96 Mass. App. Ct. at 624, 137 N.E.3d 431.
The plaintiff claims she said “wait” before the incident. In her deposition, however, the plaintiff did not remember whether she said “wait” out loud or in her head. She did not remember her exact location when she said “wait,” the timing of when she said it, or how loudly she said it. Indeed, the plaintiff stated that she yelled “wait” “almost immediately” before she was struck. Accordingly, there was no evidence that the teammate could or did hear the plaintiff say “wait” before the teammate swung her bat, let alone in enough time to stop her swing. Indeed, the teammate testified in her deposition that she did not hear the plaintiff say anything before the accident. The plaintiff had no reasonable expectation of proving recklessness from this evidence. See Patterson v. Liberty Mut. Ins. Co., 48 Mass. App. Ct. 586, 592, 723 N.E.2d 1005 (2000) (party “cannot prevail if any critical element is left to surmise, conjecture or speculation or otherwise lacks evidential support”).
4. Claims against the Suffolk defendants. Although a coach’s duty of care to opposing players is the same recklessness standard that applies to the players she coaches, Borella, 96 Mass. App. Ct. at 628, 137 N.E.3d 431, we assume without deciding that a coach ordinarily has a duty of ordinary reasonable care to her own players. See Kavanagh, 440 Mass. at 202, 795 N.E.2d 1170 (not reaching this question). Cf. Moose v. Massachusetts Inst. of Tech., 43 Mass. App. Ct. 420, 425, 683 N.E.2d 706 (1997) (university and coaches liable in negligence to injured pole vaulter for unsafe equipment and landing pit). Here, however, it is uncontested that Suffolk University had an enforceable liability waiver barring the plaintiff from bringing an ordinary negligence suit. See Rafferty v. Merck & Co., 479 Mass. 141, 155, 92 N.E.3d 1205 (2018), quoting Maryland Cas. Co. v. NSTAR Elec. Co., 471 Mass. 416, 422, 30 N.E.3d 105 (2015) (” ‘while a party may contract against liability for harm caused by its negligence, it may not do so with respect to its gross negligence’ or, for that matter, its reckless or intentional conduct”). Thus, we analyze the plaintiff’s claims only for gross negligence and recklessness.
a. Gross negligence. “[G]ross negligence is substantially and appreciably higher in magnitude than ordinary negligence. … It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care.” Parsons v. Ameri, 97 Mass. App. Ct. 96, 106, 142 N.E.3d 628 (2020), quoting Altman v. Aronson, 231 Mass. 588, 591-592, 121 N.E. 505 (1919). “The ‘voluntary incurring of obvious risk’ and ‘persistence in a palpably negligent course of conduct over an appreciable period of time’ are among ‘the more common indicia of gross negligence.’ ” Parsons, supra, quoting Lynch v. Springfield Safe Deposit & Trust Co., 294 Mass. 170, 172, 200 N.E. 914 (1936).
The plaintiff’s expert stated that the positioning of the tee station near the entrance enhanced the risk of serious danger for the players when there were safer alternative locations for the drill. The head coach gave the players approximately five minutes to transition. The head coach had no reason to believe that these trained collegiate athletes would enter the field while players were swinging their bats at the tee station. Based on the collegiate athletes’ knowledge and experience, the head coach’s assertedly inadequate planning makes out, at worst, only ordinary negligence. See Aleo v. SLB Toys USA, Inc., 466 Mass. 398, 410, 995 N.E.2d 740 (2013), quoting Altman, 231 Mass. at 591, 121 N.E. 505 (“Gross negligence … is materially more want of care than constitutes simple inadvertence”).3
It remains a contested fact whether the coach told the players to start their stations before everyone was in place.4 Taking all inferences in favor of the plaintiff, it was at most negligent for the head coach to have prematurely yelled “go” before all of the trained athletes were at their next station.
b. Recklessness. “[R]eckless conduct involves a degree of risk and a voluntary taking of that risk so marked that, compared to negligence, there is not just a difference in degree but also a difference in kind.” Gray, 49 Mass. App. Ct. at 440, 730 N.E.2d 338, quoting Sandler v. Commonwealth, 419 Mass. 334, 337, 644 N.E.2d 641 (1995). “[I]n order to impose liability on a coach for the conduct of a player, there must be, at the least, evidence of ‘specific information about [the] player suggesting a propensity to engage in violent conduct, or some warning that [the] player … appeared headed toward such conduct as the game progressed.’ ” Borella, 96 Mass. App. Ct. at 628, 137 N.E.3d 431, quoting Kavanagh, 440 Mass. at 203, 795 N.E.2d 1170. Here, there is no indication that the teammate intentionally struck the plaintiff or that the teammate had a history of reckless conduct. The plaintiff testified that she and the teammate were best friends, and that she did not think the teammate hit her on purpose. See Gray, supra. As a matter of law, there is no basis for a jury to find that the head coach acted recklessly in allowing the teammate to practice hitting off tees.
Judgment affirmed.
——–
Notes:
1 Meredith Ball and Suffolk University.
2 In Pfenning v. Lineman, 947 N.E.2d 392, 404 (Ind. 2011), the Supreme Court of Indiana took issue with some of the reasoning in Bowman, but ultimately approved of its conclusion that “intentional or reckless infliction of injury” is the proper standard.
3 Gross negligence, of course, takes into account the age, experience, and skill level of the players. A setup that is merely negligent for experienced collegiate athletes might well be grossly negligent for beginners or young children.
4 The teammate testified that she was told to start. The head coach said that she had already said “go.”
@2023 Summit Magic Publishing, LLC
G-YQ06K3L262
Massachusetts’s Supreme Court holds that wrongful-death claims are derivative.
Posted: June 8, 2020 Filed under: Massachusetts, Release (pre-injury contract not to sue), Scuba Diving | Tags: #scuba, Derivative Claim, Dry Suit, equipment rental agreement, open-water scuba diver, Personal Representative, Release, Rental Agreement, scuba diving, Waiver, Wrongful Death, Wrongful Death Statute Leave a commentA derivative claim can be stopped by any defense of the main claim the derivative claim is dependent on. In this Scuba fatality, a release stopped claims by the heirs.
State: Massachusetts, Supreme Judicial Court of Massachusetts
Plaintiff: Margaret C. Doherty, personal representative
Defendant: Diving Unlimited International, Inc.
Plaintiff Claims: Wrongful Death
Defendant Defenses: Release
Holding: For the Defendant
Year: 2019
Summary
Under Massachusetts law, a wrongful-death claim is a derivative claim. That means that the defenses available to stop a lawsuit by the deceased, also work against the survivors of the decedent. In this case, the deceased signed a release prior to his death which stopped the wrongful-death claim of his survivors.
Facts
The decedent, who was a certified open-water scuba diver, drowned while participating in a promotional diving equipment event that was sponsored by DUI and held in Gloucester. At this event, where local divers tested DUI’s dry suit, Golbranson was the leader of the dive, overseeing some of the participants.
Prior to participating in the event, the decedent signed two documents. The first was a release from liability which had several subsections that were set forth in all capital letters and underlined, including “effect of agreement,” “assumption of risk,” “full release,” “covenant not to sue,” “indemnity agreement,” and “arbitration.” In capital letters under the subsection titled “effect of agreement,” it said, “Diver gives up valuable rights, including the right to sue for injuries or death.” It also told the decedent to read the agreement carefully and not to sign it “unless or until you understand.” The subsection titled “full release” stated that the decedent “fully release[d] DUI from any liability whatsoever resulting from diving or associated activities,” and the subsection titled “covenant not to sue” stated that the decedent agreed “not to sue DUI for personal injury arising from scuba diving or its associated activities,” and that the decedent’s “heirs or executors may not sue DUI for death arising from scuba diving or its associated activities.”
The decedent also signed an equipment rental agreement which stated, “This agreement is a release of the [decedent’s] rights to sue for injuries or death resulting from the rental and/or use of this equipment. The [decedent] expressly assumes all risks of skin and/or scuba diving related in any way to the rental and/or use of this equipment.”
Golbranson led a group comprised of the decedent and two other divers. During their dive, one of the divers experienced a depleted air supply. Golbranson signaled for the group to surface and to swim back to shore on the surface. Only the decedent resisted, emphasizing his desire to keep diving, thus separating himself from the group that was returning to shore. Shortly thereafter, the decedent surfaced and called for help. The decedent died at the hospital from “scuba drowning after unequal weight belt distribution.”
Analysis: making sense of the law based on these facts.
A wrongful-death claim is a statutory claim, created by state legislatures to allow surviving heirs to sue over the death of a loved one who was providing value or benefits to the survivor. In most cases, since there is no duty directed to a survivor, the surviving heirs have limited rights to recover for the loss of a breadwinner in a family, until the wrongful-death statutes were enacted.
In this case, the decedent signed a release and a rental agreement to test the dive equipment. The rental agreement included additional release language.
The Supreme Court of Massachusetts determined the sole issue upon review was whether the release signed by the decedent barred the claims of the plaintiff, the heir who had filed the wrongful-death claim.
The decision was simple for the court. A wrongful-death claim is a derivative claim of the wrongful-death statute. That means that a derivative claim does not stand on its own, it only exists because of the main claim. As such, if the main claim, wrongful death is void because of the release, then that claim also stops the derivative claims of the survivors.
Given that the plaintiff does not contest the judge’s determinations that the release from liability and the equipment rental agreement are valid and that those waivers covered Golbranson as an agent of PUI, the only issue before the court is whether the statutory beneficiaries in the action for wrongful death have a right to recover damages that is independent of the decedent’s own cause of action. See G. L. c. 229, §§ 1, 2. In GGNSC, 484 Mass. at, we have resolved that issue: our wrongful death statute creates a derivative right of recovery for the statutory beneficiaries listed in G. L. c. 229, § 1. Therefore, we hold that here, the valid waivers signed by the decedent preclude the plaintiff, as his “executor or personal representative,” from bringing a lawsuit under G. L. c. 229, § 2, for the benefit of the statutory beneficiaries.
A wrongful-death claim is a derivative claim under Massachusetts’s law. Therefore, if the release stops the claims of the decedent, it also stops the claims of the heirs.
So Now What?
Although most states have determined that wrongful-death claims are derivative of the main action of the decedent, you want to make sure your release protects you from wrongful death and other claims that are derivative. Language in your release needs to say that the person signing the release as well as his family and heirs cannot sue.
What do you think? Leave a comment.
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 |
Jim is the author or co-author of eight books about legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management,
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
If you are interested in having me write your release, download the form and return it to me.
Connect
If you like this let your friends know or post it on FB, Twitter, or LinkedIn
By Recreation Law Rec-law@recreation-law.com James H. Moss
@2020-2023 Summit Magic Publishing, LLC
G-YQ06K3L262
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,
Poorly written release in Massachusetts stop lawsuit for falling off a horse during riding lessons.
Posted: June 1, 2020 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Massachusetts, Release (pre-injury contract not to sue) | Tags: Chrislar Farm, Engage in an Equine Activity, Equine Liabililty Act, Equine Liability Protection Act, Equine Liability Statute, Massachusetts, Massachusetts Appeals Court, Massachusetts Equine Liability Act Leave a commentRelease used poor language and was hidden within an application to learn to ride.
Markovitz v. Cassenti, 56 N.E.3d 894, 90 Mass.App.Ct. 1102 (2016)
State: Massachusetts , Appeals Court of Massachusetts
Plaintiff: Joanne Markovitz
Defendant: Christine Cassenti
Plaintiff Claims: Negligence
Defendant Defenses: Release
Holding: For the Defendant
Year: 2016
Summary
A release stopped a negligence claim for falling off a horse in Massachusetts. The plaintiff had been riding with the stable for more than a year and had been riding this horse for over a month when she fell off. She argued the Massachusetts Equine Liability Act allowed her to sue. The court said not, the release stopped her lawsuit and her arguments about the Massachusetts Equine Liability Act were incorrect.
Facts
On July 16, 2009, the plaintiff filled out and signed an application for riding lessons at Chrislar Farm. In that application, she wrote that she had six months of riding experience in 2001 and that she wanted to continue to learn to ride. The form contained a section entitled ” RELEASE,” which stated: ” I, the Club member/Student (or parent or guardian) recognize the inherent risks of injury involved in horseback riding/driving and being around horses generally, and in learning to ride/drive in particular. In taking lessons at CHRISLAR FARM or participating in Club activities, I assume any and all such risk of injury and further, I voluntarily release CHRISLAR FARM, its owners, instructors, employees and agents from any and all responsibility on account of any injury I (or my child or ward) may sustain for any reason while on the premises of CHRISLAR FARM or participating in Club activities, and I agree to indemnify and hold harmless CHRISLAR FARM, its owners, instructors, employees and agents on account of any such claim.”
The plaintiff signed the form on the signature line immediately below the release.
Between July of 2009 and September of 2010, the plaintiff took thirty-minute private riding lessons on a regular basis. Between September, 2010, and January, 2011, the plaintiff took one-hour group riding lessons and walked, trotted, and cantered several different horses. On September 3, 2010, the defendants leased a horse named Jolee. Christine Cassenti had known this horse for a long time. The trainer conducting the lessons thought that the horse was ” sweet and did everything you asked her to do.”
The plaintiff first rode Jolee during a ” musical horses” exercise. She then rode Jolee during the next three one-hour group lessons on December 23, 2010, December 30, 2010, and January 6, 2011. At one point during the December 23, 2010, lesson, Jolee went from a trot into a canter and stayed in a circle formation instead of performing a figure eight. Following the instructions from the trainer, the plaintiff slowed down and stopped Jolee. The plaintiff rode Jolee without incident on December 30, 2010, and January 6, 2011.
On January 20, 2011, a year and one-half after the plaintiff began taking lessons at Chrislar Farm, the plaintiff rode Jolee for the fourth time. She noticed that Jolee briefly pinned her ears. After finishing a walk, the plaintiff began trotting Jolee. At one point, Jolee sped up into a faster trot and turned left, causing the plaintiff to lose her balance and fall.
Analysis: making sense of the law based on these facts.
The argument the plaintiff attempted to make was the Massachusetts Equine Liability Act created a duty on the part of the defendants that was not protected by the release. The act listed risks which a rider of a horse accepted. The statute had an exception to that list
“Nothing in subsection (b) shall prevent or limit the liability of an equine activity sponsor, an equine professional, or any other person if the equine activity sponsor, equine professional, or person: ” (1) . . . (ii) provided the equine and failed to make reasonable and prudent efforts to determine the ability of the participant . . . to safely manage the particular equine based on the participant’s representations of his ability.”
The plaintiff argued this created a new duty which the defendant in this case breached.
However the court found the section did not create a new duty, it only allowed a plaintiff to proceed with a negligence claim in certain exceptional situations. Because the release barred negligence claims the plaintiff’s lawsuit was properly dismissed by the courts.
So Now What?
The odd thing about this case is there was no gross negligence claim to get around the release.
However, the were some risks run by the plaintiff that in other states might have caused problems. They were obvious issues by this court because the court raised them in the facts.
- The form Application for Riding Lessons also contained the release, hidden in the form.
- The language in the release was weak and did not contain the word negligence.
But for solid law in Massachusetts supporting releases this case in other states would have gone differently.
What do you think? Leave a comment.
Copyright 2020 Recreation Law (720) 334 8529
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
Email: Jim@Rec-Law.US
By Recreation Law Rec-law@recreation-law.com James H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,
Doherty v. Diving Unlimited International, Inc., 484 Mass. 193, 2020 Mass. LEXIS 134, 140 N.E.3d 394, 2020 WL 949922
Posted: May 28, 2020 Filed under: Massachusetts, Release (pre-injury contract not to sue), Scuba Diving | Tags: #scuba, Demo, Demo Day, Derrivative, Derrivative Claim, Dry Suit, Massachusetts, Massachusetts Supreme Court, scuba diving, Wrongful Death Statute Leave a commentTo Read an Analysis of this decision see
Massachusetts’s Supreme Court holds that wrongful-death claims are derivative.
Doherty v. Diving Unlimited International, Inc., 484 Mass. 193, 2020 Mass. LEXIS 134, 140 N.E.3d 394, 2020 WL 949922
Margaret C. Doherty, personal representative, [ 1]
v.
Diving Unlimited International, Inc., & others.[ 2]
No. SJC-12707
Supreme Judicial Court of Massachusetts, Essex
February 27, 2020
Heard: October 4, 2019.
Civil action commenced in the Superior Court Department on May 5, 2015. The case was heard by Janice W. Howe, J., on a motion for summary judgment The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
Neil Rossman for the plaintiff.
Martin K. DeMagistris for John Golbranson.
Jennifer A. Creedon, for Massachusetts Defense Lawyers Association, amicus curiae, submitted a brief.
John J. Barter, for Professional Liability Foundation, Ltd., amicus curiae, submitted a brief.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
LOWY, J.
Following a fatal scuba diving accident involving the plaintiff’s decedent in May 2014, the plaintiff, as personal representative of the decedent’s estate, brought a wrongful death action under G. L. c. 229, § 2 against the manufacturer of the “dry suit” that the decedent used on his dive, the individual who supplied the decedent his diving equipment and outfitted him, the company that owned and rented that equipment, and the dive leader, John Golbranson. After the plaintiff had settled with all defendants other than Golbranson, a judge of the Superior Court granted summary judgment in his favor based on the release from liability and covenant not to sue that the decedent signed just before his death. The plaintiff appealed, claiming that the statutory beneficiaries have an independent right to a wrongful death action that the decedent could not have waived. We transferred this case from the Appeals Court on our own motion.
As explained in our opinion in GGNSC Admin. Servs., LLCv.Schrader, 484 Mass., (2020) (GGNSC), released today, we conclude that the beneficiaries of a wrongful death action have rights that are derivative of, rather than independent from, any claim the decedent could have brought for the injuries causing his death. Therefore, the waivers the decedent signed control all claims for his wrongful death. Accordingly, we affirm the grant of summary judgment.
1. Background.
a. Facts.
“In reviewing a motion for summary judgment, we view the evidence in the record in the light most favorable to the nonmoving party.” Meyerv.Veolia Energy N. Am., 482 Mass. 208, 209 (2019). Here, where the plaintiff does not contest on appeal the judge’s determination that the waivers were valid, or that Golbranson was acting as an agent for Diving Unlimited International, Inc. (DUI), the manufacturer of the dry suit that the decedent wore on his dive, we present only the essential facts.
The decedent, who was a certified open-water scuba diver, drowned while participating in a promotional diving equipment event that was sponsored by DUI and held in Gloucester. At this event, where local divers tested DUI’s dry suit, Golbranson was the leader of the dive, overseeing some of the participants.
Prior to participating in the event, the decedent signed two documents. The first was a release from liability which had several subsections that were set forth in all capital letters and underlined, including “effect of agreement,” “assumption of risk,” “full release,” “covenant not to sue,” “indemnity agreement,” and “arbitration.” In capital letters under the subsection titled “effect of agreement,” it said, “Diver gives up valuable rights, including the right to sue for injuries or death.” It also told the decedent to read the agreement carefully and not to sign it “unless or until you understand.” The subsection titled “full release” stated that the decedent “fully release[d] DUI from any liability whatsoever resulting from diving or associated activities,” and the subsection titled “covenant not to sue” stated that the decedent agreed “not to sue DUI for personal injury arising from scuba diving or its associated activities,” and that the decedent’s “heirs or executors may not sue DUI for death arising from scuba diving or its associated activities.”
The decedent also signed an equipment rental agreement which stated, “This agreement is a release of the [decedent’s] rights to sue for injuries or death resulting from the rental and/or use of this equipment. The [decedent] expressly assumes all risks of skin and/or scuba diving related in any way to the rental and/or use of this equipment.”
Golbranson led a group comprised of the decedent and two other divers. During their dive, one of the divers experienced a depleted air supply. Golbranson signaled for the group to surface and to swim back to shore on the surface. Only the decedent resisted, emphasizing his desire to keep diving, thus separating himself from the group that was returning to shore. Shortly thereafter, the decedent surfaced and called for help. The decedent died at the hospital from “scuba drowning after unequal weight belt distribution.”
b. Procedural history.
In her capacity as the decedent’s personal representative, the plaintiff sued for the benefit of the decedent’s statutory beneficiaries. The second amended complaint alleged two counts against Golbranson resulting from his negligence: (1) conscious pain and suffering; and (2) the decedent’s wrongful death under G. L. c. 229, § 2. Golbranson moved for summary judgment, claiming that the release from liability and the equipment rental agreement (collectively waivers) protected him, as an agent of DUI, against any negligence suit or liability. The plaintiff opposed summary judgment, asserting that the waivers did not apply to Golbranson when he was negligent in his individual capacity and that neither waiver would prevent the decedent’s statutory beneficiaries from recovering damages for wrongful death.
The judge determined, and the plaintiff does not contest on appeal, that Golbranson acted as DUI’s agent during the dive. The judge also concluded that the two waivers that the decedent signed prohibited the plaintiff from bringing an action for negligence against Golbranson.[ 3]
As to the wrongful death claim, the judge concluded that G. L. c. 229, § 2, created a right to recovery that is derivative of the decedent’s own cause of action.[ 4] In addition, she concluded that the agreements were valid and, thus, precluded any recovery on behalf of the decedent’s statutory beneficiaries, who had no rights independent of the decedent’s cause of action, which was waived.
2. Discussion.
We review “a grant of summary judgment de novo … to determine whether . . . all material facts have been established and the moving party is entitled to judgment as a matter of law” (quotation and citation omitted). Boston Globe Media Partners, LLCv.Pep’t of Pub. Health, 482 Mass. 427, 431 (2019) .
Given that the plaintiff does not contest the judge’s determinations that the release from liability and the equipment rental agreement are valid and that those waivers covered Golbranson as an agent of PUI, the only issue before the court is whether the statutory beneficiaries in the action for wrongful death have a right to recover damages that is independent of the decedent’s own cause of action. See G. L. c. 229, §§ 1, 2. In GGNSC, 484 Mass. at, we have resolved that issue: our wrongful death statute creates a derivative right of recovery for the statutory beneficiaries listed in G. L. c. 229, § 1. Therefore, we hold that here, the valid waivers signed by the decedent preclude the plaintiff, as his “executor or personal representative,” from bringing a lawsuit under G. L. c. 229, § 2, for the benefit of the statutory beneficiaries.[ 5]
3. Conclusion.
We affirm the judgment of the Superior Court granting Golbranson’s motion for summary judgment.
So ordered.
———
Notes:
[ 1] Of the estate of Gregg C. O’Brien.
[ 2] Nicholas Fazah, EC Divers, Inc., and John Golbranson.
[ 3] As to the conscious pain and suffering claim, the judge found that the waivers negated the plaintiff’s ability to recover, because the decedent clearly had the authority to waive those rights.
[ 4] In her analysis, the judge relied on a decision by a judge of the United States Pistrict Court for the Pistrict of Massachusetts that underlay our opinion in GGNSC. See GGNSC, 484 Mass. at
[ 5] Golbranson devotes much time arguing that the release from liability and the equipment rental agreement negate any duty he may have had to the decedent. We note that the release from liability was limited to “claims concern[ing] ordinary negligence,” Sharonv.Newton, 437 Mass. 99, 110 n.l2 (2002), and Golbranson does not contend that the waivers would have applied to other forms of malfeasance, such as gross negligence, or willful, wanton, or reckless acts. We have “consistently recognized that there is a certain core duty — a certain irreducible minimum duty of care, owed to all persons — that as a matter of public policy cannot be abrogated: that is, the duty not to intentionally or recklessly cause harm to others.” Raffertyv.Merck & Co., 479 Mass. 141, 155 (2018). Specifically, “‘while a party may contract against liability for harm caused by its negligence, it may not do so with respect to its gross negligence’ or, for that matter, its reckless or intentional conduct.” I_d., quoting Maryland Cas. Co. v. NS_TAR Elec. Co., 471 Mass. 416, 422 (2015). Nonetheless, only the decedent’s executor or administrator has the right to bring a cause of action for gross negligence, not the statutory beneficiaries.
G-YQ06K3L262
http://www.recreation-law.com
Markovitz v. Cassenti, 56 N.E.3d 894, 90 Mass.App.Ct. 1102 (2016)
Posted: May 27, 2020 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Legal Case, Massachusetts, Release (pre-injury contract not to sue) | Tags: Donkeys, Equine Activities, Equine Activities (Horses, Equine Liability Statute, Massachusetts, Massachusetts Equine Liability Act, Mules), riding, Riding Lesson 1 CommentMarkovitz v. Cassenti, 56 N.E.3d 894, 90 Mass.App.Ct. 1102 (2016)
90 Mass.App.Ct. 1102 (2016)
56 N.E.3d 894
Joanne Markovitz & another [ 1]
Christine Cassenti & another. [ 2]
15-P-1274
Appeals Court of Massachusetts
August 18, 2016
Editorial Note:
This decision has been referenced in an “Appeals Court of Massachusetts Summary Dispositions” table in the North Eastern Reporter. And pursuant to its rule 1:28, As Amended by 73 Mass.App.Ct. 1001 (2009) are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel’s decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 N.4, 881 N.E.2d 792 (2008).
Judgment affirmed.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this negligence action arising out of the plaintiff’s injury following her fall off a horse during a group riding lesson at defendants’ Chrislar Farm, a Superior Court judge granted summary judgment for the defendants.[ 3] The plaintiff appealed.
Background.
On July 16, 2009, the plaintiff filled out and signed an application for riding lessons at Chrislar Farm. In that application, she wrote that she had six months of riding experience in 2001 and that she wanted to continue to learn to ride. The form contained a section entitled ” RELEASE,” which stated: ” I, the Club member/Student (or parent or guardian) recognize the inherent risks of injury involved in horseback riding/driving and being around horses generally, and in learning to ride/drive in particular. In taking lessons at CHRISLAR FARM or participating in Club activities, I assume any and all such risk of injury and further, I voluntarily release CHRISLAR FARM, its owners, instructors, employees and agents from any and all responsibility on account of any injury I (or my child or ward) may sustain for any reason while on the premises of CHRISLAR FARM or participating in Club activities, and I agree to indemnify and hold harmless CHRISLAR FARM, its owners, instructors, employees and agents on account of any such claim.”
The plaintiff signed the form on the signature line immediately below the release.[ 4]
Between July of 2009 and September of 2010, the plaintiff took thirty-minute private riding lessons on a regular basis. Between September, 2010, and January, 2011, the plaintiff took one-hour group riding lessons and walked, trotted, and cantered several different horses. On September 3, 2010, the defendants leased a horse named Jolee. Christine Cassenti had known this horse for a long time. The trainer conducting the lessons thought that the horse was ” sweet and did everything you asked her to do.”
The plaintiff first rode Jolee during a ” musical horses” exercise. She then rode Jolee during the next three one-hour group lessons on December 23, 2010, December 30, 2010, and January 6, 2011. At one point during the December 23, 2010, lesson, Jolee went from a trot into a canter and stayed in a circle formation instead of performing a figure eight. Following the instructions from the trainer, the plaintiff slowed down and stopped Jolee. The plaintiff rode Jolee without incident on December 30, 2010, and January 6, 2011.
On January 20, 2011, a year and one-half after the plaintiff began taking lessons at Chrislar Farm, the plaintiff rode Jolee for the fourth time. She noticed that Jolee briefly pinned her ears. After finishing a walk, the plaintiff began trotting Jolee. At one point, Jolee sped up into a faster trot and turned left, causing the plaintiff to lose her balance and fall.
Discussion.
Massachusetts courts have generally upheld release agreements immunizing defendants from future liability for their negligent acts, including in cases related to sports and recreation. See Lee v. Allied Sports Assocs., Inc., 349 Mass. 544, 550, 552, 209 N.E.2d 329 (1965) (spectator at pit area of speedway); Cormier v. Central Mass. Chapter of the Natl. Safety Council, 416 Mass. 286, 288-289, 620 N.E.2d 784 (1993) (beginner rider in motorcycle safety class); Sharon v. Newton, 437 Mass. 99, 105-107, 769 N.E.2d 738 (2002) (student at cheerleading practice). The challenges to releases from liability have regularly been resolved by summary judgment. See, e.g., Cormier, supra at 287; Sharon, supra at 103; Gonsalves v. Commonwealth, 27 Mass.App.Ct. 606, 606, 541 N.E.2d 366 (1989). In this case, we conclude that the release signed by the plaintiff, which the plaintiff has not challenged as unclear or ambiguous, barred her negligence claim.[ 5]
To avoid the preclusive effect of the release, the plaintiff argues that she was entitled to proceed under G. L. c. 128, § 2D( c )(1)(ii), inserted by St. 1992, c. 212, § 1, which provides one of the exceptions to the exemption from liability: ” Nothing in subsection (b) shall prevent or limit the liability of an equine activity sponsor, an equine professional, or any other person if the equine activity sponsor, equine professional, or person: ” (1) . . . (ii) provided the equine and failed to make reasonable and prudent efforts to determine the ability of the participant . . . to safely manage the particular equine based on the participant’s representations of his ability.” [ 6]
Rather than creating a new duty in addition to those that already exist under our common law, as argued by the plaintiff, this subsection provides an exception to the overall bar to liability established by the statute, and allows a plaintiff to proceed with a negligence claim in certain limited circumstances. Because the statute does not create new duties on the part of the equine professional, the plaintiff cannot rely on it to avoid the preclusive effect of the release she signed. This case is distinguishable from Pinto v. Revere-Saugus Riding Academy, Inc., 74 Mass.App.Ct. 389, 395, 907 N.E.2d 259 (2009), which did not involve a release.
Where the release is dispositive of the plaintiff’s claim, we need not decide if there were genuine issues of material fact as to whether the defendants failed to make reasonable efforts to determine the plaintiff’s ability to safely manage Jolee.
Judgment affirmed.
Cohen, Agnes & Henry, JJ.[ 7].
———
Notes:
[1]Gabriel Markovitz. He claimed loss of consortium.
[2]Lawrence Cassenti.
[3]For simplicity, we will refer to Joanne Markovitz as the plaintiff.
[4]The form also contained the following: ” WARNING: Under Massachusetts law, an equine professional is not liable for any injury to, or the death of, a participant in equine activities resulting from the inherent risks of equine activities, pursuant to Chapter 128, Section 2D of the General Laws.”
[5]” [W]hile a party may contract against liability for harm caused by its negligence, it may not do so with respect to its gross negligence.” Zavras v. Capeway Rovers Motorcycle Club, Inc., 44 Mass.App.Ct. 17, 19, 687 N.E.2d 1263 (1997). In a footnote in her brief, the plaintiff argues that it is a question of fact whether the trainer’s conduct amounted to gross negligence or wilful and wanton conduct. Here, viewing the summary judgment record in the light most favorable to the plaintiff, she cannot make out a case of gross negligence.
[6]The complaint contains a negligence count and a loss of consortium count. There is no mention of G. L. c. 128, § 2D.
[7]The panelists are listed in order of seniority.
———
Massachusetts Equine Liability Act
Posted: May 27, 2020 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Massachusetts | Tags: Equine Activity, Equine Liability Act, Horse, Immunity, Massachusetts, Massachusetts Equine Liability Act 1 CommentGENERAL LAWS OF MASSACHUSETTS
Part I. ADMINISTRATION OF THE GOVERNMENT
Title XIX. AGRICULTURE AND CONSERVATION
Chapter 128. AGRICULTURE
§ 128:2D. Liability of equine professionals and equine activity sponsors
(a) For the purposes of this section, the following words shall have the following meanings:
“Engage in an equine activity”, riding, training, assisting in veterinary treatment of, driving, or being a passenger upon an equine, whether mounted or unmounted, visiting or touring or utilizing an equine facility as part of an organized event or activity, or assisting a participant or show management. The term “engage in an equine activity” shall not include being a spectator at an equine activity, except in cases where the spectator places himself in an unauthorized area or in immediate proximity to the equine activity.
“Equine”, a horse, pony, mule, or donkey.
“Equine activity”
(1) equine shows, fairs, competitions, performances, or parades that involve any or all breeds of equines and any of the equine disciplines, including, but not limited to, dressage, hunter and jumper horse shows, grand prix jumping, three-day events, combined training, rodeos, riding, driving, pulling, cutting, polo, steeplechasing, English and western performance riding, endurance trail riding, gymkhana games, and hunting;
(2) equine training or teaching activities or both;
(3) boarding equines; including normal daily care thereof;
(4) riding, inspecting, or evaluating by a purchaser or an agent an equine belonging to another, whether or not the owner has received some monetary consideration or other thing of value for the use of the equine or is permitting a prospective purchaser of the equine to ride, inspect, or evaluate the equine;
(5) rides, trips, hunts or other equine activities of any type however informal or impromptu that are sponsored by an equine activity sponsor;
(6) placing or replacing horseshoes or hoof trimming on an equine; and
(7) providing or assisting in veterinary treatment.
“Equine activity sponsor”, an individual, group, club, partnership, or corporation, whether or not the sponsor is operating for profit or nonprofit, which sponsors, organizes, or provides the facilities for, an equine activity, including but not limited to: pony clubs, 4-H clubs, hunt clubs, riding clubs, school and college-sponsored classes, programs and activities, therapeutic riding programs, stable and farm owners and operators, instructors, and promoters of equine facilities, including but not limited to farms, stables, clubhouses, pony ride strings, fairs, and arenas at which the activity is held.
“Equine professional”, a person engaged for compensation:
(1) in instructing a participant or renting to a participant an equine for the purpose of riding, driving or being a passenger upon the equine;
(2) in renting equipment or tack to a participant;
(3) to provide daily care of horses boarded at an equine facility; or
(4) to train an equine.
“Inherent risks of equine activities”, dangers or conditions which are an integral part of equine activities, including but not limited to:
(1) The propensity of equines to behave in ways that may result in injury, harm, or death to persons on or around them;
(2) the unpredictability of an equine’s reaction to such things as sounds, sudden movement, and unfamiliar objects, persons, or other animals;
(3) certain hazards such as surface and subsurface conditions;
(4) collisions with other equines or objects;
(5) the potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the animal or not acting within his ability.
“Participant”, any person, whether amateur or professional, who engages in an equine activity, whether or not a fee is paid to participate in such equine activity.
(b) Except as provided in subsection (c), an equine activity sponsor, an equine professional, or any other person, which shall include a corporation or partnership, shall not be liable for an injury to or the death of a participant resulting from the inherent risks of equine activities and, except as provided in said subsection (c), no participant nor participant’s representative shall make any claim against, maintain an action against, or recover from an equine activity sponsor, an equine professional, or any other person for injury, loss, damage, or death of the participant resulting from any of the inherent risks of equine activities.
(c) This section shall not apply to the racing meetings as defined by section one of chapter one hundred and twenty-eight A.
Nothing in subsection (b) shall prevent or limit the liability of an equine activity sponsor, an equine professional, or any other person if the equine activity sponsor, equine professional, or person:
(1)
(i) provided the equipment or tack, and knew or should have known that the equipment or tack was faulty, and such equipment or tack was faulty to the extent that it did cause the injury; or
(ii) provided the equine and failed to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity, and determine the ability of the participant to safely manage the particular equine based on the participant’s representations of his ability;
(2) owns, leases, rents, has authorized use of, or is otherwise in lawful possession and control of the land, or facilities upon which the participant sustained injuries because of a dangerous latent condition which was known to the equine activity sponsor, equine professional, or person and for which warning signs, pursuant to subsection (d), have not been conspicuously posted;
(3) commits an act of omission that constitutes willful or wanton disregard for the safety of the participant, and that act of omission caused the injury; or
(4) intentionally injures the participant.
(d)
(1) Every equine professional shall post and maintain signs which contain the warning notice specified in paragraph (2). Such signs shall be placed in a clearly visible location in the proximity of the equine activity. The warning notice specified in said paragraph (2) shall appear on the sign in black letters, with each letter to be a minimum of one inch in height. Every written contract entered into by an equine professional for the providing of professional services, instruction, or the rental of equipment or tack or an equine to a participant, whether or not the contract involves equine activities on or off the location or site of the equine professional’s business, shall contain in clearly readable print the warning notice specified in said paragraph (2).
(2) The signs and contracts described in paragraph (1) shall contain the following notice:
Under Massachusetts law, an equine professional is not liable for an injury to, or the death of, a participant in equine activities resulting from the inherent risks of equine activities, pursuant to section 2D of chapter 128 of the General Laws.
Cite as Mass. Gen. Laws ch. 128, § 2D
States that allow a parent to sign away a minor’s right to sue
Posted: June 7, 2017 Filed under: Alaska, California, Colorado, Florida, Maryland, Massachusetts, Minnesota, Minors, Youth, Children, North Dakota, Release (pre-injury contract not to sue) | Tags: #AZ, #FL, #OH, #Zivich, AK, Alaska, Arizona, Atkins, Bismark Park District, CA, California, Cascade Mountain, City Of Coral Gables, City of Newton, CO, Colorado, Equine, Equine Safety Act, Florida, Global Travel Marketing, Gonzalez, Hohe, MA, Massachusetts, McPhail, Mentor Soccer Club, Minnesota, Minnesota Baseball Instructional School, Minor, minors, MN, Moore, NC, ND, New York, North Carolina, North Dakota, Ohio, Osborn, Parent Signature, Release, Right to Sue, San Diego, San Diego Unified School District, Sharon, Shea, Swimwest Family Fitness Center, UT, Utah, WI, Wisconsin Leave a commentIf your state is not listed here, you should assume a parent cannot waive a minor’s right to sue in your state.
What do you think? Leave a comment.
Copyright 2017 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog: http://www.recreation-law.com
Mobile Site: http://m.recreation-law.com
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, minor, release, Parent Signature, NC, North Carolina, Alaska, AK, AZ, Arizona, CO, Colorado, Florida, FL, CA, California, MA, Massachusetts, Minnesota, MN, ND, North Dakota, OH, Ohio, WI, Wisconsin, Hohe, San Diego, San Diego Unified School District, Global Travel Marketing, Shea, Gonzalez, City Of Coral Gables, Sharon, City of Newton, Moore, Minnesota Baseball Instructional School, McPhail, Bismark Park District, Zivich, Mentor Soccer Club, Osborn, Cascade Mountain, Atkins, Swimwest Family Fitness Center, Minor, Minors, Right to Sue, Utah, UT, Equine, Equine Safety Act, North Carolina, New York,
Releases work for exercise programs when a mall, for free, opens up early to help people age in Massachusetts
Posted: November 7, 2016 Filed under: Massachusetts, Release (pre-injury contract not to sue) | Tags: Comprehensive, Mall, Release, Shopping Center, Walking Leave a commentAny exception to a release in Massachusetts must be specifically identified in the release. This means that if a plaintiff wants to argue the release does not apply to “this” which caused my injury; “this” must be identified as something the release does not apply to.
Bastable v. Liberty Tree Mall Limited Partnership, 6 Mass. L. Rep. 217; 1996 Mass. Super. LEXIS 64
State: Massachusetts; Superior Court of Massachusetts, at Middlesex
Plaintiff: Rosamond Bastable
Defendant: Liberty Tree Mall Limited Partnership
Plaintiff Claims: negligence
Defendant Defenses: release
Holding: for the Defendant
Year: 1996
Outdoor recreation normally does not cover walking indoors; however, it is an important component for a lot of former recreationists (and it is probably in all of our futures). In this case, the local hospital and the mall teamed up to offer seniors the opportunity to exercise indoors in the mall before it opened.
On September 12, 1993, Bastable enrolled in the “STEPPIN’ OUT!” walking program sponsored by Liberty Tree Mall and Beverly Hospital. The program permitted people in the community to walk in the mall for exercise each day prior to the mall opening to the public. In order to participate in the program, Bastable was required to sign a release.
While exciting the mall one day after walking, the plaintiff fell. The plaintiff argued cracked tile caused her fall and injuries. She sued, and the court dismissed her complaint based on the release.
Analysis: making sense of the law based on these facts.
The first issue addressed by the court was the issue of validity of releases in Massachusetts. Releases are valid in Massachusetts.
The release Bastable signed was a valid and lawful waiver. “There is no rule of general application that a person cannot contract for exemption from liability for his own negligence. Moreover, a release which allocates risk is not against public policy.
In an effect to have the release not apply to the plaintiff’s injuries; she argued the release only applied to “general maintenance activities,’ which she described as now removal and landscaping. The plaintiff’s injuries did not arise from that general maintenance but from specific failed maintenance issues. Meaning the release was written for water on the floor rather than a tile the needed repaired. However, that did not work.
Bastable does not allege that the release was unlawful; rather, she claims that the release applies only to injuries caused by general maintenance activities (such as snow removal and landscaping) and that her injury did not arise from these activities.
Under Massachusetts law, releases are to be interpreted broadly if the language of the release is comprehensive in nature. Any exception to a release must be specifically identified in the release as an exception. “Additionally, Massachusetts courts have held that if the parties intend that an exception to a general release exists, they must include that exception in the release.”
Meaning if the drafters and parties to the release wanted a broadly written comprehensive release not to cover a specific issue or possible risk, it must be identified in the release as not being covered in the release.
If Liberty had intended to limit its liability to only those accidents arising from maintenance tasks, it would have specifically stated so in its release. Instead, the release holds Liberty harmless for “any . . . injury that may take place on mall property” whether or not it results from a maintenance activity.
Because the damaged tile or this type of maintenance was not identified in the release as not being covered by the release, the release prevented the suit for those issues also.
The defendant won this case because the release was written broadly enough to cover all issues.
So Now What?
A policy under release law would eliminate numerous arguments made by plaintiff’s that the release did not affect their claim because their claim was not specifically or generally contemplated by the release. Here, the courts said the release was written broadly, and that breadth covered your injuries.
This is not something can be easily changed in a state, as it is a court policy decided over the years. However, it is possibly an issue that should be brought up and argued in release cases so courts understand it should be an issue they review.
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
Copyright 2016 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog: www.recreation-law.com
Mobile Site: http://m.recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Walking, Mall, Shopping Center, Release, Comprehensive,
Bastable v. Liberty Tree Mall Limited Partnership, 6 Mass. L. Rep. 217; 1996 Mass. Super. LEXIS 64
Posted: October 17, 2016 Filed under: Legal Case, Massachusetts, Release (pre-injury contract not to sue) | Tags: Comprehensive, Mall, Release, Shopping Center, Walking Leave a commentBastable v. Liberty Tree Mall Limited Partnership, 6 Mass. L. Rep. 217; 1996 Mass. Super. LEXIS 64
Rosamond Bastable v. Liberty Tree Mall Limited Partnership
95-02505-F
SUPERIOR COURT OF MASSACHUSETTS, AT MIDDLESEX
6 Mass. L. Rep. 217; 1996 Mass. Super. LEXIS 64
December 9, 1996, Decided
DISPOSITION: [*1] Defendant’s Motion For Summary Judgment is ALLOWED.
JUDGES: Herman J. Smith, Jr., Justice of the Superior Court.
OPINION BY: HERMAN J. SMITH, JR.
OPINION
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
The plaintiff, Rosamond Bastable (“Bastable”), commenced this action against the defendant, Liberty Tree Mall Limited Partnership (“Liberty”), alleging that Liberty’s negligent maintenance of its property caused her to slip and fall and sustain injury. Liberty has moved for summary judgment pursuant to Rule 56(b) of the Massachusetts Rules of Civil Procedure. The motion for summary judgment is ALLOWED.
FINDINGS OF FACT
On September 12, 1993, Bastable enrolled in the “STEPPIN’ OUT!” walking program sponsored by Liberty Tree Mall and Beverly Hospital. The program permitted people in the community to walk in the mall for exercise each day prior to the mall opening to the public. In order to participate in the program, Bastable was required to sign a release. The clauses of the release pertinent to this summary judgment motion read as follows:
We are pleased to extend use of Liberty Tree Mall premises during non-operational hours, however, please be advised [*2] that certain hazardous conditions may exist as this is the time during which normal maintenance and housekeeping tasks are performed. This includes exterior landscaping and snow removal activities.
Therefore, please understand that you must hold the Mall harmless for any loss, cost, damage or injury that may take place on Mall property during the time you are on the site as part of the STEPPIN’ OUT WALKING PROGRAM. In addition, you must agree to indemnify the Mall for any loss, any injury that may take place during the time you are on the property for the purpose of the STEPPIN’ OUT WALKING PROGRAM.
On January 10, 1994, Bastable arrived at the Liberty Tree Mall to participate in the STEPPIN’ OUT program. As she was leaving the mall, Bastable fell and fractured her leg. Bastable now brings a negligence action against Liberty alleging that a cracked tile caused her to slip and fall. Liberty maintains that the release Bastable signed expressly bars her negligence action because the release holds Liberty harmless for injuries that occur while the walkers are participating in the STEPPIN’ OUT program. 1
1 Bastable claims that because she had completed the program at the time of her fall the release does not apply. This court finds that Bastable was on the premises exclusively for the purposes of participating in the program and that the release applies to Bastable’s injury. The plaintiff’s affidavit and other submissions do not raise a material issue of fact on this point.
[*3] DISCUSSION
[HN1] Summary judgment shall be granted where there are no genuine issues as to any material fact in dispute and where the moving party is entitled to judgment as a matter of law. Cassesso v. Commissioner of Correction, 390 Mass. 419, 422, 456 N.E.2d 1123 (1983); Community Nat’l Bank v. Dawes, 369 Mass. 550, 553, 340 N.E.2d 877 (1976); Mass.R.Civ.P. 56(c). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue “and that the moving party is entitled to judgment as a matter of law.” Pederson v. Time, Inc., 404 Mass. 14, 17, 532 N.E.2d 1211 (1989).
The release Bastable signed was a valid and lawful waiver. [HN2] “There is no rule of general application that a person cannot contract for exemption from liability for his own negligence.” Clarke v. Ames, 267 Mass. 44, 47, 165 N.E. 696 (1929). See also Cormier v. Central Massachusetts Chapter of the National Safety Council, 416 Mass. 286, 288, 620 N.E.2d 784 (1993) (organizer of motorcycle safety course can exempt itself from liability for its own negligence by requiring participants to sign a release). Id. at 289; Clark v. Ames at 48.
Bastable does not allege that the [*4] release was unlawful; rather, she claims that the release applies only to injuries caused by general maintenance activities (such as snow removal and landscaping) and that her injury did not arise from these activities. She argues that because Liberty specifically mentioned the maintenance activities in the first paragraph of the release, Liberty intended to limit its liability only in regard to injuries caused by those particular activities.
[HN3] Massachusetts courts will broadly interpret a release if the language in the release is comprehensive in nature. In Cormier, the plaintiff signed a release which exempted the defendant “from any and all liability . . . for . . . injuries arising out of participation in the motorcycle training course.” Id. at 287. While the plaintiff was participating in the course, she sustained injury due to the defendant’s negligence. The court held that while the release did not mention the term negligence, the release was unambiguous and comprehensive enough to bar a claim in negligence although the release did not specifically mention the term. Id. at 288. Similarly, in Clark v. Ames, a lessee signed a lease which “saved the lessor harmless [*5] and indemnified from . . . any injury . . . to any person . . . while in transit thereto or therefrom upon the hallways, stairways, elevators or other approaches to the demised premises.” 267 Mass. at 46. The plaintiff was injured in an elevator due to the negligence of the lessor’s agent. The court ruled that although the lessor’s agent was not specifically mentioned in the lease, the language of the lease was broad enough to exempt the lessor’s agent from liability. Id.
Additionally, Massachusetts courts have held that [HN4] if the parties intend that an exception to a general release exist, they must include that exception in the release. In Tupper v. Hancock, 319 Mass. 105, 106 n.1, 64 N.E.2d 441 (1946), the creditor plaintiffs, under the assumption that the estate was bankrupt, signed a release discharging the estate administrator “from all debts, demands . . . [and] causes of action.” When the estate later received additional assets, the plaintiffs sued to recover their debts. The court held that the release language was unequivocal and that if the plaintiffs had wanted to reserve their right to collect debts when additional assets became available, they should have included this [*6] exception in the release. Id. at 108. [HN5] A release “is to be given effect even if the parties did not have in mind all the wrongs which existed at the time of the release . . . If exceptions to the scope of the [release] were intended, they should have been stated.” Schuster v. Baskin, 354 Mass. 137, 140, 236 N.E.2d 205 (1968). See also Naukeag Inn, Inc. v. Rideout, 351 Mass. 353, 356, 220 N.E.2d 916 (1966).
Liberty’s release states that the walker must “hold the Mall harmless for any loss, cost, damage or injury that may take place on Mall property during the time [the walker is] on the site as part of the STEPPIN’ OUT WALKING PROGRAM.” (Emphasis added.) The release clearly states that Liberty can not be held liable for any injury that occurs while the walker is participating in the program. The paragraph regarding maintenance activities which precedes the paragraph regarding indemnification merely serves as a notice to the participant of the type of hazardous conditions that may exist on the premises while the walkers are participating in the program. The mere mention of the maintenance activities in the first paragraph does not limit Liberty’s liability to only those accidents which arise [*7] from maintenance activities. If Liberty had intended to limit its liability to only those accidents arising from maintenance tasks, it would have specifically stated so in its release. Instead, the release holds Liberty harmless for “any . . . injury that may take place on mall property” whether or not it results from a maintenance activity. Because the release does not specifically limit Liberty’s liability to injuries arising from maintenance tasks but instead exempts Liberty’s liability for all injuries no matter how they occur, the plaintiff’s negligence action is barred.
CONCLUSION
Bastable’s negligence action is barred by the release she signed when she enrolled in the STEPPIN’ OUT walking program. Because the release holds Liberty harmless for all injuries which occur while the walker is participating in the program, Liberty is not liable for Bastable’s injuries.
ORDER
For the above reasons, the court hereby ORDERS that the defendant’s Motion For Summary Judgment is ALLOWED.
Herman J. Smith, Jr.
Justice of the Superior Court
Dated: December 9, 1996
Indemnification between businesses requires a contract outlining the type of indemnification and a certificate of insurance from one party to the other so the insurance company knows it is on the hook.
Posted: May 30, 2016 Filed under: Insurance, Massachusetts | Tags: Certificate of Insurance, Coaster, Indemnification, Jiminy Peak, Navigator, Wiegand 1 CommentBecause no certificate of insurance was issued by the third-party insurance company, company, the contract requiring indemnification between the ski area and the manufacturer failed.
Jiminy Peak Mountain Report, LLC, v. Wiegand Sports, LLC, 2016 U.S. Dist. LEXIS 34209
State: Massachusetts, United States District Court for the District of Massachusetts
Plaintiff: Jiminy Peak Mountain Report, LLC
Defendant: Wiegand Sports, LLC, and, Navigators Specialty Insurance, CO.
Plaintiff Claims: Indemnification
Defendant Defenses: No contract
Holding: for the Defense
Year: 2016
Obviously, this is not your normal injured guest case. This case looks at the relationship between a resort and a manufacturer who installed a ride at the resort.
In 2006 the defendant Wiegand built an Alpine Coaster for the plaintiff ski area Jiminy Peak Mountain Resort, LLC. The construction/purchase agreement (Consulting, Purchase, Delivery, Assembly and Inspection Contract) also contained language requiring the manufacturer to defend any claims that were brought against the plaintiff for injuries after the ride was built.
The construction agreement required Jiminy Peak to pay part of the premiums for the insurance policy. However, the policy was only in the name of the defendant Wiegand, and did not list Jiminy Peak as an additional insured or co-insured.
Section 8 of the Contract, titled “Rights and Obligations of [Jiminy]” included in its final subsection, 8(j), language stating that Wiegand would purchase product liability insurance for the Coaster, but that Jiminy was required to pay a portion of the premium, the amount of which would be determined based on the purchase price of the Coaster, and Jiminy would then be listed as an additional insured.
The agreement also stated that Wiegand would defend and pay for any claim that Jiminy Peak received.
…in the event of a product liability suit against [Wiegand], [Wiegand] “shall, at its own expense, defend any suit or proceeding brought against [Jiminy] and shall fully protect and indemnify [Jiminy] against any and all losses, liability, cost, recovery, or other expense in or resulting from such . . . suit (provided, however, [Jiminy] has fully performed all ongoing maintenance obligations).
In 2012, two minors were seriously injured riding the coaster. Wiegand had a commercial liability policy with the defendant Navigators Insurance Company. However, Navigators did not issue a certificate of insurance covering Jiminy Peak. The parents of the injured minors filed suit against Jiminy Peak and Wiegand. Jiminy Peak sued Wiegand and Navigator seeking a declaratory judgment requiring Wiegand and Navigator to pay the cost of defending those suits.
A declaratory judgment is a quick request for a court to issue an order. Jiminy and Wiegand dismissed their claims against each other and just were fighting the lawsuit against them. The case between Jiminy and Navigator then is the subject of this decision.
Analysis: making sense of the law based on these facts.
Navigator argued that there was a duty to defend someone who was not a named insured. Jiminy Peak was not listed on the policy as an insured, co-insured, or additional insured. Navigator also argued that it had no legal relationship with Jiminy Peak; therefore, it owed Jiminy Peak no money.
Navigators argues that as an insurer it owes a duty to defend its insured, Wiegand, but it does not owe a direct duty to defend Jiminy because Jiminy is not an additional insured under the Policy. Further, the duty Navigators has under the Policy to pay defense costs to a non-insured party pursuant to a contractual liability of its insured only requires it to make payments to the insured, and only when the insured has actually requested payment. In this case, Navigators asserts that even if Wiegand is found to owe Jiminy its defense costs, it will be up to Wiegand to determine whether it wishes to pay the amount or to make a claim to Navigators. Since Navigators owes no duty directly to Jiminy and it would be up to Wiegand to determine whether to make a claim in the event judgment is entered against it with respect to Jiminy’s defense costs…
Jiminy Peak responded by arguing the contract between it, and Wiegand was enough to force Navigator to pay. (You and I go to dinner and try to convince the waiter that your friend who is not at the table should pay for our meal.)
The court looked into the requirements for an insurance company to defend under Massachusetts law.
The court begins its analysis by considering whether Massachusetts law allows Jiminy to compel payment from Navigators based on Navigators’ obligations to its insured, Wiegand. Massachusetts law imposes on insurers a “broad duty to defend its insured against any claims that create a potential for indemnity.” This duty is broad and attaches whenever the claims in the complaint match up with the language in the policy.
However, the broad language of the policy only applies to the companies named in the policy as insured. Jiminy Peak was not named in any way under the policy.
The Contract also included provisions regarding both additional insureds and “insured contracts,” suggesting that Jiminy, like Navigators and Wiegand, understood that Wiegand’s promise to pay Jiminy’s defense costs would not grant Jiminy the status of an “additional insured” with respect to Navigators.
If Jiminy Peak had been named in the policy or listed as an additional insured, then coverage would have been provided under Navigator’s policy issued to Wiegand.
In the absence of a contractual relationship between Navigators and Jiminy, the court finds no legal basis for ordering Navigators to pay Jiminy’s defense costs directly. Any obligation upon Navigators to pay such costs will arise only after an insured, in this case Wiegand, makes a claim for payment and then its only obligation will be to Wiegand.
Jiminy Peak may still be indemnified by Navigator’s policy. However, to be covered Wiegand will have to make a claim under the policy and if Wiegand was negligent and did something defined under the policy as an insured, then coverage will be provided.
However, I doubt any coverage will be provided unless Jiminy Peak can prove that Wiegand was negligent in its relationship. The contract only applies to product liability or negligence claims of the insured, Wiegand.
So Now What?
Insurance policies are written so the language is clear. The insured or persons covered by the policy are listed on the first page, the declaration page, or as additional insured on the policy. The coverage provided by a policy is broader than the language usually required by state law. However, the broad coverage is only extended to the people listed in the policy.
If your name is not on a piece of paper issued by the insurance company you are not covered under the policy.
A certificate of insurance request by Jiminy Peak would have solved the problem.
However, requesting a certificate of insurance does not solve all problems, in fact, it only solves very limited problems. For a simple certificate of insurance to provide protection, the named insured must have done something to create liability for the insured under the certificate of insurance.
Just requesting a certificate of insurance without an agreement outlining what is to be covered is worthless.
Every day I see situations where one company requests a certificate of insurance believing that provides coverage. It does not. To be effective a certificate of insurance should be issued based on a contract that outlines what is to be covered under the certificate of insurance. The certificate of insurance must conform to the contract between the parties.
A certificate of insurance, by itself, is pretty worthless. (If they had real value would insurance companies issue them so easily?)
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers, avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
G-YQ06K3L262
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
Email: Jim@Rec-Law.US
By Recreation Law Rec-law@recreation-law.com James H. Moss
@2024 Summit Magic Publishing, LLC
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Certificate of Insurance, Coaster, Jiminy Peak, Wiegand, Navigator, Indemnification,
Jiminy Peak Mountain Report, LLC, v. Wiegand Sports, LLC, 2016 U.S. Dist. LEXIS 34209
Posted: April 23, 2016 Filed under: Contract, Insurance, Legal Case, Massachusetts | Tags: amount in controversy, asserting, bodily injury, Certificate of Insurance, Coaster, contractual, cross-claims, cross-motions, declaratory, disclosures, disputed, duty to defend, fully performed, Indemnification, Insurance policy, insured, insurer, Jimmy Peak, judgment ordering, liability claims, Liability insurance, Navigator, negligence claim, owe, own expense, Premium, principal place of business, publicly, separately, seriously injured, state law, threshold amount, traded, wholly-owned subsidiary, Wiegand Leave a commentTo Read an Analysis of this decision see: Indemnification between businesses requires a contract outlining the type of indemnification and a certificate of insurance from one party to the other so the insurance company knows it is on the hook.
Jiminy Peak Mountain Report, LLC, v. Wiegand Sports, LLC, 2016 U.S. Dist. LEXIS 34209
Jiminy Peak Mountain Report, LLC, Plaintiff, v. Wiegand Sports, LLC, and, Navigators Specialty Insurance, CO., Defendants.
Civil Action No. 14-40115-MGM
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
2016 U.S. Dist. LEXIS 34209
March 16, 2016, Decided
March 16, 2016, Filed
COUNSEL: [*1] For Jiminy Peak Mountain Resort, LLC, Plaintiff: Jennifer C. Sheehan, Matthew D. Sweet, Richard J. Shea, Hamel, Marcin, Dunn, Reardon & Shea, P.C., Boston, MA.
For Navigators Specialty Insurance Company, Defendant: David A. Grossbaum, LEAD ATTORNEY, Matthew R. Watson, Hinshaw & Culbertson LLP, Boston, MA.
JUDGES: MARK G. MASTROIANNI, United States District Judge.
OPINION BY: MARK G. MASTROIANNI
OPINION
MEMORANDUM AND ORDER ON CROSS-MOTIONS FOR JUDGMENT ON THE PLEADINGS
(Dkt. Nos. 40 & 42)
MASTROIANNI, U.S.D.J.
I. Introduction
Plaintiff, Jiminy Peak Mountain Resort, LLC (“Jiminy”) operates a ski area in Hancock, Massachusetts. In 2005 it entered into a contract with Defendant, Wiegand Sports, LLC (“Wiegand”), to purchase a Wiegand, Alpine Coaster (the “Coaster”). The Coaster opened to the public in 2006. In August of 2012, two minors were seriously injured while riding the Coaster. The parents of the minors subsequently filed two lawsuits (together, the “Underlying Action”), each asserting claims against Jiminy and Wiegand. Jiminy subsequently filed this suit against Wiegand and Defendant, Navigators Specialty Insurance, Co. (“Navigators”), Wiegand’s insurer at the time the minors were injured, seeking a declaratory judgment [*2] ordering Wiegand and Navigators to pay the defense costs incurred by Jiminy in the Underlying Action. Before the court are cross-motions for judgment on the pleadings from Jiminy and Navigators. Jiminy and Wiegand have stipulated to the dismissal of their cross-claims, agreeing to litigate those claims in the Underlying Action, rather than in this lawsuit.
II. Jurisdiction
In this action, Jiminy seeks an order requiring Navigators to pay Jiminy’s past and future defense costs in the Underlying Action based on the terms of the contract between Jiminy and Wiegand and the insurance policy Navigators issued to Wiegand. The relief is requested pursuant to state law. Federal courts have jurisdiction over suits brought pursuant to state law where there is complete diversity of citizenship between the adversaries and the amount in controversy exceeds a threshold amount of $75,000. 28 U.S.C. § 1332; Arbaugh v. Y&H Corp., 546 U.S. 500, 513, 126 S. Ct. 1235, 163 L. Ed. 2d 1097 (2006). Based on the content of the complaint and the corporate disclosures filed by the parties (Dkt. Nos. 20, 21, 55), the court finds that (1) Jiminy is a Massachusetts limited liability company, owned by two other Massachusetts limited liability companies, which in turn are owned by members who reside in Massachusetts [*3] and (2) Navigators is incorporated in Delaware, has its principal place of business in Connecticut, and is a wholly-owned subsidiary of the publicly traded Navigators Group, Inc., less than ten percent (10%) of which is owned by any other single publicly traded corporation.1 Plaintiff asserts the amount in controversy exceeds the statutory threshold amount. In the absence of any challenge from Defendant, the court finds it has jurisdiction in this case pursuant to 28 U.S.C. § 1332.
1 Though Jiminy is no longer pursuing its claim against Wiegand, the court notes that Wiegand, as a wholly-owned subsidiary of a German entity with its principal place of business in Salt Lake City, Utah, is also diverse with respect to Jiminy. (Compl. ¶ 7, Dkt. No. 1, Corp. Disclosure, ¶ 1, Dkt. No. 19.)
III. Standard of Review
“‘A motion for judgment on the pleadings [under Rule 12(c)] is treated much like a Rule 12(b)(6) motion to dismiss,’ with the court viewing ‘the facts contained in the pleadings in the light most favorable to the nonmovant and draw[ing] all reasonable inferences therefrom.'” In re Loestrin 24 Fe Antitrust Litig., No. 14-2071, 2016 U.S. App. LEXIS 3049, 2016 WL 698077, at *8 (1st Cir. Feb. 22, 2016) (quoting Pérez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 (1st Cir. 2008)). Where, as here, the court is presented with cross-motions for judgment on the pleadings, the court’s role is [*4] “to determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed.” Curran v. Cousins, 509 F.3d 36, 44 (1st Cir. 2007) (internal citations omitted)). As in the case of a motion under Rule 12(b)(6), the court is permitted to consider documents central to the plaintiff’s claims where the authenticity of the documents is not disputed and the complaint adequately references the documents. Id. (citing Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993)).
IV. Background
In December of 2005, Jiminy and Wiegand entered into a “Consulting, Purchase, Delivery, Assembly and Inspection Contract” (the “Contract”). (Compl. ¶ 9, Dkt. No. 1.) Pursuant to this contract, Jiminy agreed to purchase the Coaster and Wiegand agreed to deliver, assemble, and inspect it. (Id.) Section 8 of the Contract, titled “Rights and Obligations of [Jiminy]” included in its final subsection, 8(j), language stating that Wiegand would purchase product liability insurance for the Coaster, but that Jiminy was required to pay a portion of the premium, the amount of which would be determined based on the purchase price of the Coaster, and Jiminy would then be listed as an additional insured. (Compl. Ex. A, Contract, § 8(j), Dkt. No. 1-1.) (Id.) The Contract did not set forth the term during which Wiegand’s product [*5] liability insurance policy would apply, but did provide that Jiminy would have the option to continue as an additional insured during subsequent periods, provided it continued to pay the “same premium ratio.” Id. The same section also provided that Jiminy would separately maintain a personal injury insurance policy “at its own expense at all times so long as [it] operates [the Coaster].” (Id.) The Complaint does not assert that Jiminy continued to pay premiums to remain an additional insured under Wiegand’s product liability insurance policy.
Separately at Section 12, titled “Indemnification,” the Contract provided that:
in the event of a product liability suit against [Wiegand], [Wiegand] “shall, at its own expense, defend any suit or proceeding brought against [Jiminy] and shall fully protect and indemnify [Jiminy] against any and all losses, liability, cost, recovery, or other expense in or resulting from such . . . suit (provided, however, [Jiminy] has fully performed all ongoing maintenance obligations).
(Id. at § 12(A)(1).)
The following paragraph then provided that Jiminy would
protect, indemnify, defend and hold [Wiegand] harmless from and against any and all losses of [Wiegand] arising out of or sustained, [*6] in each case, directly or indirectly, from . . . any default by [Jiminy] . . . including without limitation, from defective/bad maintenance and/or operation of the Alpine Coaster caused by [Jiminy’s] gross negligence or willful misconduct.
(Id. at § 12(A)(2).)
Under Section 18, the Contract is to be interpreted in accordance with Massachusetts law.
(Id. at § 18.)
The Coaster was installed and became operational in 2006. In August of 2012, two minors were seriously injured while riding the Coaster. At the time of the accident, Wiegand had a general commercial liability insurance policy with Navigators (“Policy”). (Policy, Ex. C, Dkt. No. 1-3.) The Policy Period ran from March 1, 2012 through March 1, 2013. Id. Pursuant to Section I(1)(a), the Policy provided that Navigators would “pay those sums that [Wiegand] becomes legally obligated to pay as damages because of ‘bodily injury’ . . . to which [the Policy] applies.” (Id. at Section I(1)(a).) The obligation established under Section I(1)(a) is further defined in Section I(2)(b) as excluding certain types of damages, including those assumed in a contract, unless assumed in an “insured contract.” (Id. at Section I(2)(b).) In the case of an “insured contract,” “reasonable [*7] attorney fees and necessary litigation expenses incurred by or for a party other than an insured [was] deemed to be damages because of ‘bodily injury’ . . . , provided . . . that the party’s defense [had] also been assumed in the same ‘insured contract'” and the damages arise in a suit to which the Policy applied. (Id.) An “insured contract” is defined in the Policy as including “[t]hat part of any other contract or agreement pertaining to [Wiegand’s] business . . . under which [Wiegand] assume[d] the tort liability of another party to pay for ‘bodily injury’ . . . to a third person or organization.” (Id. at Section V(9)(f)). “Tort liabililty” is, in turn, defined as “a liability that would be imposed by law in the absence of any contract or agreement.” (Id.)
The parents of the minors injured on the Coaster in August of 2012 subsequently filed the Underlying Action against Jiminy and Wiegand.2 (Compl., Ex. B, Compls. in Underlying Action, Dkt. No. 1-2.) The six-count complaints3 both include a negligence claim against Jiminy (Count I), a negligence claim against Wiegand (Count II), products liability claims against Wiegand (Counts III and IV), breach of implied warranty of merchantability claim against [*8] Wiegand (Count V), and a loss of consortium claim against Wiegand and Jiminy (Count VI). (Id.) After the Underlying Action was filed, Jiminy filed this action against Wiegand and Navigators, seeking a declaratory judgment ordering Wiegand and Navigators to pay the defense costs incurred by Jiminy in connection with the Underlying Action. (Compl., Dkt. No. 1.) As mentioned above, Jiminy and Wiegand agreed to the dismissal of Jiminy’s claim seeking declaratory judgment from Wiegand in this action and instead are litigating the issues in the Underlying Action.
2 These suits were initially filed in the Eastern District of New York, but have since been transferred to this court where they are proceeding as a consolidated case – 13-cv-30108-MGM. The claims brought on behalf of the minors have already been settled. The only remaining claims in those cases are the cross-claims between Jiminy and Wiegand.
3 In both complaints, the claims are actually labeled 1-5 and 7.
V. Discussion
Both Jiminy and Navigators have moved for judgment on the pleadings. Navigators argues that as an insurer it owes a duty to defend its insured, Wiegand, but it does not owe a direct duty to defend Jiminy because Jiminy [*9] is not an additional insured under the Policy.4 Further, the duty Navigators has under the Policy to pay defense costs to a non-insured party pursuant to a contractual liability of its insured only requires it to make payments to the insured, and only when the insured has actually requested payment. In this case, Navigators asserts that even if Wiegand is found to owe Jiminy its defense costs, it will be up to Wiegand to determine whether it wishes to pay the amount or to make a claim to Navigators. Since Navigators owes no duty directly to Jiminy and it would be up to Wiegand to determine whether to make a claim in the event judgment is entered against it with respect to Jiminy’s defense costs, Navigators argues judgment on the pleadings should enter in its favor.
4 In its filings and at oral argument, Jiminy was clear that it was not claiming to be an additional insured under the Policy.
For its part, Jiminy begins its argument with the Contract, asserting first that the language in the Contract at § 12(A)(1) clearly establishes that Wiegand has a duty to pay Jiminy’s defense costs regardless of any potential factual disputes between Jiminy and Wiegand, provided (1) the defense costs are incurred [*10] in litigation in which there is a product liability claim against Wiegand and (2) Jiminy is also a defendant named in the action.5 As the Underlying Action includes product liability claims against Wiegand, as well as other claims against Jiminy, Jiminy asserts the two requirements are met. Jiminy then turns to the Policy, arguing that the Contract is an “insured contract” for purposes of the Policy. Finally, Jiminy argues that since the Policy provides coverage for liability assumed by Wiegand in an “insured contract,” Navigator, as an insurer, is required under Massachusetts law, to pay for Jiminy’s defense, without regard to the resolution of the dispute between Wiegand and Jiminy.
5 Initially, in its memorandum in support of its motion for judgment on the pleadings, Jiminy argued that it would also be necessary to establish that there were no disputes as to whether Jiminy had “fully performed all ongoing maintenance obligations.” (Compl., Ex. B, Contract §12(A)(1).) Subsequently, in its opposition to Navigators’ motion for judgment on the pleadings, Jiminy instead argued that the requirement regarding maintenance obligations applied only to indemnification claims.
Navigators has not contested, [*11] at least relative to the purpose of the motions currently before the court, that the Contract between Jiminy and Wiegand is an “insured contract” for purposes of the Policy. Also, Navigators does not dispute or that the Underlying Action is the type of litigation covered under the Policy. The court begins its analysis by considering whether Massachusetts law allows Jiminy to compel payment from Navigators based on Navigators’ obligations to its insured, Wiegand. Massachusetts law imposes on insurers a “broad duty to defend its insured against any claims that create a potential for indemnity.” Doe v. Liberty Mut. Ins. Co., 423 Mass. 366, 667 N.E.2d 1149, 1151 (Mass. 1996). This duty is broad and attaches whenever the claims in the complaint match up with the language in the policy. See Liberty Mut. Ins. Co. v. SCA Services, Inc., 412 Mass. 330, 588 N.E.2d 1346, 1347 (Mass. 1992). However, the cases cited by the parties all involve cases in which the court discussed the duty in the context of the insured.
Jiminy has not cited any cases in which a court imposed on an insurer a duty to defend a third-party beneficiary of a policy. Instead, Jiminy argues the language of the Policy providing coverage for defense costs of a third-party pursuant to an “insured contract” shows the parties’ intention that Navigators would pay such costs and, therefore, such language [*12] should be construed to impose upon Navigators a duty to make payment directly to Jiminy. The court disagrees. As demonstrated by the provisions in the Policy that allow for the designation of an additional insured, Navigators and Wiegand knew how to extend Navigators’ duties as an insurer to other parties. Damages, including defense costs, associated with “insured contracts” were handled differently, indicating that Navigators and Wiegand did not, in fact, intend that in a case like this one Navigators would have any direct obligations to Jiminy based on the Contract. The Contract also included provisions regarding both additional insureds and “insured contracts,” suggesting that Jiminy, like Navigators and Wiegand, understood that Wiegand’s promise to pay Jiminy’s defense costs would not grant Jiminy the status of an “additional insured” with respect to Navigators.
In the absence of a contractual relationship between Navigators and Jiminy, the court finds no legal basis for ordering Navigators to pay Jiminy’s defense costs directly. Any obligation upon Navigators to pay such costs will arise only after an insured, in this case Wiegand, makes a claim for payment and then its only obligation [*13] will be to Wiegand. Judgment on the pleadings in favor of Navigators is, therefore, appropriate.
VI. Conclusion
For the Foregoing reasons, Plaintiff’s Motion for Judgment on the Pleadings is hereby DENIED and Defendant’s Motion for Judgment on the Pleadings is hereby ALLOWED.
It is So Ordered.
/s/ Mark G. Mastroianni
MARK G. MASTROIANNI
United States District Judge
G-YQ06K3L262
Do you have contracts with all of your athletes? Manufacturers who provide more than swag to athletes may be sued without a written agreement.
Posted: September 7, 2015 Filed under: Contract, Cycling, Massachusetts, Mountain Biking | Tags: Athlete, BMX, Competitor, Cycling team, Cyclists, Defamation, Diamondback, Misrepresentation, Negligent Misrepresentation, Nicholi Rogatkin, Raleigh, Raleigh America, Raleigh America Inc., Sponsored Athlete, Sponsorship Leave a commentIn this case the manufacturer one because the damages were not able to be proven, however, this is just the tip of the iceberg on what could happen. What if the rider was injured, and you were their largest contributor to their income?
Rogatkin v. Raleigh America Inc., 69 F. Supp. 3d 294; 2014 U.S. Dist. LEXIS 164154
State: Massachusetts, UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAS-SACHUSETTS
Plaintiff: Nicholi Rogatkin, Minor by His Father and Next Friend, Vladmir Rogatkin
Defendant: Raleigh America Inc./Diamondback BMX, and John Does 1-8
Plaintiff Claims: : unauthorized use of name and portrait or picture in violation of Mass. Gen. Laws ch. 214 § 3A (Count I); unfair and/or deceptive business practices in violation of Mass. Gen. Laws ch. 93A, §§ 2 & 11 (Count II); defamation (Count III); negligent misrepresentation (Count IV); unjust enrichment (Count V); promissory estoppel (Count VI); and intentional misrepresentation (Count VII).
Defendant Defenses: No evidence and No damages
Holding: for the defendant
Year: 2014
The plaintiff was a very talented BMX rider starting at a very early age. The defendant started sponsoring him at age 11 in 2007. That sponsorship continued for five years until 2012 when the plaintiff moved on to another sponsorship. During that time, the sponsorship started as a bike and other equipment and grew to a monthly income and travel expenses. During that time the plaintiff wore the defendant’s logos and sent photographs and videos to the defendant to be used on their website.
The plaintiff one year flew out to the defendants, at the defendant’s expense to be photographed for the defendant’s catalog. The defendant started asking for in 2010 and was told that he had a great career ahead of him.
Prior to receiving income, the plaintiff and defendant did not have any contract between them. Once the defendant started receiving a monthly income the plaintiff signed a Team Rider Sponsorship Agreement. The agreement was signed by the plaintiff’s father on behalf of the plaintiff. The agreement provided the plaintiff with a monthly payment, and the defendant got unlimited promotional use of the plaintiff’s name and likeness.
At no time, was the plaintiff restricted from receiving sponsorship from other manufacturers. Eventually, the plaintiff was picked up by other manufacturers, including other bike manufacturers. Eventually, he went to one of the manufacturers as a high-paid rider and left the defendant. Soon thereafter the plaintiff, by and through his father, sued the defendant. The claims total seven counts.
unauthorized use of name and portrait or picture in violation of Mass. Gen. Laws ch. 214 § 3A (Count I);
unfair and/or deceptive business practices in violation of Mass. Gen. Laws ch. 93A, §§ 2 & 11 (Count II);
defamation (Count III);
negligent misrepresentation (Count IV);
unjust enrichment (Count V);
promissory estoppel (Count VI);
and intentional misrepresentation (Count VII).
Basically, the plaintiff sued to get more money believing that he was not compensated enough by the defendant for his work prior to leaving. He did not win any of these arguments. The judge granted the defendants motion for summary judgment.
Analysis: making sense of the law based on these facts.
The decisions starts with an analysis of the defamation claim. To prove defamation on Massachusetts law the plaintiff must prove:
…the defendant was at fault for the publication of a false statement regarding the plaintiff, capable of damaging the plaintiff’s reputation in the community, which either caused economic loss or is actionable without proof of economic loss.
The plaintiff based his claims on the theory that the defendant did not change the photos on its website fast enough to match the growth of the plaintiff and his riding larger bikes. For a year or so after he had advanced from a 16” (wheel size) bike to 18” then 20” bikes he was pictured on the website riding 16” bikes.
Although Rogatkin admits that the accused material was accurate and non-defamatory when published, he contends that as he grew in age and skill, his static portrayal by Raleigh took on a defamatory undertone.
Because the information was valid at the time it was posted, and the plaintiff’s date of birth was on the site, the court found no major issue with not changing photographs as quickly as the plaintiff wanted. The court even had fun with this argument.
Although Raleigh did not update Rogatkin’s biography with the march of time (the court knows of no duty the law imposes to do as much), it published Rogatkin’s accurate date of birth on the same page — a reasonable assurance that the public would never confuse Rogatkin with, say, Peter Pan or Benjamin Button.
More importantly the plaintiff could not offer any evidence showing that by failing to change the photographs, he had suffered an injury.
A false statement is defamatory if it “would tend to hold the plaintiff up to scorn, hatred, ridicule or contempt, in the minds of any considerable and respectable segment in the community
The court then had fun and brought in Shirley Temple in its analysis of the negative publicity claimed by the plaintiff.
The publication of Rogatkin’s age (12) and characterizing him as a “kid” in a biography is no more susceptible to a defamatory meaning than biographical references to Ambassador Shirley Temple as a child actor or as “America’s Little Darling.
A biography, like a photograph, is a faithful snapshot of a person taken at a particular time in his or her life.
The court also looked at the argument made by the plaintiff as one of not suffering injury from not showing him riding larger bikes, but of failing to post more images of him on larger bikes, which could not be actionable.
Rogatkin alleges that Raleigh’s continued publication of images of him as a 16-inch bike rider led to ridicule and scorn because he was not shown riding a larger bike. This is not an objection to the publications, but to the lack of publication of photos showing Rogatkin riding larger bikes. Rogatkin has not identified any support for the novel proposition that the absence of publication may form the basis of a defamation claim.
The court then looked at the first count, unauthorized use of the name and image of the plaintiff.
The statute at issue allows a private right of action when an image had been used for commercial advertising without the consent of the person. The defendant argued that the emails between them showed consent to use the images. The court agreed.
…Rogatkin does not disagree that he condoned Raleigh’s use of his name and images for purposes of advertising at the time of publication, or that he attended the various photo shoots (such as the one in Seattle in 2008) with any expectation other than that his name and image would be used by Raleigh to promote sales of its bikes.
The court also brought up the fact the emails from the plaintiff complained they were not posting enough photographs of him on the defendant’s website. Again, the plaintiff could not show any damages from the posting of his images. Just because Raleigh made money from using his injuries is not damages for injury upon the plaintiff. “Because Rogatkin has adduced no material evidence of damages attributable to the use of his name and image, Raleigh is entitled to summary judgment on Count I.”
Next the court took on claims IV, VI and VII, Intentional/Negligent Misrepresentation, and Promissory Estoppel.
Under Massachusetts’s law to win a claim of misrepresentation, the plaintiff had to show false statement that induced him to do something.
To sustain a claim of misrepresentation, a plaintiff must show a false statement of material fact made to induce the plaintiff to act, together with reliance on the false statement by the plaintiff to the plaintiff’s detriment. . . . The speaker need not know ‘that the statement is false if the truth is reasonably susceptible of actual knowledge, or otherwise expressed, if, through a modicum of diligence, accurate facts are available to the speaker.’
However, even if the defendant had made a false representation, the plaintiff had to prove he was worse off based on the false representation.
…a plaintiff must allege that (1) a promisor makes a promise which he should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee, (2) the promise does induce such action or forbearance, and (3) injustice can be avoided only by enforcement of the promise.
The plaintiff could have rejected the sponsorship from the defendant, and the plaintiff was free to contract with other manufacturers for sponsorship.
On top of that, the plaintiff could not prove a promissory estoppel claim because he could not prove any terms or elements to create a legal claim.
Under Massachusetts law, “as with a claim for breach of contract, [i]n order to establish the existence of an enforceable promise under promissory estoppel, the plaintiff must show that the defendants’ promise included enough essential terms so that a contract including them would be capable of being enforced.”
Count V, unjust enrichment was reviewed by the court next.
The plaintiff claimed that the defendant unfairly profited from his work and photographs by paying him minimally. To prove an unjust enrichment claim the plaintiff must show:
(1) a benefit conferred upon the defendant by the plaintiff;
(2) an appreciation or knowledge of the benefit by the defendant; and
(3) the acceptance or retention of the benefit by the defendant under circumstances which make such acceptance or retention inequitable.
Damages from an unjust enrichment claim are the disgorgement of the property unjustly appropriated.
Because unjust enrichment is a theory of equitable recovery, and not a separate cause of action, a court may not order restitution as a form of damages; it may only require a party to disgorge property that has been wrongfully appropriated from the rightful possession of the other party.
First because the relationship between the parties was voluntary there were no fraud or “unjust” actions by the defendant. On top of that, the plaintiff benefited from the relationship just as the defendants did.
He also benefited materially from the relationship in terms of equipment, gear, and travel expenses. If Rogatkin found the terms of his association with Raleigh unsatisfactory, he was free to renegotiate, or leave to pursue other opportunities (both of which he eventually did). Because Raleigh did not unfairly retain any benefit conferred by Rogatkin,….
Here again, the plaintiff could show no damages nor could he even show injury in this case.
The court looked at Count II then, Unfair and/or Deceptive Business Practices under Chapter 93A, a Massachusetts statute.
Here again, the plaintiff did not successfully argue this claim because he could not prove that the defendant was unethical, unscrupulous and a fraud.
Rogatkin has not shown that Raleigh’s actions fell within “the penumbra of some common-law, statutory, or other established concept of unfairness . . . or [was] immoral, unethical, oppressive or unscrupulous . . . [or] cause[d] substantial injury to consumers (or competitors or other businessmen).
These arguments were all based in fraud or contract. In all cases, the damages cannot be what the defendant got from third parties but what it cost the plaintiff in dealing with the defendant. Here the plaintiff could not show any damages that qualified, in fact, the court found the plaintiff had benefited from the relationship and at worse was a bad negotiator.
So Now What?
Once you put someone’s image on your website or your give something, specifically to someone based upon their relationship with your product you better have that relationship in writing.
Once you hand product to someone to sue in an effort to promote your product and create a long-term relationship with that person that is not defined by other facts, such as product testers, writers, reviewers, etc., you might look at immortalizing that relationship in writing.
Most states have laws concerning the unauthorized use of someone’s likeness without their permission. That is an easy reason to see why you should have an agreement.
The facts here are another reason. A written contract outlining the relationship from the beginning would have eliminated this lawsuit.
However, this can get worse.
The IRS wants to know what your relationship is. Without an agreement, the IRS is free to determine that relationship on its own with little help. (Although a contract is not persuasive, it helps when dealing with the IRS.) If the sponsored athlete is only sponsored by you and uses your equipment and does not pay taxes, the IRS can look to you for failing to pay withholding for the “employee.” The IRS wants it money and will work hard to get it from anyone who can write a check easily.
Another group that wants money is the athlete’s health insurance carrier or the unpaid hospital and doctors if the athlete does not have any insurance. The health insurance carrier through its subrogation clause can look to anyone it believes is legally responsible for the damages it paid out for the injured athlete’s medical bills. The insurer may see the action as the same way the IRS does; the injured athlete was an employee and should have been covered under your worker’s compensation insurance. A successful lawsuit on this issue will not only cost you money in paying the health insurance company, but double more for penalties to your worker’s comp carrier for not listing the athlete.
The health insurance carrier could also come after you if it believes the bike or another product was defective. Again, a contract with the athlete would eliminate both arguments.
Unpaid medical bills can also trigger claims based on either an employee theory or on the legal theory that you were legally responsible for encouraging the athlete.
It is easy to get these contracts written. You need to specify general issues like medical coverage, health insurance, taxes and the legal definition of the parties and that relationship. More importantly you need to define what you are going to do and all limits to that relationship so that no matter who or what, they cannot exceed the limits placed in the agreement.
You want to get your product out there, and you want to help up-and-coming athletes. However, taking the time to establish legally the relationship will make everyone’s life easier from the start.
Who knows, fifty years from now, that signature on an athlete’s first contract might have value in itself.
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
Copyright 2015 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog: www.recreation-law.com
Mobile Site: http://m.recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, BMX, Diamondback, Raleigh, Athlete, Sponsored Athlete, Cyclists, Competitor, Raleigh America Inc., Raleigh America, Nicholi Rogatkin, Cycling Team, Sponsorship, Defamation, Misrepresentation, Negligent Misrepresentation
Duty of care for a Massachusetts campground is to warn of dangerous conditions.
Posted: May 18, 2015 Filed under: Assumption of the Risk, Camping, Massachusetts | Tags: Camper, Campground, Commercial Campground, Inc., Land Owner, Landowner, Pathway, Restroom, Shower, Vacation Camp Resorts International, Yogi Bear's Jellystone Park Campground Leave a commentPlaintiff assumes the risk of his injury at a commercial campground if there is not dangerous condition and/or he knows about the condition because he walks the trail during the day.
State: Massachusetts, Appeals Court of Massachusetts
Plaintiff: Anthony Monaco
Defendant: Vacation Camp Resorts International, Inc.’s (VCRI’s) Yogi Bear’s Jellystone Park Campground
Plaintiff Claims: negligent in failing to light the “pathway”3 and maintain it in a safe condition, to warn against its use, or to construct a graded path in its place
Defendant Defenses: Assumption of the Risk
Holding: for the defendant
Year: 2014
This case involves a commercial campground. The plaintiff was walking up to the restroom at night and fell on the path. He sued for his injuries. The plaintiff sued the campground and others who were never clearly identified in the appellate decision.
The lower court stated the plaintiff assumed the risk based upon the defendant’s motion for summary judgment, and the plaintiff appealed.
Analysis: making sense of the law based on these facts.
The court first reviewed the requirements for a negligence suit to succeed under Massachusetts law and condensed the four steps to one sentence. “To succeed in an action for negligence, the plaintiff must establish duty, breach, causation, and damages.” The duty of care is only owed to those who are foreseeably endangered by the contact with the defendant.
Not every risk that might be foreseen gives rise to a duty to avoid a course of conduct; a duty arises because the likelihood and magnitude of the risk perceived is such that the conduct is unreasonably dangerous.
The duty of a land owner in Massachusetts is that of reasonable care “under all the circumstances in the maintenance and operation of their property.”
Although landowners should anticipate and take measures to avoid the risks that their property poses to invitees, they are not obligated to “consistently and constantly” check for dangerous conditions. The law does not impose a duty on landowners to exercise precautions, unless the dangers are “readily observable” by landowners and imperceptible to invitees. That is, an open and obvious danger negates the existence of a duty of care.
The fact that the plaintiff was injured does not create a legal obligation or duty on the part of the defendant. Evidence is needed to support the lack of care or proof the landowner k of the dangerous condition.
…evidence, other than “the obviousness of the steep slope,” that the pathway posed an apparent danger. To support his claim, the plaintiff submitted expert testimony that the pathway was “rutted,” “uneven,” and “unlit,” and did not comport with International Building Code standards.
The plaintiff had descended the hill earlier and had not seen a dangerous condition. In fact, the plaintiff had been using the campground for eighteen years and had used the path three times the day he fell.
Nor had a dangerous condition on the hillside been identified or spotted during the camps annual inspection.
Both parties had ample opportunities to observe the campground, yet neither noticed any unreasonable dangers. The only risk associated with the pathway was the open and obvious nature of its slope and uneven terrain, which did not impose any duty on the defendants to light or otherwise improve the path.
The court held the defendants owed not duty to protect the plaintiff from the conditions on the pathway.
So Now What?
The requirement that a landowner is not obligated to consistently and constantly check for dangerous conditions is not found in all states. In most states if the dangerous condition exists, the landowner must fix it or warn of it.
The obligations or duties owed to people on your land are usually based upon the reasons why the injured person was originally upon your land. In Massachusetts that issue is not discussed.
Here the obligation was to warn or correct dangerous conditions. It did not matter why the person was on the land.
What do you think? Leave a comment.
If you like this let your friends know or post it on FaceBook, Twitter or LinkedIn
Copyright 2015 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog: www.recreation-law.com
Mobile Site: http://m.recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Vacation Camp Resorts International, Inc., Yogi Bear’s Jellystone Park Campground, Camper, Campground, Landowner, Land Owner, Pathway, Restroom, Shower, Commercial Campground,
Monaco v. Vacation Camp Resorts International, Inc., 86 Mass. App. Ct. 1125; 21 N.E.3d 187; 2014 Mass. App. Unpub. LEXIS 1272
Posted: May 17, 2015 Filed under: Assumption of the Risk, Camping, Legal Case, Massachusetts | Tags: Camper, Campground, Commercial Campground, Inc., Land Owner, Landowner, Pathway, Restroom, Shower, Vacation Camp Resorts International, Yogi Bear's Jellystone Park Campground Leave a commentMonaco v. Vacation Camp Resorts International, Inc., 86 Mass. App. Ct. 1125; 21 N.E.3d 187; 2014 Mass. App. Unpub. LEXIS 1272
Anthony Monaco vs. Vacation Camp Resorts International, Inc., & another.1
1 Jayne Cohen.
14-P-141
APPEALS COURT OF MASSACHUSETTS
86 Mass. App. Ct. 1125; 21 N.E.3d 187; 2014 Mass. App. Unpub. LEXIS 1272
December 18, 2014, Entered
NOTICE: DECISIONS ISSUED BY THE APPEALS COURT PURSUANT TO ITS RULE 1:28 ARE PRIMARILY ADDRESSED TO THE PARTIES AND, THEREFORE, MAY NOT FULLY ADDRESS THE FACTS OF THE CASE OR THE PANEL’S DECISIONAL RATIONALE. MOREOVER, RULE 1:28 DECISIONS ARE NOT CIRCULATED TO THE ENTIRE COURT AND, THEREFORE, REPRESENT ONLY THE VIEWS OF THE PANEL THAT DECIDED THE CASE. A SUMMARY DECISION PURSUANT TO RULE 1:28, ISSUED AFTER FEBRUARY 25, 2008, MAY BE CITED FOR ITS PERSUASIVE VALUE BUT, BECAUSE OF THE LIMITATIONS NOTED ABOVE, NOT AS BINDING PRECEDENT.
PUBLISHED IN TABLE FORMAT IN THE MASSACHUSETTS APPEALS COURT REPORTS.
PUBLISHED IN TABLE FORMAT IN THE NORTH EASTERN REPORTER.
DISPOSITION: [*1] Judgment affirmed.
CORE TERMS: pathway, campground, landowners, summary judgment, favorable, allowance, obvious danger, duty of care, citation omitted, unreasonably dangerous, obstructions, deposition, anticipate, precautions, unexpected, invitees, uneven, slope, fault, owe, shower, paved, path, owed
JUDGES: Cypher, Fecteau & Massing, JJ.
OPINION
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Anthony Monaco seeks to recover for serious injuries he sustained when he fell down a grassy hill that campers used to reach a shower building located on Vacation Camp Resorts International, Inc.’s (VCRI’s) Yogi Bear’s Jellystone Park Campground in New Hampton, New Hampshire. The plaintiff alleges that VCRI and Jayne Cohen2 were negligent in failing to light the “pathway”3 and maintain it in a safe condition, to warn against its use, or to construct a graded path in its place. A Superior Court judge allowed the defendants’ motion for summary judgment, reasoning that traversing the shortcut in lieu of existing paved pathways, and in darkness, is an “obvious baseline danger,” and that the defendants therefore owed no duty. We affirm.
2 Cohen served as president of Vacation Camp Resorts International, Inc., during the time of the incident in question.
3 Construing the record in the light most favorable to the plaintiff, and noting that the shower building was marked with a “restroom” sign visible from the paved road above, we accept the plaintiff’s characterization [*2] of the route between the road and the building as a pathway.
In reviewing the trial court judge’s allowance of a motion for summary judgment, we consider the evidence submitted with the motion, which may include “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits.” Highlands Ins. Co. v. Aerovox, Inc., 424 Mass. 226, 232, 676 N.E.2d 801 (1997) (citation omitted). See Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). We construe inferences drawn from the record in the light most favorable to the nonmoving party, and review de novo the trial court judge’s application of the law to the facts. LeBlanc v. Logan Hilton Joint Venture, 463 Mass. 316, 318, 974 N.E.2d 34 (2012). Allowance of the motion will survive appellate review so long as there is “no genuine issue” of “material fact” and “the moving party is entitled to a judgment as a matter of law.” Id. at 325-326. Mass.R.Civ.P. 56(c).
To succeed in an action for negligence, the plaintiff must establish duty, breach, causation, and damages. Ronayne v. State, 137 N.H. 281, 284, 632 A.2d 1210 (1993).4 “[P]ersons owe a duty of care ‘only to those who they foreseeably endanger by their conduct.'” Manchenton v. Auto Leasing Corp., 135 N.H. 298, 304, 605 A.2d 208 (1992) [*3] (citation omitted). “Not every risk that might be foreseen gives rise to a duty to avoid a course of conduct; a duty arises because the likelihood and magnitude of the risk perceived is such that the conduct is unreasonably dangerous.” Id. at 305.
4 The trial court judge determined that New Hampshire’s substantive law governed this action. The parties do not dispute that the choice of New Hampshire law is appropriate under the circumstances of this case.
“[O]wners and occupiers of land owe plaintiffs a duty of reasonable care under all the circumstances in the maintenance and operation of their property.” Werne v. Exec. Women’s Golf Assn., 158 N.H. 373, 376, 969 A.2d 346 (2009). Although landowners should anticipate and take measures to avoid the risks that their property poses to invitees, they are not obligated to “consistently and constantly” check for dangerous conditions. See Pesaturo v. Kinne, 161 N.H. 550, 555, 20 A.3d 284 (2011). The law does not impose a duty on landowners to exercise precautions, unless the dangers are “readily observable” by landowners and imperceptible to invitees. Ibid. Lawrence v. Hollerich, 394 N.W.2d 853, 855 (Minn. App. Ct. 1986). That is, an open and obvious danger negates the [*4] existence of a duty of care. Allen v. Dover Co-Recreational Softball League, 148 N.H. 407, 422, 807 A.2d 1274 (2002).
The mere fact that the plaintiff was injured does not trigger a legal duty on the defendants. He must produce some evidence, other than “the obviousness of the steep slope,” that the pathway posed an apparent danger. Lawrence, 394 N.W.2d at 856. To support his claim, the plaintiff submitted expert testimony that the pathway was “rutted,” “uneven,” and “unlit,” and did not comport with International Building Code standards. However, other evidence revealed that the condition of the pathway, as it appeared to both parties, posed no greater risk than walkways maintained by landowners in their ordinary exercise of care. Cf. Paquette v. Joyce, 117 N.H. 832, 835, 379 A.2d 207 (1977). Monaco testified at his deposition that he was not aware of any treacherous condition as he was descending the hill, and Cohen never observed any “unexpected,” unreasonably dangerous condition, Ahern v. Amoskeag Mfg. Co., 75 N.H. 99, 101, 102, 71 A. 213 (1908), during her annual visual inspections of the campground. Thus, Monaco’s inattention to obvious dangers on the pathway was the only risk presented, which did not impose on the [*5] defendants a duty to exercise precautions. Contrast Hacking v. Belmont, 143 N.H. 546, 553, 736 A.2d 1229 (1999) (defendant liable for “unreasonably increased or concealed” risks not inherent in the game of basketball).
Moreover, “[t]here is nothing unfamiliar about the inability to perceive in the dark obstructions to the course of one who walks without light.” Ahern, supra at 101. That is, “[i]f there may be obstructions whose presence cannot be ascertained by the eye, due care requires the use of some other sense to detect them.” Ibid. When the evidence is “uncontradicted” that the plaintiff was familiar with the area where the accident occurred and that the injury occurred because of an “unexpected” condition, the defendant is not at fault for failing to anticipate it. Ibid. Unless the defendant had superior knowledge of the danger, “[i]t cannot reasonably be found that of two persons of equal knowledge and of equal ability to appreciate and understand a danger, one is in fault for not apprehending the danger and the other is not.” Id. at 102.
In this case, Monaco’s knowledge and appreciation of the condition of the pathway was equal to the defendants’. Monaco had camped on the campground once per [*6] year for eighteen years and had used the pathway three times without incident on the day of his fall. Likewise, VCRI had been operating the campground for over two decades, and Cohen was VCRI’s president for approximately six years. Both parties had ample opportunities to observe the campground, yet neither noticed any unreasonable dangers. The only risk associated with the pathway was the open and obvious nature of its slope and uneven terrain, which did not impose any duty on the defendants to light or otherwise improve the path.
Conclusion. Drawing all inferences from the record in the light most favorable to the plaintiff, we conclude that the defendants owed no duty to protect him against the injury-causing condition of the pathway. The allowance of the defendants’ motion for summary judgment was proper.
Judgment affirmed.
By the Court (Cypher, Fecteau & Massing, JJ.5),
5 The panelists are listed in order of seniority.
Entered: December 18, 2014.
A federal district court in Massachusetts upholds indemnification clause in a release.
Posted: April 27, 2015 Filed under: Massachusetts, Racing, Racing, Release (pre-injury contract not to sue), Triathlon | Tags: #race, Conscious Pain and Suffering, Duty to Warn, Estate, Indemnification, Negligent infliction of emotional distress, Personal Representative, Release, swimming, Triathlon, USA Triathlon, Waiver, Wrongful Death Leave a commentAll prior decisions have found that indemnification clauses in releases are not effective because it creates a conflict of interest within a family.
Angelo, v. USA Triathlon, 2014 U.S. Dist. LEXIS 131759
State: Massachusetts, United States District Court for the District of Massachusetts
Plaintiff: Cheryl Angelo, Personal Representative of the Estate of Richard Angelo,
Defendant: USA Triathlon
Plaintiff Claims: wrongful death, conscious pain and suffering, and negligent infliction of emotional distress
Defendant Defenses: Release and indemnification
Holding: not a final ruling
Year: 2014
I cannot determine if this case is over, however, the ruling is quite interesting and worth the risk of having to reverse this post.
The deceased joined the USA Triathlon (USAT) and in doing so signed a Waiver and Release of Liability, Assumption of Risk and Indemnity Agreement. The deceased signed the document electronically. The deceased registered online for the National Age Group Championship in Vermont and again signed an “indemnity agreement” electronically. The two releases were identical.
The deceased died during the triathlon during the swim portion of the event. The deceased wife and personal representative of his estate brought this lawsuit in Federal District Court of Massachusetts.
The defendant USAT filed a motion for summary judgment, and this review is of the court’s ruling on that motion.
Analysis: making sense of the law based on these facts.
The motion for Summary Judgment was a partial motion on the counterclaim of the defendant based on the indemnity provisions in the two releases.
The court refers to the releases as “the indemnity agreements” which create a lot of confusion when reading the decision. The court first examined Massachusetts law relating to releases.
Under Massachusetts law, “[c]ontracts of indemnity are to be fairly and reasonably construed in order to ascertain the intention of the parties and to effectuate the purpose sought to be accomplished.”
And then Massachusetts law on indemnity agreements.
Indemnity contracts that exempt a party from liability arising from their own ordinary negligence are not illegal. Further, contracts of indemnity can survive a decedent’s death and become an obligation of a decedent’s estate.
The language in the indemnification agreement was deemed by the court to be broad. The plaintiff argued the release was ambiguous as to who the release applied to. However, the court disagreed finding the release:
…clearly states that “I . . . agree to Indemnify, Defend and Hold Harmless” the released parties from liability “of any kind or nature . . . which may arise out of, result from, or relate to my participation in the Event.” Both the scope of the indemnity and the party bound by the agreement are clear and unambiguous.
The court then looked at how the release affected the specific claims of the plaintiff. The first count in the complaint was based on wrongful death, and the third was for wrongful death because of gross negligence of the defendant and included a claim for punitive damages.
The court looked at the damages that might be recoverable under these two theories because how the money was identified would determine if the money could be recovered on the indemnification claim.
That means the indemnification claim is against the person who signed the release or in this case their estate. The deceased could not pledge his wife’s assets to the indemnification because he could not sign for her, only his assets. “The decedent, while having authority to bind his estate, lacked authority to bind his surviving family members who did not sign the indemnity agreements and are not bound thereby.” The wrongful-death claim money is not an asset of the state; it is held by the personal representative on behalf of the heirs to the estate. So any money recovered under the wrongful-death statute or claim would not be subject to indemnification.
That is because “w]rongful death is not, in any traditional sense, a claim of the decedent.”
Accordingly, to satisfy the indemnity obligation, USAT may look to the assets of the decedent’s estate. (noting that a contract of indemnity agreed to by a decedent became an obligation of the decedent’s estate). USAT may not, however, look to any recovery on the wrongful death claim for satisfaction, as that recovery would be held in trust for the statutory beneficiaries and would not become an asset of the estate.
Then the court looked to see if the release would stop gross negligence claims. The court found no “controlling authority” on this issue, but held that it would not stop a claim for gross negligence based on the law of appellate decisions in the state.
In the closely analogous context of releases, the Massachusetts Appeals Court has held that, for reasons of public policy, a release would not be enforced to exempt a party from liability for grossly negligent conduct, though otherwise effective against ordinary negligence.
So the court found the release would stop the negligence claims and dismissed count one of the complaints and found that the release would not stop a claim for gross negligence and allowed count three to proceed.
However, the court also stated the motion was denied if the indemnification provision in the release attempted to be satisfied from the wrongful-death proceeds. Alternatively, the indemnification clause would apply to any money received for any successful claim other than wrongful death.
The second claim was for conscious pain and suffering of the decedent. Under Massachusetts law, conscious pain and suffering is a claim of the decedent, brought on behalf of the decedent by his estate. The release barred this claim and would allow the defendant to be indemnified by it. “By executing the two agreements, the decedent both released his claim of conscious pain and suffering caused by USAT’s negligence and indemnified USAT for any losses occasioned by such a claim.”
Putting aside the release for a moment, if the personal representative of the decedent received any recovery for his conscious suffering, USAT would be able to reach that recovery to satisfy the decedent’s indemnity obligation. Thus, USAT’s Motion for Summary Judgment is ALLOWED insofar as the claim for conscious suffering caused by USAT’s negligence was both released and indemnified.
The fourth count was for Negligent Infliction of Emotional Distress, which was inflicted on the wife of the decedent who was present at the race. The original complaint was only brought in the name of the personal representative, not her name individually. Consequently, the court agreed to allow the plaintiff to amend her complaint to bring this claim.
However, the court also found that any money received by the plaintiff on her claim for negligent infliction of emotional distress would also be subject to the indemnification claims of the defendant.
The indemnity language in those agreements is broad enough to reach a claim for negligent infliction of emotional distress as a claim “aris[ing] out of” the decedent’s participation in the triathlon. Thus, USAT is entitled to indemnification on any losses resulting from such a claim.
However, the indemnification claim was only applicable to any money paid on this claim to the decedent, not the decedent’s wife. Again, the decedent could not pledge his wife’s assets by his signature.
The court looked at the defendant’s claim that the defense costs of the action should be paid based on the indemnification clause. The court agreed with the defendant’s argument for the costs too.
The language of the indemnity agreements does clearly obligate the decedent’s estate to make USAT whole on these losses. As with the claims discussed above, USAT may seek indemnity from the decedent’s estate for their defense costs, which predate this Motion as well as prospective costs to the extent that the plaintiff chooses to proceed on at least one claim, which is subject to indemnification.
So any money the lawsuit received that was payable to the estate was subject to the indemnification clause in the release, and that money could be received based on money paid or the cost of defending the lawsuit and recovering the money. Money held in trust, based on a wrongful-death claim was not subject to indemnification.
The release blocked all claims of the decedent and any claims of the wife that were derivative of the decedent’s claims.
Effectively, the case is over because there is no way to get any money, that would not be subject to indemnification. Then any other asset of the estate would be subject to the indemnification due to the cost of defending the lawsuit.
So Now What?
The reasoning for the motion for summary judgment is simple. If the defendant is able to act on the indemnification, any money received by the plaintiff will just turn around and go back to the defendant. Consequently, the damages are reduced to about zero and the chances of settling skyrocket.
However, the importance of the motion is the court upheld the indemnification clause! Normally courts through these out as being a violation of the doctrine or parental immunity, or because they create a conflict of interest between members of a family.
I have never seen an indemnification clause upheld in a recreational release.
See Indemnification agreements? What are you signing?
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
G-YQ06K3L262
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
Email: Jim@Rec-Law.US
By Recreation Law Rec-law@recreation-law.com James H. Moss
@2023 Summit Magic Publishing, LLC
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Release, Indemnification. Triathlon, Swimming, Race, Estate, Wrongful Death, Personal Representative,
Angelo, v. USA Triathlon, 2014 U.S. Dist. LEXIS 131759
Posted: April 21, 2015 Filed under: Legal Case, Massachusetts, Racing, Triathlon | Tags: #race, Estate, Indemnification, Negligent infliction of emotional distress, Pain and Suffering, Personal Representative, Release, swimming, Triathlon, USA Triathlon, USAT, Wrongful Death Leave a commentTo Read an Analysis of this decision see: A federal district court in Massachusetts upholds indemnification clause in a release.
Angelo, v. USA Triathlon, 2014 U.S. Dist. LEXIS 131759
Cheryl Angelo, Personal Representative of the Estate of Richard Angelo, Plaintiff, v. USA Triathlon, Defendant.
Civil Action No. 13-12177-LTS
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
2014 U.S. Dist. LEXIS 131759
September 18, 2014, Decided
September 19, 2014, Filed
COUNSEL: [*1] For Cheryl Angelo, Plaintiff: Alan L. Cantor, LEAD ATTORNEY, Joseph A. Swartz, Peter J. Towne, Swartz & Swartz, Boston, MA.
For USA TRIATHLON, Defendant: Douglas L. Fox, Shumway, Giguere, Fox PC, Worcester, MA.
JUDGES: Leo T. Sorokin, United States District Judge.
OPINION BY: Leo T. Sorokin
OPINION
MEMORANDUM AND ORDER ON DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT
SOROKIN, D.J.
This action arises from a tragic set of facts in which Richard Angelo died while participating in the swim portion of a triathlon organized by the defendant, USA Triathlon (“USAT”). Plaintiff Cheryl Angelo (“the plaintiff”), as personal representative of Richard Angelo (“Angelo” or “the decedent”), has brought claims of wrongful death, conscious pain and suffering, and negligent infliction of emotional distress. USAT has counterclaimed for indemnity against any liability and legal costs associated with this action pursuant to indemnity agreements executed by the decedent prior to his participation in the triathlon. USAT has now moved for partial summary judgment on its claim for indemnity. Doc. No. 18. The plaintiff has opposed the Motion. Doc. No. 19. For the reasons stated below, USAT’s Motion is ALLOWED IN PART and DENIED IN PART.
I. [*2] STATEMENT OF FACTS
The following facts are stated in the light most favorable to the plaintiff as the nonmoving party, although the key facts for the purposes of this motion are not disputed. Angelo was a member of USAT since, at the latest, 2011. Doc. No. 18-1 at 1 ¶ 3. When Angelo last renewed his membership on August 12, 2011, he agreed to and electronically signed a “Waiver and Release of Liability, Assumption of Risk and Indemnity Agreement.” Id. at 1 ¶ 3, 4. That agreement only required the member to execute the document, and, accordingly, the plaintiff did not sign the form. Id. at 4-5. That document contained a provision that, in its entirety, reads as follows:
4. I hereby Release, Waive and Covenant Not to Sue, and further agree to Indemnify, Defend and Hold Harmless the following parties: USAT, the Event Organizers and Promoters, Race Directors, Sponsors, Advertisers, Host Cities, Local Organizing Committees, Venues and Property Owners upon which the Event takes place, Law Enforcement Agencies and other Public Entities providing support for the Event, and each of their respective parent, subsidiary and affiliated companies, officers, directors, partners, shareholders, members, agents, employees [*3] and volunteers (Individually and Collectively, the “Released Parties” or “Event Organizers”), with respect to any liability, claim(s), demand(s), cause(s) of action, damage(s), loss or expense (including court costs and reasonable attorneys [sic] fees) of any kind or nature (“Liability”) which may arise out of, result from, or relate to my participation in the Event, including claims for Liability caused in whole or in part by the negligence of the Released Parties. I further agree that if, despite this Agreement, I, or anyone on my behalf, makes a claim for Liability against any of the Released Parties, I will indemnify, defend and hold harmless each of the Released Parties from any such Liability which any [sic] may be incurred as the result of such claim.
Id. at 4.
USAT arranged to hold its National Age Group Championship on August 18, 2012, in Burlington, Vermont. Id. at 2 ¶ 5. On February 17, 2012, Angelo registered for the championship and, as part of his registration, electronically signed an indemnity agreement identical to the one excerpted above. Id. at 2 ¶ 6. As with the prior agreement, only Angelo as the participant was required to, and in fact did, sign the form. Doc. Nos. 18-1 at 33-34, 19-2 [*4] at 3. Angelo competed in that triathlon and died during his participation in the swim portion of that event or shortly thereafter. Doc. No. 18-2 at 11-12.
The plaintiff, the decedent’s wife and the personal representative of his estate, then brought this action in Essex Superior Court, alleging wrongful death, conscious pain and suffering by the decedent, gross negligence resulting in the decedent’s death, and negligent infliction of emotional distress suffered by the plaintiff, who was present at the site of the race. Doc. No. 6 at 12-16. USAT subsequently removed the action to this Court. Doc. No. 1.
II. STANDARD OF REVIEW
Summary judgment is appropriate when “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.” Fed. R. Civ. P. 56(a). Once a party “has properly supported its motion for summary judgment, the burden shifts to the non-moving party, who ‘may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing there is a genuine issue for trial.'” Barbour v. Dynamics Research Corp., 63 F.3d 32, 37 (1st Cir. 1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). The Court is “obliged to []view the record in the light most favorable to the nonmoving party, and to draw all reasonable inferences [*5] in the nonmoving party’s favor.” LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993). Even so, the Court is to ignore “conclusory allegations, improbable inferences, and unsupported speculation.” Prescott v. Higgins, 538 F.3d 32, 39 (1st Cir. 2008) (quoting Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)). A court may enter summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
III. DISCUSSION
USAT has moved for partial summary judgment on their counterclaim for indemnity.1 USAT asserts that the decedent’s execution of the two release and indemnity agreements (“the indemnity agreements”) released or indemnified, or both, all claims that arise from his participation in the National Age Group Championship, including all claims brought by the plaintiff in this action. The plaintiff counters that the indemnity agreements could not function to release her claims for wrongful death or negligent infliction of emotional distress, and that an indemnity agreement is not enforceable insofar as it exempts the indemnitee from liability for its own grossly negligent conduct.
1 The Court understands this motion for summary judgment to be limited to the scope of the release and indemnity agreement [*6] and its application to the plaintiff’s claims as raised in the Complaint and as amplified in the motion papers. Despite USAT’s argument to the contrary, the Court does not believe this motion to be an appropriate vehicle to address the substantive merits of the plaintiff’s pleadings or claims.
Under Massachusetts law,2 “[c]ontracts of indemnity are to be fairly and reasonably construed in order to ascertain the intention of the parties and to effectuate the purpose sought to be accomplished.” Post v. Belmont Country Club, Inc., 60 Mass. App. Ct. 645, 805 N.E.2d 63, 69 (Mass. App. Ct. 2004) (quoting Shea v. Bay State Gas Co., 383 Mass. 218, 418 N.E.2d 597, 600 (Mass. 1981)). Indemnity contracts that exempt a party from liability arising from their own ordinary negligence are not illegal. Id. at 70. Further, contracts of indemnity can survive a decedent’s death and become an obligation of a decedent’s estate. Id. at 71.
2 The parties do not contend that the law of any other state applies.
Here, the language in the indemnity provision is broad. The plaintiff argues, briefly, that the indemnity agreements are ambiguous as to who is bound by the agreements. The Court disagrees. The agreement clearly states that “I . . . agree to Indemnify, Defend and Hold Harmless” the released parties from liability “of any kind or nature . . . which may arise out of, result from, or relate to my participation [*7] in the Event.” Doc. No. 18-1 at 4. By the plain language of the provision, the signatory of the agreement agreed to indemnify USAT for any losses arising from his participation in the triathlon, including losses and damages associated with lawsuits arising from his participation. See Post, 805 N.E.2d at 70. Both the scope of the indemnity and the party bound by the agreement are clear and unambiguous. A close examination is required, however, to ascertain the applicability of the provision to the specific claims raised and the sources available to satisfy the indemnity.
A. Counts 1 and 3: Wrongful Death
The first count in the plaintiff’s Complaint alleges wrongful death due to USAT’s negligence. The third count alleges wrongful death due to USAT’s gross negligence and seeks punitive damages. Under Massachusetts law, an action for wrongful death is “brought by a personal representative on behalf of the designated categories of beneficiaries” set forth by statute. Gaudette v. Webb, 362 Mass. 60, 284 N.E.2d 222, 229 (Mass. 1972); see Mass. Gen. Laws ch. 229, §§ 1, 2. “The money recovered upon a wrongful death claim is not a general asset of the probate estate, but constitutes a statutory trust fund, held by the administratrix as trustee for distribution to the statutory beneficiaries.”3 Marco v. Green, 415 Mass. 732, 615 N.E.2d 928, 932 (Mass. 1993) (quoting Sullivan v. Goulette, 344 Mass. 307, 182 N.E.2d 519, 523 (Mass. 1962)). These [*8] aspects of Massachusetts law have led another judge of this Court to the conclusion that “[w]rongful death is not, in any traditional sense, a claim of the decedent.” Chung v. StudentCity.com, Inc., Civ. A. 10-10943-RWZ, 2011 U.S. Dist. LEXIS 102370, 2011 WL 4074297, at *2 (D. Mass. Sept. 9, 2011).
3 The Massachusetts Legislature has created limited statutory exceptions whereby the recovery on a wrongful death claim may be reached to pay certain specified expenses. Mass. Gen. Laws ch. 229, § 6A. None of those exceptions are implicated by the present Motion. See id.
As stated above, the indemnity agreements signed by the decedent, by their terms, clearly were intended to indemnify losses arising from an action for wrongful death as a claim “aris[ing] out of” the decedent’s participation in the triathlon. Thus, USAT is entitled to indemnity on losses resulting from that claim. That does not end the matter, however, because the parties raise the question of where USAT may look in order to satisfy the indemnity obligation. The decedent, while having authority to bind his estate, see Post, 805 N.E.2d at 71, lacked authority to bind his surviving family members who did not sign the indemnity agreements and are not bound thereby, see Chung, 2011 U.S. Dist. LEXIS 102370, 2011 WL 4074297, at *2. Accordingly, to satisfy the indemnity obligation, USAT may look to the assets of the decedent’s estate. See [*9] Post, 805 N.E.2d at 71 (noting that a contract of indemnity agreed to by a decedent became an obligation of the decedent’s estate). USAT may not, however, look to any recovery on the wrongful death claim for satisfaction, as that recovery would be held in trust for the statutory beneficiaries and would not become an asset of the estate. See Estate of Bogomolsky v. Estate of Furlong, Civ. A. 14-12463-FDS, 2014 U.S. Dist. LEXIS 86998, 2014 WL 2945927, at *2 (D. Mass. June 26, 2014).4 USAT concedes this outcome as to the plaintiff’s negligent infliction of emotional distress claim, Doc. No. 20 at 11-12, and given the structure of wrongful death claims in Massachusetts, there is no reason for a different result as to the wrongful death claims.5
4 In Estate of Bogomolsky, a recent decision of another session of this Court, Judge Saylor came to the same conclusion, finding that a judgment creditor of a decedent’s estate would not be able to restrain the proceeds of an insurance policy distributed pursuant to the wrongful death statute, as the proceeds of the policy were held in trust for the decedent’s next of kin and did not belong to the decedent’s estate. Estate of Bogomolsky, 2014 U.S. Dist. LEXIS 86998, 2014 WL 2945927, at *2.
5 While the plaintiff notes that the Massachusetts Appeals Court has reserved the question of whether an indemnification provision would be [*10] enforced to effectively release the claims of people who were not signatories of such an agreement, see Post, 805 N.E.2d at 70-71, this case, as in Post, does not present that circumstance, as the indemnity agreements in this case do not purport to extinguish the plaintiff’s right to bring her claims nor her right to recover on those claims.
Count three of the plaintiff’s Complaint, alleging that the decedent’s death was a result of USAT’s gross negligence, raises the issue of whether Massachusetts courts would enforce an indemnity contract to the extent it functioned to indemnify a party’s own gross negligence. The Court has uncovered no controlling authority from the Supreme Judicial Court of Massachusetts on this issue, nor any case of the Massachusetts Appeals Court on point. In such a case, “[w]here the state’s highest court has not definitively weighed in, a federal court applying state law ‘may consider analogous decisions, considered dicta, scholarly works, and any other reliable data tending convincingly to show how the highest court in the state would decide the issue at hand.'” Janney Montgomery Scott LLC v. Tobin, 571 F.3d 162, 164 (1st Cir. 2009) (quoting N. Am. Specialty Ins. Co. v. Lapalme, 258 F.3d 35, 38 (1st Cir. 2001)).
In the closely analogous context of releases, the Massachusetts Appeals Court has held that, for reasons of public policy, [*11] a release would not be enforced to exempt a party from liability for grossly negligent conduct, though otherwise effective against ordinary negligence. Zavras v. Capeway Rovers Motorcycle Club, Inc., 44 Mass. App. Ct. 17, 687 N.E.2d 1263, 1265 (Mass. App. Ct. 1997). The Supreme Judicial Court, although not adopting that holding, has noted that public policy reasons exist for treating ordinary negligence differently from gross negligence when enforcing releases. Sharon v. City of Newton, 437 Mass. 99, 769 N.E.2d 738, 748 n.12 (Mass. 2002). Finally, Judge Saylor of this Court, examining this caselaw, has concluded that the Supreme Judicial Court would not enforce an indemnity agreement to the extent it provided for indemnification of a party’s own gross negligence. CSX Transp., Inc. v. Mass. Bay Transp. Auth., 697 F. Supp. 2d 213, 227 (D. Mass. 2010).
This Court, having studied the caselaw, agrees with and reaches the same conclusion as Judge Saylor: specifically that Massachusetts courts would not enforce an indemnity provision insofar as it relieved a party from liability stemming from its own gross negligence. Thus, the indemnity agreements executed by the decedent are not enforceable to the extent they would require the decedent’s estate to indemnify losses arising from USAT’s grossly negligent conduct.6
6 This conclusion would gain significance if the plaintiff were to be awarded punitive damages owing to USAT’s alleged gross negligence. Punitive damages [*12] awarded under the wrongful death statute, unlike compensatory damages under that statute, are considered general assets of the decedent’s estate. Burt v. Meyer, 400 Mass. 185, 508 N.E.2d 598, 601-02 (Mass. 1987). Any punitive damages, however, could not be reached in satisfaction of the indemnity obligation because gross negligence or more culpable conduct is the predicate upon which an award of punitive damages is based under the statute. See Mass. Gen. Laws ch. 229, § 2.
Accordingly, USAT’s Motion for Summary Judgment as to the plaintiff’s claims of wrongful death is ALLOWED insofar as it seeks indemnity from the decedent’s estate for USAT’s allegedly negligent conduct. The Motion is DENIED insofar as it seeks to satisfy the indemnity obligation from any amounts recovered on the wrongful death claim and insofar as the agreement would require the decedent’s estate to indemnify liability arising from USAT’s grossly negligent conduct.
B. Count 2: Conscious Pain and Suffering
The second count of the plaintiff’s Complaint alleges that USAT’s negligence caused the decedent’s conscious pain and suffering. Under Massachusetts law, a claim for conscious pain and suffering is a claim of the decedent, which may be brought on the decedent’s behalf by his or her personal representative. [*13] Gaudette, 284 N.E.2d at 224-25; see Mass. Gen. Laws ch. 229, § 6. Any recovery on such a claim is held as an asset of the decedent’s estate. Mass. Gen. Laws ch. 229, § 6. By executing the two agreements, the decedent both released his claim of conscious pain and suffering caused by USAT’s negligence and indemnified USAT for any losses occasioned by such a claim. Putting aside the release for a moment, if the personal representative of the decedent received any recovery for his conscious suffering, USAT would be able to reach that recovery to satisfy the decedent’s indemnity obligation. See Estate of Bogomolsky, 2014 U.S. Dist. LEXIS 86998, 2014 WL 2945927, at *2. Thus, USAT’s Motion for Summary Judgment is ALLOWED insofar as the claim for conscious suffering caused by USAT’s negligence was both released and indemnified.
In response to this argument, however, the plaintiff has stated her intent to proceed on the conscious suffering count only on a theory of gross negligence, and not to proceed upon ordinary negligence. As noted above, both the release and the indemnity provisions of the agreements are unenforceable to exempt USAT from liability for their own grossly negligent conduct. See CSX, 697 F. Supp. 2d at 227; Zavras, 687 N.E.2d at 1265. Thus, insofar as the plaintiff chooses to proceed on the conscious pain and suffering count only on a theory of gross negligence, USAT’s Motion for Summary [*14] Judgment is DENIED. If she chooses to so proceed, the plaintiff shall amend her Complaint accordingly.
C. Count 4: Negligent Infliction of Emotional Distress
The fourth and final count of the plaintiff’s Complaint alleges USAT’s negligent infliction of emotional distress on the plaintiff, who was present at the race venue. As an initial matter, the plaintiff, as currently denominated in the Complaint, only brings claims as personal representative of the estate of the decedent. Negligent infliction of emotional distress, however, alleges a harm directly against the plaintiff in her individual capacity, see Cimino v. Milford Keg, Inc., 385 Mass. 323, 431 N.E.2d 920, 927 (Mass. 1982), and thus cannot be brought in a representative capacity.
In response, the plaintiff has indicated her intent to amend her Complaint to bring this claim in her individual capacity. The Court will allow the amendment, as it is not futile in light of the Court’s rulings on the indemnity agreements. The indemnity language in those agreements is broad enough to reach a claim for negligent infliction of emotional distress as a claim “aris[ing] out of” the decedent’s participation in the triathlon. Thus, USAT is entitled to indemnification on any losses resulting from such a claim. As conceded by [*15] USAT, however, any recovery on the emotional distress claim would belong to the plaintiff individually, and thus USAT would not be able to use that recovery to satisfy the indemnity and may look only to the estate of the decedent. Doc. No. 20 at 11-12. Accordingly, the plaintiff may so amend her Complaint to perfect her claim of negligent infliction of emotional distress.
D. Defense Costs
USAT also claims an entitlement to defense costs arising from the provisions in the indemnity agreements obligating the signatory to defend and hold harmless USAT. The language of the indemnity agreements does clearly obligate the decedent’s estate to make USAT whole on these losses. As with the claims discussed above, USAT may seek indemnity from the decedent’s estate for their defense costs which predate this Motion as well as prospective costs to the extent that the plaintiff chooses to proceed on at least one claim which is subject to indemnification.7 See Mt. Airy Ins. Co. v. Greenbaum, 127 F.3d 15, 19 (1st Cir. 1997) (“[U]nder Massachusetts law, if an insurer has a duty to defend one count of a complaint, it must defend them all.” (citing Aetna Cas. & Surety Co. v. Continental Cas. Co., 413 Mass. 730, 604 N.E.2d 30, 32 n.1 (Mass. 1992)).
7 Should the plaintiff decide to proceed only on those claims that, following the reasoning of this Order, are not subject to the [*16] indemnity obligation, the parties may request leave to brief the issue of USAT’s entitlement to prospective defense costs at that time.
IV. CONCLUSION
In conclusion, USAT’s Motion for Summary Judgment, Doc. No. 18, is ALLOWED as set forth above insofar as USAT seeks to establish the release of the conscious pain and suffering claim and indemnity from the decedent’s estate for the claims wrongful death, conscious pain and suffering, and negligent infliction of emotional distress caused by USAT’s ordinary negligence. USAT’s Motion is DENIED, however, insofar as it argues for release of or indemnity on any claims caused by their own gross negligence and insofar as it seeks satisfaction of the indemnity obligation from any recovery on the wrongful death or emotional distress claims. The plaintiff shall amend the Complaint within seven days to more clearly specify the capacity in which each claim is brought and add the allegations of gross negligence, both as described in the plaintiff’s papers. The defendant shall respond to the Amended Complaint within seven days of its filing. The Court will hold a Rule 16 conference on October 21, 2014 at 1 p.m.
SO ORDERED.
/s/ Leo T. Sorokin
Leo T. Sorokin
United [*17] States District Judge