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Allowing a climber to climb with harness on backwards on health club climbing wall enough for court to accept gross negligence claim and invalidate the release.

Whether or not the employee was present the entire time, is irrelevant, anytime any employee had the opportunity to see the harness on incorrectly was enough to be gross negligence.

Alvarez v LTF Club Operations Company Inc., 2016 Mich. App. LEXIS 2198

State: Michigan, Court of Appeals of Michigan

Plaintiff: David Alvarez and Elena Alvarez

Defendant: LTF Club Operations Company Inc., doing business as Lifetime Fitness Center, and Defendant-Appellee, Jane Doe

Plaintiff Claims: negligence

Defendant Defenses: release

Holding: For the Plaintiff

Year: 2016

Facts

The facts are difficult to determine because the interpretation of the court in its opinion does not follow the normal language used in the climbing industry.

The plaintiff was injured when he leaned back to descend after climbing a climbing wall. Because he was not hooked in properly, something broke, and he fell. The plaintiff claims an employee of the defendant watched him put the harness on and hook into the belay system. The employee alleges she was not present for that. The plaintiff allegedly put the harness on backwards.

The harness allegedly had a red loop that should have been in front. No one either knew how the harness was to be worn or that the harness was on incorrectly.

Karina Montes Agredano, a Lifetime employee, provided David with a harness, he climbed to the top of the rock wall, and attempted to lower himself back down via the automatic belay system. However, because David’s harness was on backwards and incorrectly hooked to the belay system, it broke and he fell to the ground suffering multiple injuries.

The plaintiff argued the employee was grossly negligent. The trial court granted the defendants motion to dismiss based on the release, and this appeal ensued.

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

The court first started by defining gross negligence under Michigan’s law. Michigan law is similar if not identical to many other states. Gross negligence requires proof the defendant engaged in reckless conduct or acted in a way that demonstrated a substantial lack of concern for the plaintiff.

To establish a claim for gross negligence, it is incumbent on a plaintiff to demonstrate that the defendant acted or engaged in “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” “Evidence of ordinary negligence is insufficient to create a material question of fact regarding the existence of gross negligence.” “The issue of gross negligence may be determined by summary disposition only where reasonable minds could not differ.” “Simply alleging that an actor could have done more is insufficient under Michigan law, because, with the benefit of hindsight, a claim can always be made that extra precautions could have influenced the result.” However, gross negligence will often be exhibited by a “willful disregard of precautions or measures to attend to safety[.]”

Although the issue debated in the appeal was the location of the employee when the plaintiff was putting on the harness and climbing. It was undisputed the defendant’s employee was instructing the plaintiff while he was climbing. Eventually, the court found this not to be a real issue since any opportunity to see the harness was on incorrectly would have allowed the defendants employee to resolve the issue.

Thus, plaintiffs’ testimony allows the inference that Agredano did not simply have the ability to do more to assure David’s safe climb. Instead, accepting plaintiffs’ testimony as true, evidence exists that Agredano ignored the red loop in David’s harness–a clear visible indication that David was climbing the rock wall in an unsafe manner–and took no steps to avoid the known danger associated with climbing the rock wall with an improperly secured harness.

Failure then, to spot the problem or resolve the problem was proof of gross negligence, or a failure to care about the safety and welfare of the plaintiff.

Thus, Agredano’s alleged failure to affirmatively instruct David on the proper way to wear the harness before he donned it himself, coupled with her alleged disregard for the red loop warning sign that David had his harness on backwards, and instructing him to push off the wall, could demonstrate to a reasonable juror that she “simply did not care about the safety or welfare of” Accordingly, reasonable minds could differ regarding whether Agredano’s conduct constituted gross negligence.

Because the court could determine the acts of the defendant employee were possibly gross negligence, it was enough to determine what occurred and if gross negligence occurred.

So Now What?

This is pretty plane on its face. You allow a person to use a piece of equipment incorrectly who is then injured there is going to be a lawsuit. You allow a person to use a piece of safety equipment, equipment needed for the safe operation of your business incorrectly you are going to lose no matter how well written your release.

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

What do you think? Leave a comment.

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Alvarez v LTF Club Operations Company Inc., 2016 Mich. App. LEXIS 2198

Alvarez v LTF Club Operations Company Inc., 2016 Mich. App. LEXIS 2198

David Alvarez and Elena Alvarez, Plaintiff-Appellants, v LTF Club Operations Company Inc., doing business as Lifetime Fitness Center, and Defendant-Appellee, Jane Doe, Defendant. David Alvarez and Elena Alvarez, Plaintiff-Appellees, v LTF Club Operations Company Inc., doing business as Lifetime Fitness Center, and Defendant-Appellant, Jane Doe, Defendant.

No. 328221, No. 328985

COURT OF APPEALS OF MICHIGAN

2016 Mich. App. LEXIS 2198

November 29, 2016, Decided

NOTICE: THIS IS AN UNPUBLISHED OPINION. IN ACCORDANCE WITH MICHIGAN COURT OF APPEALS RULES, UNPUBLISHED OPINIONS ARE NOT PRECEDENTIALLY BINDING UNDER THE RULES OF STARE DECISIS.

PRIOR HISTORY:  [*1] Oakland Circuit Court. LC No. 2014-140282-NO. Oakland Circuit Court. LC No. 2014-140282-NO.

CORE TERMS: harness, climbing, gross negligence, rock, climb, belay, incorrectly, backwards, walked, deposition testimony, loop, red, putting, front, genuine issue, material fact, reasonable minds, precautions, favorable, watched, donned, order granting, rock climbing, grossly negligent, adjacent, facing, matter of law, conduct constituted, ordinary negligence, evidence submitted

JUDGES: Before: M. J. KELLY, P.J., and MURRAY and BORRELLO, JJ.

OPINION

Per Curiam.

In Docket No. 328221, plaintiffs, David Alvarez and his wife Elena Alvarez, appeal as of right the trial court’s order granting summary disposition in favor of defendant, LTF Club Operations Company, Inc., doing business as Lifetime Fitness Center (Lifetime). In Docket No. 328985, Lifetime appeals as of right the order denying its request for case evaluation sanctions and for taxation of costs. For the reasons stated herein, we reverse the trial court’s order granting defendant’s motion for summary disposition and remand for further proceedings.

This litigation arises from David’s fall from a rock climbing wall at Lifetime’s facility in Novi. Plaintiffs were at Lifetime, where they are members, with their minor daughter to allow her the opportunity to use the rock climbing wall. Neither the plaintiffs, nor their daughter, had previously attempted to use the rock climbing wall. After David signed the requisite forms, Karina Montes Agredano, a Lifetime employee, provided David with a harness, he climbed to the top of the rock wall, [*2]  and attempted to lower himself back down via the automatic belay system. However, because David’s harness was on backwards and incorrectly hooked to the belay system, it broke and he fell to the ground suffering multiple injuries.

Plaintiffs argued that, as an employee of Lifetime, Agredano was grossly negligent1 in failing to ascertain whether David had properly attached his harness and the belay system before permitting him to climb the rock wall or descend. Defendant filed a motion for summary disposition arguing the assumption of risk and waiver of liability provision within the paperwork David signed barred plaintiffs’ claims because Agredano’s asserted conduct constituted only ordinary negligence and not gross negligence. The trial court granted defendant’s motion for summary disposition finding plaintiffs failed to “present any evidence establishing that defendant was grossly negligent in failing to take precautions for plaintiff’s safety.”

1 Plaintiffs had signed a waiver of any negligence based liability.

Plaintiffs assert that the trial court erred in dismissing their claim of gross negligence against Lifetime, arguing a genuine issue of material fact exists regarding whether Agredano [*3]  was grossly negligent. We agree.

The trial court granted summary disposition in accordance with MCR 2.116(C)(7) and (10). This Court reviews “de novo a trial court’s ruling on a motion for summary disposition.” In re Mardigian Estate, 312 Mich App 553, 557; 879 NW2d 313 (2015). Specifically:

When considering a motion for summary disposition under MCR 2.116(C)(10), a court must view the evidence submitted in the light most favorable to the party opposing the motion. Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. A genuine issue of material fact exists when the evidence submitted might permit inferences contrary to the facts as asserted by the movant. When entertaining a summary disposition motion under Subrule (C)(10), the court must view the evidence in the light most favorable to the nonmoving party, draw all reasonable inferences in favor of the nonmoving party, and refrain from making credibility determinations or weighing the evidence. [Id. at 557-558, quoting Dillard v Schlussel, 308 Mich App 429, 444-445; 865 NW2d 648 (2014) (quotation marks omitted).]

In addition:

In determining whether a party is entitled to judgment as a matter of law pursuant to MCR 2.116(C)(7), a court must accept as true a plaintiff’s well-pleaded factual allegations, affidavits, or other [*4]  documentary evidence and construe them in the plaintiff’s favor. Where there are no factual disputes and reasonable minds cannot differ on the legal effect of the facts, the decision regarding whether a plaintiff’s claim is barred by the statute of limitations is a question of law that this Court reviews de novo. [Terrace Land Dev Corp v Seeligson & Jordan, 250 Mich App 452, 455; 647 NW2d 524 (2002) (citation omitted).]

To establish a claim for gross negligence, it is incumbent on a plaintiff to demonstrate that the defendant acted or engaged in “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” Xu v Gay, 257 Mich App 263, 269; 668 NW2d 166 (2003) (citations omitted). “Evidence of ordinary negligence is insufficient to create a material question of fact regarding the existence of gross negligence.” Woodman v Kera, LLC, 280 Mich App 125, 152; 760 NW2d 641 (2008), aff’d 486 Mich 228 (2010). “The issue of gross negligence may be determined by summary disposition only where reasonable minds could not differ.” Id. “Simply alleging that an actor could have done more is insufficient under Michigan law, because, with the benefit of hindsight, a claim can always be made that extra precautions could have influenced the result.” Tarlea v Crabtree, 263 Mich App 80, 90; 687 NW2d 333 (2004). However, gross negligence will often be exhibited by a “willful disregard of precautions or measures to attend to safety[.]” Id.

As [*5]  evidence of Agredano’s gross negligence, plaintiffs offered their deposition testimony. In his deposition testimony, David indicated that Agredano provided him with a harness and was present as he put it on and prepared to climb the wall:

  1. Q. And where was [Agredano] when you were placing the harness on yourself?
  2. A. She was in front of us. We were here. She was in front of us.
  3. Q. So she’s staring directly at your as you’re putting the harness on?
  4. A. She was, yeah, in front of us. We were here, and she was — I mean, we could show the picture if you want.
  5. Q. But I want to know if she was facing you when you were putting this harness on?
  6. A. Yes.

* * *

  1. Q. How much time elapsed between the time that you had your harness on and began climbing from the time when your wife began climbing?
  2. A. Okay. So they walked over to the wall, and then, as soon as I put on my harness, I walked over to the wall adjacent to [Agredano], and I watched my wife. She was already up the So whatever time it took for her to get up the eight feet, which is probably a couple minutes. I mean, a minute maybe.
  3. Q. All right. And when you walked over to the wall, was [Agredano] standing to your right?
  4. A. When I walked over to [*6] the wall, she was on my right.
  5. Q. And would you say she was within three or four feet of you?
  6. A. I could touch her. She was right there.

Further, David stated that Agredano spoke to him after he had inadvertently placed the harness on backwards and directed him to a climbing area, but did not warn him that the red loop on his harness should be on his front before he began to climb the wall:

  1. Q. When were you told to hook into something between your legs?
  2. A. Sure. So I had trouble putting on the harness, right? They walked over to the I followed . . . . I was next to — adjacent to [Agredano] . . . . As my wife started to come down [the rock wall], I asked — I asked, where should I go climb? [Agredano] pointed me over to the other adjacent valet or belay.
  3. Q. Belay
  4. A. Belay. Then somewhere between there I asked — or I don’t know if I asked, but she said, Hook it between your legs. . . .

David also stated that Agredano was present in the climbing wall area during the whole incident and watched him climb the rock wall while wearing the harness incorrectly:

  1. Q. And was [Agredano] facing you when you began climbing?
  2. A. She was facing both of us.

* * *

  1. Q. What I want to know is were [sic] you and [*7] your wife on the climbing, and she was behind you looking at the two of you?
  2. A. Yeah. She was looking at both of us.

* * *

  1. Q. Was there any point in time, while you were putting on your harness or after you put on your harness, where [Agredano] was inside the wall, through this door?
  2. A. No.
  3. Q. So she was outside in the climbing wall area with you the entire time?
  4. A. Correct.

In Elena’s deposition testimony, she testified that Agredano also spoke to David after he reached the top of the rock wall, gave him instructions regarding how to descend, and instructed David to let go of the wall despite his incorrectly worn harness:

  1. Q. What happened at that point?
  2. A. And he said — he asked her twice how to go down. And he asked her two times, because I remember, like, why he’s asking her? . . . So then, when he asked her two times, she said, just let go, and it will bring you down, the automatically thing will bring you down. And she said, I think, you know, push, let go. She said, just let go. Just let go. . . .

While Agredano claimed that she was not in the room when David incorrectly donned his harness and ascended the wall, we must consider the evidence in the light most favorable to plaintiffs and [*8]  accept their testimony as true. Terrace Land Dev Corp, 250 Mich App at 455. David and Elena’s deposition testimony was that Agredano was present when David donned his harness and ascended the wall, that she had ample opportunity to determine that David had put his harness on incorrectly, but that she failed to correct his mistake. Further, plaintiffs testified that Agredano watched David climb the wall in an unsafe harness, and directed David to let go of the wall to repel back down to the ground despite the red loop on David’s harness indicating that his harness was on backwards. Thus, plaintiffs’ testimony allows the inference that Agredano did not simply have the ability to do more to assure David’s safe climb. Instead, accepting plaintiffs’ testimony as true, evidence exists that Agredano ignored the red loop in David’s harness–a clear visible indication2 that David was climbing the rock wall in an unsafe manner–and took no steps to avoid the known danger associated with climbing the rock wall with an improperly secured harness. Thus, Agredano’s alleged failure to affirmatively instruct David on the proper way to wear the harness before he donned it himself, coupled with her alleged disregard for the red loop warning sign [*9]  that David had his harness on backwards, and instructing him to push off the wall, could demonstrate to a reasonable juror that she “simply did not care about the safety or welfare of” David. Tarlea, 263 Mich App at 90. Accordingly, reasonable minds could differ regarding whether Agredano’s conduct constituted gross negligence. Thus, the trial court erred in granting defendant’s motion for summary disposition.

2 Agredano testified that if someone was standing below a rock climber, that person would be readily able to see if a harness was on backwards.

Because we have concluded that the trial court erred in granting summary disposition to defendant, it is unnecessary for us to address in Docket No. 328985 whether the decision to deny the case evaluation award would otherwise have been appropriate if the grant of summary disposition had been proper.

We reverse the order granting defendant’s motion for summary disposition and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.

/s/ Michael J. Kelly

/s/ Christopher M. Murray

/s/ Stephen L. Borrello

 


Bergin, et al., v. Wild Mountain, Inc. 2014 Minn. App. Unpub. LEXIS 212

Bergin, et al., v. Wild Mountain, Inc. 2014 Minn. App. Unpub. LEXIS 212

Lee Bergin, et al., Appellants, vs. Wild Mountain, Inc. d/b/a Wild Mountain Ski Area, Respondent.

A13-1050

COURT OF APPEALS OF MINNESOTA

2014 Minn. App. Unpub. LEXIS 212

March 17, 2014, Filed

NOTICE: THIS OPINION WILL BE UNPUBLISHED AND MAY NOT BE CITED EXCEPT AS PROVIDED BY MINNESOTA STATUTES.

PRIOR HISTORY: [*1]

Chisago County District Court File No. 13-CV-11-695.

DISPOSITION: Affirmed.

CASE SUMMARY:

COUNSEL: For Appellants: James P. Carey, Marcia K. Miller, Sieben, Grose, Von Holtum & Carey, Ltd., Minneapolis, Minnesota.

For Respondent: Brian N. Johnson, John J. Wackman, Peter Gray, Nilan Johnson Lewis, P.A., Minneapolis, Minnesota.

JUDGES: Considered and decided by Ross, Presiding Judge; Bjorkman, Judge; and Hooten, Judge.

OPINION BY: HOOTEN

OPINION

UNPUBLISHED OPINION

HOOTEN, Judge

In this personal-injury action, appellants-skiers sued respondent-ski resort for damages resulting from a skiing accident. Appellants challenge the district court’s grant of summary judgment in favor of respondent, arguing that the district court erred by (1) denying their motion to amend the complaint to add allegations of reckless, willful, or wanton conduct; (2) determining that an exculpatory clause bars their claim of ordinary negligence; and (3) applying the doctrine of primary assumption of risk to bar their claim of ordinary negligence. Because respondent’s conduct does not give rise to a claim of greater-than-ordinary negligence, and because the exculpatory clause is enforceable to bar a claim of ordinary negligence, we affirm.

FACTS

Appellants Lee and Cathy Bergin sued respondent [*2] Wild Mountain, Inc. d/b/a Wild Mountain Ski Area for injuries that Lee sustained while skiing at Wild Mountain. The Bergins sought damages for Lee’s physical injuries, loss of wages and earning ability, loss of property, and medical expenses, as well as for Cathy’s loss of services, companionship, and consortium. Following discovery, Wild Mountain moved for summary judgment. The pleadings and discovery reveal the following.

In March 2010, Robert Knight purchased over the internet 2010-2011 season passes to Wild Mountain for himself, the Bergins, and another individual. To complete the purchase, Knight agreed to a season-pass agreement which included a release of liability:

I understand and accept the fact that alpine skiing and snowboarding in its various forms is a hazardous sport that has many dangers and risks. I realize that injuries are a common and ordinary occurrence of this sport. I agree, as a condition of being allowed to use the area facility and premises, that I freely accept and voluntarily assume all risks of personal injury, death or property damage, and release Wild Mountain Ski & Snowboard Area . . . and its agents, employees, directors, officers and shareholders from [*3] any and all liability for personal injury or property damage which results in any way from negligence, conditions on or about the premises and facilities, the operations, actions or omissions of employees or agents of the area, or my participation in skiing or other activities at the area, accepting myself the full responsibility for any and all such damage of injury of any kind which may result.

In accordance with Minnesota law, nothing in this Release of Liability should be construed as releasing, discharging or waiving claims I may have for reckless, willful, wanton, or intentional acts on the part of Wild Mountain Ski & Snowboard Area, or its owners, officers, shareholders, agents or employees.

Knight [*4] did not ask Lee about the release of liability before agreeing to it. Lee wrote a check to Knight for the Bergins’ season passes. In his deposition, Lee admitted that he authorized Knight to purchase the season passes, that he had purchased season passes to Wild Mountain since 2001 and had agreed to a release of liability each year, that he understood the release of liability, and that he would have authorized Knight to purchase the season passes had he known about the release of liability.1

1 The Bergins do not appeal the district court’s determination that Lee is bound by the season-pass agreement even though he did not execute it himself.

On the morning of November 28, 2010, the Bergins arrived at Wild Mountain to pick up their season passes and ski. The season pass is a wallet-sized card with Lee’s name and picture on the front and the following language on the back:

I agree and understand that skiing and snowboarding involve the risk of personal injury and death. I agree to assume those risks. These risks include trail conditions that vary due to changing weather and skier use, ice, variations in terrain and snow, moguls, rocks, forest growth, debris, lift towers, fences, mazes, snow [*5] grooming, and snowmaking equipment, other skiers, and other man-made objects. I agree to always ski and snowboard in control and to avoid these objects and other skiers. I agree to learn and obey the skier personal responsibility code.

The Bergins and their friends skied “The Wall,” a double-black-diamond trail. At the top of The Wall, Lee observed that there were mounds of snow on the skiers’ left side of the run. Thinking that the left side was not skiable terrain, Lee skied down the right side. Then, at the bottom of the hill in the flat transition or run-out area, Lee encountered a “mound of snow” that he could not avoid. He hit the snow mound, flew up six to ten feet in the air, and landed on his back and the tails of his skis. Lee estimated that the snow mound was “maybe a little bigger” and “maybe a little taller” than a sofa, and that “there was no sharp edges defining” it. After the fall, Lee underwent surgery on his back and is partially paralyzed.

Daniel Raedeke, the president of Wild Mountain, testified by affidavit that Wild Mountain started making snow on The Wall on November 25, three days before Lee’s accident. On the morning of November 26, snowmaking ceased and The [*6] Wall was opened for skiing. According to Raedeke, “hundreds of skiers took thousands of runs down The Wall prior to” Lee’s accident. Raedeke added:

At the completion of snowmaking activities, there were some terrain variations at various points throughout the entire Wall run from top to bottom and side to side. Terrain variations from snowmaking are common at Minnesota (and Midwest) ski areas, particularly early in the season as ski areas rely on machine-made snow to get the areas open. It is very common for terrain variation to be encountered by skiers in Minnesota and elsewhere and they are generally well-liked, particularly by expert level skiers like [Lee].

Raedeke testified that “Wild Mountain received no reports of anything being hazardous or even out-of-the ordinary on The Wall.”

The Bergins submitted the affidavits of two ski-safety experts, Seth Bayer and Richard Penniman. Bayer testified that Wild Mountain “engaged in snow-making activity, intentionally created the hazard [Lee] encountered by creating large mounds of man-made snow . . . then intentionally left the snow-making mound in the run-out or transition area.” According to Bayer, Wild Mountain “knew or should have known [*7] that the snow-making mound in the transition area created a hazard and should have groomed out the mound or further identified the mound as a hazard.” He added that Wild Mountain failed to follow professional safety standards in making and grooming the snow.

Similarly, Penniman testified that complying with professional safety standards “would have entailed grooming out the snow making mounds; putting fencing around the snow making mounds; and warning skiers of the mounds with a rope barricade and caution signs.” He testified that “Wild Mountain’s failure to have a consistent and structured snow making and grooming policy, which specifically addressed the [professional safety standard], caused or contributed to the unsafe decision to leave a large mound of man-made snow in the transition area between the bottom of The Wall ski trail and the chair lift.” According to Penniman, “snow making mounds are not an inherent risk to the sport of skiing.”

Following discovery and Wild Mountain’s motion for summary judgment, the Bergins moved to amend their complaint to add a claim of greater-than-ordinary negligence. In April 2013, the district court denied the Bergins’ motion and granted summary [*8] judgment in favor of Wild Mountain. This appeal follows.

DECISION

I.

[HN1] After a responsive pleading is served, “a party may amend a pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.” Minn. R. Civ. P. 15.01. [HN2] “We review a district court’s denial of a motion to amend a complaint for an abuse of discretion.” Johnson v. Paynesville Farmers Union Co-op. Oil Co., 817 N.W.2d 693, 714 (Minn. 2012), cert. denied, 133 S. Ct. 1249, 185 L. Ed. 2d 180 (2013). [HN3] “A district court should allow amendment unless the adverse party would be prejudiced, but the court does not abuse its discretion when it disallows an amendment where the proposed amended claim could not survive summary judgment.” Id. (citations omitted).

[HN4] Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law.” Minn. R. Civ. P. 56.03. [HN5] A genuine issue of material fact does not exist “when the nonmoving party presents evidence which merely creates a metaphysical doubt [*9] as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.” DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997). [HN6] On appeal, “[w]e view the evidence in the light most favorable to the party against whom summary judgment was granted. We review de novo whether a genuine issue of material fact exists. We also review de novo whether the district court erred in its application of the law.” STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 76-77 (Minn. 2002) (citations omitted).

The Bergins moved to amend their complaint to add the allegation that Lee’s accident “was a result of the reckless, willful, or wanton conduct” of Wild Mountain. They assert that Wild Mountain “knew or should have known that a large, un-marked, un-groomed, mound of snow in the transition area between ‘The Wall’ and a chair lift . . . created a significant risk of physical harm to skiers.” The district court concluded that, although Wild Mountain would not be prejudiced if the motion to amend was granted,2 the motion must still be denied because the proposed claim “would not survive [*10] summary judgment, as [Wild Mountain’s] conduct does not, as a matter of law, rise to the level of reckless, willful or wanton.”

2 Wild Mountain does not challenge this finding on appeal.

The Bergins argue that the district court erred as a matter of law by “[r]equiring [them] to move to amend the [c]omplaint.” They assert that “Minnesota Rule of Civil Procedure 9.02 does not require plaintiffs to plead allegations of reckless, willful, or wanton conduct with particularity.” See Minn. R. Civ. P. 9.02 (stating that “[m]alice, intent, knowledge, and other condition of mind of a person may be averred generally”). Accordingly, they contend that the district court should have examined whether Wild Mountain committed greater-than-ordinary negligence based on the complaint and discovery.

The Bergins’ reliance on rule 9.02 is misplaced. [HN7] Although the Bergins were not required to plead a claim of greater-than-ordinary negligence with particularity under rule 9.02, they still had to plead it with “a short and plain statement . . . showing that [they are] entitled to relief” under Minn. R. Civ. P. 8.01, which they failed to do by pleading only a claim of “negligence and carelessness.” See L.K. v. Gregg, 425 N.W.2d 813, 819 (Minn. 1988) [*11] (stating that pleadings are liberally construed to “give[] adequate notice of the claim” against the defending party); cf. State v. Hayes, 244 Minn. 296, 299-300, 70 N.W.2d 110, 113 (1955) (concluding that “both at common law and by virtue of long-established usage,” the term “carelessness” in a criminal statute is “synonymous with ordinary negligence”).3

3 We also note that the district court did not require the Bergins to move to amend their complaint. Following a hearing on the summary judgment motion, the district court sent a letter to the parties, stating that “[a]t the Summary Judgment Motion Hearing, [the Bergins] moved the Court to amend the Complaint” and that “[t]he Court will leave the record open” for them to file the motion. The district court simply responded to the Bergins’ desire to amend the complaint without requiring them to do so.

Turning to the Bergins’ substantive argument, they assert that “there are questions of fact regarding whether Wild Mountain engaged in reckless or willful or wanton conduct that . . . preclude summary judgment.” [HN8] “[R]eckless conduct includes willful and wanton disregard for the safety of others . . . .” Kempa v. E.W. Coons Co., 370 N.W.2d 414, 421 (Minn. 1985).

The [*12] actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.

Restatement (Second) of Torts § 500 (1965) (emphasis added); see also 4 Minnesota Practice, CIVJIG 25.37 (2006). “Willful and wanton conduct is the failure to exercise ordinary care after discovering a person or property in a position of peril.” Beehner v. Cragun Corp., 636 N.W.2d 821, 829 (Minn. App. 2001), review denied (Minn. Feb. 28, 2002).

The Bergins argue that their expert affidavits support their claim of greater-than-ordinary negligence. We are not persuaded for three reasons.

First, [HN9] “[a]ffidavits in opposition to a motion for summary judgment do not create issues of fact if they merely recite conclusions without any specific factual support.” Grandnorthern, Inc. v. W. Mall P’ship, 359 N.W.2d 41, 44 (Minn. App. 1984). Bayer’s testimony that Wild [*13] Mountain “knew” that the snow mound was hazardous is speculation because there is no evidence that Bayer knew Wild Mountain employees’ state of mind before Lee’s fall and injury.

Second, the Bergins misunderstand the “had reason to know” standard for establishing a claim of greater-than-ordinary negligence. The Bergins contend that they need not prove knowledge to establish a claim of greater-than-ordinary negligence and that it is enough that Wild Mountain “should have known” that the snow mound was hazardous. But [HN10] knowledge separates the “had reason to know” standard from the “should have known” standard:

(1) The words “reason to know” . . . denote the fact that the actor has information from which a person of reasonable intelligence or of the superior intelligence of the actor would infer that the fact in question exists, or that such person would govern his conduct upon the assumption that such fact exists.

(2) The words “should know” . . . denote the fact that a person of reasonable prudence and intelligence or of the superior intelligence of the actor would ascertain the fact in question in the performance of his duty to another, or would govern his conduct upon the assumption that [*14] such fact exists.

Restatement (Second) of Torts § 12 (1965) (emphases added). Accordingly, Bayer’s testimony that Wild Mountain “should have known” that the snow mound was hazardous is insufficient to establish the state of mind necessary to establish a claim of greater-than-ordinary negligence.

Finally, the expert affidavits are insufficient to establish that Wild Mountain had reason to know that the snow mound was hazardous. According to Bayer and Penniman, the snow mound was hazardous because skiers do not expect a snow mound in the transition run-out area and because the lighting condition obscured the snow mound. Assuming that these alleged facts are true, nothing in the record suggests that Wild Mountain had knowledge of these facts from which to infer that the snow mound was hazardous. Rather, Raedeke’s testimony shows that Wild Mountain received no complaints from hundreds of skiers who skied The Wall before Lee’s accident. The expert affidavits are, at most, evidence that a reasonable person managing the ski operation would not have created, or would have marked, the snow mound in the run-out area. This evidence shows only ordinary negligence.

Because the evidence is insufficient [*15] to establish that Wild Mountain engaged in conduct constituting greater-than-ordinary negligence, the district court correctly determined that a claim of greater-than-ordinary negligence would not survive a motion for summary judgment. Accordingly, the district court acted within its discretion by denying the Bergins’ motion to amend their complaint to add a claim of greater-than-ordinary negligence. See Johnson, 817 N.W.2d at 714 (stating that [HN11] a district court “does not abuse its discretion when it disallows an amendment where the proposed amended claim could not survive summary judgment”).

The Bergins also argue that the district court “did not address the evidence that created questions of material fact regarding Wild Mountain’s reckless, willful, or wanton conduct.” But the district court examined Wild Mountain’s conduct and concluded that it “does not meet the standards for gross negligence, willful and wanton conduct, or reckless conduct (as defined by both parties).” The district court’s discussion of Lee’s knowledge of the inherent risks of skiing–while perhaps extraneous–does not indicate that the district court failed to analyze Wild Mountain’s conduct.

II.

The Bergins argue [*16] that the district court erred by determining that the exculpatory clause bars the Bergins’ claim of ordinary negligence. [HN12] The interpretation of a written contract is a question of law reviewed de novo. Borgersen v. Cardiovascular Sys., Inc., 729 N.W.2d 619, 625 (Minn. App. 2007). [HN13] Under certain circumstances, “parties to a contract may . . . protect themselves against liability resulting from their own negligence.” See Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 922-23 (Minn. 1982) (considering exculpatory clauses in construction contracts and commercial leases). “A clause exonerating a party from liability,” known as an exculpatory clause, is enforceable if it: (1) is “unambiguous”; (2) is “limited to a release of liability arising out of negligence only”; and (3) does not violate public policy. See id. at 923. “An exculpatory clause is ambiguous when it is susceptible to more than one reasonable construction.” Beehner, 636 N.W.2d at 827.

The district court concluded that Wild Mountain’s exculpatory clause is enforceable because it is unambiguous and bars only ordinary-negligence claims. The Bergins contend that the exculpatory clause is ambiguous because “there are questions of fact [*17] regarding whether the [season-pass card] was part of the exculpatory contract.” They assert that the exculpatory clause and the language on the season-pass card “construed together are overly broad and ambiguous” because the season-pass card contains a non-exhaustive list of risks while the season-pass agreement expressly excludes greater-than-ordinary negligence from the scope of the exculpatory clause. We are not persuaded.

Because [HN14] a contract ambiguity exists only if it is “found in the language of the document itself,” we consider whether the season-pass card is a part of the season-pass agreement between Lee and Wild Mountain. See Instrumentation Servs., Inc. v. Gen. Res. Corp., 283 N.W.2d 902, 908 (Minn. 1979). [HN15] “It is well established that where contracts relating to the same transaction are put into several instruments they will be read together and each will be construed with reference to the other.” Anchor Cas. Co. v. Bird Island Produce, Inc., 249 Minn. 137, 146, 82 N.W.2d 48, 54 (1957). Here, the contractual relationship between Lee and Wild Mountain was formed when the online season-pass agreement was executed more than eight months before Lee picked up the season-pass card. [*18] As the district court correctly concluded, the season-pass card itself is not a contract. Although the season-pass card contains language emphasizing the inherent risk of skiing, it does not contain an offer by Wild Mountain to be legally bound to any terms. See Glass Serv. Co., Inc. v. State Farm Mut. Auto. Ins. Co., 530 N.W.2d 867, 870 (Minn. App. 1995), review denied (Minn. June 29, 1995). And as a corollary, Lee could not have accepted an offer that did not exist. The season-pass card is an extrinsic document that does not create an ambiguity in the season-pass agreement.

The Bergins rely on Hackel v. Whitecap Recreations, 120 Wis. 2d 681, 357 N.W.2d 565 (Wis. Ct. App. 1984) (Westlaw). There, a skier was injured when he was “caught in a depression apparently caused by the natural drainage of water.” 120 Wis. 2d 681, at *1. The ski resort “denied liability on the basis of language printed on the lift ticket purchased by” the skier. Id. The Wisconsin Court of Appeals held that summary judgment was improper because “[w]hether the printed language on the ski ticket was part of the contractual agreement between the parties is a question of fact.” Id. Based on Hackel, the Bergins argue that “there are [*19] questions of fact regarding whether the [season-pass card] was part of the exculpatory contract.”

The Bergins’ reliance on Hackel is misplaced. As an unpublished opinion issued before 2009, Hackel has neither precedential nor persuasive value in Wisconsin. See Wis. R. App. P. 809.23(3) (Supp. 2013). Even if it were, Wisconsin’s adoption of a common-law rule is “not binding on us as authority.” See Mahowald v. Minn. Gas Co., 344 N.W.2d 856, 861 (Minn. 1984) (examining other jurisdictions’ standards of tort liability). Substantively, the questions of fact that precluded summary judgment in Hackel are absent here. In Hackel, the only language alleged to be exculpatory was printed on the back of a lift ticket, which the skier did not sign. 120 Wis. 2d 681, at *1. This language did not expressly release the ski resort from liability, but it listed the risks that the skier agreed to assume. Id. The Wisconsin court concluded that a fact issue exists as to whether the language could be construed to mean “that skiers assume inherent risks of the sport without relieving [the ski company] of its own negligence” or that “[t]he language might also be construed as an exculpatory clause.” 120 Wis. 2d 681, Id. at *2. Another [*20] question of fact that precluded summary judgment was “whether the [unsigned] ticket was intended as part of the contract.” 120 Wis. 2d 681, Id. at *1 n.1. Here, unlike in Hackel, neither the existence of an exculpatory clause nor the intention that it be a part of the contract is in question. It is undisputed that Lee agreed to the exculpatory clause in the season-pass agreement before receiving the season-pass card.

Even if the season-pass card and season-pass agreement are construed together, they do not create an ambiguity. [HN16] “Terms in a contract should be read together and harmonized where possible,” and “the specific in a writing governs over the general.” Burgi v. Eckes, 354 N.W.2d 514, 518-19 (Minn. App. 1984). Accordingly, the season-pass agreement’s specific language excluding greater-than-ordinary negligence from the scope of the exculpatory clause supersedes the season-pass card’s general language on the inherent risks of skiing. The district court correctly determined that the exculpatory clause is limited to a release of liability arising out of negligence only and granted summary judgment in favor of Wild Mountain.

Because we conclude that an unambiguous and enforceable exculpatory clause [*21] bars the Bergins’ claim of ordinary negligence, we decline to reach the issue of whether the doctrine of primary assumption of risk also bars the claim of ordinary negligence.

Affirmed.


Michigan decision rules skier who fell into half pipe after landing a jump could not recover based on 2 different sections of the Michigan Ski Area Safety Act.

Language of the Michigan Ski Area Safety Act used to stop plaintiff’s claims two different ways.

Marshall, v Boyne USA, Inc., 2012 Mich. App. LEXIS 928

State: Michigan, Court of Appeals of Michigan

Plaintiff: Marvin Marshall and Christine Marshall

Defendant: v Boyne USA, Inc.,

Plaintiff Claims: Plaintiffs filed the instant action, alleging that defendant was negligent in failing to adequately mark the boundaries of the half pipe.

Defendant Defenses: plaintiffs’ claim was barred both under the Ski Area Safety Act (SASA), MCL 408.321 et seq., and by reason of two liability releases, one that plaintiff signed when he rented the ski equipment and a second that was printed on the back of his lift ticket.

Holding: for the defendant

Year: 2012

Plaintiff was skiing with a friend. In the morning, they had skied through the terrain park but had not skied the half pipe. In the afternoon, they went back to the terrain park and skied several jumps again. Plaintiff also noticed the warning sign at the entrance of the terrain park.

The half pipe in this case appears to be a trough lower than the height of the ski slope based upon the description in the decision. As the plaintiff landed a jump, he allegedly slid to a stop and then fell into the half pipe suffering injuries.

The plaintiff and his spouse sued the resort. The resort filed a motion for summary disposition (similar to a motion for summary judgment) with the court based on:

…plaintiffs’ claim was barred both under the Ski Area Safety Act (SASA), MCL 408.321 et seq., and by reason of two liability releases, one that plaintiff signed when he rented the ski equipment and a second that was printed on the back of his lift ticket.

That motion was denied, and the defendants appealed the denial to the Michigan Appellate Court.

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

The court firs looked at the Michigan Ski Area Safety Act. The court found the claims of the plaintiff were barred by the act. Under the Michigan act, a skier assumes the risks of the sport that are necessary or not obvious.

We agree with defendant that SASA bars plaintiffs’ claim. Under SASA, a skier assumes the risk for those dangers that inhere in the sport of skiing unless those dangers are unnecessary or not obvious. Among the risks assumed are “variations in terrain.” MCL 408.342(2).

Because the actions of the plaintiff were covered under the act, the court then looked to see if the actions of the defendant ski area were in violation of any duty imposed under the act. The court did not find any violations of the act.

Moreover, defendant did not breach a duty imposed under the act. MCL 408.326a imposes a duty on the ski resort to mark certain hazards involving equipment and fixtures, which is not relevant here, as well as a duty to place a sign at the top of a run, slope or trail with certain information regarding the difficulty of that run, slope or trail. There is no dispute that defendant complied with this requirement.

The plaintiff argued that failing to mark the half pipe breached a duty to the plaintiff. However, the court found the plaintiff accepted that risk of an unmarked half pipe when he chose to ski into the terrain park and passed the warning sign.

By choosing to ski in the terrain park, which was marked with signage as required by the SASA, and which contained the half pipe that plaintiff saw earlier that day, plaintiff is held to have accepted the danger as a matter of law.

The defendant raised two additional arguments in its defense. The first was a release signed by the plaintiff when he rented his ski equipment and the “release” on the back of his lift ticket. Because the statute barred his claims and the lawsuit would be dismissed, the court did not look into either of those defenses.

The court reversed the trial court decision.

There was also a dissent in the case. The dissent agreed with the majority that the case should be reversed by based its decision to reverse on other grounds.

The dissent found the terrain park and the half pipe were necessary installations in a terrain park. However, the dissent agreed with the plaintiff’s that the half pipe was not obvious, which is what the dissent believes persuaded the trial court to deny the defendant’s motion.

However, because the plaintiff to actual knowledge of the half pipe that he observed earlier in the day while skiing he could not claim it was a hidden danger.

The dissent also felt the plaintiff should lose because the plaintiff failed to maintain reasonable control of his course and speed at all times as required by the Michigan Ski Area Safety Act.

I would conclude that the obligation to reasonably control one’s course includes the expectation that a plaintiff will avoid known hazards. Here, plaintiff’s failure to reasonably control his course of travel after  executing a jump resulted in him coming up to and falling into the half pipe that he admittedly knew was located in that area of the terrain pipe. For that reason, I would reverse and remand.

The case was sent back to the trial court to be dismissed.

So Now What?

It’s nice when a plan comes together, and a statute is written so the court’s interpretation of the statute proceeds along the same lines as the writers of the statute intended.

The Michigan Ski Area Safety Act is a very effective act, almost as encompassing as Colorado’s. The act was written to make sure that injured skiers could only sue if the ski area actually did something to injure the plaintiffs.

The facts in this case also do not lead you to believe the plaintiff stretched the truth. His actions in skiing across the mountain to hit a jump which sent him further across the mountain diagonally were not super intelligent. However, did not result in any injury except his own.

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Marshall, v Boyne USA, Inc., 2012 Mich. App. LEXIS 928

Marshall, v Boyne USA, Inc., 2012 Mich. App. LEXIS 928

Marvin Marshall and Christine Marshall, Plaintiffs-Appellees, v Boyne USA, Inc., Defendant-Appellant.

No. 301725

COURT OF APPEALS OF MICHIGAN

2012 Mich. App. LEXIS 928

May 15, 2012, Decided

NOTICE: THIS IS AN UNPUBLISHED OPINION. IN ACCORDANCE WITH MICHIGAN COURT OF APPEALS RULES, UNPUBLISHED OPINIONS ARE NOT PRECEDENTIALLY BINDING UNDER THE RULES OF STARE DECISIS.

SUBSEQUENT HISTORY: Leave to appeal denied by Marshall v. Boyne United States, Inc., 2012 Mich. LEXIS 2153 (Mich., Dec. 5, 2012)

PRIOR HISTORY: [*1]

Charlevoix Circuit Court. LC No. 10-091822-NF.

CORE TERMS: half pipe, terrain, skiing, ski, jump, skied, hit, inhere, hazard, trail, sport, downhill, feet, Safety Act SASA, ski resort, skier, slope, top, morning, timing, reversing, booth, edge

JUDGES: Before: HOEKSTRA, P.J., and SAWYER and SAAD, JJ. HOEKSTRA, P.J., (concurring).

OPINION

Per Curiam.

Defendant appeals by leave granted from the circuit court’s order denying defendant’s motion for summary disposition. We reverse and remand.

In 2009, plaintiff Marvin Marshall was skiing at defendant’s ski resort at Boyne Mountain in Charlevoix County with a friend, Randy. They skied several trails that morning, and also skied in the terrain park. Plaintiff was familiar with and had skied in terrain parks, which he described as having “jumps and different obstacles[.]” Plaintiff saw a warning sign at the entrance to the terrain park, but he did not read it.

The terrain park contained a half pipe that was about twenty feet deep. A half pipe is a ski attraction created by a trench in the snow that extends downhill. Skiers ski inside of the half pipe. On the morning of February 5, plaintiff saw the half pipe in the terrain park, but he did not ski into it. Plaintiff skied in an area just to the right of the half pipe.

After lunch, plaintiff and his friend went into the terrain park for a second time. They entered the terrain park from the left side this time. [*2] Plaintiff skied down the terrain park and hit the edges of a series of jumps. When plaintiff was halfway down the hill, Randy yelled to him and plaintiff stopped. Randy said that there was a good jump to their right that would be “good to hit.” Randy went first, and plaintiff followed. Plaintiff proceeded laterally across the hill (to the right, if one is facing downhill). Plaintiff “came almost straight across because there was enough of an incline . . . [he] didn’t have to come downhill much.”

Plaintiff successfully navigated the jump, which caused him to go up into the air about 12 to 15 feet. He landed and came to a stop by turning quickly to the right and power-sliding to a stop. As he looked around for Randy, plaintiff felt his feet go over the edge of the half pipe. He slid down the side a little bit, and then hit the bottom. Plaintiff shattered his left calcaneus (heel) and the top of his tibia, and broke his hip and right arm. He also fractured his left eye socket where his pole hit his head when he fell.

Plaintiffs filed the instant action, alleging that defendant was negligent in failing to adequately mark the boundaries of the half pipe. Defendant moved for summary disposition, [*3] arguing that plaintiffs’ claim was barred both under the Ski Area Safety Act (SASA), MCL 408.321 et seq., and by reason of two liability releases, one that plaintiff signed when he rented the ski equipment and a second that was printed on the back of his lift ticket. The trial court denied the motion, concluding that there remained issues of fact. Thereafter, we granted defendant’s motion for leave to appeal. We review the trial court’s decision de novo. Anderson v Pine Knob Ski Resort, Inc, 469 Mich 20, 23; 664 NW2d 756 (2003).

We agree with defendant that SASA bars plaintiffs’ claim. Under SASA, a skier assumes the risk for those dangers that inhere in the sport of skiing unless those dangers are unnecessary or not obvious. Anderson, 469 Mich at 26. Among the risks assumed are “variations in terrain.” MCL 408.342(2). Moreover, defendant did not breach a duty imposed under the act. MCL 408.326a imposes a duty on the ski resort to mark certain hazards involving equipment and fixtures, which is not relevant here, as well as a duty to place a sign at the top of a run, slope or trail with certain information regarding the difficulty of that run, slope or trail. There is no dispute that [*4] defendant complied with this requirement. Rather, plaintiffs argue that defendant breached a duty not imposed by the statute: to mark the half pipe itself. But Anderson makes clear that when SASA resolves a matter, common-law principles are no longer a consideration. Anderson, 469 Mich at 26-27. By choosing to ski in the terrain park, which was marked with signage as required by the SASA, and which contained the half pipe that plaintiff saw earlier that day, plaintiff is held to have accepted the danger as a matter of law. Anderson, 469 Mich at 25-26.

Accordingly, defendant was entitled to summary disposition by application of SASA. In light of this conclusion, we need not consider whether defendant was also entitled to summary disposition under the liability waivers.

Reversed and remanded to the trial court with instructions to enter an order of summary disposition in defendant’s favor. We do not retain jurisdiction. Defendant may tax costs.

/s/ David H. Sawyer

/s/ Henry William Saad

CONCUR BY: HOEKSTRA

CONCUR

Hoekstra, P.J., (concurring).

Although I join with the majority in reversing, I write separately because my reason for reversing differs from that of the majority.

In Anderson v Pine Knob Ski Resort, Inc, 469 Mich 20, 26; 664 NW2d 756 (2003), [*5] the Supreme Court concluded that if a hazard inheres in the sport of skiing, it is covered by the Michigan’s Ski Area Safety Act (SASA), MCL 408.321 et seq., unless it is unnecessary or not obvious.

Here, it is undisputed that the half pipe, like the timing booth in Anderson, inheres to the sport of skiing and is a necessary installation in a terrain park. But unlike the timing booth in Anderson, plaintiff, in my opinion, makes an arguable claim that the half pipe was not obvious to persons skiing cross-hill. It appears that this argument persuaded the trial court to deny defendant’s motion for summary judgment.

But even assuming a fact question exists regarding whether the half pipe was not obvious, plaintiff admitted to actual knowledge of the location of the half pipe from having observed it earlier that same day while skiing. When skiing, a plaintiff is required by the SASA to “maintain reasonable control of his speed and course at all times,” MCL 408.342 (emphasis added). I would conclude that the obligation to reasonably control one’s course includes the expectation that a plaintiff will avoid known hazards. Here, plaintiff’s failure to reasonably control his course of travel after [*6] executing a jump resulted in him coming up to and falling into the half pipe that he admittedly knew was located in that area of the terrain pipe. For that reason, I would reverse and remand.

/s/ Joel P. Hoekstra