Get check boxes and initials out of your release!
Posted: February 18, 2019 Filed under: Pennsylvania, Release (pre-injury contract not to sue) | Tags: activities, adhesion, All Terrain Vehicle, Assumption of risk, ATV, Check Box, checkbox, conspicuity, enforceable, Exculpatory clause, font, genuine issue, Gym, initialed, initials, intent of a party, legal right, material fact, Membership, minor child, non-moving, parties, Public Policy, recreational activity, Release, requirements, ride, rushed, signing, Sports, Summary judgment, summary judgment motion, The Lost Trails, The Lost Trails LLC, ticket, Trails, waiver form Leave a commentIf the defendants release did not have a catch all phrase at the bottom of the document the release would be invalid because an initial had not been signed by the plaintiff.
Scott-Moncrieff v. Lost Trails, LLC, 2018 U.S. Dist. LEXIS 146936 *; 2018 WL 4110742
State: Pennsylvania: United States District Court for the Middle District of Pennsylvania
Plaintiff: Patrice Scott-Moncrieff
Defendant: The Lost Trails, LLC, et al
Plaintiff Claims: Plaintiff argues that Plaintiff did not sign a waiver on the date of the accident, and therefore did not waive any liability or assume any risk; that she was rushed and unable to read the original waiver in its entirety; that the waiver is unenforceable as not properly conspicuous; and finally, that because the earlier waiver signed by Plaintiff was “for all time thereafter” it should not be enforced.
Defendant Defenses: Release
Holding: For the defendant
Year: 2018
Summary
The plaintiff did not initial one of the initial boxes on the release she signed. This gave the plaintiff enough of an argument to make an appellate argument. But for a final paragraph that covered the uninitialed box language this release would have failed.
Facts
On October 20, 2013, Plaintiff visited Defendant’s ATV facility for the first time and, prior to using the facility, executed a waiver of liability. Plaintiff did not read the waiver in its entirety prior to signing it, and claims she was rushed during the process. On June 22, 2014, Plaintiff returned to the facility, at which time she alleged suffered injuries when she was thrown from the ATV she was riding.
Plaintiff initialed all of the above provisions. She did not initial paragraph 10 on the next page, however, which states as follows:
l0. Having had ample time and opportunity to raise any concerns or questions that I may have, and having read and understood the information, I certify my acceptance of the aforementioned provisions by signing below.
I am in good health and physical condition. I am voluntarily participating with knowledge that dangers are involved and agree to assume all risks. I also understand that if I am injured or become ill, I agree that Lost Trails LLC, or any of its employees, volunteers or guests will not be held liable should they render medical assistance to me or my minor child.
Despite not specifically initialing paragraph 10, Plaintiff did sign the agreement, indicating her acceptance and understanding of the exculpatory clauses.
Analysis: making sense of the law based on these facts.
The court first reviewed the validity of releases under Pennsylvania law. Pennsylvania has a three-part test to determine if releases are valid.
An exculpatory clause is valid if the following conditions are met: 1) the clause does not contravene public policy; 2) the contract is between parties relating entirely to their own private affairs; and 3) the contract is not one of adhesion. A valid exculpatory clause is only enforceable if “the language of the parties is clear that a person is being relieved of liability for his own acts of negligence.”. A waiver of liability violates public policy only if it involves “a matter of interest to the public or the state. Such matters of interest to the public or the state include the employer-employee relationship, public service, public utilities, common carriers, and hospitals.” The exculpatory clause at issue in this case does not contravene public policy because it does not affect a matter of interest to the public or the state.
The three requirements all evolve around the public policy argument. It is against public policy to have someone sign a release for a necessity, where the bargaining power is not equal or if the contract is so nasty it should not be signed by anyone. A release, a contract, to ride an ATV is valid because it is not a necessity, it is between parties of equal bargaining power and it is voluntary.
The contract meets the third prong of the Topp Copy validity standard because it is not a contract of adhesion. Agreements to participate in “voluntary sporting or recreational activities” are not contracts of adhesion because “[t]he signer is a free agent who can simply walk away without signing the release and participating in the activity, and thus the contract signed under such circumstances is not unconscionable.” “The signer is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential services, but merely governs a voluntary recreational activity.”
If the release passes the first three tests, it still must be scrutinized by the court to determine if it clearly relieves the defendant of liability. If the language of the agreement sets forth the requirements necessary for the plaintiff to understand she is liable for her injuries.
Even if an exculpatory clause is facially valid, it is enforceable only if it clearly relieves a party of liability for its own negligence. The following standards guide a court’s determination of the enforceability of an exculpatory clause:
1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing the immunity is upon the party invoking protection under the clause.
If the release, or any contract under Pennsylvania law meets those tests it is finally reviewed to determine if both parties clearly understood the intent of the agreement. In the case of a release, both parties must understand that the possible plaintiff is giving up his or her right to sue the possible defendant.
Further, the language of the waiver is clear. In interpreting the language of a contract, courts attempt to ascertain the intent of the parties and give it effect. When a writing is clear and unequivocal, its meaning must be determined by its contents alone. “[I]t is not the function of this Court to re-write it, or to give it a construction in conflict with … the accepted and plain meaning of the language used.” Here, the language of the waiver form is unequivocal in stating the intent that it is binding for all time thereafter.
In this case, the court found the release passed all of the tests.
As such, the Court finds that the October 2013 waiver executed by Plaintiff was in effect during her June 2014 visit to Defendant’s property.1
Once the release was found to be valid the next issue was whether or not the plaintiff had signed the release. The plaintiff argued because she had not initialed an initial box, had not read the release in its entirety
One who is about to sign a contract has a duty to read that contract first.” In the absence of fraud, the failure to read a contract before signing it is “an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract.” (Under Pennsylvania law, the failure to read a contract does not nullify the contract’s validity.)
The court did look at situations were the release was enforceable even if the plaintiff did not read the release or could not read the release.
…(written release found to be enforceable even when the agreement was in English but the plaintiff only read and spoke Spanish, noting that the “[p]laintiff cannot argue that the release language was inconspicuous or somehow hidden from his attention…. Nor did Defendant have an obligation to verify that [p]laintiff had read and fully understood the terms of the document before he signed his name to it.”). In this case, there is no allegation or evidence of fraud, and as such, Plaintiff’s argument is without merit.
The plaintiff argued the release was unenforceable because it was inconspicuous. However, the argument seemed to be based on case law that found waivers to be void then the real facts of this case.
The waiver form in this case was two pages in length, and initialed and signed by Plaintiff. It was not, like the waiver in Beck-Hummel, printed in small font on the back of a tubing ticket. This was a waiver that was reviewed, initialed and signed by Plaintiff. As such, the requirements of conspicuity set forth in Beck-Hummel would not necessarily apply.
The saving language of the release that covered the un-initialed section 10 was. Even though paragraph 10 was not initialed, the heading clearly stated what the document was and the intentions of the parties. The language that covered the un-initialed paragraph 10 was:
I HAVE READ THIS RELEASE OF LIABILITY, WAIVER OF LEGAL RIGHTS AND ASSUMPTIONS OF RISK AND FULLY UNDERSTAND ITS CONTENTS. I SIGN IT WILLINGLY, VOLUNTARILY AND HAVING HAD AMPLE OPPORTUNITY TO RAISE ANY QUESTIONS OR CONCERNS THAT I MAY HAVE, I ACKNOWLEDGE THAT I AM PARTICIPATING VOLUNTARILY WITH KNOWLEDGE THAT DANGERS ARE INVOLVED AND I AGREE TO ASSUME ALL THE RISKS.
The court found that the entire agreement was covered by this saving language above. So, the failure to initial one paragraph was not enough to void the release.
The court summarized its reasoning for finding the release valid and upholding the dismissal of the plaintiff’s claims because of the release.
These clauses are conspicuously set apart, appearing in capital letters, and in the case of the final paragraph, fully set apart, in all bold and all capitals. Further, the agreement itself is titled “Waiver Form” which notifies the reader of the purpose of the form. Plaintiff initialed the paragraphs setting forth the exculpatory clauses,2 and signed the agreement directly underneath the final, most prominent waiver clause. As such, the Court finds that the exculpatory clauses are valid and enforceable.
So Now What?
But for language at the bottom of the release which the court found to cover for the language that was not initialed the release would have failed. It is important to note; the court analysis stated the language that was not initialed was not part of the release.
If you have initial boxes, initials, etc., and one box is not initialed, in Pennsylvania that paragraph that is not initialed or initialed is invalid. Dependent upon the language, your release maybe void, if you don’t have the boxes checked or initialed.
Why use them anyway. Here the court explains why they are unnecessary, the language at the bottom of your release should tie everything together. Once you sign you acknowledge that you have read and understood the entire document. The checkboxes or initials can only hurt you in a release, not help you.
What do you think? Leave a comment.
Copyright 2018 Recreation Law (720) 334 8529
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Author: Outdoor Recreation Insurance, Risk Management and Law
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#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,
exculpatory clause, parties, enforceable, material fact, summary judgment, conspicuity, activities, minor child, initialed, non-moving, Trails, signing, Sports, waiver form, font, summary judgment motion, recreational activity, assumption of risk, intent of a party, genuine issue, legal right, requirements, membership, adhesion, rushed, ticket, ride, gym, check box, checkbox, initials, The Lost Trails, The Lost Trails LLC, ATV, All Terrain Vehicle, Release, Public Policy
Act Now & Stop this Minnesota bill
Posted: February 13, 2019 Filed under: Minnesota, Release (pre-injury contract not to sue) | Tags: #AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #BicyclingLaw, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #OutsideLawyer, #Rec-Law, #RecLaw, #RecLawBlog, #RecLawyer, #Recreation-Lawcom, #RecreationalLawyer, #RecreationLawBlog, #RecreationLawcom, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #SkiLaw, #SummerCamp, #Tourism, #YouthCamps, #ZipLineLawyer, Backpacking, Camps, Hiking, JimMoss, Law, legislation, Minnesota, MN, Mountaineering, Negligence, OutdoorLaw, OutdoorRecreationLaw, OutsideLaw, Rec-LawBlog, Recreation-Law.com, RecreationLaw, releases, skiing, snowboarding, TravelLaw, waivers Leave a commentMinnesota Legislation is considering a bill that would eliminate releases (waivers) in Minnesota for recreational activities.
What the legislature does not understand is this bill will eliminate recreational activities in Minnesota.
Again, the Minnesota Senate and the House have introduced bills to ban releases in MN for recreational activities. Here is a copy of the Senate bill.
A bill for an act relating to civil actions; voiding a waiver of liability for ordinary negligence involving a consumer service; amending Minnesota Statutes 2018, section 604.055, subdivision 1.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1.
Minnesota Statutes 2018, section 604.055, subdivision 1, is amended to read:
Subdivision 1.
Certain agreements are void and unenforceable.
An agreement between parties for a consumer service, including a recreational activity, that purports to release, limit, or waive the liability of one party for damage, injuries, or death resulting from conduct that constitutes new text begin ordinary negligence or new text end greater than ordinary negligence is against public policy and void and unenforceable.
The agreement, or portion thereof, is severable from a release, limitation, or waiver of liability for damage, injuries, or death resulting from deleted text begin conduct that constitutes ordinary negligence or for deleted text end risks that are inherent in a particular activity.
EFFECTIVE DATE.
This section is effective August 1, 2019, and applies to agreements first signed or accepted on or after that date.
Without the defenses supplied by releases in Minnesota:
- Insurance costs will skyrocket. After OR outlawed releases some premiums jumped 2.5 times.
- Insurance for many activities will be impossible to find.
- Either because of the costs or the lack of premium recreation business will close.
- The first group of recreation businesses to go will be those serving kids. They get hurt easy, and their parents sue easy.
- Minnesota courts will back log because the only defense available will be assumption of the risk. Assumption of the risk is determined in the vast majority of cases by the jury. Consequently, it will take years to get to trial and prove the injured plaintiff assumed the risk.
Do Something
Contact your Senator and Representative and tell them you are opposed to this bill. Do it by telephone and in writing.
Find other organizations, trade associations and the like and join with them to give them more power because they have more people they represent.
Explain the bill to your friends and neighbors, so they can voice their opinion. Encourage them to do so.
Become politically aware so you know what is going on with the legislature and how to fight bills like this.
What do you think? Leave a comment.
Copyright 2018 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
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Email: Rec-law@recreation-law.com
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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,
Levine v USA Cycling, Inc., 2018 N.Y. Misc. LEXIS 6063 *; 2018 NY Slip Op 33177(U)
Posted: February 11, 2019 Filed under: Cycling, Legal Case, New York, Racing | Tags: Bike Race, control, Cycling, deposition, duty, duty to plaintiff, injuries, organizer, participants, Recreation, sanctioned, Signs, Spectator, Summary judgment, supervise, USA Cycling, USA Cycling Inc. Leave a commentLevine v USA Cycling, Inc., 2018 N.Y. Misc. LEXIS 6063 *; 2018 NY Slip Op 33177(U)
Supreme Court of New York, Kings County
December 4, 2018, Decided
515257/15
2018 N.Y. Misc. LEXIS 6063 *; 2018 NY Slip Op 33177(U) **
[**1] STEVEN LEVINE, Plaintiff(s), -against-USA CYCLING, INC. & KISSENA CYCLING CLUB, INC., Defendant(s). Index No: 515257/15
Notice: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
Cycling, sanctioned, organizer, summary judgment, deposition, duty to plaintiff, participants, recreation, supervise, injuries, signs
Judges: [*1] Present: Hon. Judge Bernard J. Graham, Supreme Court Justice.
DECISION / ORDER
Defendant, USA Cycling, Inc. (“USA Cycling”) has moved, pursuant to CPLR §3212, for an Order awarding summary judgment to the defendant and a dismissal of the plaintiff’s, Steven Levine, (“Mr. Levine”) complaint upon the grounds that the defendant was not negligent, and thus not liable for plaintiff’s injuries as they owed no duty to the plaintiff. The plaintiff opposes the relief sought by the defendant, USA Cycling, and maintains that the latter was negligent in that they had a greater involvement than just sanctioning the race in which the plaintiff was injured, and they failed to properly supervise, maintain and control the race in which the plaintiff who was not a participant in the race was seriously injured.
[**2] Background:
In the underlying matter, the plaintiff seeks to recover for personal injuries allegedly sustained while cycling in Prospect Park, Brooklyn, New York on June 14, 2014. At the same time the plaintiff was cycling as a recreational activity, a cycling event was taking place in the same area of Prospect Park. The plaintiff was cycling the same route as those participating in the event [*2] when he collided with another cyclist who was a participant in the bike race.
As a result of injuries sustained by the plaintiff, which included a fractured and displaced clavicle that required surgical intervention, an action was commenced on behalf of the plaintiff by the filing of a summons and complaint on or about December 21, 2015. Issue was joined by the service of a verified answer by USA Cycling on or about March 15, 2016. The plaintiff served a response to defendant’s Demand for a Verified Bill of Particulars dated March 24, 2016. Depositions of the plaintiff, as well as Todd Sowl, the chief financial officer of USA Cycling, were conducted on September 27, 2016.
In October 2016, the plaintiff moved to amend their complaint to add Kissena Cycling Club Inc., (“Kissena Cycling Club”) as an additional defendant. Kissena Cycling Club did not appear nor answer the complaint, but a default judgment had not been sought against said party.
In April 2017, plaintiff commenced a separate action against Kissena Cycling Club under index # 507066/2017. Plaintiff then filed a Note of Issue in the underlying action on July 25, 2017.
Defendant’s contention (USA Cycling, Inc.):
The defendant, in [*3] moving for summary judgment and a dismissal of the plaintiff’s complaint, maintains that the relief sought herein should be granted because in the absence of a [**3] duty to the plaintiff there cannot be a breach and without a breach they cannot be liable for negligence.
The defendant maintains that USA Cycling merely sanctioned the event that was run by Kissena Cycling Club. They issued a permit to allow Kissena Cycling Club to use the name of USA Cycling during the event.
Defendant asserts that there is no evidence to support an argument as to the existence of a principal-agent relationship between USA Cycling and Kissena Cycling Club nor was there any evidence of control by USA Cycling or consent by USA Cycling to act on its behalf. In addition, there is no written agreement between the two entities.
In support of defendant’s motion, is the affidavit of Todd Sowl in which he stated that USA Cycling did not coordinate the Prospect Park event; did not control or employ any of the people organizing or managing or working the race; did not select the location of the race nor supervise the race. They did not have any employees or representatives at the race. In addition, they are not the parent [*4] company of Kissena Cycling Club nor is Kissena Cycling Club a subsidiary of USA Cycling.
Mr. Sowl testified at his deposition that while USA Cycling sanctions events in the United States they do not run cycling events. Mr. Sowl stated that while there are benefits to a third party such as Kissena Cycling Club for having an event sanctioned by USA Cycling which includes that a cyclist participating in the event can use the results for upgrading their national results and rankings and the third-party event organizers can independently obtain liability insurance for their event through USA Cycling, he nevertheless maintained that they have no involvement in the operation of the race or the design of the course.
[**4] Plaintiff’s contention:
In opposing the motion of USA Cycling for summary judgment, plaintiff maintains that USA Cycling was sufficiently involved with the cycling event that caused plaintiff’s injuries that would result in their owing a duty to the plaintiff. Plaintiff contends that USA Cycling was negligent in their failure to properly operate, supervise, maintain, manage and control the bicycle race.
The plaintiff asserts that USA Cycling by its chief operating officer, Mr. Sowl, [*5] in both his deposition and his supporting affidavit stated that his organization sanctioned the cycling event in Prospect Park. They collect some fees to compensate for sanctioning the event and provide insurance for the event.
The plaintiff maintains that the defendant did more than just sanction the race as they issued safety guidelines, rule books, post event forms, permits, an event checklist and insurance information to the Kissena Cycling Club, and even received a copy of the incident report.
The plaintiff asserts that negligence cases by their very nature do not lend themselves to summary dismissal since the issue of negligence is a question for jury determination. The plaintiff maintains that the proof submitted by USA Cycling does not satisfy their initial burden of establishing the absence of a material issue of fact.
Discussion:
This Court has considered the submissions of counsel’ for the respective parties, the arguments presented herein, as well as the applicable law, in making a determination with respect to the motion by defendant, USA Cycling, for summary judgment and a dismissal of plaintiff’s action.
[**5] At issue in this matter, is whether defendant USA Cycling owed a duty [*6] to the plaintiff and by virtue thereof is liable to the plaintiff for the injuries sustained during the bike tour.
The moving party in a motion for summary judgment bears the initial burden of demonstrating a prima facie entitlement to judgment as a matter of law by submitting sufficient evidence to demonstrate the absence of any material issue of fact (Drago v. King, 283 AD2d 603, 725 NYS2d 859 [2nd Dept. 2001]).
In support of USA Cycling’s motion for summary judgment, the defendant offers the deposition testimony of Todd Sowl, as well as Charles Issendorf, the event director of Kissena Sports Project Inc. d/b/a Kissena Cycling Club, who was deposed on June 14, 2018 in the related action, as well as case law which examined whether a party under similar circumstances would have been found to be negligent and thus liable to an injured party.
To establish a prima facie case of negligence, a plaintiff must demonstrate (a) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom (Akins v Glens Falls City School Dist., 53 N.Y.2d 325, 333, 424 N.E.2d 531, 441 N.Y.S.2d 644 [1981]. In the absence of a duty, there is no breach and without a breach there is no liability (see Light v. Antedeminico, 259 A.D.2d 737, 687 N.Y.S.2d 422; Petito v. Verrazano Contr. Co., 283 A.D.2d 472, 724 N.Y.S.2d 463 [2nd Dept. 2001]).
In determining whether USA Cycling had a duty to the plaintiff, this Court examined the role of USA Cycling and specifically [*7] its involvement in this race, as well as that of the Kissena Cycling Club. The Court further considered the deposition testimony of Todd Sowl as well as Charles Issendorf.
USA Cycling is the national governing body for cycling in the United States. They oversee the discipline of road, mountain bike, Cyc-cross, BMS and track cycling. Mr. Sowl testified that except for a few national championships, they do not actually run events. While [**6] they sanction events, the events are generally owned and operated by a third party (such as the Kissena Cycling Club). In sanctioning the race at Prospect Park, USA Cycling recognized the event as an official event and the results when considering national rankings. However, while they sanction events they do not sponsor them. The chief referee at the event is an independent contractor who works for the event organizer and not USA Cycling. Mr. Sowl further testified that USA Cycling does not share in any portion of the fees that are generated by the local events.
This lack of control over the event by USA Cycling and by contrast the control exhibited by the Kissena Cycling Club is further demonstrated through the deposition testimony of Charles Issendorf. [*8] Mr. Issendorf as the race director for Kissena Cycling Club has been organizing races for fourteen years. Mr. Issendorf characterized his club as more of a social club where its members race together. There are generally thirty races conducted between the months of March and September with the venues being in both Prospect Park and Floyd Bennett Field which is also situated in Brooklyn, New York. Mr. Issendorf testified that he obtains the permit for the subject race directly from the representatives of Prospect Park. Mr. Issendorf is instructed to have certain safety measures implemented at all races. He sets up the course by putting out the safety measures which includes the safety signs that are needed for the race. He also organizes the race marshals, and the pace and follow motorcycles to ensure that there is a motorcycle in both the front and back of each group.1 Mr. Issendorf further testified that Prospect Park has rules in terms of the placement of safety cones and signs that are needed, as well as the race marshals. Kissena Cycling club provides what could be characterized as “lawn signs” and Mr. Issendorf personally places these signs in the grass along the bike route. There [*9] are also traffic safety cones throughout the course that contain a sign which bear the words “caution, bicycle [**7] race”, that are placed there by Mr. Issendorf. The signs are generally situated one hundred meters apart and they are placed at crosswalks, entrances to the park, as well as at high traffic areas where there is a concentration of people. As to the course, the two lanes to the right of a double white line is where the participants are allowed to race. To the left of the double white line is the location of the pedestrian or the recreation lane. There are written instructions on the website of the club which states that at all times the participants are not allowed to enter the pedestrian or recreation lane. The race organizers also make use of a portable PA system at the race in which the chief referee warns the riders to stay to the right of the white right lane, and if they were to cross into the recreation lane it would result in their disqualification.
This Court finds that while USA Cycling sanctioned the race of June 14, 2014, the plaintiff has not sufficiently refuted the assertion and proof offered by USA Cycling that the latter did not organize, direct, control, supervise [*10] or select the venue nor did they have any employees or agents at the cycling event, and thus, had no duty to the plaintiff. Courts have addressed situations that are akin to the case at bar. The Court in Chittick v. USA Cycling Inc., 54 AD3d 625, 863 NYS2d 679 [1st Dept. 2008]), in finding that an award of summary judgment and a dismissal of the action against USA Cycling was warranted, in which spectators were injured during a bicycle race when struck by the rear pace vehicle, determined that USA Cycling had no duty to prevent any negligence involved therein. The Court in Chittick determined that USA Cycling merely sanctioned the race by lending its name to the race. The fact that USA Cycling provided the rule book to the organizer of the race did not impose a duty upon them to enforce any of the rules thereon. There was also no inference drawn as to the existence of a principal-agency relationship between USA Cycling and the race organizer.
[**8] The Court in Megna v. Newsday, Inc., 245 AD2d 494, 666 NYS2d 718 [2nd Dept. 1997], in granting summary judgment to the defendant, determined that the defendant merely sponsored the race in which the injured plaintiff had participated. It was determined that the defendant owed no duty of care to the plaintiff as the defendant was not in any way involved in the design, layout, maintenance [*11] or control of the race course, and was not in a position to assume such control (see also Mongello v. Davos Ski Resort, 224 A.D.2d 502, 638 N.Y.S.2d 166 [2nd Dept. 1966]; Johnson v. Cherry Grove Island Management Inc., 175 AD2d 827, 573 NYS2d 187 [2nd Dept. 1991]).
This Court finds that the plaintiff has not established a prima facie case that the defendant USA Cycling had a duty to the plaintiff, and not having a duty was not negligent, and thus, not liable to the plaintiff. This Court finds that USA Cycling was not responsible for the layout and design of the race course, and all of the safety precautions that were in place on the day of the race were supervised by the employees and volunteers of Kissena Cycling Club. USA Cycling had no involvement in the positioning of the plaintiff, who was a recreational cyclist, and the riders in the race. The fact that USA Cycling sanctioned the race, provided safety guidelines on its website and assisted the local race organizers in obtaining insurance does not result in a finding that they are liable for an incident that occurred in a local race that is fully operated and managed by a local racing club.
Conclusion:
The motion by defendant, USA Cycling, Inc. for summary judgment and a dismissal of plaintiff’s complaint is granted.
[**9] This shall constitute the decision and order of this Court.
Hon. Bernard J. Graham, Justice
Scott-Moncrieff v. Lost Trails, LLC, 2018 U.S. Dist. LEXIS 146936 *; 2018 WL 4110742
Posted: February 11, 2019 Filed under: Legal Case, Pennsylvania, Release (pre-injury contract not to sue) | Tags: activities, adhesion, All Terrain Vehicle, Assumption of risk, ATV, Check Box, checkbox, conspicuity, enforceable, Exculpatory clause, font, genuine issue, Gym, initialed, initials, intent of a party, legal right, material fact, Membership, minor child, non-moving, parties, Public Policy, recreational activity, Release, requirements, ride, rushed, signing, Sports, Summary judgment, summary judgment motion, The Lost Trails, The Lost Trails LLC, ticket, Trails, waiver form Leave a commentScott-Moncrieff v. Lost Trails, LLC, 2018 U.S. Dist. LEXIS 146936 *; 2018 WL 4110742
Scott-Moncrieff v. Lost Trails, LLC
United States District Court for the Middle District of Pennsylvania
August 29, 2018, Decided; August 29, 2018, Filed
CIVIL ACTION NO. 3:16-CV-1105
2018 U.S. Dist. LEXIS 146936 *; 2018 WL 4110742
PATRICE SCOTT-MONCRIEFF, Plaintiff v. THE LOST TRAILS, LLC, et al, Defendants
Subsequent History: Appeal filed, 09/13/2018
exculpatory clause, parties, enforceable, material fact, summary judgment, conspicuity, activities, minor child, initialed, non-moving, Trails, signing, Sports, waiver form, font, summary judgment motion, recreational activity, assumption of risk, intent of a party, genuine issue, legal right, requirements, membership, adhesion, rushed, ticket, ride, gym
Counsel: [*1] For Patrice Scott-Moncrieff, Plaintiff: James W. Sutton, III, LEAD ATTORNEY, LAW OFFICES OF VIASAC & SHMARUK, FEASTERVILLE, PA.
For The Lost Trails, LLC, d/b/a Lost Trails ATV Adventures, Defendant, Cross Claimant, Cross Defendant: John T. McGrath, Jr., Marshall, Dennehey, Warner, Coleman & Goggin, Scranton, PA; Michael J. Connolly, Moosic, PA.
Judges: KAROLINE MEHALCHICK, United States Magistrate Judge.
Opinion by: KAROLINE MEHALCHICK
MEMORANDUM OPINION
Before the Court is a motion for summary judgment filed by Defendant, The Lost Trails, LLC (“Lost Trails”) in this matter. The motion (Doc. 50) was filed on November 14, 2017, together with a brief in support (Doc. 52), and Statement of Facts (Doc. 53). Plaintiff, Patrice Scott-Moncrieff, filed a brief in opposition (Doc. 54) on November 28, 2017, a reply brief (Doc. 55) was filed on December 6, 2017, and a sur reply brief (Doc. 62) was filed on January 17, 2018. This motion is ripe for disposition. For the following reasons, the Court will grant the motion for summary judgment.
I. Factual Background and Procedural History
The factual background is taken from Defendant’s Statements of Undisputed Material Facts (Doc. 53). Where the parties dispute certain facts, [*2] those disputes are noted. In addition, the facts have been taken in the light most favorable to the plaintiff as the non-moving party, with all reasonable inferences drawn in her favor. This is in accordance with the Local Rules of this Court, which state, in pertinent part, as follows:
LR 56.1 Motions for Summary Judgment.
A motion for summary judgment filed pursuant to Fed.R.Civ.P.56, shall be accompanied by a separate, short and concise statement of the material facts, in numbered paragraphs, as to which the moving party contends there is no genuine issue to be tried.
The papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts, responding to the numbered paragraphs set forth in the statement required in the foregoing paragraph, as to which it is contended that there exists a genuine issue to be tried.
Statements of material facts in support of, or in opposition to, a motion shall include references to the parts of the record that support the statements.
All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing [*3] party.
Local Rule 56.1 (emphasis added).
To comply with Local Rule 56.1, Plaintiff should (1) clearly and unequivocally admit or deny whether each fact contained in Defendant’s statement of facts is undisputed and/or material, (2) set forth the basis for any denial if any fact is not admitted in its entirety, and (3) provide a citation to the record that supports any such denial. Occhipinti v. Bauer, No. 3:13-CV-1875, 2016 U.S. Dist. LEXIS 136082, 2016 WL 5844327, at *3 (M.D. Pa. Sept. 30, 2016); Park v. Veasie, 2011 U.S. Dist. LEXIS 50682, 2011 WL 1831708, *4 (M.D. Pa. 2011). As such, where Plaintiff disputes a fact set forth by Defendant, but fails to provide a citation to the record supporting their denial, that fact will be deemed to be admitted. “Unsupported assertions, conclusory allegations, or mere suspicions” are insufficient to overcome a motion for summary judgment. Schaar v. Lehigh Valley Health Servs., Inc., 732 F.Supp.2d 490, 493 (E.D.Pa. 2010). In this matter, Plaintiff, though including a statement of fact in her brief in opposition to Defendant’s motion for summary judgment (Doc. 54), does not comply with the local rules and submit a separate statement of material facts in opposition to Defendant’s statement of material facts. Notably, despite being given the opportunity to file a sur-reply brief in this matter, after Defendant raises the issue of Plaintiff’s failure to file a statement of facts in its Reply Brief (Doc. 55), Plaintiff still [*4] did not file a separate statement of fact. As such, the facts set forth in Defendant’s statement of material facts will be deemed admitted.
On October 20, 2013, Plaintiff visited Defendant’s ATV facility for the first time and, prior to using the facility, executed a waiver of liability. (Doc. 50-2, at 4-5; DOC. 53, AT ¶¶ 5, 9). Plaintiff did not read the waiver in its entirety prior to signing it, and claims she was rushed during the process. (Doc. 53, at ¶ 7; Doc. 50-2, at 71). On June 22, 2014, Plaintiff returned to the facility, at which time she alleged suffered injuries when she was thrown from the ATV she was riding. (Doc. 1).
The release from liability signed by Plaintiff on October 20, 2013 reads, in pertinent part, as follows:
In consideration for the opportunity for event participation and utilization of general admission, all facilities, equipment and premises of Lost Trails, LLC (LT), North American Warhorse Inc, (NAW) Theta Land Corp. (TLC), 1000 Dunham Drive LLC (DD), and their respective affiliates, members, agents, employees, heirs and assigns and other associates in furtherance of the sport of Off-Road Riding, racing and any other activities, scheduled or unscheduled, [*5] (hereinafter collectively called “Off-Roading.”) This Waiver shall commence on the date first signed and shall remain binding for all time thereafter.
By signing this document, I hereby understand and agree for me and/or my minor child to this Release of Liability, Wavier of Legal rights and Assumption of Risk and to the terms hereof as follows:
2. I hereby RELEASE AND DISCHARGE LT, NAW, TLC, DD and all related parties, event volunteers, company officers, directors, elected officials, agents, employees, and owners of equipment, the land used for Off-Roading activities and any owners of adjourning lands to the premises (hereinafter collectively referred to as “Released parties”) from any and all liability claims, demands or causes of action that I, my minor child or my representatives and my heirs may hereafter have for injuries, loss of life, and all other forms of damages arising out of my voluntary participation in Off-Roading activities.
3. I understand and acknowledge that Off-Road riding and racing activities have inherent dangers that no amount of care, caution, instruction or expertise can eliminate and I EXPRESSLY AND VOLUNTARILY ASSUME ALL RISK OF DEATH OR PERSONAL INJURY [*6] OR OTHER FORMS OF DAMAGES SUSTAINED WHILE PARTICIPATING IN OFF-ROADING ACTIVITIES WHETHER OR NOT CAUSED BY THE NEGLIGENCE OF THE RELEASE PARTIES.
4. I further agree that I WILL NOT SUE OR OTHERWISE MAKE A CLAIM on behalf of me and/or on behalf of my minor child, against the Released Parties for damages or other losses sustained as a result of my participation in Off-Roading activities.
5. I also agree to INDEMNIFY AND HOLD THE RELEASED PARTIES HARMLESS from all claims, judgments and costs, including attorneys’ fees, incurred in the connection with any action brought against them, jointly or severally, as a result of my or my minor child’s participation in “Off-Roading” activities.
6. I take full responsibility for, and hold harmless Released Parties for any injury, property damage, or death that I or my minor child may suffer or inflict upon others .or their property as a result of my engaging in Off-Roading activities.
7. I further represent that I am at least 18 years of age, or that as the parent or (adult) legal guardian, I waive and release any and all legal rights that may accrue to me, to my minor child or to the minor child for whom I am (adult) legal guardian, as the result of [*7] any injury or damage that my minor child, the minor child for whom I am (adult) legal guardian, or I may suffer while engaging in Off-Roading activities.
8. I hereby expressly recognize that this Release of Liability, Waiver of Legal Rights and Assumption of Risks is a contract pursuant to which I have released any and all claims against the Released Parties resulting from participation in Off-Roading activities including any claims related to the negligence of the Released Parties by any of the undersigned.
9. I further expressly agree that the foregoing Release of Liability, Waiver of Legal Rights and Assumption of Risks is intended to be as broad and inclusive as is permitted by law of the province or state in which services, materials and/or equipment are provided and the course of business is conducted, and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full legal force and effect. I agree that, should any claim or action arise from my participation as described herein, including any issue as to the applicability of this Release or any provision contained within it, proper Jurisdiction and Venue will lie only in Monroe [*8] County, Pennsylvania and I waive Jurisdiction and Venue anywhere else.
Plaintiff initialed all of the above provisions. She did not initial paragraph 10 on the next page, however, which states as follows:
l0. Having had ample time and opportunity to raise any concerns or questions that I may have, and having read and understood the information, I certify my acceptance of the aforementioned provisions by signing below.
I am in good health and physical condition. I am voluntarily participating with knowledge that dangers are involved and agree to assume all risks. I also understand that if I am injured or become ill, I agree that Lost Trails LLC, or any of its employees, volunteers or guests will not be held liable should they render medical assistance to me or my minor child.
(Doc. 54-1, at 21).
Despite not specifically initialing paragraph 10, Plaintiff did sign the agreement, indicating her acceptance and understanding of the exculpatory clauses. (Doc. 54-1).
II. Legal Standard
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be granted only if “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). A fact is “material” only [*9] if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A dispute of material fact is “genuine” if the evidence “is such that a reasonable jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248. In deciding a summary judgment motion, all inferences “should be drawn in the light most favorable to the non-moving party, and where the non-moving party’s evidence contradicts the movant’s, then the non-movant’s must be taken as true.” Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994).
A federal court should grant summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000). In deciding a motion for summary judgment, the court’s function is not to make credibility determinations, weigh evidence, or draw inferences from the facts. Anderson, 477 U.S. at 249. Rather, the court must simply “determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249.
The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion,” and demonstrating the absence of a genuine dispute of any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). If the movant makes [*10] such a showing, the non-movant must go beyond the pleadings with affidavits or declarations, answers to interrogatories or the like in order to demonstrate specific material facts which give rise to a genuine issue. Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324. The non-movant must produce evidence to show the existence of every element essential to its case, which it bears the burden of proving at trial, because “a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323. Furthermore, mere conclusory allegations and self-serving testimony, whether made in the complaint or a sworn statement, cannot be used to obtain or avoid summary judgment when uncorroborated and contradicted by other evidence of record. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990); see also Thomas v. Delaware State Univ., 626 F. App’x 384, 389 n.6 (3d Cir. 2015) (not precedential) (“[U]nsupported deposition testimony, which is contradicted by the record, is insufficient to defeat summary judgment.”); NLRB v. FES, 301 F.3d 83, 95 (3d Cir. 2002) (“[The plaintiff’s] testimony . . . amounts to an unsupported, conclusory assertion, which we have held is inadequate to satisfy the movant’s burden of proof on summary judgment.”).
As this jurisdiction of this Court is sounded in the diversity of the parties pursuant to 28 U.S.C. § 1332(a), Pennsylvania substantive [*11] law will apply. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).
III. Discussion
Defendant submits that it is entitled to judgment in its favor because Plaintiff executed a valid waiver of all liability prior to ever engaging in any recreational activities on Defendant’s property; because such releases and waivers are recognized under Pennsylvania law; and because within the waiver, Plaintiff specifically acknowledged that she was assuming all of the risks associated with these activities. (Doc. 52, at 2). In response, Plaintiff argues that Plaintiff did not sign a waiver on the date of the accident, and therefore did not waive any liability or assume any risk; that she was rushed and unable to read the original waiver in its entirety; that the waiver is unenforceable as not properly conspicuous; and finally, that because the earlier waiver signed by Plaintiff was “for all time thereafter” it should not be enforced. (Doc. 54).
A. The Exculpatory Clause is Valid
An exculpatory clause is valid if the following conditions are met: 1) the clause does not contravene public policy; 2) the contract is between parties relating entirely to their own private affairs; and 3) the contract is not one of adhesion. Evans v. Fitness & Sports Clubs, LLC, No. CV 15-4095, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at *3 (E.D. Pa. Sept. 28, 2016); [*12] Topp Copy Prods., Inc. v. Singletary, 533 Pa. 468, 626 A.2d 98, 99 (Pa. 1993). A valid exculpatory clause is only enforceable if “the language of the parties is clear that a person is being relieved of liability for his own acts of negligence.” Id. A waiver of liability violates public policy only if it involves “a matter of interest to the public or the state. Such matters of interest to the public or the state include the employer-employee relationship, public service, public utilities, common carriers, and hospitals.” Seaton v. E. Windsor Speedway, Inc., 400 Pa. Super. 134, 582 A.2d 1380, 1382 (Pa. Super. Ct. 1990); see also Kotovsky v. Ski Liberty Operating Corp., 412 Pa. Super. 442, 603 A.2d 663, 665 (Pa. Super. Ct. 1992). The exculpatory clause at issue in this case does not contravene public policy because it does not affect a matter of interest to the public or the state. See Kotovsky, 603 A.2d at 665-66 (holding that releases did not violate public policy because “[t]hey were [in] contracts between private parties and pertained only to the parties’ private rights. They did not in any way affect the rights of the public.”). Thus, the exculpatory clause meets the first two prongs of the Topp Copy standard for validity.
The contract meets the third prong of the Topp Copy validity standard because it is not a contract of adhesion. Agreements to participate in “voluntary sporting or recreational activities” are not contracts of adhesion because “[t]he signer is a free agent [*13] who can simply walk away without signing the release and participating in the activity, and thus the contract signed under such circumstances is not unconscionable.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1190-91 (Pa. 2010). “The signer is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential services, but merely governs a voluntary recreational activity.” Id. The Agreement at issue here is not a contract of adhesion because it is a contract to participate in voluntary recreational activities. The Agreement does not relate to an essential service, and Plaintiff was free to engage in the activity, or not, as she wished. She was under no compulsion to do so. See Chepkevich, supra; see also Hinkal v. Pardoe, 2016 PA Super 11, 133 A.3d 738, 741-2 (Pa. Super. Ct. 2016) (en banc), appeal denied, 636 Pa. 650, 141 A.3d 481 (Pa. 2016) (citing the “thorough and well-reasoned opinion” of the trial court, which held that the plaintiff’s gym membership agreement was not a contract of adhesion because exercising at a gym is a voluntary recreational activity and the plaintiff was under no compulsion to join the gym). The Agreement meets all three prongs of the Topp Copy standard for validity, and thus the exculpatory clause is facially valid.
B. The Exculpatory Clause is Enforceable
Even if an exculpatory clause is [*14] facially valid, it is enforceable only if it clearly relieves a party of liability for its own negligence. Evans v. Fitness & Sports Clubs, LLC, No. CV 15-4095, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at *5 (E.D. Pa. Sept. 28, 2016). The following standards guide a court’s determination of the enforceability of an exculpatory clause:
1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing the immunity is upon the party invoking protection under the clause.
The Court now turns to Plaintiff’s arguments against the enforceability of the exculpatory clause.
1. Plaintiff’s first waiver is enforceable, including the clause “for all time thereafter.”
Plaintiff submits that the waiver she executed in October 2013 did not apply to her visit to Defendant on June 22, 2014, because “it is uncontroverted that the Defendant has a policy that dictates all [*15] riders must sign a waiver every time they ride an ATV at their park” (Doc. 54, at 4), and Plaintiff did not sign a waiver when she visited the park in June 2014. Defendant counters that Plaintiff is misconstruing the record in making this assertion. (Doc. 55, at 2). Specifically, Defendant submits that the testimony cited by Plaintiff is that of a former maintenance man who has nothing to do with policy or procedure at Defendant’s property, and further, that he neither testifying as a representative of, nor acting on behalf of, Lost Trails, LLC. (Doc. 55-1, at 4). The testimony offered by the Plaintiff on this issue is that of Matthew Anneman, who testified as follows:
Q: Everybody that goes there is supposed sign the waiver before they go out on the trails, is that fair to say?
Q: Do you know if Miss Moncrieff signed a waiver before she went on the trail that day?
A: Yes. It is imperative that everybody who comes to ride on that mountain is to fill out a waiver.
Q: So every single time somebody comes to the facility, before they go out there, they go in and sign a waiver.
Q: And you’re not involved in that part of it, the sign in, and the waiver.
A: No, no. Leslie or one [*16] of her employees would work the front desk.
(Doc. 54-1, at 12; Anneman Dep. at 36).
The Court finds this testimony to have little to no bearing on the validity and applicability of the October 2013 waiver. Even construing the evidence in the record in Plaintiff’s favor, Mr. Anneman’s testimony does not change the fact Plaintiff did sign a waiver in October 2013, one which indicated that it “shall remain binding for all time thereafter.” (Doc. 54-1, at 20) (emphasis added). Nothing in the record before the Court indicates that Mr. Anneman was responsible for either policy at Defendant’s facility, or in any way even involved with the waiver process. Further, the language of the waiver is clear. In interpreting the language of a contract, courts attempt to ascertain the intent of the parties and give it effect. Sycamore Rest. Grp., LLC v. Stampfi Hartke Assocs., LLC, 2017 Pa. Super. 221, 174 A.3d 651, 656 (2017); LJL Transp., Inc. v. Pilot Air Freight Corp., 599 Pa. 546, 962 A.2d 639, 648 (2009). When a writing is clear and unequivocal, its meaning must be determined by its contents alone. Synthes USA Sales, LLC v. Harrison, 2013 Pa. Super. 324, 83 A.3d 242, 250-51 (2013); Murphy v. Duquesne Univ. of the Holy Ghost, 565 Pa. 571, 591, 777 A.2d 418, 429 (2001) (citations and quotation marks omitted). “[I]t is not the function of this Court to re-write it, or to give it a construction in conflict with … the accepted and plain meaning of the language used.” Id.; citing Robert F. Felte, Inc. v. White, 451 Pa. 137, 144, 302 A.2d 347, 351 (1973) (citation omitted). Here, the language of the waiver form (Doc. 54-1, [*17] at 20) is unequivocal in stating the intent that it is binding for all time thereafter. As the Pennsylvania Supreme Court has stated,
The word “all” needs no definition; it includes everything, and excludes nothing. There is no more comprehensive word in the language, and as used here it is obviously broad enough to cover liability for negligence. If it had been the intention of the parties to exclude negligent acts they would have so written in the agreement. This paragraph of the lease is clear and unambiguous. No rules of construction are required to ascertain the intention of the parties.
Topp Copy Prods. v. Singletary, 533 Pa. 468, 472, 626 A.2d 98, 100 (1993); citing Cannon v. Bresch, 307 Pa. 31, 34, 160 A. 595, 596 (1932).
As such, the Court finds that the October 2013 waiver executed by Plaintiff was in effect during her June 2014 visit to Defendant’s property.1
2. Plaintiff’s argument that she was rushed and unable to read the original waiver in its entirety is without merit.
Plaintiff next argues that, should the Court find that the 2013 waiver was in effect in June 2014, she was rushed and therefore did not have time to read the waiver before signing it. “The law of Pennsylvania is clear. One who is about to sign a contract has a duty to read that contract [*18] first.” Hinkal v. Pardoe, 2016 Pa. Super. 11, 133 A.3d 738, 743, appeal denied, 636 Pa. 650, 141 A.3d 481 (2016); In re Estate of Boardman, 2013 PA Super 300, 80 A.3d 820, 823 (Pa.Super.2013); citing Schillachi v. Flying Dutchman Motorcycle Club, 751 F.Supp. 1169, 1174 (E.D.Pa.1990) (citations omitted). In the absence of fraud, the failure to read a contract before signing it is “an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract.” Germantown Sav. Bank v. Talacki, 441 Pa.Super. 513, 657 A.2d 1285, 1289 (1995) (citing Standard Venetian Blind Co. v. American Emp. Ins. Co., 503 Pa. 300, 469 A.2d 563, 566 note (1983)); see also Wroblewski v. Ohiopyle Trading Post, Inc., No. CIV.A. 12-0780, 2013 U.S. Dist. LEXIS 119206, 2013 WL 4504448, at *7 (W.D. Pa. Aug. 22, 2013) (Under Pennsylvania law, the failure to read a contract does not nullify the contract’s validity.); Arce v. U-Pull-It Auto Parts, Inc., No. 06-5593, 2008 U.S. Dist. LEXIS 10202, 2008 WL 375159, at *5-9 (E.D.Pa. Feb.11, 2008) (written release found to be enforceable even when the agreement was in English but the plaintiff only read and spoke Spanish, noting that the “[p]laintiff cannot argue that the release language was inconspicuous or somehow hidden from his attention…. Nor did Defendant have an obligation to verify that [p]laintiff had read and fully understood the terms of the document before he signed his name to it.”). In this case, there is no allegation or evidence of fraud, and as such, Plaintiff’s argument is without merit.
3. The waiver is properly conspicuous.
Finally, Plaintiff avers that summary judgment should be denied because the waiver was not properly conspicuous, and relies on the Pennsylvania Superior Court’s decision in Beck-Hummel in making [*19] this assertion. The Beck-Hummel court addressed the enforceability of a waiver of liability printed on the back of a tubing ticket. The exculpatory language appeared in a font that was “just barely readable,” and smaller than the font used for some other portions of the ticket. Id. at 1274-75. The Beck-Hummel court looked to the conspicuousness of the waiver of liability as a means of establishing whether or not a contract existed, setting forth three factors to consider in determining conspicuousness: 1) the waiver’s placement in the document; 2) the size of the waiver’s font; and 3) whether the waiver was highlighted by being printed in all capital letters or a different font or color from the remainder of the text. Beck-Hummel, 902 A.2d at 1274. After considering these factors, the Beck-Hummel court could not conclude as a matter of law that the exculpatory clause was enforceable because the language of the ticket was not sufficiently conspicuous as to put the purchaser/user on notice of the waiver. Id.at 1275.
However, in a more recent Pennsylvania Superior Court case, the court held that, as in the case presently before this Court, where the exculpatory clause was part of a signed contract between the parties, the requirements of [*20] conspicuity set forth in Beck-Hummel would not necessarily apply. In Hinkal v. Pardoe, the en banc Superior Court of Pennsylvania examined whether the Beck-Hummel conspicuity requirements for the enforcement of exculpatory clauses applies to signed valid written contracts. Hinkal v. Pardoe, 2016 Pa. Super. 11, 133 A.3d 738, 743-745, appeal denied, 636 Pa. 650, 141 A.3d 481 (2016). In Hinkal, the plaintiff had signed a membership agreement with Gold’s Gym that contained a waiver of liability for negligence claims on the back page. Id. at 741. The Hinkal court found the plaintiff’s comparison of her case to Beck-Hummel “inapposite” because, unlike a waiver printed on the back of a tubing ticket that did not require a signature; the gym waiver was part of a signed agreement. Id. at 744-45. Further, the court noted that conspicuity is generally not required to establish the formation of a contract, but “has been resorted to as a means of proving the existence or lack of a contract,” where it is unclear whether a meeting of the minds occurred, and imposing such a requirement would allow a properly executed contract to be set aside through one party’s failure to do what the law requires – reading a contract. Id. at 745. The Hinkal court concluded that the waiver of liability was valid and enforceable because [*21] the plaintiff had signed the agreement. Similarly, in Evans v. Fitness & Sports Clubs, LLC, the District Court determined that the exculpatory clauses contained in a fitness club’s membership agreements were valid and enforceable where the plaintiff had signed both a membership and personal training agreement, including an acknowledgement that the plaintiff had read and understood the entire agreement, including the release and waiver of liability, appears directly above the plaintiff’s signature on the first page of each agreement. Evans v. Fitness & Sports Clubs, LLC, No. CV 15-4095, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at *6 (E.D. Pa. Sept. 28, 2016).
The Court finds the agreement at issue in this case to be far more in line with the waivers discussed by the Pennsylvania Superior and Eastern District of Pennsylvania courts in Hinkal and Evans. The waiver form in this case was two pages in length, and initialed and signed by Plaintiff. It was not, like the waiver in Beck-Hummel, printed in small font on the back of a tubing ticket. This was a waiver that was reviewed, initialed and signed by Plaintiff. As such, the requirements of conspicuity set forth in Beck-Hummel would not necessarily apply. Hinkal v. Pardoe, 133 A.3d at 743-745.
Even if those conspicuity requirements applied, however [*22] the exculpatory clauses in the Waiver Form would still be enforceable. The document is titled, in larger font, bold, underlined, and all capital letters “LOST TRAILS ATV ADVENTURES WAIVER FORM.” The language specifically indicating release and discharge, assumption of the risk, an agreement not to sue, and indemnification, are set of in all capitals in the numbered paragraphs, and were acknowledged by Plaintiff initialing each paragraph. (Doc. 54-1, at 20). Immediately above the signature line, in all capital bold letters, the release reads:
I HAVE READ THIS RELEASE OF LIABILITY, WAIVER OF LEGAL RIGHTS AND ASSUMPTIONS OF RISK AND FULLY UNDERSTAND ITS CONTENTS. I SIGN IT WILLINGLY, VOLUNTARILY AND HAVING HAD AMPLE OPPORTUNITY TO RAISE ANY QUESTIONS OR CONCERNS THAT I MAY HAVE, I ACKNOWLEDGE THAT I AM PARTICIPATING VOLUNTARILY WITH KNOWLEDGE THAT DANGERS ARE INVOLVED AND I AGREE TO ASSUME ALL THE RISKS.
These clauses are conspicuously set apart, appearing in capital letters, and in the case of the final paragraph, fully set apart, in all bold and all capitals. Further, the agreement itself is titled “Waiver Form” which notifies the reader of the purpose of the form. [*23] Plaintiff initialed the paragraphs setting forth the exculpatory clauses,2 and signed the agreement directly underneath the final, most prominent waiver clause. As such, the Court finds that the exculpatory clauses are valid and enforceable. See Evans, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at n. 6.
IV. Conclusion
For the reasons set forth above, the undisputed material facts in the record establish that Defendant is entitled to summary judgment. Viewing the record in light most favorable to the Plaintiff, the Court finds that the exculpatory clauses at issue are valid and enforceable. As such, Defendant’s motion will be granted, and judgment will be entered in favor of Defendant.
United States Magistrate Judge
ORDER
AND NOW, this 29th day of August, 2018, IT IS HEREBY ORDERED that for the reasons set forth in the memorandum filed concurrently with this Order, Defendant’s motion for summary judgment (Doc. 50) is GRANTED, and judgment is entered in favor of Defendant. The Clerk of Court is directed to CLOSE this matter.
United States Magistrate Judge
Lawsuit because a ski helmet failed to protect a plaintiff from concussion.
Posted: February 11, 2019 Filed under: Skiing / Snow Boarding, Wisconsin | Tags: admissibility, ASTM, centimeters, Chinstrap, Concussion, contends, design defect, drop, expert testimony, exposed, Head injury, helmet, inadmissible, injuries, instructions, K2, loss of consortium, Manufacturing, measured, move to strike, opined, parties, plaintiffs', Product liability, requires, simulation, Ski, Ski Helmet, speculation, Summary judgment, testing, time of an accident, Warning, warranty Leave a commentIs this, the beginning of an avalanche of lawsuits for concussions from people wearing helmets?
Rogers v. K2 Sports, LLC, 2018 U.S. Dist. LEIS 217233
State: Wisconsin: United States District Court for the Western District of Wisconsin
Plaintiff: Steven Scott Rogers, by his guardian, Tracy Rogers, Tracy Rogers, Samba Health Benefit Plan, Blue Cross Blue Shield of Wisconsin, and State of Wisconsin Department of Health Services
Defendant: K2 Sports, LLC, Lexington Insurance Company, and AIG Europe Limited
Plaintiff Claims: negligence, strict product liability, and breach of warranty
Defendant Defenses:
Holding: Mostly for the Plaintiff
Year: 2018
Summary
This appears to be the first lawsuit over a ski helmet not protecting the skier from a brain injury. This is just a motion hearing. However, it provides some insight into the claims and defenses that will spring up in the future if people continue to believe that human-powered recreation helmets are going to protect against concussions and fatal head injuries.
Facts
Scott wore a K2 Phase 08 helmet while skiing with his stepson Coby at the Afton Alps Ski Area in Washington County, Minnesota, on New Year’s Eve 2015. Around 8:40 p.m., Scott and Coby skied down a beginner’s run called Nancy’s Nursery. Scott fell about halfway down the hill near some small mounds called “rollers.” Coby was in front of Scott and did not witness the fall. Another skier did witness the fall, but he was not able to recall any details about it, except that the fall did not seem unusual.
The fall left Scott unconscious and bleeding from his left ear. Scott was taken by ambulance to a hospital, where doctors conducted tests including a CT scan of Scott’s head. The accident caused brain hemorrhages and fractured Scott’s skull, left clavicle, and numerous ribs along Scott’s left side. As a result of permanent brain damage caused by the accident, Scott now lives at a VA hospital where he receives round-the-clock care.
The K2 helmet was certified as compliant with the standards of ASTM International, which is an organization that develops and [*4] publishes technical standards for a wide range of products.2 Compliance with ASTM standards is voluntary. The K2 helmet has three layers. The exterior layer is a hard-plastic shell. The shell is lined with an Expanded Polystyrene (EPS) energy-attenuating layer, which is supposed to absorb and dissipate shock from a blow to the head. The third layer is a comfort liner that can be adjusted to fit on the user’s head. After Scott’s accident, the lower left rear of the exterior shell was cracked. And, in the same area, the shock-absorbing EPS layer was flattened, and chunks of the EPS were missing.
Analysis: making sense of the law based on these facts.
This was a motion’s decision. A Motion for summary judgment was filed by the defendant who was denied and motions to exclude witnesses, expert witness testimony, etc., which were denied in part and granted in part for both parties.
The main issue is, it is a lawsuit against the manufacturer of a human-powered recreation helmet manufacturer for a concussion.
The motions covered a broad range of topics; this discussion will look at the important points from an outdoor recreation perspective.
The court started by looking at the Wisconsin Product Liability statute.
Wisconsin product liability law is codified under Wisconsin Statute § 895.047.5 A product liability claim has five elements: (1) the product was defective; (2) the defect rendered the product unreasonably dangerous; (3) the defect existed when the product left the control of the manufacturer; (4) the product reached the consumer without substantial change; and (5) the defect caused the claimant’s damages.
The substantial change requirement is interesting. That reasoning provides a defense for the manufacturer if the retailer makes modifications to the helmet for a sale. At the same time, it is how all people in the chain of custody of a product are held liable for a product liability claim. Any of the people in the chain of custody, manufacture, distributor, retailers could have identified the defect and prevented the defective product from reaching the consumer.
Generally, product liability claims are one of three types: “design defects, manufacturing defects, and warning defects.”
Design defects are levied when the product is designed badly from the beginning. Although there are a lot of design defect claims, there are rarely judgments based on design because most manufacturers understand safety issues.
One area that does pop up in design defects is when a product is used differently from what it was originally designed. If the manufacturer leans about the misuse of the product, then the manufacturer may be held liable for injuries due to the misuse of the product.
Manufacturing defects are simply a failure of quality control. Although in this day, you would think, manufacturing defects would be rare, they occur constantly. A manufacturing defect is usually the reason for a recall of a product.
The final defect, warning defects, are the easiest and toughest at the same time. Making sure the information on how to use a product and any warnings on how not to use the product are critical. At the same time, it is difficult for manufacture to envision how their product could be used and all the risks from those different uses.
As an example, when I’m design manuals and warnings, I want the product. After I have examined it thoroughly and tried every possible way to use it improperly, I ask someone who has no understanding of the product to use it. A sixteen-year-old kid can do amazing things that no one ever envisioned with some products.
Many times, a product liability lawsuit will include a negligence claim. Here the court compared the issues of proving a product negligence claim and a product liability claim.
Plaintiffs also bring a claim for negligence. To sustain this claim, plaintiffs must prove (1) the existence of a duty of care on the part of the defendant, (2) a breach of that duty of care, (3) a causal connection between the defendant’s breach of the duty of care and the plaintiff’s injury, and (4) actual loss or damage resulting from the injury. In Wisconsin, a manufacturer’s duty of care includes the duty to safely design the product so it is fit for its intended purpose, and the duty to conduct adequate inspections and tests to determine the extent of defects.
The bold issue is another point you rarely know about. Your duty to design is just step one. Step two is you must test your product to make sure that it meets the intended purpose and the limits of your design. You design a product to do something. Once manufactured you must test the product initially and sometimes ongoing to make sure it still does what you say it will within the parameters you say it will operate.
This duty to test is increased if the duty arises from labeling or marketing. If you say the product contains X ounces of Sample or only breaks under loads greater than XX pounds you have to make sure each of your products meets that test.
The issue in ski helmets is not what the manufacturer says it can or cannot do. The issue is what the consumer believes the product will do. The consumer/plaintiff believes the ski helmet is designed to protect against a concussion, where, in reality; the design is just to slightly minimize the injury potential.
In this case, the plaintiff was claiming the helmet was defective. The plaintiff had to prove:
…a product is defective in design if the “foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the manufacturer, and the omission of the alternative design renders the product not reasonably safe.”
The helmet manufacturer, K2 brought up the fact that the helmet met the ASTM standards for ski helmets. That standard required the helmet to “keep the user’s head from accelerating more than 300 g, meaning that the force of impact on the skull is equivalent to 300 times the force of gravity or less.” If you look at that standard, it is minimal.
However, the ASTM helmet is not a 100% defense to a claim. It only shifts the burden to the plaintiff to prove the helmet was defective, more so since all helmet standards are voluntary.
The ASTM standards may be relevant, but they are not dispositive. If the ASTM standards were adopted by federal or state law, then K2 would be entitled to a rebuttable presumption that the helmet was not defective. Wis. Stat. § 895.047(3)(c). But the ASTM standards are only voluntary. Compliance with voluntary standards at the time of manufacturing may be evidence that K2 behaved reasonably, in defense of plaintiffs’ negligence claim.
Voluntary standards, which most standards are identified as, are really only a sword and not a shield. If you don’t meet a standard, then it is proof you don’t care, and you had a cheap product. Failing to meet a standard is better in the plaintiff’s hands to proof you were bad, rather than in the defendant’s hands as a shield.
Under Wisconsin law, the court set forth the issues needed to prove a defect based on inadequate warnings on the product or provided to the consumer.
Under Wisconsin’s product liability statute, a product is defective because of inadequate instructions or warnings if “foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the manufacturer and the omission of the instructions or warnings renders the product not reasonably safe.” Wis. Stat. § 895.047(1)(a). Plaintiffs do not need to show that Scott actually read the instructions to prove causation. When a product is missing an adequate warning, the missing warning is a substantial factor in causing injury if a reasonable person would have heeded the warning and as a result avoided injury. There is a presumption that any missing instructions would have been read, and therefore a presumption of causation.
Here again, warnings are another weak shield for the defendant and a better sword for the plaintiff in litigation. Warnings show you tried to inform the consumer, or you told the consumer not to do something and they consumer did it anyway. The lack of a warning is a major sword to the plaintiff who can show the jury the lack of care and concern on the part of the manufacturer that should have and could have warned the consumer of the risk.
You can see the difference in the value of some arguments between the plaintiff and the defendant. If the defendant had the warning, it really does not matter except to hope you can argue it was written in a way that the consumer had to have seen it. If the manufacturer fails to have a warning, then the presumption is the consumer would have read the warning and not been hurt. But for the failure to have a warning, there would be no injury. If you are a manufacturer believing that since you have met the standards you are safe, you are soon to be renamed “Defendant.”
Even the voluntary part of the term “voluntary standard” can come back to haunt a manufacturer. If the manufacturer decides not to meet the standard, it is easy for the plaintiff’s attorney to argue the manufacturer did not meet the standard to save money, or because they did not care about their customers. Consequently, once a standard is created, voluntary or not, every manufacturer must meet the standard.
Worse, any standard then restricts research and development because of the fear of not meeting the standard and looking bad in court.
The motion did not look at the issues, we would like some clarification or the facts. What happened to cause the head injury that turned the plaintiff into a vegetable and more importantly, what did the plaintiff believe when they purchased the helmet.
So Now What?
The decision had a few interesting points. However, the greatest issue is the floodgates are now probably open for head injuries that occur to skiers and other recreationists while wearing a helmet. It will be interesting to see how this decision progresses through the courts and whether the issues of the amount of protections afforded versus the expectations of the consumer becomes an issue.
As the decision states. Ski helmets have limited ability to protect. The ASTM standard quoted in the decision requires the helmet to meet a simple test.
Under the ASTM standards, a helmet must keep the user’s head from accelerating more than 300 g, meaning that the force of impact on the skull is equivalent to 300 times the force of gravity or less.
Human-powered recreation helmets, ski, bike, rollerblading, scooters, etc., only protect against minor scalp injuries, nothing more. If the NFL cannot protect football players with helmets costing thousands of dollars why to you think the piece of plastic you paid $100 is going to protect you from a concussion.
More articles about helmets
A helmet manufacture understands the issues (Uvex, Mouthguards) http://rec-law.us/xpxX6n
A new idea that makes sense in helmets: the Bern Hard Hat http://rec-law.us/yPerOd
Are we using safety as an excuse not to spend time with people? Is here, “wear your helmet” taking the place of let me show you how to ride a bike? http://rec-law.us/1fqwlpV
Do you really want to sell helmets this way? Does this article promote the industry? http://rec-law.us/NfoMTs
Does being safe make us stupid? Studies say yes. http://rec-law.us/Ao5BBD
Great article on why helmet laws are stupid http://rec-law.us/zeOaNH
Great editorial questioning why we need laws to “protect” us from ourselves. http://rec-law.us/Ayswbo
Helmets do not increase risk of a neck injury when skiing http://rec-law.us/wPOUiM
Helmets: why cycling, skiing, skateboarding helmets don’t work http://rec-law.us/RVsgkV
Law requires helmets, injuries down fatalities up? http://rec-law.us/YwLcea
Mixed emotions, but a lot of I told you so. http://rec-law.us/ysnWY2
More information over the debate about ski helmets: Ski Helmets ineffective crashes were the wear is going faster than 12 miles per hour http://rec-law.us/z4CLkE
The helmet issue is so contentious people will say the stupidest things http://rec-law.us/zhare9
What do you think? Leave a comment.
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helmet, summary judgment, testing, injuries, plaintiffs’, ASTM, instructions, contends, expert testimony, warning, ski, drop, product liability, move to strike, design defect, manufacturing, time of an accident, measured, opined, centimeters, parties, loss of consortium, admissibility, inadmissible, speculation, simulation, chinstrap, requires, warranty, exposed
Rogers v. K2 Sports, LLC, 2018 U.S. Dist. LEXIS 217233
Posted: February 5, 2019 Filed under: Legal Case, Skiing / Snow Boarding, Wisconsin | Tags: admissibility, ASTM, centimeters, Chinstrap, contends, design defect, drop, expert testimony, exposed, helmet, inadmissible, injuries, instructions, loss of consortium, Manufacturing, measured, move to strike, opined, parties, plaintiffs', Product liability, requires, simulation, Ski, speculation, Summary judgment, testing, time of an accident, Warning, warranty 1 Comment Rogers v. K2 Sports, LLC, 2018 U.S. Dist. LEXIS 217233
United States District Court for the Western District of Wisconsin
December 28, 2018, Decided; December 28, 2018, Filed
17-CV-534-JDP
2018 U.S. Dist. LEIS 217233 *
STEVEN SCOTT ROGERS, by his guardian, Tracy Rogers, TRACY ROGERS, SAMBA HEALTH BENEFIT PLAN, BLUE CROSS BLUE SHIELD OF WISONSIN, and STATE OF WISCONSIN DEPARTMENT OF HEALTH SERVICES, Plaintiffs, v. K2 SPORTS, LLC, LEXINGTON INSURANCE COMPANY, and AIG EUROPE LIMITED, Defendants.
helmet, summary judgment, testing, injuries, plaintiffs’, ASTM, instructions, contends, expert testimony, warning, ski, drop, product liability, move to strike, design defect, manufacturing, time of an accident, measured, opined, centimeters, parties, loss of consortium, admissibility, inadmissible, speculation, simulation, chinstrap, requires, warranty, exposed
Counsel: [*1] For Steven Scott Rogers, By his Guardian Tracy Rogers, Tracy Rogers, Blue Cross Blue Shield of Wisconsin, doing business as Athem Blue Cross and Blue Shield, Lexington Insurance Company, Plaintiffs, Counter Claimant, Counter Defendants: Charles M. Bye, Robert A. Parsons, LEAD ATTORNEY, Brian F. Laule, Bye, Goff, & Rohde, Ltd, River Falls, WI.
For Samba Health Benefit Plan, Plaintiff, Cross Claimant: Matthew Robert Falk, LEAD ATTORNEY, Falk Legal Group, Milwaukee, WI.
For State of Wisconsin – Department of Health Services, Involuntary Plaintiff, Plaintiff: Jesus Gabriel Garza, State of Wisconsin Department of Health Services, Madison, WI.
For K2 Sports, LLC, f/k/a K-2 Corporation, Defendant, Cross Defendant: Anne Marie Ellis, Gary A Wolensky, Michael Preciado, LEAD ATTORNEYS, Buchalter Nemer, Irvine, CA; Eric J. Meier, LEAD ATTORNEY, Husch Blackwell, LLP, Milwaukee, WI; Leslie Gutierrez, LEAD ATTORNEY, Milwaukee, WI; Christopher Hossellman, Buchalter, APC, Irvine, CA.
For AIG Europe Limited, Defendant, Cross Defendant: Charles W. Browning, Sara D. Corbello, LEAD ATTORNEYS, Plunkett Cooney, Bloomfield Hills, MI; Eric J. Meier, LEAD ATTORNEY, Husch Blackwell, LLP, Milwaukee, WI.
Judges: JAMES D. PETERSON, [*2] District Judge.
OPINION & ORDER
Plaintiff Steven Scott Rogers fell while skiing and suffered a serious brain injury. Scott and his wife, plaintiff Tracy Rogers, contend that Scott’s helmet, made by defendant K2 Sports, was defectively designed and that the defect was a cause of his injury. They have sued K2 for negligence, strict product liability, and breach of warranty. Dkt. 32. Tracy also claims loss of consortium as a result of her husband’s injuries.1 K2 denies that the helmet was defective, contending instead that the helmet was the wrong size and that Scott had not properly fastened it, and that he was injured by direct contact with the ground.
K2 moves for summary judgment on all of plaintiffs’ claims. Dkt. 102. Plaintiffs oppose, and they move to strike defendant’s experts’ opinions that the helmet moved out of position when Scott fell. Dkt. 139.
At the heart of this case is a straightforward dispute about the role of the helmet in Scott’s injury. The court will limit the testimony of K2’s experts about how the injury occurred because some of those opinions are too speculative. But that still leaves genuine disputes about the fit of the helmet and whether it was [*3] properly designed, so K2’s motion for summary judgment will be denied.
UNDISPUTED FACTS
The following facts are undisputed except where noted.
Scott wore a K2 Phase 08 helmet while skiing with his stepson Coby at the Afton Alps Ski Area in Washington County, Minnesota, on New Year’s Eve 2015. Around 8:40 p.m., Scott and Coby skied down a beginner’s run called Nancy’s Nursery. Scott fell about halfway down the hill near some small mounds called “rollers.” Coby was in front of Scott and did not witness the fall. Another skier did witness the fall, but he was not able to recall any details about it, except that the fall did not seem unusual.
The fall left Scott unconscious and bleeding from his left ear. Scott was taken by ambulance to a hospital, where doctors conducted tests including a CT scan of Scott’s head. The accident caused brain hemorrhages and fractured Scott’s skull, left clavicle, and numerous ribs along Scott’s left side. As a result of permanent brain damage caused by the accident, Scott now lives at a VA hospital where he receives round-the-clock care.
The K2 helmet was certified as compliant with the standards of ASTM International, which is an organization that develops and [*4] publishes technical standards for a wide range of products.2 Compliance with ASTM standards is voluntary. The K2 helmet has three layers. The exterior layer is a hard-plastic shell. The shell is lined with an Expanded Polystyrene (EPS) energy-attenuating layer, which is supposed to absorb and dissipate shock from a blow to the head. The third layer is a comfort liner that can be adjusted to fit on the user’s head. After Scott’s accident, the lower left rear of the exterior shell was cracked. And, in the same area, the shock-absorbing EPS layer was flattened, and chunks of the EPS were missing.
The parties sharply dispute what happened to the helmet when Scott fell. K2 contends that the helmet was improperly fit and not properly fastened. K2’s theory is that as Scott fell, his helmet shifted out of place and the left posterior region of his head was exposed and directly hit the ground. Dkt. 144, ¶ 38. K2 contends that the helmet only partially protected Scott’s head, and that the point of impact on the helmet was below the “test line,” which is the lower limit of the area that is supposed to be protected under ASTM standards. K2 also contends that pictures from the [*5] day of the accident show that Scott failed to tighten the helmet’s chinstrap. Id., ¶ 39.
Plaintiffs contend that the helmet did not actually meet ASTM standards. Plaintiffs’ theory is that the bottom rear of the helmet was excessively tapered at the test line. As a result of the tapering, the helmet did not afford sufficient protection against a blow such as the one Scott suffered. Plaintiffs also contend that the helmet was the right size for Scott.
ANALYSIS
K2 moves for summary judgment on the grounds that plaintiffs cannot prove that Scott’s K2 helmet was defective or that it caused Scott’s injuries. In connection with their opposition to K2’s motion, plaintiffs move to strike parts of K2’s expert evidence. The court begins with plaintiffs’ challenge to the expert evidence.
A. Plaintiffs’ motion to exclude expert evidence
Under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999), the court must serve as a gatekeeper to ensure that proffered expert testimony meets the requirements of Federal Rule of Evidence 702. Essentially, the gatekeeping function consists of a three-part test: the court must ensure that the expert is qualified, that the expert’s opinions are based on reliable methods and reasoning, and that the expert’s opinions will assist the jury in [*6] deciding a relevant issue. Myers v. Ill. Cent. R. R. Co., 629 F.3d 639, 644 (7th Cir. 2010). The proponent of expert evidence bears the burden of establishing that the expert’s testimony is admissible. Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009).
Plaintiffs move to strike aspects of the expert reports of P. David Halstead and Irving Scher. Although plaintiffs dispute Halstead’s qualifications, the main question is whether Halstead and Scher used reliable methodologies and reasoning. The admissibility inquiry undertaken by the court “must be ‘tied to the facts’ of a particular case.” Kumho, 526 U.S. at 150 (quoting Daubert, 509 U.S. at 591). The “critical inquiry” for admissibility is whether the opinion is rationally connected to the underlying data or “connected to the existing data ‘only by the ipse dixit of the expert.'” Gopalratnam v. Hewlett-Packard Co., 877 F.3d 771, 781, 732 Fed. Appx. 484 (7th Cir. 2017). Expert testimony that merely asserts a “bottom line” or provides testimony based on subjective belief or speculation is inadmissible. Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 761 (7th Cir. 2010).
1. P. David Halstead
P. David Halstead is the Technical Director of Southern Impact Research Center. Halstead conducted a series of drop tests to try to replicate the damage on Scott’s helmet, and thereby to determine the amount of force that the helmet and Scott experienced at the time of Scott’s fall. Dkt. 110, at 6. Halstead offers two main opinions: (1) [*7] that the helmet was not defective, and (2) that the helmet was out of place at the time of the accident. Plaintiffs move to strike three aspects of Halstead’s report. Dkt. 137, at 6-7.
First, plaintiffs move to strike Halstead’s opinion that the helmet was out of position at the time of the accident. Halstead expresses that opinion in various forms:
• “It is my opinion that Mr. Rogers’ injuries were caused by complex fall kinematics that resulted while his helmet was out of position (rotated slightly to the left and possibly higher on the right) exposing his temporal bone in the area he sustained the mastoid fracture.” Dkt. 110, at 7.
• “Mr. Rogers sustained his injuries when his partially helmeted head, with the mastoid area of the temporal bone exposed, made contact with a somewhat compliant surface such as snow substantially similar to the snow measured at Afton Alps.” Id. at 9.
• “The skull fracture is a result of functionally direct contact with the impact surface to the mastoid area.” Id.
• “Given the test results had the helmet been in position the skull fracture almost certainly would not have occurred.” Id.
The court agrees with plaintiff that Halstead has not shown that this opinion is [*8] rationally connected to underlying data.
Halstead conducted a series of drop tests using K2 Phase 08 helmets, the same model as Scott’s helmet. Id. at 6. Under the ASTM standards, a helmet must keep the user’s head from accelerating more than 300 g, meaning that the force of impact on the skull is equivalent to 300 times the force of gravity or less. Dkt. 124-13, at 3. Although these drop tests were not testing for ASTM compliance, Halstead used 300 g as a threshold for the helmet’s effectiveness. Halstead conducted eleven tests by dropping helmets on to a modular elastomer programmer (MEP), a rubber pad that is somewhat harder than packed snow. Dkt. 110, at 6. None of the drops resulted in an acceleration of more than 181 g or damaged the helmet in a way that resembled the damage to Scott’s helmet. So Halstead conducted three more tests using a harder, steel anvil. Id. at 6. One of these drops did crack the helmet, but the damage was still not as severe as Scott’s helmet.
Halstead opined that because his tests could not replicate the damage to Scott’s helmet, Scott’s helmet must not have been in place on Scott’s head at the time of the accident. Id. at 8-9. Halstead did not conduct any follow-up testing; he [*9] did not, for example, try dropping the helmet while it was out of place on the headform or try dropping the helmet without using a full-sized headform. Instead, Halstead scanned both the accident helmet and the most severely damaged test helmet with a laser. Id. After eyeballing the results of the laser scan, Halstead again concluded that the damage did not match and that therefore the helmet was not in place at the time of the accident. He opined specifically that the helmet rotated to the left, exposing the area where Scott’s skull was fractured.
Two factors that a court may consider regarding the admissibility of expert testimony are whether the expert “unjustifiably extrapolated from an accepted premise to an unfounded conclusion” and whether “the expert has adequately accounted for obvious alternative explanations.” Gopalratnam, 877 F.3d at 788 (quoting Fuesting v. Zimmer, Inc., 421 F.3d 528, 534-35 (7th Cir. 2005)). Both factors support striking Halstead’s opinion here. When Halstead’s test results failed to re-create the damage to Scott’s helmet, Halstead had a basis for concluding that Scott’s fall was in some way atypical. But he had no foundation to then extrapolate from these results that the helmet was therefore out of position. And he was even less justified [*10] in hypothesizing on the helmet’s exact orientation during the accident. Halstead did not confirm his hypothesis through additional testing, nor did he address alternative explanations for the damage to Scott’s helmet, such as the existence of a manufacturing defect or a weakening of the helmet through multiple impacts. And his use of laser scanning provided no additional details to support his hypothesis. Halstead simply picked one possible explanation for the test results and then assumed it was true. Halstead concedes that he is not an expert in the “full body kinematics” that are critical to understanding how Scott was injured. Dkt. 110, at 7.
Second, plaintiffs move to strike Halstead’s opinion regarding the speed and force of impact on Scott’s head at the time of the accident:
Based on biomechanical testing the likely impact speed of his head to the surface was 13-14 mph or higher, head accelerations were in the range of 170 g — 220 g with angular acceleration between 7000-8000 rad/sec2.
Dkt. 110, at 7. The court will strike this opinion. Rule 702 places the responsibility on the expert to explain how his methodologies support his opinions. Metavante, 619 F.3d at 761. Although not explicitly stated, Halstead appears [*11] to have adopted these numbers from the results of his tests on the MEP pad. Dkt. 110, at 6. But as Halstead emphasized in his report, the tests on the MEP pad were unable to replicate Scott’s accident. It is not clear why the speeds and forces of impact must nonetheless be correct, and Halstead does not provide an explanation.
Third, plaintiffs move to strike Halstead’s opinion regarding the helmet’s ability to protect against high-speed impact:
“As the biomechanical testing shows the helmet, at its thinnest, well below the test line is able to take an impact at nearly 14 miles per hour with a hemi anvil and still remain under 300g.”
Id. at 7. The court will not strike this opinion, which is based on the test results. Plaintiffs suggest that Halstead is not qualified to provide “biomechanical engineering opinions,” but in their reply brief, plaintiffs concede that Halstead is an experienced technician who is qualified to conduct the type of drop testing he performed. Dkt. 151, at 2.
The bottom line is that the court will consider Halstead’s drop testing analysis, but it will not consider his testimony that the helmet was out of place at the time of the accident.
2. Irving Scher, Ph.D., P.E
Irving [*12] Scher is a biomechanical engineer at Guidance Engineering and Applied Research. Scher’s report includes two separate sets of conclusions that are relevant to summary judgment. First, Scher used computer models to determine the fit and looseness of the helmet that Scott wore. Second, Scher conducted a biomechanical engineering analysis to determine the “kinematics” of the accident—the movement of Scott’s body and ski equipment according to the laws of physics. Plaintiffs move to strike both sets of conclusions. Dkt. 137, at 7-8.
a. Helmet fit
Scher opines that the helmet was poorly fit and that it was loose enough to move out of place:
• “Mr. Roger’s head circumference at the hat line is approximately 57 centimeters. Because the head size recommended for the subject helmet ranges from 59 to 62, Mr. Rogers’ head was at or below the lower end of the subject helmet’s size.” Dkt. 107, ¶¶ 10-12.
• “At the level of the helmet brim there was at least 2 to 4 centimeters of free space between Mr. Rogers’ head and the helmet in the anterior-posterior direction, and the helmet had space to rotate 20 degrees clockwise and counter-clockwise.” Id. ¶ 13.
• “The subject helmet was not snugly fitted to Mr. [*13] Rogers’ head.” Id. ¶ 14.
These opinions are rationally connected to the reasonably reliable data that Scher considered; the court will not strike them.
Scher created a 3D computer model of Scott’s head from the CT scans on the night of Scott’s accident. Dkt. 112, at 15. Using this model, Scher calculated circumference of Scott’s head as 57 centimeters. Because the helmet that Scott purchased was recommended for head circumferences of 59 to 62 centimeters, Scher opined that Scott’s helmet was one size too large. Scher scanned an exemplar K2 helmet of the same size as Scott’s helmet. Within his computer modeling software, Scher placed the 3D model of the helmet on the 3D model of Scott’s head. Scher determined that there was at least 2.25 centimeters of free space between Scott’s head and the interior of the helmet, and that with this extra space the helmet could freely rotate 20 degrees clockwise and counterclockwise. Finally, Scher viewed photographs of Scott on the day of the accident and determined that Scott’s chin strap was “loose.” Id. at 16. Scher’s analysis of the helmet’s fit led Scher to conclude that it was possible for the helmet to move out of position and expose a portion of the [*14] posterior region of Scott’s head.
Plaintiffs contend that Scher’s analysis is unreliable because Scott’s head actually has a circumference of 60 centimeters, not 57 centimeters. Plaintiffs’ measurement comes from Tracy’s declaration that she measured Scott’s head with a tape measure. Dkt. 123, ¶¶ 7-8.3 Neither party adduces evidence showing that the other party’s measurement is manifestly incorrect, so the size of Scott’s head is a matter of genuine dispute.4 Such a dispute does not render Scher’s opinion inadmissible.
b. Kinematics analysis
Scher also offered opinions about how Scott fell and how he was injured, which Scher refers to as a “kinematics” analysis. He expresses those opinions as follows:
• “Mr. Rogers likely caught his ski edge, fell forward and leftward while rotating clockwise and continuing downhill, and contacted the left, posterior region of his helmeted head on his acromioclavicular joint and proximal humerus, a very rigid area of hard-packed snow, or both.” Dkt. 112, at 36.
• “Because the helmet was not snug on Mr. Rogers’s head and he did not adjust appropriately the chin strap, the subject helmet was able to (and did) move out of position during Mr. Rogers’s fall [*15] and subsequent head impact.” Id.
• “No snowsport helmet would be able to prevent the injuries sustained by Mr. Rogers in the subject accident.” Id.
• “The subject helmet rotated axially counterclockwise and rightwards on Mr. Rogers’ head during his fall such that his helmet was out of place and exposed a portion of the left posterior region of his head just prior to impact.” Dkt. 107, ¶ 9.
• “Mr. Rogers failed to properly tighten the subject helmet’s chin strap, which allowed the subject helmet to move out of position as he fell.” Id. ¶ 15.
• “Immediately before Mr. Rogers’ head contacted the ground, the subject helmet moved out of position, causing the point of impact to be below the helmet’s test line.” Id. ¶ 18.
• “In my professional opinion, any snow sport helmet with a similar fit and loose chin strap on Mr. Rogers’ head would have similarly moved relative to his head in the subject fall.” Id. ¶ 20.
The court will not consider these opinions because they are too speculative: there is simply not enough information about how Scott fell to support this analysis.
Based on the assumption that “catching an edge” is a common occurrence among skiers, and the location and severity of Scott’s [*16] injuries, Scher created a computer simulation using the computer program MADYMO. Scher ran several simulations in MADYMO, using different estimates for Scott’s speed and the conditions on the ski slope. Id. at 29. He tweaked the variables in the simulation until he was able to create a simulation that could result in injuries similar to Scott’s injuries. Then based on that simulation, he opined on Scott’s body movements as he fell, and the forces that Scott experienced when he hit the ground. Scher opines both that Scott’s helmet hit the ground below the test line, and that Scott hit the ground with such force that no helmet could have prevented Scott’s injuries.
Scher’s simulation, and the opinions based on it, are inadmissible because they are based on guesswork rather than the facts of Scott’s accident. An expert must show that he has sufficient data to use the methodology employed. See Gopalratnam, 877 F.3d at 781 (Rule 702 requires the underlying data to be both qualitatively and quantitatively sufficient to conduct the analysis). Opinions that are based on speculation are inadmissible. Metavante, 619 F.3d at 761. Here, there was no witness who could describe the moments leading up to the fall, no measurement or even estimate of Scott’s speed at the [*17] time of the fall, and no reliable evidence of Scott’s skiing abilities or style. The court will exclude the opinions expressed on pages 21 through 31 of Scher’s report. Dkt. 112.
Scher is free to testify that the helmet was loose and that it might have moved out of position. And he can testify that based on Halstead’s testing, and based on the literature regarding head injuries and ski accidents, it seems unlikely that a typical fall could have caused the injuries that occurred. But Scher cannot speculate that the helmet actually moved or opine on the exact location of the helmet at the time of impact.
B. K2’s motion for summary judgment
Plaintiffs bring claims under theories of strict product liability, negligence, breach of warranty, and loss of consortium. K2 moves for summary judgment on all of plaintiffs’ claims. The court will grant summary judgment on only the breach of warranty claims, which plaintiffs waive. Genuine disputes of material fact preclude summary judgment on the other claims.
1. Summary judgment standard
Summary judgment is appropriate only if there is no genuine dispute as to any material fact. Fed. R. Civ. P. 56(a). In ruling on a motion for summary judgment, the court views all facts [*18] and draws all inferences in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Summary judgment will not be granted unless “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Sarver v. Experian Info. Sols., 390 F.3d 969, 970 (7th Cir. 2004) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)).
2. Strict Product liability claim
Wisconsin product liability law is codified under Wisconsin Statute § 895.047.5 A product liability claim has five elements: (1) the product was defective; (2) the defect rendered the product unreasonably dangerous; (3) the defect existed when the product left the control of the manufacturer; (4) the product reached the consumer without substantial change; and (5) the defect caused the claimant’s damages. Wis. Stat. § 895.047(1). K2 contends that they are entitled to summary judgment because plaintiffs cannot show that the helmet had a defect that rendered it unreasonably dangerous and because plaintiffs cannot show that the alleged defect caused Scott’s injuries.
There are three different categories of defects under the statute: design defects, manufacturing defects, and warning defects. Plaintiffs concede that they do not have evidence of a manufacturing defect, but they bring alternative claims for defective design if the helmet was in place during the accident and [*19] defective warning if the helmet fell out of place before the impact. Under the first theory, plaintiffs must show that the helmet had a design defect that caused Scott’s injuries to be worse than they would have been without the defect. Under the second theory, plaintiffs must show that the helmet’s instructions did not warn users to tighten the chinstrap. K2 seeks summary judgment as to both theories.
a. Defective design
Defendants contend that plaintiffs cannot adduce evidence of a design defect and that, even if a defect exists, plaintiffs cannot show that it caused Scott’s injuries. The court will address each element in turn.
i. Unreasonably dangerous defect
Summary judgment is inappropriate when resolution of a claim requires the court to choose between opposing expert testimony. See Wipf v. Kowalski, 519 F.3d 380, 385 (7th Cir. 2008) (explaining that “in a case of dueling experts . . . it is left to the trier of fact . . . to decide how to weigh the competing expert testimony”). That is the case here. Both parties hired experts to test K2 helmets according to ASTM standards, but the experts disagree on the testing procedures and achieved different results.6
Under Wisconsin’s product liability statute, a product is defective in design [*20] if the “foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the manufacturer and the omission of the alternative design renders the product not reasonably safe.” Wis. Stat. § 895.047(1)(a).
K2 contends that plaintiffs have not shown any evidence of a design defect. But plaintiffs’ expert, Mariusz Ziejewski, provides evidence sufficient to support a reasonable jury verdict that a foreseeable risk of harm could have been reduced by the adoption of a reasonable alternative design. Ziejewski’s report states that due to tapering at the edge, the K2 helmet does not provide the protection required by ASTM standards when struck in the lower back. Dkt. 116; Dkt. 124-7. Ziejewski further states that other helmets without this tapering do provide the protection required by ASTM. This makes the K2 helmet more dangerous than helmets from K2’s competitors.
K2 argues that Ziejewski’s report is insufficient to establish a design defect because the report does not specifically opine that the design of the K2 helmet rendered it “not reasonably safe” or “unreasonably dangerous.” Dkt. 103, at 12. But an expert does not need to parrot the exact language [*21] used in the statute. See In re Zimmer NexGen Knee Implant Prods. Liab. Litig., 218 F. Supp. 3d 700, 725 (N.D. Ill. 2016), aff’d sub nom. In re Zimmer, NexGen Knee Implant Prods. Liab. Litig., 884 F.3d 746 (7th Cir. 2018) (“Plaintiffs are not required to put forth an expert to say the magic words . . . But Plaintiffs must provide sufficient evidence to allow a jury to reach that conclusion without resorting to speculation”) (applying Wisconsin law). A jury could use the evidence in the report to find that the increased danger posed by the K2 helmet’s tapering is unreasonable.
K2 also contends that to establish a design defect, plaintiffs must show that the K2 helmet failed the ASTM standards that were in effect at the time of manufacturing. K2 argues that Ziejewski instead tested the K2 helmet according to current ASTM testing procedures. Ziejewski concedes that he used the updated procedures, but he argues that it is more accurate than the old testing standard. Dkt. 124, ¶¶ 22-23. Plaintiffs need to show only that a reasonable alternative design would have eliminated the risk of harm. Ziejewski tested multiple helmets using the same test methods and concluded the K2 helmet failed where alternative designs did not.
The ASTM standards may be relevant, but they are not dispositive. If the ASTM standards were adopted by federal or state law, then K2 would be entitled [*22] to a rebuttable presumption that the helmet was not defective. Wis. Stat. § 895.047(3)(c). But the ASTM standards are only voluntary. Compliance with voluntary standards at the time of manufacturing may be evidence that K2 behaved reasonably, in defense of plaintiffs’ negligence claim. See Michaels v. Mr. Heater, Inc., 411 F. Supp. 2d 992, 997 (W.D. Wis. 2006) (citing Getty Petroleum Marketing, Inc. v. Capital Terminal Co., 391 F.3d 312, 326 (1st Cir. 2004)). So, at trial, K2 can raise this defense in response to plaintiffs’ negligence claim. But it is only a piece of evidence that the jury may weigh when deciding whether defendants met their duty to exercise reasonable care. Id.
ii. Causation
K2 also contends that it is entitled to summary judgment because the helmet was out of place at the time of impact, so plaintiffs cannot show that any alleged defect caused Scott’s injuries. The location of the helmet at the time of the accident is sharply and genuinely disputed, so that theory provides no basis for granting summary judgment to K2.
Nevertheless, K2 contends that even if the helmet was in place, it is still entitled to summary judgment because no helmet could have prevented Scott’s injury because preexisting injuries made him particularly vulnerable. This theory provides no basis for granting summary judgment to K2 either.
K2 adduces some evidence that Scott had suffered [*23] previous head injuries. Dkt. 144, ¶¶ 45-50. But K2 has scant evidence that the prior injuries were serious ones. More important, K2 does not adduce any evidence to support the outlandish statement in its brief that “no helmet would have been able to prevent the injuries he sustained on December 31, 2015.” Dkt. 103, at 10. K2’s own proposed findings of fact undermine this idea:
Had Mr. Rogers not been wearing a helmet, his brain injury would have been at least as severe if not more severe than it was on December 331, 2015, leaving him with worse permanent residuals or traumatic brain injury, or could have even adversely impacted his survival.
Dkt. 144, ¶ 51. K2 also says that plaintiffs’ expert Ziejewski “concedes that an alternative design would not have prevented Mr. Rogers from suffering a traumatic brain injury or a subdural hematoma in the subject incident.” Dkt. 103, at 11 (citing Dkt. 144, ¶ 28). As plaintiffs point out, K2 has grossly misstated the substance of Ziejewski’s deposition testimony in this proposed fact. Ziejewski testified that a properly designed helmet would have prevented a subdural hematoma, a level 4 injury. Ziejewski acknowledged that even with a properly designed [*24] helmet, “mild traumatic brain injury” was still a possible or likely outcome. Dkt. 122, at 28:21-29:25.
b. Defective Instructions
Plaintiffs’ alternative theory is that if the helmet slipped out of place before impact, it slipped because of defective instructions. Under Wisconsin’s product liability statute, a product is defective because of inadequate instructions or warnings if “foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the manufacturer and the omission of the instructions or warnings renders the product not reasonably safe.” Wis. Stat. § 895.047(1)(a). Plaintiffs do not need to show that Scott actually read the instructions to prove causation. When a product is missing an adequate warning, the missing warning is a substantial factor in causing injury if a reasonable person would have heeded the warning and as a result avoided injury. Michaels, 411 F. Supp. 2d at 1006 (citing Tanner v. Shoupe, 228 Wis. 2d 357, 596 N.W.2d 805, 817-18 (Ct. App. 1999)). There is a presumption that any missing instructions would have been read, and therefore a presumption of causation. Id.
Throughout its briefing, K2 contends that the looseness of Scott’s chinstrap was a factor that caused the helmet to slip out of place. Plaintiffs contend [*25] that any mistake by Scott in tightening his chinstrap was caused by the fitting instructions included with the helmet. The helmet’s instructions state that the helmet should be snug and that after adjusting the straps and pads, “the skin on your forehead should move with the helmet.” Dkt. 145, ¶ 10. The instructions do not include specific directions on the tightness of the chinstrap. A reasonable jury could find that this instruction does not warn consumers that they need to tighten the chinstrap in addition to adjusting the pads and comfort liner.
K2 contends that plaintiffs are required to adduce expert testimony regarding the effectiveness of product warnings. Dkt. 103, at 15. But K2 cites no case in which expert testimony was required to show that a warning was defective. Under Wisconsin law, expert testimony is required only if the court finds that “the underlying issue is not within the realm of the ordinary experience of mankind.” State v. Kandutsch, 2011 WI 78, ¶ 28, 336 Wis. 2d 478, 799 N.W.2d 865 (internal quotations omitted). And Wisconsin courts have declined to require expert testimony in cases involving much more complex issues than these fitting instructions. See Lindeman v. Mt. Olympus Enterprises, Inc., No. 14-cv-435, 2015 U.S. Dist. LEXIS 105756, 2015 WL 4772925, at *3 (W.D. Wis. Aug. 12, 2015) (collecting cases). [*26] Here, the instructions are written in plain language, and the act of reading and following instructions is well within the ordinary experience of mankind.
The court denies K2’s motion for summary judgment on the defective instructions claim.
3. Negligence claim
Plaintiffs also bring a claim for negligence. To sustain this claim, plaintiffs must prove (1) the existence of a duty of care on the part of the defendant, (2) a breach of that duty of care, (3) a causal connection between the defendant’s breach of the duty of care and the plaintiff’s injury, and (4) actual loss or damage resulting from the injury. Smaxwell v. Bayard, 2004 WI 101, ¶ 32, 274 Wis. 2d 278, 682 N.W.2d 923. In Wisconsin, a manufacturer’s duty of care includes the duty to safely design the product so it is fit for its intended purpose, and the duty to conduct adequate inspections and tests to determine the extent of defects. Wis. Civil Jury Instructions § 3200(2).
K2 contends that plaintiffs have not adduced evidence of “specific acts of negligence.” Dkt. 103, at 17. But plaintiffs can rely on the same evidence used to establish their product liability claims. Although negligence and product liability are alternative theories of liability, there is significant overlap between the two. See Krien v. Harsco Corp., 745 F.3d 313, 317 (7th Cir. 2014) (“[A] [*27] claim of strict products liability is much like a negligence claim because it requires proof either that the product was unreasonably dangerous or, what amounts to the same thing, that it was defective”). Plaintiffs’ expert testimony from Ziejewski is sufficient to create a material dispute regarding whether K2 breached its duty to design a product that was safe for skiers.
4. Breach of warranty claim
K2 moves for summary judgment on plaintiffs’ claims for breach of warranty on two grounds. Dkt. 103, at 17-18. First, K2 contends that under Austin v. Ford Motor Co., claims for breach of warranty cannot be brought when the plaintiff has a tort claim. See 86 Wis.2d 628, 273 N.W.2d 233, 240 (1979) (“[I]t is inappropriate to bring an action for breach of warranty where a tort remedy is sought”). Second, K2 contends that there is no privity of contract between plaintiffs and K2. See St. Paul Mercury Ins. Co. v. Viking Corp., 539 F.3d 623, 626 (7th Cir. 2008) (Wisconsin law requires privity of contract between parties before liability can be founded on breach of express or implied warranty).
Plaintiffs have not substantively responded to either of these arguments. Dkt. 137, at 52-53. Failure to respond to an argument can result in waiver or forfeit of a claim. Nichols v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 509 F. Supp. 2d 752, 760 (W.D. Wis. 2007) (collecting cases). Because plaintiffs did not [*28] respond to K2’s arguments regarding privity or the ability to bring warranty claims in a tort case, the court will grant summary judgment for K2 on plaintiffs’ claims for breach of warranty.
5. Loss of consortium claim
K2 moves for summary judgment on Tracy’s loss of consortium claim because it is derivative of Scott’s injuries. Because the court denies summary judgment on Scott’s product liability and negligence claims, it will also deny summary judgment on Tracy’s claim for loss of consortium.
K2 also moves to dismiss Tracy’s claim on the ground that plaintiffs have not properly pleaded loss of consortium in their amended complaint. Plaintiffs’ amended complaint does not include “loss of consortium” as an independent cause of action, but it does include allegations that “Plaintiff Tracy Rogers . . . has been deprived of the services, society, companionship and consortium of Scott Rogers as a proximate result of his enhanced injuries.” Dkt. 32, ¶ 23. K2 contends that this is insufficient under the plausible pleading standard of Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009).
Plaintiffs’ allegations are sufficient to state a claim. Even post-Iqbal, Federal Rule of Civil Procedure 8 requires only “adequate notice of the scope of, and basis for” the asserted claims. [*29] Avila v. CitiMortgage, Inc., 801 F.3d 777, 783 (7th Cir. 2015) (citing Vincent v. City Colleges of Chi., 485 F.3d 919, 923 (7th Cir.2007)). Here, K2 had adequate notice that Tracy was seeking relief for loss of consortium as a result of the enhanced injuries caused by the K2 helmet.
C. Additional motions and requests for relief
As a final matter, plaintiffs ask the court to deny certain requests by K2 that plaintiffs contend were improperly included in K2’s summary judgment reply. Dkt. 149. Some of the “motions” to which plaintiffs refer are objections to allegedly inadmissible evidence—objections that K2 is allowed to raise during summary judgment. For example, K2 objects that the declarations from Tracy and Ziejewski, first produced with plaintiffs’ summary judgment opposition, are untimely expert testimony. Dkt. 143, at 3-10. There is nothing improper about K2 making these objections in its summary judgment reply. (The court has overruled the objection to Tracy’s declaration, and it has not considered the Ziejewski declaration. Whether the Ziejewski evidence will be allowed at trial will be addressed later at the final pretrial conference.)
But K2 requests two additional forms of relief in its reply brief. First, K2 contends that plaintiffs should be sanctioned for spoliation because Tracy adjusted the helmet’s [*30] comfort liner and therefore altered it from its condition at the time of the accident. Dkt. 143, at 7-8 fn. 7. Second, K2 contends that plaintiffs did not disclose the existence of Scott’s ski goggles and must be ordered to turn them over. Id. at 8.
A party may not raise new issues in a reply brief. See Casna v. City of Loves Park, 574 F.3d 420, 427 (7th Cir. 2009). In any event, both of K2’s requests for additional relief are undeveloped. The spoliation arguments are relegated to a footnote. And both requests misconstrue the history of this case. K2’s own experts previously removed the helmet’s comfort lining at issue. Dkt. 112, at 10-11. And K2 was already aware of Scott’s goggles, Dkt. 130 (Tracy dep. 33:9-17), and Halstead included a pair of goggles as a factor in his testing. Dkt. 110, at 4. The court will deny K2’s requests for additional relief, thus granting plaintiffs’ request.
ORDER
1. Plaintiffs motion to exclude the opinion testimony of K2’s experts, Dkt. 139, is GRANTED in part and DENIED in part, as provided in this opinion.
2. Defendant K2’s motion for summary judgment, Dkt. 102, is DENIED for the most part. The motion is GRANTED only with respect to plaintiffs’ claims for breach of warranty.
3. Plaintiffs Scott Rogers and [*31] Tracy Rogers’ motion, Dkt. 149, for summary denial of K2’s motions is GRANTED in part. The court denies defendant K2’s motions to produce ski goggles and to sanction plaintiffs for spoliation.
4. Pursuant to the parties’ stipulation, Dkt. 250, all claims as to defendants Lexington Insurance Company and AIG Europe Limited are DISMISSED without prejudice.
Whitewater rafting case where one of the claims is the employer should have provided eye protection during the rafting trip.
Posted: February 4, 2019 Filed under: Florida, Paddlesports, Rivers and Waterways | Tags: amend, applicability, atrocious, Breach of Contract, breached, Choice of Law, contractual, definite, distress, Duty of care, emotional, emotional distress, Eye Protection, foreign law, gear, immaterial, impertinent', infliction, intolerable, law governs, Notice, outrageous, outrageous conduct, owed, PFD, protective, purportedly, Rafting, reasonable notice, scandalous, surgery, waived, Whitewater Rafting Leave a commentThe plaintiff was injured during a corporate team-building exercise when she ended up with a small rock in her eye after the whitewater rafting trip.
Chavarria, v. Intergro, Inc., et al., 2018 U.S. Dist. LEXIS 117631
State: Florida, United States District Court for the Middle District of Florida, Tampa Division
Plaintiff: Carmen Elena Monteilh Chavarria
Defendant: Intergro, Inc., Timothy Dolan, Felix Renta
Plaintiff Claims: negligence, for intentional infliction of emotional distress, and for breach of contract
Defendant Defenses:
Holding: Mostly for the Defendants
Year: 2018
Summary
A whitewater rafting trip in Honduras booked as a team-building event ended up in litigation in the US. The allegations were the corporation that booked the team building for its employees failed to provide the necessary safety equipment for whitewater rafting.
The allegations may be taken to allege there is a higher duty owed to employees of a corporation partaking in a sport or recreation event then to other participants. The duty of the raft company appears to remain the same. Only employers are argued to have a requirement of higher standards of care.
Facts
Contracting with Intergro in October 2014, the plaintiff, a Honduran national, agreed to provide accounting services at Intergro’s “Shared Services Center” in Honduras. The plaintiff reported to Felix Renta, CFO of the group of companies owned by Timothy Dolan. The plaintiff alleges that both Intergro and Seproma3 “conduct-ed” in Honduras a joint training session for employees. The activities included a white-water rafting event in which the employees were purportedly “supplied with a life jacket and a helmet, but with no other protective equipment, including no eye protection gear.”
After the rafting event, the plaintiff noticed a burning sensation in her right eye. Later she required eye surgery to remove a small stone. After the surgery, the plaintiff began experiencing “significant” difficulty with her vision. Following a diagnosis of “post traumatic cataract disorder,” the plaintiff required two further surgeries. In June 2016, a doctor diagnosed her with a 75% loss of vision in the injured eye.
Analysis: making sense of the law based on these facts.
There were legal discussions about what law applied and other items that won’t be discussed here. It is unclear how a Honduran corporation and a raft trip in Honduras ended up in a Florida Federal District Court.
The court was succinct in its analysis of the law and facts. The plaintiff argued the defendants were negligent.
To state a claim for negligence, a plaintiff must allege that the defendant owed the plain-tiff a duty of care, that the defendant breached that duty, and that the breach caused the plaintiff damage.
According to the plaintiff, there was a duty of the employer, Integro not to select the rafting event and to: “provide effective personal protective gear instead of “solely allowing the operator of the rafting event to make the decision as to what protective equipment to provide.”
The plaintiff alleges that the defendants, who purportedly authorized, sponsored, and paid for the work event, owed her a duty of care; that the defendants breached that duty by failing to ensure that employees were adequately protected; that the breach caused her injury; and that she has suffered actual damages as a result of the defendants’ negligence. The plaintiff states a claim for negligence.
The next argument made by the plaintiff was a claim for intentional infliction of emotional distress.
To state a claim for intentional infliction of emotional distress, a plaintiff must allege that the defendant intentionally or recklessly committed outrageous conduct and that the conduct caused severe emotional distress. The standard for outrageous conduct is distinctly high
The court dismissed this claim finding the plaintiff failed to allege any instances of outrageous, extreme or atrocious conduct.
The plaintiff also sued for breach of contract. “To state a claim for breach of contract, a plaintiff must allege the existence of a contract, a material breach of the contract, and damages resulting from the breach.”
The court dismissed the breach of contract claims against the individual defendants and granted the plaintiff’s motion to amend her complaint against the corporate defendant to clarify or restate her breach of contract claim.
So Now What?
Simple case, right? Well maybe. In the negligence complaint which survived the motion to dismiss, the plaintiff’s allegations stated:
The plaintiff alleges that both Intergro and Seproma “conducted” in Honduras a joint training session for employees. The activities included a white-water rafting event in which the employees were purportedly “supplied with a life jacket and a helmet, but with no other protective equipment, including no eye protection gear.”
Two issues surface here. The first is the allegation that white-water rafting requires you to have eye protection. However, the second has possibly greater results. The complaint of not providing enough safety gear is not against the raft company, but against the plaintiff’s employer who booked the trip. The allegation is the employer who booked the trip had a duty to provide proper gear for the trip.
This shifts the burden away from the people who understand the risks, rafting companies, to people who do not understand the risks, companies, churches, and groups that book raft trips. Every raft company might be able to argue successfully, that the standards in the industry are to provide a PFD.
However, the company will have to rely on the industry standards of whitewater rafting (or any other sport or recreational activity) and then check to see if there is a higher standard of care owed to employees.
Here the plaintiff seemed to lose most of here employment law claims. The decision indicates she was denied worker’s compensation for her injuries. However, if the activity was argued to be part of her employment, then this may create a greater duty and a greater reluctance on the part of corporations to do team building events.
What do you think? Leave a comment.
 James H. “Jim” Moss |
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of eight books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk
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Each state had its landmines on how releases are to be written
Posted: January 28, 2019 Filed under: New York, Racing, Release (pre-injury contract not to sue) | Tags: amusement, Arbitration, compel arbitration, Consumer, cross-motion, establishment, font, negligence liability, personal knowledge, Recreation, Release, Tough Mudder, urban mudder, Void, Waiver Leave a commentIn several states, New York as in this case, the land mines might be too many, and other options should be explored.
A Tough Mudder event used a release in NY that required arbitration. The Release was thrown out by the court, consequently the requirement for arbitration was thrown out.
Arbitration works to reduce damages; however, you should only use an arbitration clause when you can’t win because you don’t have a release. In every other state other than NY, the arbitration clause might have been a worse decision.
State: New York, Supreme Court of New York, Kings County
Plaintiff: Isha
Defendant: Tough Mudder Incorporated d/b/a/ Urban Mudder
Plaintiff Claims: Negligence
Defendant Defenses: Contract
Holding: For the Plaintiff
Year: 2018
Facts
The plaintiff was injured in an Urban Mudder event, which appears to be something like a Tough Mudder but in a city? Other than that, there are no facts in the decision.
Analysis: making sense of the law based on these facts.
The defendant motioned to have the dispute arbitrated because the contract, the release, required arbitration.
Defendant contends that this dispute should be arbitrated pursuant to the contract between the parties. Typically, arbitration clauses in contracts are regularly enforced and encouraged as a matter of public policy
The plaintiff argued that arbitration was invalid because a NY statute prohibits arbitration of consumer contracts.
Plaintiff further argues that the contract cannot be admitted into evidence pursuant to CPLR 4544 because it involves a consumer transaction and the text of the contract is less than 8-point font. In support of this argument, plaintiff submits the affidavit of Vadim Shtulboym, a paralegal in plaintiff counsel’s office. Mr. Shtulboym states that, based on his work experience, he has determined, with the aid of a scanner and Abobe Acrobat Reader DC, that the contract between the parties is 7-point font. Mr. Shtulboym explains that he came to this conclusion by typing words in 8-point font and 6-point font, and comparing them to the text of the contract, the size of which appeared to be in between the two fonts.
The plaintiff also argued the contract was void because it violated NY Gen. Oblig Law § 5-326.
§ 5-326. Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable
Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.
The court found the contract violated NY Gen. Oblig Law § 5-326 and was thrown out by the court. Once the agreement was thrown out in its entirety, the arbitration clause was also thrown out.
Two different statutes took the only defenses outside of assumption of the risk and threw them out the door.
The court found because there was a dispute, a triable issue of fact, the motion to dismiss failed and the parties would proceed to trial on this fact alone. The size of the type font on the agreement was enough to throw the defendant into the courtroom.
So Now What?
When you have a release, in a state where releases are valid, arbitration clauses usually create a better position for the plaintiff. Most arbitrations do not allow the award of punitive damages or any special damages unless specifically allowed in a statute. However, most arbitrations split the middle and award damages to the plaintiff.
A well-written release in a state where releases are upheld the plaintiff gets nothing, or less.
However, in a state like New York or the other states that do not support the use of a release, (See States that do not Support the Use of a Release), you must use an assumption of risk clause. Assumption of the risk is a defense in most states, again, for sporting and recreational activities. An assumption of the risk agreement does not run afoul of any statute that I have discovered or been made aware of and also works for minors who can understand the agreement and the risk.
Assumption of risk clauses can also contain arbitration clauses. When faced with a situation where you do not have the option of using a release, an assumption of the risk clause with an arbitration clause is your best defense position.
Typeface? If the judge can’t read it, your typeface is too small. Always use a typeface in your release that is at least 10 pt. and may be larger. Small type face have been a joke for decades in dealing with the fine print in contracts. It is not a reality.
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James H. “Jim” Moss |
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 |
Outdoor Recreation Insurance, Risk Management, and Law
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.
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Interesting decision only real defense was the Wyoming’s Recreation Safety Act, which provides little if any real defense.
Posted: January 22, 2019 Filed under: Assumption of the Risk, Paddlesports, Rivers and Waterways, Wyoming | Tags: #AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #BicyclingLaw, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #OutsideLawyer, #Rec-Law, #RecLaw, #RecLawBlog, #RecLawyer, #Recreation-Lawcom, #RecreationalLawyer, #RecreationLawBlog, #RecreationLawcom, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #SkiLaw, #SummerCamp, #Tourism, #YouthCamps, #ZipLineLawyer, Backpacking, Camps, channel, Choice of Law, Common Carrier, Federal Law, Float, floating, genuine, Guest, Hiking, horseback riding, Inherent Risk, Issue of Material Fact, jam, JimMoss, joint venture, Law, lodge, log, matter of law, Mountaineering, Negligence, OutdoorLaw, OutdoorRecreationLaw, OutsideLaw, preempt, provider, Punitive damages, Raft, Rafting, Rec-LawBlog, Recreation, Recreation-Law.com, recreational, recreational opportunity, RecreationLaw, River, Saddle, skiing, snowboarding, Sport, Summary judgment, tour operator, TravelLaw, trip Leave a commentDefendants are the company that booked the trip (Vail through Grand Teton Lodge Company) and the travel agent who booked the trip.
Rizas et. al. v. Vail Resorts, Inc.; et. al., 2009 U.S. Dist. LEXIS 139788
State: Wyoming
Plaintiff: Alexis R. Rizas, Individually and as the Personal Representative of the Wrongful Death Beneficiaries of John J. Rizas, deceased; John Friel, Individually and as the Personal Representative of the Wrongful Death Beneficiaries of Elizabeth A. Rizas, Deceased; Ronald J. Miciotto, as the Per-sonal Representative of the Wrongful Death Beneficiaries of Linda and Lewis Clark, Deceased; James Clark; Lawrence Wilson; and Joyce Wilson, Plaintiffs
Defendant: Vail Resorts, Inc.; Grand Teton Lodge Company; Tauck, Inc., a.k.a. Tauck World Discovery, Inc., a.k.a. Tauck Tours, Inc.
Plaintiff Claims: Negligence, Punitive damages
Defendant Defenses: Wyoming’s Recreation Safety Act
Holding: Mixed, mostly for the plaintiff
Year: 2009
Summary
Decision looks at the liability of the travel agency and the hotel that booked a rafting float trip where three people died. The only defenses of available were the Wyoming’s Recreation Safety Act which helped keep the lawsuit in Wyoming applying Wyoming law, but was ineffective in assisting in the defense of the lawsuit.
The rafting company is not part of this decision so probably the raft company settled with the defendants before the case was filed or this motion was heard.
Facts
Tauck is a corporation formed under the laws of New Jersey and primarily doing business in Connecticut. Stipulated Facts, Docket Entry 108. Tauck is in the business of selling tour packages to its clients, one of which in 2006 was a tour called the “Yellowstone & Grand Teton – North.” This tour began in Salt Lake City, Utah and ended in Rapid City, South Dakota. Id. The tour included a two-night stay at the Jackson Lake Lodge in the Grand Teton National Park, and the Lodge was operated by GTLC. GTLC is organized under the laws of Wyoming and operates within the Grand Teton National Park pursuant to a concessionaire agreement with the National Park Service. Among the services that GTLC offered its guests is a 10-mile float trip along the Snake River from Deadman’s Bar to the Moose Landing. Tauck’s 2006 promotional materials contains the following sentence: “Take a scenic ten-mile raft trip on the Snake River as it meanders through spectacular mountain scenery alive with wildlife, including moose, elk, deer, and many species of birds.”
On June 2, 2006, a tour group gathered at the Lodge at approximately 8:00 a.m. They traveled via several vans to the rafting launch site at Deadman’s Bar. The trip took approximately one hour. There the larger group was split into four smaller groups, one for each raft provided. Raft No. 1 was guided by Wayne Johnson, an employee of GTLC. The raft at issue, Raft No. 2, had 11 passengers: John Rizas, Elizabeth Rizas, Patricia Rizas, Linda Clark, James Clark, Lawrence “Bubba” Wilson, Joyce Wilson, Tom Rizas, Ruth Rizas, Jon Shaw, and Maria Urrutia. The raft guide was Daniel Hobbs, who was also a GTLC employee and had been for four years.
During the float trip, Raft No. 2 struck a log jam. The collision occurred in the Funnelcake channel, which was one of several braided channels of the river. The raft upended as a result and all passengers were thrown into the river. John Rizas, Elizabeth Rizas, and Linda Clark died as a result.
Analysis: making sense of the law based on these facts.
The first issue was a choice of laws (jurisdiction and venue) provision in the agreement with the travel agency Tauck, which stated venue was to be in Connecticut. The plaintiff was arguing that the case should be moved to Connecticut, which is odd, because the plaintiff’s filed the case to start in Wyoming. However, since they sued in Wyoming, the plaintiff is still arguing that Connecticut law should apply.
Tauck argued the choice of law provisions was for its benefit, and it had the right to waive that provision in the agreement. The court found that Tauck had the right to waive a provision in the agreement that was there for its benefit.
In Wyoming, a contract must be construed according to the law of the place where it was made. There is no evidence indicating where the contract at issue was formed, but that makes little difference because the law of waiver of contract provisions is widespread and well accepted. “A party to a contract may waive a provision of the contract that was included for his benefit.”
The court held that the provision was for Tauck’s benefit because the living plaintiffs were residents of Georgia and Louisiana.
The court also stated, even it had not found for Tauck on this issue this way; it would have still used Wyoming law because of Wyoming’s strong public policy of recreational immunity.
Even if Tauck had not waived its right to enforce the choice-of-law provision, this Court would not enforce this provision due to Wyoming’s strong public policy of recreational immunity. Plaintiffs seek application of Connecticut law largely to avoid the effects of. The Court will discuss the Act in detail below; it is sufficient here to note that the Act provides a near-total elimination liability of a recreation provider where a person is injured because of an “inherent risk” of a recreational activity. River floating is specifically named as a qualifying recreational activity. Consequently, Plaintiffs seek application of Connecticut law because Connecticut is not so protective of its recreational providers as Wyoming.
Choice of law provisions are usually upheld by the courts; however, there are ways to get around them as this court explained.
The tour members and Tauck agreed that Connecticut law would apply, and Connecticut has a significant connection to the contract because of Tauck’s operation there. Nevertheless, Wyoming’s interest in the resolution of this issue is significantly greater because important Wyoming policy concerns are involved in the question of whether a provider of recreation opportunities should be subject to liability for injury from inherent risks. Absent a Connecticut plaintiff, Connecticut has no interest in whether a Wyoming corporation is held liable. Indeed, Connecticut’s interest in this case, if any, is probably more closely aligned with Tauck, which operates in that state.
The Court’s analysis is further informed by the fact that that Wyoming’s public policy in this matter is a strong one. Initially, the Act was less protective of recreation service providers, defining an “inherent risk” as “any risk that is characteristic of or intrinsic to any sport or recreational opportunity and which cannot reasonably be eliminated, altered or controlled.” In 1996, the Wyoming Legislature eliminated the clause, “and which cannot reasonably be eliminated, altered or controlled.” Subsequent to the amendment, this Court recognized the extraordinary protection offered to recreation providers in Wyoming:
Given this extraordinary protection, this Court must conclude that the Wyoming Legislature views immunity for recreation providers to be an important state interest. Wyoming law should apply in this case.
The court then reviewed the Wyoming’s Recreation Safety Act. The plaintiff’s argued the Wyoming’s Recreation Safety Act did not apply for three reasons.
First, they contend that Connecticut law applies–an argument that the Court has already resolved in favor of Defendants.
Second, Plaintiffs argue that Tauck is not a “provider” as defined in the Act.
Third, they assert that federal law preempts the Act.
The court found the first argument was already resolved in its analysis of jurisdiction above.
The second argument was the Wyoming’s Recreation Safety Act did not apply to the defendant Tauck, because it was a travel agent in Connecticut and not a “provider” as defined under the act. The court found that Tauck was a provider under the act because as part of its package. Provider is defined as “[A]ny person or governmental entity which for profit or otherwise offers or conducts a sport or recreational opportunity.”
The final issue was the argument that the state law was pre-empted by federal law. The argument was based on the concessionaire agreement the defendant had with the NPS. Although the concession agreement with the NPS provided for visitor safety, there was nothing in the agreement showing intent to pre-empt the Wyoming’s Recreation Safety Act.
The court then looked to see if the Wyoming’s Recreation Safety Act provided a defense in this case. The court first defined Inherent Risk under Wyoming law.
‘Inherent risk’ with regard to any sport or recreational opportunity means those dangerous conditions which are characteristic of, intrinsic to, or an integral part of any sport or recreational opportunity.”
[As you can see, the definition of inherent risk is not a broad definition it narrowly defines the risks to those intrinsic or integral to the activity. That leaves out thousands of risks created by man such as steering the raft, water releases, choosing the run, etc. which are probably not protected by the act.]
Outside of the inherent risks, to thwart the act, the plaintiff only needs to argue the risk was not inherent and the case would proceed to trial because the Wyoming’s Recreation Safety Act does not provide a defense to any risk not inherent in the sport. Because the court could not determine what risks were inherent what were not, it held the Wyoming’s Recreation Safety Act did not apply in this case.
In any case, this Court is bound to apply Sapone. Plaintiffs have submitted evidence that tends to show that the river, on the day of the river float trip, was running higher and faster so as to result in an activity with some greater risk to the participants. In addition, Plaintiffs submitted evidence suggesting that this stretch of river was generally believed to be a dangerous one. Specifically, a National Park Service publication entitled “Floating the Snake River” states that the area from Deadman’s Bar to Moose Landing “is the most challenging stretch of river in the park, and most accidents occur here. The river drops more steeply, with faster water than in other sections south of Pacific Creek. Complex braiding obscures the main channel, and strong currents can sweep boaters into side channels blocked by logjams.” Id. This evidence is not uncontested, of course, but it is sufficient to preclude summary judgment on this issue. The Court finds that there is a genuine issue of material fact regarding whether colliding with the log jam was an inherent risk of the river float trip undertaken by the tour members on June 2, 2006.
The court moved on to Tauck’s motion for summary judgment because as a tour agency is was not liable for the negligent acts of third parties, it dealt with. The law supports that argument. “As a general rule, a tour operator is not liable for injuries caused by the negligence of third parties over which the tour operator did not exercise ownership or control.”
However, that general rules does not apply if a contract with the travel agency or marketing state the travel agency will undertake a duty. (Always remember Marketing makes Promises Risk Management has to Pay for.)
Here the court found the promotional materials were marketing and did not rise to the level to be promises to be kept.
The plaintiff also argued Tauck took on a greater duty to the guests when it undertook the duty to have the guests sign the defendant GTLC’s acknowledgment of risk forms. That duty included duty to inform the guests of the risk associated with river rafting. However, the court could find nothing in Tauck’s action indicating it was accepting a greater duty when it handed out the assumption of the risk forms.
The plaintiff’s created a fraud argument. Under Montana’s law:
To prove fraud, the plaintiff must show by clear and convincing evidence that (1) the defendant made a false representation intended to induce action by the plaintiff; (2) the plaintiff reasonably believed the representation to be true; and (3) the plaintiff suffered damages in relying upon the false representation
The plaintiff’s argued that the defendants made all sorts of statements and advertising that the float trip was a leisurely scenic trip. The channel the raft guide took was not leisurely but was a dangerous channel by some authorities. However, the issue was, did the defendants intentionally made the statements about the river to induce the plaintiffs to the trip.
The defendants wanted the plaintiff’s claim for punitive damages dismissed. In Wyoming, punitive damages appear to be a claim much like negligence. The punitive damages claim was based on the same allegations that the fraud claim was made, that the defendants misrepresented the nature of the float trip.
Punitive damages in Wyoming are:
We have approved punitive damages in circumstances involving outrageous conduct, such as intention-al torts, torts involving malice and torts involving willful and wanton misconduct.” Willful and wanton misconduct is the intentional doing, or failing to do, an act in reckless disregard of the consequences and under circumstances and conditions that a reasonable person would know that such conduct would, in a high degree of probability, result in harm to another. “The aggravating factor which distinguishes willful misconduct from ordinary negligence is the actor’s state of mind. In order to prove that an actor has engaged in willful misconduct, one must demonstrate that he acted with a state of mind that approaches intent to do harm.”
Failing to advise the plaintiffs that the river was running higher than normal because of the spring run off did not rise to a level to be reckless and willful misconduct. The one channel of several the one guide went down was a negligent decision, not a willful one.
So Now What?
Fairly simple, use a release. It would have stopped this lawsuit sooner. If the outfitter would have used a release, it could have protected the lodge and the travel agent. I’m sure the lodge is going to use one now, which will probably just muddy the water because of multiple releases and defendants.
There are very few statutes that provide any real protection in the outdoor recreation industry. Most, in fact, make it easier for the plaintiffs to win. The exception to the rule is a few of the Ski Area Safety Statutes.
Be prepared and do more than rely on a week statute.
What do you think? Leave a comment.
Copyright 2018 Recreation Law (720) 334 8529
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Chavarria, v. Intergro, Inc., et al., 2018 U.S. Dist. LEXIS 117631
Posted: January 21, 2019 Filed under: Contract, Florida, Legal Case, Paddlesports, Rivers and Waterways | Tags: amend, applicability, atrocious, Breach of Contract, breached, Choice of Law, contractual, definite, distress, Duty of care, emotional, emotional distress, foreign law, gear, immaterial, impertinent', infliction, intolerable, law governs, Notice, outrageous, outrageous conduct, owed, protective, purportedly, Rafting, reasonable notice, scandalous, surgery, waived Leave a commentTo Read an Analysis of this decision see
Whitewater rafting case where one of the claims is the employer should have provided eye protection during the rafting trip.
Chavarria, v. Intergro, Inc., et al., 2018 U.S. Dist. LEXIS 117631
Carmen Elena Monteilh Chavarria, Plaintiff, v. Intergro, Inc., et al., Defendants.
CASE NO. 8:17-cv-2229-T-23AEP
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA, TAMPA DIVISION
2018 U.S. Dist. LEXIS 117631
July 16, 2018, Decided
July 16, 2018, Filed
COUNSEL: [*1] For Carmen Elena Monteilh Chavarria, Plaintiff: Carlos A. Leyva, LEAD ATTORNEY, Digital Business Law Group, P.A., Palm Harbor, FL; Linda Susan McAleer, LEAD ATTORNEY, PRO HAC VICE, Law Offices of Linda S. McAleer, San Diego, CA.
For Intergro, Inc., Timothy Dolan, Felix Renta, Defendants: Catherine M. DiPaolo, Richard M. Hanchett, LEAD ATTORNEYS, Trenam, Kemker, Scharf, Barkin, Frye, O’Neill & Mullis, Tampa, FL.
JUDGES: STEVEN D. MERRYDAY, UNITED STATES DISTRICT JUDGE.
OPINION BY: STEVEN D. MERRYDAY
OPINION
ORDER
On September 25, 2017, the plaintiff sued (Doc. 1) the defendants for negligence, for intentional infliction of emotional distress, and for breach of contract. Asserting the same claims, the plaintiff amended (Doc. 15) her complaint on October 25, 2017. On November 8, 2017, the defendants moved (Doc. 19) to dismiss the amended complaint,1 and on April 28, 2018, the plaintiff moved (Doc. 39) — for the first time — for an order determining that Honduran law governs the claims in this action.2
1 “Defendants’ motion to dismiss amended complaint, alternative motion to strike certain allegations and the affidavit of attorney Carlos A. Leyva, and alternative notice of objection to testimony of Carlos A. Leyva.” (Doc. 19)
2 Also, the plaintiff moves “for partial summary judgment as to liability only, pursuant to [the] breach of contract claim.” (Doc. 43 at 1)
By failing to timely assert the claim, a party waives the application of foreign law. Daewoo Motor Am., Inc. v. Gen. Motors Corp., 459 F.3d 1249, 1257 (11th Cir. 2006); Lott v. Levitt, 556 F.3d 564, 568 (7th Cir. 2009) (holding that the plaintiff “explicitly submitted to Illinois [not Virginia] law and relied solely on it, and having done so, the district [*2] court was right to apply it to the dispute. . . . The principle of waiver is designed to prohibit this very type of gamesmanship — [the plaintiff] is not entitled to get a free peek at how his dispute will shake out under Illinois law and, when things don’t go his way, ask for a mulligan under the laws of a different jurisdiction.”); Vukadinovich v. McCarthy, 59 F.3d 58, 62 (7th Cir. 1995) (holding that choice of law is “normally waivable”); Anderson v. McAllister Towing and Transp. Co., 17 F. Supp. 2d 1280, 1286 n.6 (S.D. Ala. 1998) (Volmer, J.) (holding that the defendant waived the right to have Saudi Arabian law applied to a contractual dispute because the defendant failed to give reasonable notice of its intent to assert that foreign law applied). “The failure to give proper notice of the applicability of foreign law does not warrant dismissal . . . . It is more likely that a failure to give reasonable notice will result in a waiver of the applicability of foreign law to the case.” Moore’s Federal Practice, Vol. 9, § 44.1.03[3] (3d ed. 2016).
In both the complaint and the amended complaint, the plaintiff asserts emphatically (and highlights in bold) that each claim is brought under Florida common law. The plaintiff’s response to the motion to dismiss is based entirely on Florida law. Seven months elapsed between the day the plaintiff sued [*3] and the day the plaintiff moved for “choice of law.” Because the plaintiff failed to give timely notice of the claimed applicability of foreign law, she has waived her right to assert that Honduran law governs her claims.
BACKGROUND
Contracting with Intergro in October 2014, the plaintiff, a Honduran national, agreed to provide accounting services at Intergro’s “Shared Services Center” in Honduras. (Doc. 15 at 4) The plaintiff reported to Felix Renta, CFO of the group of companies owned by Timothy Dolan. (Doc. 15 at 4) The plaintiff alleges that both Intergro and Seproma3 “conducted” in Honduras a joint training session for employees. The activities included a white-water rafting event in which the employees were purportedly “supplied with a life jacket and a helmet, but with no other protective equipment, including no eye protection gear.” (Doc. 15 at 5)
3 Seproma, a subsidiary of Intergro, is not a party to this action.
After the rafting event, the plaintiff noticed a burning sensation in her right eye. Later she required eye surgery to remove a small stone. After the surgery, the plaintiff began experiencing “significant” difficulty with her vision. (Doc. 15 at 6) Following a diagnosis of “post traumatic cataract disorder,” the plaintiff required two [*4] further surgeries. In June 2016, a doctor diagnosed her with a 75% loss of vision in the injured eye. (Doc. 15 at 6)
DISCUSSION
Negligence
To state a claim for negligence, a plaintiff must allege that the defendant owed the plaintiff a duty of care, that the defendant breached that duty, and that the breach caused the plaintiff damage. Lewis v. City of St. Petersburg, 260 F.3d 1260, 1262 (11th Cir. 2001). The plaintiff alleges that Integro owed her a duty “not to select” the rafting event in which she was injured and a duty to provide effective personal protective gear instead of “solely allowing the operator of the rafting event to make the decision as to what protective equipment to provide.” (Doc. 15 at 8) The defendants argue (1) that the plaintiff fails to allege sufficiently that the defendants knew that the rafting event posed an unreasonable risk of harm and (2) that, even if the plaintiff had alleged a duty of care owed by Intergro to the plaintiff, she fails to allege any individual duty owed by Dolan or Renta.
The plaintiff alleges that the defendants, who purportedly authorized, sponsored, and paid for the work event, owed her a duty of care; that the defendants breached that duty by failing to ensure that employees were adequately protected; [*5] that the breach caused her injury; and that she has suffered actual damages as a result of the defendants’ negligence. The plaintiff states a claim for negligence.
Intentional infliction of emotional distress
To state a claim for intentional infliction of emotional distress, a plaintiff must allege that the defendant intentionally or recklessly committed outrageous conduct and that the conduct caused severe emotional distress. Stewart v. Walker, 5 So. 3d 746, 749 (Fla. 4th DCA 2009) The standard for outrageous conduct is distinctly high. Metropolitan Life Ins. Co. v. McCarson, 467 So. 2d 277, 278 (Fla. 1985) (“Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”). Whether a person’s alleged conduct is sufficiently outrageous or intolerable is a matter of law. De La Campa v. Grifols America, Inc., 819 So. 2d 940 (Fla. 3d DCA 2002).
The plaintiff alleges (1) that the “[d]efendants understood that their collective refusal to compensate Plaintiff for work related injurious activities, including lost wages and medical care, would cause emotional anxiety and distress to a single working mother of three children[]” (Doc. 15 at 7) and (2) that the defendants’ “intentional refusal to pay Plaintiff’s lost [*6] wages, medical expenses, and other benefits as required by Honduran law . . . caused Plaintiff emotional distress” (Doc. 15 at 9). The plaintiff fails to allege a single instance of “outrageous,” “extreme,” and “atrocious” conduct. Count II is dismissed for failing to state a claim.
Breach of contract
The plaintiff sues for breach of contract “pursuant to non-payment of employment termination benefits.” (Doc. 15 at 1) To state a claim for breach of contract, a plaintiff must allege the existence of a contract, a material breach of the contract, and damages resulting from the breach. Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1272 (11th Cir. 2009).
Intergro
The amended complaint fails to identify an unfulfilled contractual obligation. Instead, the plaintiff claims entitlement to payment of benefits under Honduran law but fails to identify the law or the benefits to which she is entitled. Construed as a motion for a more definite statement of Count III, the motion (Doc. 19) is granted. In amending Count III to provide a more definite statement of the claim against Intergro for breach of contract, the plaintiff must clarify the allegation that “Intergro breached the Contract by failing to pay Plaintiff the benefits that were due under same pursuant to [*7] Honduran law.” (Doc. 15 at 10) Ambiguity exists as to whether Honduran law or the contract governs the obligation to pay, whether Honduran law or the contract governs the amount of the required payment, or to whether and to what extent Honduran law and the contract otherwise control the obligation to pay and the amount of the payment. The amended complaint must clarify the plaintiff’s claim in this respect, among others.
Dolan and Renta
The plaintiff fails to state a claim against either Dolan or Renta. In Count III, the plaintiff alleges that the plaintiff’s “employment with Intergro was controlled by a binding contract” and that Intergro breached the contract “by failing to pay Plaintiff the benefits that were due under same pursuant to Honduran law.” (Doc. 15 at 9-10) But in the prayer for relief, the plaintiff (who purportedly contracted only with Intergro) prays for judgment against all defendants “for the full amount of contractual benefits due under Honduran law.” (Doc. 15 at 10) The complaint lacks an allegation that Dolan and Renta are parties to the contract. Count III fails to state a claim against Dolan and Renta.
Motion to strike
The defendant moves (Doc. 19) under Rule 12(f), Federal Rules of Civil Procedure, to strike [*8] the allegations in paragraphs 7, 8, 14, 31, 32, 35, and 37 of the amended complaint and moves to strike the affidavit of Carlos A. Leyva (Doc. 15-1). Under Rule 12(f), “[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” “A motion to strike is a drastic remedy” and “will usually be denied unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties.” Augustus v. Board of Public Instruction of Escambia County, Fla., 306 F.2d 862, 868 (5th Cir. 1962). “An allegation is ‘impertinent’ or ‘immaterial’ when it is neither responsive nor relevant to the issues involved in the action. . . . ‘Scandalous’ generally refers to any allegation that unnecessarily reflects on the moral character of an individual or states anything in repulsive language that detracts from the dignity of the court.” Moore’s Federal Practice, Vol. 2, s 12.37[3] (3d ed. 2016). The defendant fails to identify and describe why the allegations are immaterial, irrelevant, and scandalous, and the plaintiff argues plausibly that the allegations are “related” to the controversy, are material, and are pertinent.
The defendant argues that Carlos Leyva’s affidavit contains allegations that have “no relation to [*9] this controversy and cause prejudice to Defendants because they are inadmissible hearsay.” (Doc. 19 at 12) The plaintiff responds that the “[d]efendants . . . conflate what is required for summary judgment with what is required in the pleadings. . . . The evidentiary burden that Defendants assume . . . does not exist at this stage in the proceedings.” (Doc. 21 at 16) For the reasons stated by the plaintiff, the defendants’ motion to strike Carlos Leyva’s affidavit is denied.
CONCLUSION
The defendant’s motion (Doc. 19) to dismiss is GRANTED IN PART. Count II is DISMISSED. Count III is DISMISSED against Dolan and Renta. Construed as a motion for a more definite statement of Count III, the motion (Doc. 19) is GRANTED. The plaintiff must amend Count III to provide a more definite statement of the claim against Intergro for breach of contract.
The defendant’s “alternative motion [Doc. 19] to strike certain allegations and to strike the affidavit of attorney Carlos A. Leyva” is DENIED. The plaintiff’s motion (Doc. 39) for “choice of law” is DENIED. The plaintiff’s motion (Doc. 43) for partial summary judgment on Count III is DENIED.
No later than JULY 27, 2018, the plaintiff must amend the complaint [*10] to comply with this order4 The plaintiff must add no new claim.
4 That is, the plaintiff must (1) remove the claims for intentional infliction of emotional distress and (2) remove the claims against Dolan and Renta for breach of contract. Also, the plaintiff must amend Count III to provide a more definite statement of the claim against Integro for breach of contract.
ORDERED in Tampa, Florida, on July 16, 2018.
/s/ Steven D. Merryday
STEVEN D. MERRYDAY
UNITED STATES DISTRICT JUDGE
G-YQ06K3L262
http://www.recreation-law.com
Isha v. Tough Mudder Incorporated d/b/a/ Urban Mudder, 2018 N.Y. Misc. LEXIS 4883; 2018 NY Slip Op 32743(U)
Posted: January 21, 2019 Filed under: Legal Case, New York, Racing | Tags: amusement, Arbitration, compel arbitration, Consumer, cross-motion, establishment, font, negligence liability, NY General Obligations Law, personal knowledge, Recreation, Release, Tough Mudder, urban mudder, Void Leave a commentTo Read an Analysis of this decision see: Each state had its landmines on how releases are to be written
Isha v. Tough Mudder Incorporated d/b/a/ Urban Mudder, 2018 N.Y. Misc. LEXIS 4883; 2018 NY Slip Op 32743(U)
[**1] Isha, Plaintiff, against Tough Mudder Incorporated d/b/a/ Urban Mudder, Defendant. Index Number 512947/2016
512947/2016
SUPREME COURT OF NEW YORK, KINGS COUNTY
2018 N.Y. Misc. LEXIS 4883; 2018 NY Slip Op 32743(U)
September 21, 2018, Decided
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
JUDGES: [*1] DEVIN P. COHEN, Acting Justice, Supreme Court.
OPINION BY: DEVIN P. COHEN
OPINION
DECISION/ORDER
Upon the foregoing papers, defendant’s motion to compel arbitration and plaintiff’s cross-motion for an order denying defendant’s motion and invalidating the Waiver Agreement between the parties, is decided as follows:
Plaintiff brings this action against defendant seeking damages for injuries she sustained when she participated in defendant’s “Urban Mudder” event. Defendant contends that this dispute should be arbitrated pursuant to the contract between the parties. Typically, arbitration clauses in contracts are regularly enforced and encouraged as a matter of public policy (159 MP Corp. v Redbridge Bedford, LLC, 160 AD3d 176, 205, 71 N.Y.S.3d 87 [2d Dept 2018]). Defendant provides a copy of the contract, which states that all disputes between the parties shall be submitted to binding arbitration with the American Arbitration Association.
Plaintiff argues the arbitration contract is invalid pursuant to GBL § 399-c, which prohibits mandatory arbitration in consumer contracts. Defendant contends that the Federal Arbitration Act preempts GBL § 399-c because defendant’s business is involved in interstate commerce (Marino v Salzman, 51 Misc 3d 131[A], 36 N.Y.S.3d 48, 2016 NY Slip Op 50410[U], *1 [App Term, 2d Dept 2016] [**2] ; Ayzenberg v Bronx House Emanuel Campus, Inc. (93 AD3d 607, 608, 941 N.Y.S.2d 106 [1st Dept 2012]). However, defendant provides no evidence from someone with personal knowledge [*2] of this factual claim (cf Marino, 51 Misc 3d 131[A], 36 N.Y.S.3d 48, 2016 NY Slip Op 50410[U], *1 [holding that the FAA preempted GBL § 399-c in that case because an employee of defendant submitted an affidavit wherein he stated that defendant was a multi-state company with business in several states]). Accordingly, defendant has not established that the FAA applies and, as a result, whether the arbitration provision is enforceable here.
Plaintiff further argues that the contract cannot be admitted into evidence pursuant to CPLR 4544 because it involves a consumer transaction and the text of the contract is less than 8-point font. In support of this argument, plaintiff submits the affidavit of Vadim Shtulboym, a paralegal in plaintiff counsel’s office. Mr. Shtulboym states that, based on his work experience, he has determined, with the aid of a scanner and Abobe Acrobat Reader DC, that the contract between the parties is 7-point font. Mr. Shtulboym explains that he came to this conclusion by typing words in 8-point font and 6-point font, and comparing them to the text of the contract, the size of which appeared to be in between the two fonts.
In opposition, defendant submits the affidavit of Johnny Little, the Director of Course and Construction with defendant, who states [*3] that the font used in the contract was 8-point, Times New Roman. Mr. Rosen further states that defendant forwarded a draft of the contract, in Microsoft Word format, to be professionally printed for the event, without any reduction in font size. Accordingly, there is a triable issue of fact as to whether the document is 8-point font.
Finally, plaintiff argues that the waiver of liability clause in her contract with defendant is void because violates N.Y. Gen. Oblig. Law § 5-326, which prohibits contracts between the “owner or operator of [**3] any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities” from exempting such owner or operator from “liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment”. Plaintiff does not object to the substance of any other portion of the contract.
Defendant contends that the Urban Mudder event is not a place of amusement or recreation. While the statute does not define these terms, courts have applied them to a range of activities, such as rock climbing (Lee v Brooklyn Boulders, LLC, 156 AD3d 689, 690, 67 N.Y.S.3d 67 [2d Dept 2017]), motocross (Sisino v Is. Motocross of New York, Inc., 41 AD3d 462, 463, 841 N.Y.S.2d 308 [2d Dept 2007]), automobile racing (Knight v Holland, 148 AD3d 1726, 1727, 51 N.Y.S.3d 749 [4th Dept 2017]), sky diving (Nutley v SkyDive the Ranch, 65 AD3d 443, 444, 883 N.Y.S.2d 530 [1st Dept 2009]), spa activities (Debell v Wellbridge Club Mgt., Inc., 40 AD3d 248, 250, 835 N.Y.S.2d 170 [1st Dept 2007]), and horseback riding (Filson v Cold Riv. Trail Rides Inc., 242 AD2d 775, 776, 661 N.Y.S.2d 841 [3d Dept 1997]).
Defendant’s attempt [*4] to distinguish the Urban Mudder event from these activities is unavailing. As an initial matter, defendant counsel’s description of the event holds no evidentiary value, as counsel does not establish his personal knowledge of these events. Secondly, even if this court were to accept counsel’s description, the event’s “rigorous” and “athletic” nature is no different than the other activities listed above. Furthermore, counsel’s assertion that these other applicable activities did not require “physical preparation” is simply baseless. Accordingly, this court finds that the contract’s waiver of negligence liability violates N.Y. Gen. Oblig. Law § 5-326.
[**4] For the foregoing reasons, defendant’s motion to compel arbitration is denied and plaintiff’s cross-motion is granted to the extent that the contract’s waiver of negligence liability is deemed void.
This constitutes the decision and order of the court.
September 21, 2018
DATE
/s/ Devin P. Cohen
DEVIN P. COHEN
Acting Justice, Supreme Court
G-YQ06K3L262
A fly-fishing lawsuit, a first.
Posted: January 14, 2019 Filed under: Assumption of the Risk, Montana, Paddlesports, Whitewater Rafting | Tags: abnormally, amend, Assumption of risk, bridge, drowning, emotional distress, Fishing, Float Trip, Fly Fishing, genuine, Inherent Risks, Issue of Material Fact, James Yeager, Jim Yeager Outfitters, loss of consortium, matter of law, negligence claim, Personal Flotation Device, PFD, provider's, Raft, reasonable care, Recreation, recreational, recreational opportunity, recreationists, River, secondary, severe, Skier, skiing, Sport, Summary judgment, unconstitution-ally vague, Whitewater, Wyoming Act's 3 CommentsMontana Federal Court covers a lot of interesting legal issues for the OR industry in this decision. However, defendant is in a tough position because the statutes provide no help, he can’t use a release and probably like most fly-fishing guides; he believes he won’t be sued.
McJunkin v. James Yeager d/b/a Jim Yeager Outfitters, 2018 U.S. Dist. LEXIS 169321
State: Montana
Plaintiff: Charles P. McJunkin, deceased, by and through his executor and personal representative, Rhett McJunkin, and Rhett McJunkin, executor and personal representative, on behalf of the heirs of Charles P. McJunkin
Defendant: James Yeager d/b/a Jim Yeager Outfitters
Plaintiff Claims: negligence, negligent infliction of emotional distress, and loss of consortium
Defendant Defenses: Montana Recreation Responsibility Act
Holding: Split, mostly for the defendant
Year: 2018
Summary
At the end of a float fly fishing trip, the boat hit a rock throwing the deceased into the river. While attempting to get the deceased back in the boat the deceased partner fell in. The deceased yelled to grab her because she could not swim. The defendant grabbed the girlfriend and maneuvered the boat through rapids.
The deceased drowned, (supposedly). Neither were wearing PFDs.
Facts
Yeager is a professional fishing guide and outfitter. On July 17, 2014, Yeager took a paying client, Charles P. McJunkin on a guided fishing trip in a raft on the Stillwater River. As Yeager was guiding and operating the raft, McJunkin fell into the river and drowned. McJunkin was 81 years old at the time of his death.
McJunkin had gone on similar guided fishing trips with Yeager for approximately 20 years. In fact, in the week preceding the July 17, 2014 accident, McJunkin had floated and fished the Stillwater River three times with Yeager. On each occasion, Yeager put-in at the Johnson Bridge Fishing Access, and used the Swinging Bridge Fishing Access Site for a take-out at the end of the day. The Swinging Bridge take-out is approximately one-quarter mile above a set of rapids known as the Beartooth Drop. Yeager had never floated through the Beartooth Drop with McJunkin.
On the date of the accident, Yeager was guiding McJunkin and his partner, Julia Garner (“Garner”). The plan was to again float from Johnson Bridge to the Swinging Bridge take-out. The river conditions encountered by Yeager that day were characteristic of, and consistent with conditions he previously encountered on that stretch of the river. Yeager approached the Swinging Bridge take-out in the same manner as he had on the three earlier days of fishing. As he approached the take-out, the raft crossed an underwater shelf of rocks. When the rear of the raft passed the shelf, the boat rocked and McJunkin fell into the water. Although the raft was equipped with personal floatation devices (PFDs), McJunkin was not wearing one at the time.
McJunkin swam toward the raft, and Yeager attempted to position the raft so that McJunkin could grab ahold of the side. During this process, the party floated past the Swinging Bridge take-out. To complicate matters further, as Yeager attempted to pull McJunkin into the raft, Garner fell into the water. The parties dispute what caused Garner’s fall. Plaintiffs contend Yeager accidentally hit her with an oar. Yeager indicated he didn’t know what caused her to fall in, testifying “I don’t know if I hit a rock or a wave or whatever, Julie went in.” Garner yelled to Yeager that she could not swim. Yeager made the split-second decision to let go of McJunkin and attempt to save Garner, fearing she would drown otherwise. Yeager was able to pull her back into the raft as they entered the Beartooth Drop. Meanwhile, McJunkin lost contact with Yeager and the raft and floated through the rapid. He ultimately did not survive.
Analysis: making sense of the law based on these facts.
Only the legal issues affecting fly fishing or the outdoor industry will be reviewed. This decision is a result of both parties filing motions for summary judgment, so there is no chronological hierarchy of how the decision is written. Each motion is tackled by the judge in the order to make the following arguments more manageable.
A few things to remember. Montana does not allow an outfitter or guide to use a release. See Montana Statutes Prohibits Use of a Release.
Both parties filed motions concerning the Montana Recreation Responsibility Act (MRRA). The MRRA is similar to the Wyoming Recreational Safety Act, both of which are solely assumption of the risk statutes and weak overall. The plaintiff argued the MRRA was unconstitutional on several grounds, all of which were denied. The defendant argued the MRRA should bar the plaintiff’s claims which were also denied.
The first issue was inherent risks under the MRRA are not defined per activity or in general.
Under the plain language of the MRRA, a risk must satisfy two requirements to constitute an “inherent risk” and thus fall within the Act’s protection. There must be (1) a danger or condition that is characteristic of, or intrinsic to the activity, and (2) the danger or condition must be one that cannot be prevented by the use of reasonable care. Mont. Code Ann. § 27-1-752(2).
This leaves a monstrous gap in the protection it affords, in fact, does not afford outfitters and guides in Montana any real protection.
The court did not agree that the MRRA was broad enough to protect the defendant in this case.
Here, there are genuine issues of material fact regarding whether the risk encountered by McJunkin was an inherent risk to the sport of float fishing, or whether Yeager could have prevented the risk using reasonable care. Yeager’s expert opined that drowning is an inherent risk of floating in a raft on a river, and McJunkin’s death was a result of that inherent risk. But Plaintiffs’ expert states the risk of drowning can be prevented by the use of reasonable care. Plaintiffs’ expert also opined that Yeager increased the risks to McJunkin, and failed to adhere to industry standards by not taking basic safety precautions and not having a plan or equipment to retrieve McJunkin from the water.
Because there was a genuine issue of material fact (a mix of plausible opinions) the MRRA was not broad or strong enough to stop the plaintiff’s claims and the defendant’s motion failed.
The plaintiff argued the MRRA was void because it was vague, it did not define inherent risk.
The void-for-vagueness doctrine chiefly applies to criminal statutes, but can apply to civil laws as well. Civil statutes, however, generally receive less exacting vagueness scrutiny. The United States Supreme Court has held “[t]o find a civil statute void for vagueness, the statute must be so vague and indefinite as really to be no rule or standard at all.” The Montana Supreme Court has similarly declared that a statute is unconstitutionally vague on its face only if it is shown “that the statute is vague ‘in the sense that no standard of conduct is specified at all.'” “[P]erfect clarity and precise guidance are not required.” A statute is not vague “simply because it can be dissected or subject to different interpretations.”
The plaintiff also argued that because the MRRA did not define risk that it was void.
A person of common intelligence can understand the risks associated with river sports or activities. There is no indication McJunkin would not have been able to appreciate such risks, including the potential risk involved in floating and fishing. Indeed, in their depositions Plaintiffs were able to articulate risks associated with floating on a river, such as falling out of the boat and drowning.
The plaintiff argued they should be able to sue for negligent infliction of emotional distress (“NEID”).
To constitute ‘serious’ or ‘severe,’ the emotional distress must be ‘so severe no reasonable person could be expected to endure it.'” The question of whether the threshold level of emotional dis-tress can be found is for the Court to determine. (“It is for the court to determine whether on the evidence severe [serious] emotional distress can be found; it is for the jury to determine whether, on the evidence, it has in fact existed.”).
In Feller, the Montana Supreme Court considered several factors in determining whether there is sufficient evidence of severe emotional distress, including: (1) whether the plaintiff had any physical manifestations of grief; (2) whether counseling was sought or recommended; (3) whether the plaintiff took medication or the use of medication dramatically increased; (4) whether the plain-tiff had continuous nights of sleeplessness or days without appetite; (5) whether the plaintiff maintained close relationships with family members and friends; (6) the duration of the emotional dis-tress; and (7) the circumstances under which the infliction incurred, including whether the plaintiff witnessed the distressing event.
The plaintiff also argued they should be able to sue for loss of consortium.
Montana law recognizes loss of consortium claims by an adult child of an injured parent. In Stucky, the Montana Supreme Court held an adult child must meet the following two-part test to establish a claim for loss of parental consortium: “1) a third party tortuously caused the parent to suffer a serious, permanent and disabling mental or physical injury compensable under Montana law; and 2) the parent’s ultimate condition of mental or physical impairment was so overwhelming and severe that it has caused the parent-child relationship to be destroyed or nearly destroyed.”
In establishing a loss of parental consortium claim, the plaintiff may present evidence of the following factors, which the jury may consider in determining both whether the two-part test has been satisfied, and what damages are appropriate: “the severity of injury to the parent; the actual effect the parent’s injury has had on the relationship and is likely to have in the future; the child’s age; the nature of the child’s relationship with the parent; and the child’s emotional, physical and geographic characteristics.”
The court then looked at the issue of abnormally dangerous. A finding of that an activity is abnormally dangerous brings more damages and fewer requirements to prove part of the negligence of the defendant.
“Whether an activity is abnormally dangerous is a question of law.” No court has held float fly fishing is an abnormally dangerous activity, and this Court declines Plaintiffs’ invitation to be the first to do so.
So Now What?
A statute that protects defendants based on assumption of the risk does so because it identifies specific risk and broadens the definitions of what an inherent risk is. An example would be the Colorado Skier Safety Act. That act describes the inherent risk of skiing and then adds dozens of more risk, which are beyond the normal scope of inherent.
Both the MRRA and the Wyoming Recreational Safety Act statutorily defines the common law but does nothing to broaden or strengthen the common law. They could better be defined as politically pandering, an attempt by a politician to make constituents feel better by giving them something, which, in reality, has no value.
The fly-fishing outfitter was caught in Montana’s lack of available defenses, no statutory protection and no availability of a release. He might be able to strengthen his defenses by having his clients sign an Assumption of the Risk Document. He also might offer them PFDs.
Furthermore, remember in most whitewater or cold-water deaths drowning is not the cause of the death. Most people die of a heart attack. risk or Wikipedia: Cold Shock Response.
What do you think? Leave a comment.
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Rizas et. al. v. Vail Resorts, Inc.; et. al., 2009 U.S. Dist. LEXIS 139788
Posted: January 12, 2019 Filed under: Assumption of the Risk, Legal Case, Wyoming | Tags: channel, Choice of Law, Common Carrier, Federal Law, Float, float-ing, genuine, Guest, horseback riding, Inherent Risk, Issue of Material Fact, jam, joint venture, lodge, log, matter of law, preempt, provider, Punitive damages, Raft, Rafting, recrea-tional opportunity, Recreation, recreational, River, Saddle, Sport, Summary judgment, tour operator, trip 1 CommentRizas et. al. v. Vail Resorts, Inc.; et. al., 2009 U.S. Dist. LEXIS 139788
Alexis R. Rizas, Individually and as the Personal Representative of the Wrongful Death Beneficiaries of John J. Rizas, deceased; John Friel, Individually and as the Personal Representative of the Wrongful Death Beneficiaries of Elizabeth A. Rizas, Deceased; Ronald J. Miciotto, as the Personal Representative of the Wrongful Death Beneficiaries of Linda and Lewis Clark, Deceased; James Clark; Lawrence Wilson; and Joyce Wilson, Plaintiffs, vs. Vail Resorts, Inc.; Grand Teton Lodge Company; Tauck, Inc., a.k.a. Tauck World Discovery, Inc., a.k.a. Tauck Tours, Inc., Defendants.
Case No. 08-CV-139-J
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING
2009 U.S. Dist. LEXIS 139788
October 1, 2009, Filed
COUNSEL: [*1] For Alexis R Rizas, individually and as the personal representative of the wrongful death beneficiaries, on behalf of John J Rizas, John Friel, individually and as the personal representative of the wrongful death beneficiaries, on behalf of Elizabeth A Rizas, Ronald J Miciotto, individually and as the personal representative of the wrongful death beneficiaries, on behalf of Linda Lewis Clark, James Clark, individually, Lawrence Wilson, individually, Joyce Wilson, individually, Plaintiffs: Mel C Orchard, III, Roy A Jacobson, Jr, LEAD ATTORNEY, SPENCE LAW FIRM Jackson, WY USA.
For Grand Teton Lodge Company, a Wyoming corporation, Defendant: Joe M Teig, LEAD ATTORNEY, Susan Combs, HOLLAND & HART, Jackson, WY USA; Maryjo C Falcone, Peter W Rietz, LEAD ATTORNEY, RIETZ LAW FIRM, Dillon, CO USA.
For Tauck Inc, a New Jersey corporation doing business in the state of Connecticut, also known as Tauck Tours Inc, also known as Tauck World Discovery Inc, Defendant: William M McKellar, LEAD ATTORNEY, McKELLAR TIEDEKEN & SCOGGIN, Cheyenne, WY USA.
JUDGES: ALAN B. JOHNSON, UNITED STATES DISTRICT JUDGE.
OPINION BY: ALAN B. JOHNSON
OPINION
ORDER ON DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT
This matter comes before the Court on Defendants’ [*2] motions for summary judgment. Tauck, Inc. filed five motions and Grand Teton Lodge Company (“GTLC”) filed one, all on July 22, 2009. After careful consideration of the arguments and evidence supplied by both Plaintiffs and Defendants, for the reasons discussed in detail below, the Court finds that a genuine issue of material fact exists regarding the inherent risk of the river float activity. In all other respects, the Court will grant the defendants’ motions for summary judgment.
FACTS
The Court relates the following facts in the light most favorable to Plaintiffs, who are opposing Defendants’ motions for summary judgment.
Tauck is a corporation formed under the laws of New Jersey and primarily doing business in Connecticut. Stipulated Facts, Docket Entry 108, ¶ 9. Tauck is in the business of selling tour packages to its clients, one of which in 2006 was a tour called the “Yellowstone & Grand Teton – North.” Id. ¶ 24. This tour began in Salt Lake City, Utah and ended in Rapid City, South Dakota. Id. The tour included a two-night stay at the Jackson Lake Lodge in the Grand Teton National Park, and the Lodge was operated by GTLC. Id. ¶¶ 23, 24. GTLC is organized under the laws of Wyoming [*3] and operates within the Grand Teton National Park pursuant to a concessionaire agreement with the National Park Service. Id. ¶¶ 7, 8. Among the services that GTLC offered its guests is a 10-mile float trip along the Snake River from Deadman’s Bar to the Moose Landing. Id. ¶¶ 23, 24. Tauck’s 2006 promotional materials contains the following sentence: “Take a scenic ten-mile raft trip on the Snake River as it meanders through spectacular mountain scenery alive with wildlife, including moose, elk, deer, and many species of birds.” Plaintiff’s Resp. to Motion for Summary Judgment on Plaintiffs’ Claim for Fraud, Ex. 5.
On June 2, 2006, a tour group gathered at the Lodge at approximately 8:00 a.m. Stipulated Facts ¶ 27. They traveled via several vans to the rafting launch site at Deadman’s Bar. Id. The trip took approximately one hour. There the larger group was split into four smaller groups, one for each raft provided. Id. ¶ 28. Raft No. 1 was guided by Wayne Johnson, an employee of GTLC. The raft at issue, Raft No. 2, had 11 passengers: John Rizas, Elizabeth Rizas, Patricia Rizas, Linda Clark, James Clark, Lawrence “Bubba” Wilson, Joyce Wilson, Tom Rizas, Ruth Rizas, Jon Shaw, and Maria [*4] Urrutia. Id. ¶ 29. The raft guide was Daniel Hobbs, who was also a GTLC employee and had been for four years. Id. ¶ 30.
During the float trip, Raft No. 2 struck a log jam. Id. ¶ 32. The collision occurred in the Funnelcake channel, which was one of several braided channels of the river. The raft upended as a result and all passengers were thrown into the river. John Rizas, Elizabeth Rizas, and Linda Clark died as a result. Further facts will be discussed as necessary to resolve each legal issue.
DISCUSSION
This Court has jurisdiction pursuant to 28 U.S.C. § 1332 because there is complete diversity of citizenship between the plaintiffs and defendants. Vail Resorts was dismissed from this case for lack of jurisdiction on June 16, 2009. Plaintiffs are citizens of Maryland, Arizona, Louisiana, and Georgia. GTLC is incorporated in Wyoming, which is also its principal place of business. Tauk is incorporated in New Jersey, and its principal place of business is Connecticut.
Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” [*5] Fed. R. Civ. P. 56(c); e.g., Kerber v. Qwest Pension Plan, 572 F.3d 1135, 1144 (10th Cir. 2009). The Court must view all facts and make inferences from the evidence in the light most favorable to the non-moving party. E.g., Utah Animal Rights Coalition v. Salt Lake County, 566 F.3d 1236, 1242 (10th Cir. 2009). The Court may consider only admissible evidence. Wright-Simmons v. City of Oklahoma City, 155 F.3d 1264, 1268 (10th Cir. 1998). See also Fed. R. Civ. P. 56(e)(1).
Choice of Law
Because the Court is sitting in diversity, it would normally apply Wyoming law. See Butt v. Bank of America, N.A., 477 F.3d 1171, 1179 (10th Cir. 2007). In this case, however, Plaintiffs have raised a choice-of-law issue by urging this Court to apply Connecticut law. A federal court sitting in diversity applies the choice-of-law principles of the state in which it sits. Morrison Knudson Corp. v. Ground Improvement Techniques, Inc., 532 F.3d 1063, 1077 n.12 (10th Cir. 2008). Accordingly, this Court will apply Wyoming choice-of-law principles.
Plaintiffs first contend that Connecticut law applies because Tauck and its clients signed a contract to that effect. Specifically, the contract states the following:
It is agreed by Tauck World Discovery and the Tour Member that all legal claims, actions and proceedings against Tauck World Discovery under, in connection with, resulting from or incident to a tour may be instituted, if at all, only in a state or federal court within the State of Connecticut, USA, to the exclusion of the courts of or in any other state or jurisdiction. It is further agreed that all such claims, actions and proceedings shall [*6] be governed by and decided in accordance with the laws of the State of Connecticut.
Plaintiffs’ Resp. to Motion for Summary Judgment on Plaintiffs’ Claims for Fraud, Ex. 2. Tauck counters by claiming that the choice-of-law provision was intended for its benefit, and therefore it can waive that provision. Furthermore, it points out that, if the contract is to be enforced, there are a number of other provisions that would benefit Tauck, such as the choice-of-forum provision in the excerpt above.
In Wyoming, a contract must be construed according to the law of the place where it was made. J.W. Denio Milling Co. v. Malin, 25 Wyo. 143, 165 P. 1113, 1116 (Wyo. 1917). There is no evidence indicating where the contract at issue was formed, but that makes little difference because the law of waiver of contract provisions is widespread and well accepted. “A party to a contract may waive a provision of the contract that was included for his benefit.” E.g., Lanna v. Greene, 399 A.2d 837, 841 (Conn. 1978). See Takahashi v. Pepper Tank & Contracting Co., 58 Wyo. 330, 131 P.2d 339, 354 (Wyo. 1942). The question in this case is whether the choice-of-law provision was included for Tauck’s benefit.
The Court finds that it was. As far as the evidence indicates, none of the tour members or their survivors who are involved in this action are residents of Connecticut. [*7] The three plaintiffs who were also tour members, Mr. Clark and the Wilsons, are residents of Louisiana and Georgia, respectively. The residence of the three deceased tour members is not clear from the evidence submitted to the Court. Even if one of the three decedents were residents of Connecticut, that does not necessarily mean that the provision existed for that person’s benefit. Tauck drafted the provision at issue. The provision benefits Tauck by ensuring that any claims will be litigated in the forum most convenient to it, and under the law with which it is most familiar. Meanwhile, there is little or no benefit to any tour member who is not a resident of Connecticut. Even then, the choice-of-law provision would benefit the tour member by happenstance rather than by intention. Accordingly, Tauck may waive the choice of law provision, and has affirmatively stated that it has done so. Its waiver is further supported by the fact that it has never contended that suit is improper in this Court as a result of the choice-of-forum provision in the same contract.
Even if Tauck had not waived its right to enforce the choice-of-law provision, this Court would not enforce this provision due [*8] to Wyoming’s strong public policy of recreational immunity. Plaintiffs seek application of Connecticut law largely to avoid the effects of Wyoming’s Recreational Safety Act, Wyo. Stat. Ann. §§ 1-1-121 through -123 (LexisNexis 2009). The Court will discuss the Act in detail below; it is sufficient here to note that the Act provides a near-total elimination liability of a recreation provider where a person is injured because of an “inherent risk” of a recreational activity. River floating is specifically named as a qualifying recreational activity. Wyo. Stat. Ann. § 1-1-122(a)(iii). Consequently, Plaintiffs seek application of Connecticut law because Connecticut is not so protective of its recreational providers as Wyoming.
It is this very policy of protecting these providers that renders the contractual choice-of-law provision invalid. The Wyoming Supreme Court has not answered the question of whether the Act represents so strong a Wyoming policy as to render invalid a contractual choice-of-law provision that would eliminate the Act’s application. This Court believes that Wyoming, like other states, would look to general contract principles to resolve this question. The Restatement (Second) of Conflict of Laws § 187 (1971) states:
(1) The law of the state chosen by the parties to govern [*9] their contractual rights and duties will be applied if the particular issue is one which the parties could have resolved by an explicit provision in their agreement directed to that issue.
(2) The law of the state chosen by the parties to govern their contractual rights and duties will be applied, even if the particular issue is one which the parties could not have resolved by an explicit provision in their agreement directed to that issue, unless either
(a) the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties choice, or
(b) application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which, under the rule of § 188, would be the state of the applicable law in the absence of an effective choice of law by the parties.
(3) In the absence of a contrary indication of intention, the reference is to the local law of the state of the chosen law.
The tour members and Tauck agreed that Connecticut law would apply, and Connecticut has a significant connection to the contract [*10] because of Tauck’s operation there. Nevertheless, Wyoming’s interest in the resolution of this issue is significantly greater because important Wyoming policy concerns are involved in the question of whether a provider of recreation opportunities should be subject to liability for injury from inherent risks. Absent a Connecticut plaintiff, Connecticut has no interest in whether a Wyoming corporation is held liable. Indeed, Connecticut’s interest in this case, if any, is probably more closely aligned with Tauck, which operates in that state.
The Court’s analysis is further informed by the fact that that Wyoming’s public policy in this matter is a strong one. Initially, the Act was less protective of recreation service providers, defining an “inherent risk” as “any risk that is characteristic of or intrinsic to any sport or recreational opportunity and which cannot reasonably be eliminated, altered or controlled.” Wyo. Stat. Ann. § 1-1-122(a)(i) (LexisNexis 1989). In 1996, the Wyoming Legislature eliminated the clause, “and which cannot reasonably be eliminated, altered or controlled.” 1996 Wyo. Sess. Laws ch. 78, § 1. Subsequent to the amendment, this Court recognized the extraordinary protection offered to recreation [*11] providers in Wyoming:
The Court recognizes that its reading of the Wyoming Recreational Safety Act provides enormous protection to those in the business of providing recreational activities. . . . Consumers in Wyoming are now faced with an entire industry whose economic and consequent legislative power enables them to conduct business with only a passing thought to the safety of those who utilize their services. Despite this frightening prospect, the Court recognizes its place in our nation’s federal system of government. A court should not decimate the purpose of a legislative act, no matter how distasteful, when that purpose is clearly incorporated in the language of the act.
Cooperman v. David, 23 F. Supp. 2d 1315, 1321 (D. Wyo. 1998). Given this extraordinary protection, this Court must conclude that the Wyoming Legislature views immunity for recreation providers to be an important state interest. Wyoming law should apply in this case.
The Court’s decision is consistent with precedent set by the Court of Appeals for the Tenth Circuit. In Electrical Distributers, Inc. v. SFR, Inc., one issue considered by the court was whether the trial court properly applied Colorado law where a covenant not to compete named Colorado as the applicable law, [*12] but was to be performed exclusively in Utah. 166 F.3d 1074, 1083-84 (10th Cir. 1999). Using the analysis that this Court has adopted above, the Court of Appeals determined that Utah’s strong interest in careful scrutiny of covenants not to compete controlled over any interest Colorado had in enforcement of a contract made within its boundaries, but to be performed outside them. Id.
Recreation Safety Act
Defendants rely on Wyoming’s Recreation Safety Act and claim that, pursuant to the Act, they owed no duty of care to any of the tour members. In response, Plaintiffs provide three reasons that the Act does not apply. First, they contend that Connecticut law applies–an argument that the Court has already resolved in favor of Defendants. Second, Plaintiffs argue that Tauck is not a “provider” as defined in the Act. Third, they assert that federal law preempts the Act. The Court will now address Plaintiffs second and third arguments in turn.
Wyo. Stat. Ann. § 1-1-122(a)(ii) defines “provider” as follows: “[A]ny person or governmental entity which for profit or otherwise offers or conducts a sport or recreational opportunity.” Plaintiffs claim that Tauck is not a provider because of its position that it did not conduct the activity itself, but rather was a travel agent [*13] that procured the raft trip on behalf of its tour members. In doing so, however, Plaintiffs overlook the undisputed fact that Tauck offered the float trip as part of its tour package. Given that the Act includes offering a recreational opportunity in its definition of “provider,” it is obvious that Tauck is, in fact, a provider.
Plaintiffs’ preemption argument requires significantly more discussion. State law may be preempted by federal law in three ways. First, Congress may expressly preempt state law. Barnett Bank of Marion County, N.A. v. Nelson, 517 U.S. 25, 31, 116 S. Ct. 1103, 134 L. Ed. 2d 237 (1996). Second, Congress may preempt an entire field by regulating that field so comprehensively that there is no room for state regulation. Id. at 31. Third, federal and state law may be in irreconcilable conflict, preempting state law even though Congress has not explicitly stated its intent to do so. Id. None of these three types of preemption occurred in this case.
The specific federal “law” that Plaintiffs believe preempt the Act is the concession contract between GTLC and the National Park Service. In particular, Plaintiffs point to the following language in the concession contract:
The Concessioner is responsible for providing a safe and healthful environment for its employees and clients as outlined [*14] in the Contract. The Concessioner will develop a Risk Management Program that will be approved by the Service in accordance with the Occupational Safety and Health Act (OSHA) and Service Guidelines. The Risk Management Program will be reviewed annually by the Service.
Plaintiffs’ Resp. to Motion For Summary Judgment on Wyoming Recreation Safety Act, Ex. 3. Plaintiffs claim that the concession contract “change[s] the character of the state law provisions encompassed by” the Act, and therefore results in an actual conflict between state and federal law. Plaintiffs’ Resp. Motion to Dismiss on Wyoming Recreation Safety Act, at 12. Plaintiffs also point to the National Park Service Management Policies 2006, which provides for visitor safety emergency response and emergency preparedness. That document refers several times to the safety of visitors to the park. Plaintiffs’ Resp. Motion to Dismiss on Wyoming Recreation Safety Act, Ex. 4.
Plaintiffs make an argument similar to that raised by the plaintiff in Carden v. Kelly, 175 F. Supp. 2d 1318 (D. Wyo. 2001). In Carden, this Court summarized the plaintiffs’ arguments as follows:
1) Plaintiff’s injuries occurred on federal land, the Bridger-Teton National Forest; 2) Defendants, in order to operate [*15] their business in the Bridger-Teton National Forest had to obtain a special-use permit from the Forest Service; 3) because Plaintiff’s injuries occurred on federal land, federal law, namely Forest Service regulations and the Defendants’ special-use permit apply; 4) the special-use permit contains provisions concerning negligence and injury to patrons of Forest Service permit holders, which Plaintiff claims requires the permit holders to inform their guests of the risks and have them sign a risk acknowledgment form; and 5) provisions in the Forest Service regulations requiring patrons of the Forest Service concessionaires to assume “usual” risks of activities within the National Forest conflicts with, and thus preempts, the Wyoming Recreation Statute.
Carden, 175 F. Supp. 2d at 1322. The Court determined that, although Congress had the authority to pre-empt the Recreation Safety Act on federal lands, it did not do so. Id. at 1322-26.
In the current case, the Court will follow Carden‘s sound reasoning. The Management Policies and the concession contract cited by Plaintiffs do broadly emphasize the Park Service’s interest in public safety, but does not indicate any intent to preempt Wyoming tort law. “Courts do not ‘lightly attribute [*16] to Congress or to a federal agency the intent to preempt state or local laws.'” Ramsey Winch Inc. v. Henry, 555 F.3d 1199, 1204 (10th Cir. 2009) quoting Nat’l Solid Wastes Mgmt. Ass’n v. Killian, 918 F.2d 671, 676 (7th Cir. 1990).
Plaintiffs in the case at bar attempt to distinguish Carden by noting that the requirements in Carden were imposed by the Forest Service, while this case involves the Park Service. Plaintiffs do not point out how this fact is relevant, and the Court does not discern any. The Park Service was created to
promote and regulate the use of the Federal areas known as national parks . . . to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.
16 U.S.C. § 1. Its mission is therefore one of conservation, and the Court does not perceive any intent to impact state tort law. The Court finds that federal law has not preempted the Wyoming Recreational Safety Act.
It is now incumbent upon the Court to determine if the Act applies to the circumstances of this case and insulates the defendants from liability. The Act states, in relevant part,
(a) Any person who takes part in any sport or recreational opportunity assumes the inherent risks in that sport [*17] or recreational opportunity, whether those risks are known or unknown, and is legally responsible for any and all damage, injury or death to himself or other persons or property that results from the inherent risks in that sport or recreational opportunity.
(b) A provider of any sport or recreational opportunity is not required to eliminate, alter or control the inherent risks within the particular sport or recreational opportunity.
(c) Actions based upon negligence of the provider wherein the damage, injury or death is not the result of an inherent risk of the sport or recreational opportunity shall be preserved pursuant to W.S. 1-1-109.
Wyo. Stat. Ann. § 1-1-123.
Past disputes regarding the Act’s application involve, as does this case, questions about what constitutes an “inherent risk.” “‘Inherent risk’ with regard to any sport or recreational opportunity means those dangerous conditions which are characteristic of, intrinsic to, or an integral part of any sport or recreational opportunity.” Id. § 1-1-122(a)(i). The Wyoming Supreme Court has had few occasions to address the determination of what is an inherent risk of a particular activity. One of the more recent cases arose as a certified question from this Court. Jackson Hole Mount. Resort Corp. v. Rohrman, 2006 WY 156, 150 P.3d 167 (Wyo. 2006). The [*18] question certified was: “When faced with motions for summary judgment in which there are no genuine issues of material fact, how should a court differentiate, as a matter of law, between ‘inherent risks’ . . . and non-inherent risks . . . ?” Id. at 168.
[The] general answer is that if such a motion is filed, the trial court must scrutinized the facts brought forward by the parties with great care. If the court can say that, given the evidence, this is an “inherent risk” and reasonable minds cannot differ about that, then summary judgment is appropriate. If the risk is an inherent one, then the provider has no duty to eliminate, alter, or control it. On the other hand, if reasonable minds could differ as to whether or not the risk was one inherent to the recreational activity, then summary judgment is not appropriate and the answer to the question must be assigned to the jury (or other fact finder).
Id. This formulation, of course, depends on properly characterizing the activity and risk. For example, in the current case, the activity may be characterized as a “scenic float trip”–as Plaintiffs do throughout their memorandum in opposition to summary judgment–or as “river rafting.” The particular [*19] risk may be described generically as falling out of the boat or, more specifically, as colliding with a log jam resulting in ejection from the raft.
Governing precedent demands that the activity and risk be described as particularly as possible. In Cooperman v. David, for example, the Court of Appeals for the Tenth Circuit stated that, “[w]hen attempting to determine whether a risk is inherent to a sport, we can not look at the risk in a vacuum, apart from the factual setting to which the [injured person] was exposed. And, we must evaluate the risk at the greatest level of specificity permitted by the factual record.” 214 F.3d 1162, 1167 (10th Cir. 2000). In this case, the activity is best described as river floating under the water conditions that were apparent when the tour members embarked. The risk is best described as the risk that the raft would encounter a log jam, ejecting one or more tour members into the river.
Applying the law from this point forward is somewhat more problematic because the precedent in this area is not entirely clear. In Cooperman, the court affirmed this Court’s grant of summary judgment in favor of the defendant because a loose saddle cinch was an inherent risk of the activity of horseback [*20] riding. Id. at 1169. The trial court received expert testimony that a slipping saddle was a risk inherent to horseback riding. Id. at 1168. There was also testimony that the particular saddle at issue was cinched too loosely, and an inference that the loose cinching caused the saddle to slip. Id. The Cooperman court said that, even with this evidence, the risk was inherent because a person cinching a saddle had to balance between doing so too tightly and too loosely. “This imprecision in the cinching of the saddle is ‘characteristic’ or ‘typical’ of and therefore ‘inherent in’ the sport of horseback riding.” Id. Critically, the court stated,
As part of the Coopermans’ burden of showing that [the provider] owed Dr. Cooperman a duty of care, the Coopermans must provide some evidence to explain why the saddle fell, which explanation is not inherent to the sport. . . . Thus, stating only that the cinch was not tight enough does not show that the risk was no longer inherent to the sport. The Coopermans have the burden of presenting some evidence on summary judgment that would raise a question of fact that the loosely cinched saddle was caused, not by an inherent risk, but rather by a risk that was atypical, uncharacteristic, [*21] not intrinsic to, and thus not inherent in, the recreational activity of horseback riding. The Coopermans have not met this burden.
Id. at 1168-69.
The current case presents certain parallels. It is undisputed based on the evidence before the Court that being ejected or otherwise falling out of a raft is generally an inherent risk of river floating. For example, Sheri Griffith, an outfitter and river guide, testified that it is an inherent risk that a person might “become a swimmer” during a float trip. Griffith Depo. 152. There is no testimony that contradicts her opinion. It is also undisputed that the rafting guide instructed the tour members that, if they were to end up in the river, the proper procedure was to float on their back until they could be recovered. L. Wilson Depo. 318; Hobbs Depo. 136. This is similar to the expert testimony in Cooperman that a slipping saddle is an inherent risk of horseback riding: it describes the risk in general terms without looking at the specific cause. Also like Cooperman, Plaintiffs in this case have not submitted admissible evidence that describes a specific cause of the injury, and shown that the particular cause falls outside of the realm of being an inherent [*22] risk. Following the Cooperman analysis, then, the Court would conclude that Plaintiffs have failed to demonstrate that a genuine issue of material fact exists regarding whether encountering a log jam resulting in ejection from the raft is an inherent risk of river floating.
But the Court must also consider Sapone v. Grand Targhee, Inc., 308 F.3d 1096 (10th Cir. 2002). In that case, a six-year-old girl was injured when her horse bolted. Sapone, 308 F.3d at 1098. The plaintiffs presented evidence from an expert that “(1) the instructions were inadequate, (2) the horse was too large, (3) headgear should have been provided, (4) the trail ride may have been too dangerous, and (5) her parents were not notified of the accident.” Id. at 1104. It is not entirely clear why these facts would affect the nature of the risk. The court concluded “that a reasonable jury might conclude that [the girl’s] injuries were the result of negligence that is not characteristic of, intrinsic to, or an integral part [of] horseback riding.” Id. at 1105. Two possible interpretations of this passage are that negligence is never an integral part of horseback riding, or that some negligence is an integral part, but not the negligent acts complained of in that case. The former interpretation would render the statute futile [*23] as a way to safeguard recreation providers against liability, so it is unlikely that the Court of Appeals intended that meaning. The latter interpretation is more plausible, but raises the difficult question of what types of negligence are inherent to a particular activity and which are not. In either case, a trial court or fact finder is confronted with the difficult task of determining whether negligence occurred in order to determine whether the defendant owed a duty.
In any case, this Court is bound to apply Sapone. Plaintiffs have submitted evidence that tends to show that the river, on the day of the river float trip, was running higher and faster so as to result in an activity with some greater risk to the participants. In addition, Plaintiffs submitted evidence suggesting that this stretch of river was generally believed to be a dangerous one. Rutter Depo. Ex. 1. Specifically, a National Park Service publication entitled “Floating the Snake River” states that the area from Deadman’s Bar to Moose Landing “is the most challenging stretch of river in the park and most accidents occur here. The river drops more steeply, with faster water than in other sections south of Pacific Creek. [*24] Complex braiding obscures the main channel and strong currents can sweep boaters into side channels blocked by logjams.” Id. This evidence is not uncontested, of course, but it is sufficient to preclude summary judgment on this issue. The Court finds that there is a genuine issue of material fact regarding whether colliding with the log jam was an inherent risk of the river float trip undertaken by the tour members on June 2, 2006.
Negligence
Tauck moved for summary judgment in its favor on Plaintiffs’ negligence claim. Tauck’s argument boils down to an assertion that it is essentially a travel agency, and therefore is not liable for any negligence committed by GTLC. Plaintiffs contend that Tauck is a common carrier, and therefore subject to a heightened duty of care. They also assert that Tauck assumed a duty to warn of dangerous conditions when it distributed a form entitled “Acknowledgment of Risk” on the way to the river.
As a general rule, a tour operator is not liable for injuries caused by the negligence of third parties over which the tour operator did not exercise ownership or control. E.g., Sova v. Apple Vacations, 984 F. Supp. 1136, 1140 (S.D. Ohio 1997).1 The general rule may not apply, however, in the face of contractual language to the [*25] contrary. In this case, Plaintiffs contend that Tauck’s promotional materials contained promises that Tauck would assume a certain duty. For example, they point to language in which Tauck states tour members will “enjoy VIP attention from our experienced Tauck Directors who are dedicated to making your trip the best it can be” and that “[o]nce you arrive at your Tauck Bridges destination, leave the day-to-day details to us–all you need to do is have fun with your family.” Plaintiffs’ Resp. to Motion for Summary Judgment on Negligence, 5-6. They compare this language to that relied upon by the court in Stevenson v. Four Winds Travel, Inc. to find that the plaintiff had a right to expect a warning of a slippery condition while on a tour. 462 F.2d 899, 906-07 (5th Cir. 1972).
1 The Wyoming Supreme Court has not yet addressed this question, but it would likely follow this general rule.
Stevenson, however, is distinguishable from the current case. First, the language in the promotional materials in Stevenson is considerably stronger than those distributed by Tauck. For example, the materials stated that guests would be “cared for by a carefully selected Four Winds Tour escort” and that the tour directors “know precisely what you will be seeing and doing every day.” Id. In contrast, Tauck’s materials state that trips “are enhanced by [*26] our experienced directors,” and that Tauck will “take care of all [arrangements] for you, so you can indulge in the joys of travel without any of the day-to-day hassles.” Plaintiffs’ Resp. to Motion for Summary Judgment on Negligence, 5. To the extent that these vague statements mean anything at all, it falls far short of a promise to assume a duty. In addition, there is no indication in Stevenson that there was a separate contract. In this case, however, Tauck’s “Conditions of Tour”–relied upon by Plaintiffs in its argument that Connecticut law is applicable–contains a provision in which Tauck disclaims liability for “any Damages, or any problems concerning any . . . supplier providing tour services [or] programs, . . . including but not limited to . . . negligence by any . . . other supplier providing tour services [or] programs.” Plaintiffs’ Resp. to Motion for Summary Judgment on Recreation Safety Act, Ex. 1. Courts have relied on similar disclaimers to bar liability for acts of third parties that are beyond the control of the tour operator because the disclaimers are evidence that the operator did not intend to assume a guarantee of safety, even if the disclaimer is not itself [*27] contractually binding. E.g., Sova, 984 F. Supp. at 1139-40 (collecting illustrative cases). Accordingly, this Court finds that, as a matter of law, Tauck had no duty, either by virtue of its position as a tour operator or assumed through its promotional materials.
Plaintiffs next contend that Tauck is a common carrier pursuant to the common law and Article 10, Section 7 of the Wyoming Constitution. That provision states: “All corporations engaged in the transportation of persons, property, mineral oils, and minerals products, news or intelligence, including railroads, telegraphs, express companies, pipe lines and telephones, are declared to be common carriers.” Plaintiffs then rely upon section 314A of the Restatement (Second) of Torts, which states that a common carrier has a duty to its passengers to take reasonable action “to protect them against unreasonable risk of physical harm,” and to render aid if they are harmed. Tauck contends that it is not a common carrier because it does not actually transport tour members during the river floating trip.
Tauck’s position has merit, and there is authority for the proposition that a tour operator is not a common carrier. E.g., Stafford v. Intrav, Inc., 841 F. Supp. 284, 287 (E.D. Mo. 1993). The Court need not resolve the question of whether Tauck is a common carrier, however, because even if it is in general, it was not transporting [*28] tour members at the time of the raft collision. The undisputed evidence is that the tour members, during the rafting trip, were being transported by GTLC, not Tauck. In short, the tour members were no longer subject to Tauck’s custody or control, and therefore Tauck owed no duty. See Id. (tour operator had no duty to warn of dangerous condition on premises not under its control).
This leaves the question of whether distribution of “Acknowledgment of Risk” forms resulted in an imposition of a duty on Tauck. Plaintiffs cite section 324A of the Restatement (Second) of Torts, which states:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.
The Wyoming Supreme Court adopted this provision as reflected in subsection (a) in Ellsworth Bros., Inc. v. Crook, 406 P.2d 520, 524 (Wyo. 1965). Relying [*29] on the Restatement, Plaintiffs claim that “by requiring its Tour Directors to get guests to sign GTLC’s Acknowledgment of Risk form well in advance of arriving at the Lodge, Tauck undertook the duty to inform guests about risks associated with the raft trip.” Plaintiffs’ Resp. to Motion for Summary Judgment on Negligence, 7.
This statement, however, assumes that by undertaking to distribute the “Acknowledgment of Risk” form, Tauck was undertaking the broader task of informing guests about risks associated with the raft trip. There is no evidence before the Court to support this assumption. The only evidence that Tauck undertook to do anything for GTLC is testimony that GTLC asked Tauck to present the form to those tour members who were to participate in the rafting trip. Rice Depo. 47.2 There is no testimony that suggests Tauck was asked, or agreed, to inform guests of all risks involved in the rafting trip.
2 There is some conflict in the record regarding precisely when the tour members were given the form, but that is not material for resolution of this issue.
The Court finds as a matter of law that Tauck did not owe a duty to the tour members to warn them of the conditions of the river or otherwise act to prevent their injuries. Tauck may not be found negligent on a theory of direct liability.
Joint Venture
The Court must next address Tauck’s [*30] contention that it may not be held vicariously liable for GTLC’s negligence because the two companies did not form a joint venture. Tauck argues that GTLC was simply a supplier, and that the two businesses did not jointly embark on a business venture. In Wyoming, a person alleging the existence of a joint venture has the burden to prove four elements:
(1) an agreement, express or implied, among the members of the group; (2) a common purpose to be carried out by the group; (3) a community of pecuniary interest in that purpose, among the members; and (4) an equal right to a voice in the direction of the enterprise, which gives an equal right of control.
Popejoy v. Steinle, 820 P.2d 545, 549 (Wyo. 1991) quoting Holliday v. Bannister, 741 P.2d 89, 93 n.1 (Wyo. 1987).
Considering the first element, that of an agreement, the Court finds that there is a genuine issue of material fact regarding whether Tauck and GTLC agreed to provide services. Plaintiffs have submitted a document entitled “Tour Operator Contract,” which governs the terms of the sale of room blocks and river float trips to Tauck. Plaintiff’s Resp. to Motion for Summary Judgment on Joint Venture, Ex. 5. Several witnesses, officials of Tauck, testified that they viewed GTLC as a supplier, not as a partner. Nevertheless, viewing [*31] the contract in the light most favorable to Plaintiffs, it is not unreasonable to characterize it as an agreement for the purposes of this joint venture analysis.
The Court also finds that a reasonable jury could find that Tauck and GTLC had a common purpose. This purpose was to sell tour members lodging and river float trips. Tauck’s purpose was somewhat broader, generally, because it sold lager tours of which the interaction with GTLC was a small part, but this does not remove the fact that GTLC and Tauck were united in purpose during this portion of the tour. Similarly, they both had a pecuniary interest in the enterprise. Tauck points out that GTLC received the same amount for its float tours whether its guests were members of a Tauck tour or individuals. But the arrangement nonetheless furthered GTLC’s financial goals by bringing significant numbers of guests to GTLC. Similarly, Tauck benefitted financially by featuring GTLC lodging and the float trip as part of its tour.
The Court does not find, however, that Tauck and GTLC had an equal right of control. Plaintiffs rely heavily on the fact that both business had the capability to cancel the float trip at their discretion, but that [*32] does not suggest an equal voice in the activity in question. For example, the evidence submitted to the Court indicates that the Tauck tour director brought the residents to the lodge and interacted with GTLC staff, but there is no indication that any Tauck official had the authority to direct any day-to-day activities. It had no input into the decision to hire Mr. Hobbs, the guide of Raft No. 2, or to direct the manner in which he conducted the rafting trip. Tauck could not have directed that the river guide take the group down a different part of the river, or terminated the guide’s employment. If GTLC had decided to terminate its river floating operations, Tauck would have been powerless to prevent it, aside from the scope of any service contract that was currently in place. Tauck and GTLC were two separate operations, and there is no evidence submitted to the Court that suggests otherwise. The Court finds, as a matter of law, that Tauck and GTLC did not have a joint venture.
The Court notes that, with no direct liability and no joint venture resulting in vicarious liability, Tauck is not liable for any claims of negligence.
Fraud
Plaintiffs have alleged that GTLC and Tauck committed [*33] fraud by enacting a scheme whereby the tour members were lured into taking a dangerous rafting trip as a result of GTLC and Tauck’s material misrepresentations regarding the level of danger. “To prove fraud, the plaintiff must show by clear and convincing evidence that (1) the defendant made a false representation intended to induce action by the plaintiff; (2) the plaintiff reasonably believed the representation to be true; and (3) the plaintiff suffered damages in relying upon the false representation.” Garrison v. CC Builders, Inc., 2008 WY 34, 179 P.3d 867, 877 (Wyo. 2008). The false representation must be made knowingly: “One cannot be guilty of fraudulently or intentionally concealing or misrepresenting facts of which he is not aware.” Meeker v. Lanham, 604 P.2d 556, 559 (Wyo. 1979). Plaintiffs’ fraud claim fails because they have failed to provide evidence from which a reasonable jury could find by clear and convincing evidence that Defendants knowingly made a false representation of a material fact.
Plaintiffs first cite statements made in Tauck’s travel brochure discussing the rafting trip. “[T]he record shows that Tauck’s 2006 Brochure described the Snake River as a ‘meandering float trip,’ when in actuality, the Plaintiffs’ [sic] ended up on a whitewater raft trip with Class IV rapids.”
[*34] Plaintiffs’ Resp. to Motion for Summary Judgment on Fraud Claim, 8. Plaintiffs also cite statements in Tauck’s promotional materials stating that its tour directors are “knowledgeable professionals, with a wealth of information,” and that Tauck “does it all for you,” and that tour members can “leave all day-to-day details” to Tauck. Id.
For the most part, these promotional statements are “mere puffery” E.g., Alpine Bank v. Hubbell, 555 F.3d 1097, 1106 (10th Cir. 2009). The one arguable exception is the description of the activity as a “meandering float trip,” which may be sufficiently definite that a sensible person may be justified in relying on it to some degree. Even in that case, however, there is no indication that Tauck was aware that the river floating trip would be anything other than as described.
The key problem with Plaintiffs’ case is that there is no indication that this particular stretch of the Snake River was inherently dangerous on the day of the collision. Instead, the evidence, viewed in a light most favorable to Plaintiffs, indicates that the guide of the raft that collided with the log jam took the raft into an unsafe channel. For example, the deposition of Wayne Johnson, one of the river guides on June 2, 2006, indicates [*35] that he viewed the “Funnelcake” channel as dangerous on that date. Johnson Depo. 184. Mr. Reed Finlay, a river guide with a different company, testified at some length about the “Funnelcake” channel, specifically that it was dangerous on the date of the collision. Finlay Depo. 126-32. Indeed, it is undisputed that the float trip on the day of the collision was peaceful and uneventful until Raft No. 2 entered the channel and struck the log jam. J. Wilson Depo. 76-77; R. Rizas Depo. 102, 209, 219. In short, there is no indication that Tauck made a misrepresentation when the rafting trip was marketed as a “meandering float trip.”
Plaintiffs also rely on several statements made by employees of Tauck and GTLC before the raft trip. First, Mr. Wilson saw saw people white water rafting while on the bus trip into Jackson on June 1, 2006. When the he asked the tour director, Mr. Rice, if that was what their rafting trip would be like, Mr. Rice replied that the rafting trip would be a “leisurely, scenic float down the Snake River,” and not to worry. Mr. Rice also stated that Tauck had “never lost anybody.” L. Wilson Depo. 61-62. Second, while the groups were in the GTLC vans on the way to the [*36] river, Ms. Elizabeth Rizas asked the van driver about the safety of the float trip. The van driver responded by telling her that she was more likely to be in an accident in the van traveling to the river than on the float trip. J. Wilson Depo 39-40. There is also some evidence that the van driver also stated that they had “never lost anybody yet.” Id. 60.
Again, there is no evidence indicating that these statements are deliberately false. Much like Tauck’s advertising, there was no reason for Tauck or GTLC to believe that the rafting trip would be anything other than a leisurely, scenic float trip. Although Plaintiffs repeatedly rely on the fact that the river was flowing stronger and faster than usual because of the spring thaw, there is no evidence suggesting that this change in conditions precluded GTLC from being able to provide the safe and relaxing experience that the tour members were expecting. The additional fact that the float trip resulted in a devastating collision instead is not relevant when considering what Tauck and GTLC knew at the time they made the statements at issue.
Lastly, Plaintiffs contend that Defendants committed fraud by failing to inform them of the full nature [*37] of the risks on this particular float trips. The Court finds that any failure to inform the guest of these dangers is not actionable as a matter of law. First, there can be no fraud because there is no statement involved. The Court also relies on the Wyoming Supreme Court’s explicit refusal to adopt the tort of nondisclosure in Pittard v. Great Lakes Aviation, 2007 WY 64, 156 P.3d 964, 976 (Wyo. 2007). Plaintiffs have failed to establish the existence of a genuine issue of material fact that would preclude summary judgment in Defendants’ favor on the fraud issue.
Punitive Damages
GTLC has moved to dismiss Plaintiffs’ claim for punitive damages.3 Plaintiffs’ response is similar to their fraud argument, that is, that GTLC deliberately misrepresented the float trip as safe and leisurely.
3 Tauck has also moved for summary judgment in its favor on the punitive damages issue. The Court, however, has already determined that Tauck is not liable, either directly or vicariously. Accordingly, the Court’s discussion addresses only Plaintiffs’ claim as it applies to GTLC.
The Wyoming Supreme Court has set out the following standard regarding punitive damages:
We have explained that punitive damages “are to be awarded only for conduct involving some element of outrage, similar to that usually found in crime. . . . We have approved punitive damages in circumstances involving outrageous conduct, such as intentional torts, torts involving malice and torts involving willful and wanton misconduct.” Weaver v. Mitchell, 715 P.2d 1361, 1369-70 (Wyo. 1986). Willful and wanton misconduct is the intentional doing, [*38] or failing to do, an act in reckless disregard of the consequences and under circumstances and conditions that a reasonable person would know that such conduct would, in a high degree of probability, result in harm to another. Mayflower Rest. Co. v. Griego, 741 P.2d 1106, 1115 (Wyo. 1987). “The aggravating factor which distinguishes willful misconduct from ordinary negligence is the actor’s state of mind. In order to prove that an actor has engaged in willful misconduct, one must demonstrate that he acted with a state of mind that approaches intent to do harm.” Bryant v. Hornbuckle, 728 P.2d 1132, 1136 (Wyo. 1986) (internal citation omitted).
Cramer v. Powder R. Coal Co., 2009 WY 45, 204 P.3d 974, 979-80 (Wyo. 2009).
Plaintiffs reason as follows:
Defendants here should have communicated the true Snake River conditions to the Plaintiffs rather than misrepresent the conditions and intentionally take the guests who had signed up for a scenic float trip into something knowingly quite different. Defendant’s failure to communicate the details indicates “reckless disregard of the consequences, and under such circumstances and conditions that a reasonable man would know, or have reason to know, that such conduct would, in a high degree of probability, result in substantial harm to another.” Danculovich [v. Brown], 593 P.2d [187,] 191.
Plaintiffs’ Response to Motion for Summary Judgment on Punitive Damages [*39]
, 11.
Plaintiffs’ contention that GTLC was aware that the float trip was materially more dangerous than previously represented to the tour members is not, as the Court has discussed, reflected in the record. Although it is undisputed that the level and flow of water was increased, and that this increase may heighten the risk of log jams or hide obstructions in the river, there is no evidence suggesting that the character of the river was altered to such an extent that it was willfully reckless to take passengers on the float trip.
The facts of this case are in stark contrast to those cases relied on by the Plaintiffs in which the Wyoming Supreme Court overturned trial courts’ grants of summary judgment in defendants’ favor on punitive damages. For example, the conduct alleged in Danculovich was drunk driving and speeding resulting in the driver losing control of the vehicle and killing the decedent. 593 P.2d at 190. The evidence in that case indicated that the defendant, who was driving the vehicle, had a blood alcohol content of 0.12%. Id. The court described the evidence of speeding as follows:
Radar clock of vehicle at 56 m.p.h. was made at north edge of business district. A witness estimated speed [*40] at 75 m.p.h. at city limits. Another witness estimated speed at 85 m.p.h. when vehicle passed him at point about .4 of mile before place of accident. Accident reconstruction expert estimated speed at place of accident to be minimum of 75 m.p.h. The speed limit within the city limits was 30 m.p.h. and beyond the city limits, 55 m.p.h.
Id. n.3. In Errington v. Zolessi, a treating physician conducted several cystograms of a patient following a laparoscopically assisted vaginal hysterectomy. 9 P.3d 966, 968 (Wyo. 2000). The cystograms initially indicated the presence of a fistula, and later confirmed it, but the doctor told the patient that she was healing normally, albeit slowly. Id. The Wyoming Supreme Court held that there was sufficient evidence that would allow a reasonable jury to find that the physician acted with reckless disregard for the patient’s safety. In either case, it is apparent that simply failing to advise the tour group members of the increased flow of the river does not rise to the level of reckless and willful misconduct. There is no question that the consequences of any negligence committed were devastating. But this Court must evaluate the question of outrageous conduct based on what was known [*41] at the time of the allegedly negligent act, not looking back at events with the benefit of hindsight. This is not to say that this conduct may not constitute simple negligence, but it does not warrant punitive damages.
IT IS ORDERED that Tauck’s Motion for Summary Judgment on Wyoming Recreational Safety Act, Docket No. 87, is DENIED.
IT IS FURTHER ORDERED that Tauck’s Motion for Summary Judgment on Plaintiffs’ Claim of Negligence, Docket No. 81, is GRANTED.
IT IS FURTHER ORDERED that Tauck’s Motion for Summary Judgment on Plaintiffs’ Claims of Joint Venture, Docket No. 84, is GRANTED.
IT IS FURTHER ORDERED that Tauck’s Motion for Summary Judgment on Plaintiffs’ Claims of Fraud, Docket No. 90, is GRANTED.
IT IS FURTHER ORDERED that Tauck’s Motion for Summary Judgment on Plaintiffs’ Claim for Punitive and Exemplary Damages, Docket No. 93, is GRANTED.
IT IS FURTHER ORDERED that Grant Teton Lodge Company’s Motion for Summary Judgment on Plaintiffs’ Claims, Docket No. 96, is granted in part and denied in part. Specifically, the motion is DENIED as it relates to application of the Wyoming Recreation Safety Act, and is in all other respects GRANTED.
Dated this day of October, 2009.
/s/ Alan B. [*42] Johnson
ALAN B. JOHNSON
UNITED STATES DISTRICT JUDGE
McJunkin v. James Yeager d/b/a Jim Yeager Outfitters, 2018 U.S. Dist. LEXIS 169321
Posted: January 7, 2019 Filed under: Assumption of the Risk, Legal Case, Montana, Paddlesports, Rivers and Waterways | Tags: abnormally, amend, Assumption of risk, bridge, drowning, emotional distress, Fishing, Float Trip, Fly Fishing, genuine, Inherent Risks, Issue of Material Fact, James Yeager, Jim Yeager Outfitters, loss of consortium, matter of law, negligence claim, Personal Flotation Device, PFD, provider's, Raft, reasonable care, Recreation, recreational, recreational opportunity, recreationists, River, secondary, severe, Skier, skiing, Sport, Summary judgment, unconstitution-ally vague, Whitewater, Wyoming Act's Leave a commentMcJunkin v. James Yeager d/b/a Jim Yeager Outfitters, 2018 U.S. Dist. LEXIS 169321
Charles P. Mcjunkin, deceased, by and through his executor and personal representative, Rhett Mcjunkin, and Rhett Mcjunkin, executor and personal representative, on behalf of the heirs of Charles P. Mcjunkin, Plaintiffs, vs. James Yeager d/b/a Jim Yeager Outfitters, Defendant.
CV 17-12-BLG-TJC
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA, BILLINGS DIVISION
2018 U.S. Dist. LEXIS 169321
September 28, 2018, Decided
September 28, 2018, Filed
COUNSEL: [*1] For Charles P. McJunkin, deceased, by and through his executor and personal representative, Rhett McJunkin, Rhett McJunkin, executor and personal representative, on behalf of the heirs of Charles P. McJunkin, Plaintiffs: Philip L. McGrady, LEAD ATTORNEY, McGRADY LAW, Whitefish, MT.
For James Yeager, doing business as, Jim Yeager Outfitters, Defendant: Ross Daniel Tillman, LEAD ATTORNEY, John M. Newman, BOONE KARLBERG, P.C., Missoula, MT.
JUDGES: TIMOTHY J. CAVAN, United States Magistrate Judge.
OPINION BY: TIMOTHY J. CAVAN
OPINION
ORDER
Rhett McJunkin, as personal representative of the estate of Charles P. McJunkin, and on behalf of the heirs of Charles P. McJunkin (“Plaintiffs”), brings this action against Defendant James Yeager, doing business as Jim Yeager Outfitters (“Yeager” or “Defendant”), in relation to a fatal boating accident that occurred on the Stillwater River near Columbus, Montana. Plaintiffs assert claims for negligence, negligent infliction of emotional distress, and loss of consortium. (Doc. 1.)
Presently before the Court are Plaintiffs’ Motion to Amend the Complaint (Doc. 23), Plaintiffs’ Motion for Partial Summary Judgment Regarding the Constitutionality of the Montana Recreation Responsibility Act [*2] (Doc. 28), and Defendant’s Motion for Summary Judgment (Doc. 31). The motions are fully briefed and ripe for the Court’s review.
Having considered the parties’ submissions, the Court finds Plaintiffs’ Motion to Amend should be DENIED, Plaintiff’s Motion for Partial Summary Judgment should be DENIED, and Defendants’ Motion for Summary Judgment should be GRANTED in part and DENIED in part.
I. FACTUAL BACKGROUND1
1 The background facts set forth here are relevant to the Court’s determination of the pending motions for summary judgment and are taken from the parties’ submissions and are undisputed except where indicated.
Yeager is a professional fishing guide and outfitter. On July 17, 2014, Yeager took a paying client, Charles P. McJunkin (“McJunkin”), on a guided fishing trip in a raft on the Stillwater River. As Yeager was guiding and operating the raft, McJunkin fell into the river and drowned. McJunkin was 81 years old at the time of his death.
McJunkin had gone on similar guided fishing trips with Yeager for approximately 20 years. In fact, in the week preceding the July 17, 2014 accident, McJunkin had floated and fished the Stillwater River three times with Yeager. On each occasion, Yeager put-in at the Johnson Bridge Fishing Access, and used the Swinging Bridge Fishing Access Site for a take-out at the end of the day. The Swinging Bridge take-out is approximately one-quarter mile above a set [*3] of rapids known as the Beartooth Drop. Yeager had never floated through the Beartooth Drop with McJunkin.
On the date of the accident, Yeager was guiding McJunkin and his partner, Julia Garner (“Garner”). The plan was to again float from Johnson Bridge to the Swinging Bridge take-out. The river conditions encountered by Yeager that day were characteristic of, and consistent with conditions he previously encountered on that stretch of the river. Yeager approached the Swinging Bridge take-out in the same manner as he had on the three earlier days of fishing. As he approached the take-out, the raft crossed an underwater shelf of rocks. When the rear of the raft passed the shelf, the boat rocked and McJunkin fell into the water. Although the raft was equipped with personal floatation devices (PFDs), McJunkin was not wearing one at the time.
McJunkin swam toward the raft, and Yeager attempted to position the raft so that McJunkin could grab ahold of the side. During this process, the party floated past the Swinging Bridge take-out. To complicate matters further, as Yeager attempted to pull McJunkin into the raft, Garner fell into the water. The parties dispute what caused Garner’s fall. Plaintiffs [*4] contend Yeager accidentally hit her with an oar. Yeager indicated he didn’t know what caused her to fall in, testifying “I don’t know if I hit a rock or a wave or whatever, Julie went in.” Garner yelled to Yeager that she could not swim. Yeager made the split-second decision to let go of McJunkin and attempt to save Garner, fearing she would drown otherwise. Yeager was able to pull her back into the raft as they entered the Beartooth Drop. Meanwhile, McJunkin lost contact with Yeager and the raft and floated through the rapid. He ultimately did not survive.
II. LEGAL STANDARD FOR SUMMARY JUDGMENT
[HN1] Summary judgment is appropriate where the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable fact-finder to return a verdict for the nonmoving party. Id. “Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).
[HN2] The party seeking summary judgment always bears the initial burden of establishing the absence of a genuine [*5] issue of material fact. Celotex, 477 U.S. at 323. The moving party can satisfy this burden in two ways: (1) by presenting evidence that negates an essential element of the nonmoving party’s case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party’s case on which that party will bear the burden of proof at trial. Id. at 322-23. If the moving party fails to discharge this initial burden, summary judgment must be denied and the court need not consider the nonmoving party’s evidence. Adickes v. S. H. Kress & Co., 398 U.S. 144, 159-60, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970).
[HN3] If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). In attempting to establish the existence of this factual dispute, the opposing party must “go beyond the pleadings and by ‘the depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.'” Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P. 56(e)). The opposing party cannot defeat summary judgment merely by demonstrating “that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586; Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995) (“The mere existence of a scintilla of evidence in support of the [*6] nonmoving party’s position is not sufficient.”) (citing Anderson, 477 U.S. at 252).
III. DISCUSSION
A. Cross-Motions for Summary Judgment Related to the Montana Recreation Responsibility Act
Plaintiffs assert Yeager’s negligence caused McJunkin’s death. Yeager contends Plaintiffs’ negligence claim fails as a matter of law because it is barred by Montana’s Recreation Responsibility Act (the “MRRA”), Mont. Code Ann. § 27-1-751, et seq. Thus, Yeager argues summary judgment on the negligence claim is warranted.
Plaintiffs counter that the MRRA is unconstitutionally vague, and violates the constitutional guarantee of equal protection and right to full legal redress. Plaintiffs, therefore, move for partial summary judgment declaring the MRRA unconstitutional. Plaintiffs further assert that even if the MRRA is constitutional, there are genuine issues of material fact which preclude summary judgment.
1. Yeager’s Motion for Summary Judgment under the MRRA
[HN4] The MRRA limits the liability of recreational opportunity providers for injuries resulting from the inherent risks of sports or recreational opportunities.2 Specifically, the MRRA provides in relevant part:
(1) A person who participates in any sport or recreational opportunity assumes the inherent risks in [*7] that sport or recreational opportunity, whether those risks are known or unknown, and is legally responsible for all injury or death to the person and for all damage to the person’s property that result from the inherent risks in that sport or recreational opportunity.
(2) A provider is not required to eliminate, alter, or control the inherent risks within the particular sport or recreational opportunity that is provided.
(3)(a) Sections 27-1-751 through 27-1-754 do not preclude an action based on the negligence of the provider if the injury, death, or damage is not the result of an inherent risk of the sport or recreational opportunity.
Mont. Code. Ann. § 27-1-753.
2 “Sport or recreational opportunity” is defined broadly in the MRRA as “any sporting activity, whether undertaken with or without permission, include but not limited to baseball, softball, football, soccer, basketball, bicycling, hiking, swimming, boating, hockey, dude ranching, nordic or alpine skiing, snowboarding, snow sliding, mountain climbing, river floating, whitewater rafting, canoeing, kayaking, target shooting, hunting, fishing, backcountry trips, horseback riding and other equine activity, snowmobiling, off-highway vehicle use, agritourism, an on-farm educational opportunity, and any similar recreational activity.” Mont. Code. Ann. § 27-1-752(4).
The MRRA defines “Inherent risks” as:
[T]hose dangers or conditions that are characteristic of, intrinsic to, or an integral part of any sport or recreational activity and that cannot be prevented by the use of reasonable care.
Mont. Code Ann. § 27-1-752(2).
[HN5] When interpreting a statute, a court is required to look to the plain meaning of the words. Clarke v. Massey, 271 Mont. 412, 897 P.2d 1085, 1088 (1995). A court will only resort to the legislative history of a statute if the legislative intent cannot be determined from the statute’s plain wording. Id. “[T]he office of judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert [*8] what has been omitted or to omit what has been inserted.” Mont. Code Ann. § 1-2-101.
Yeager maintains that the statute has a simple, straight-forward application to the facts of this case. He argues McJunkin’s death was caused by drowning; falling out of a boat and drowning is an inherent risk of fishing from a raft; therefore, Plaintiffs’ negligence claim is barred under the MRRA as a matter of law. In short, Yeager asserts because the injury in this case involved drowning while fishing from a raft, the MRRA precludes Plaintiffs’ claim. (Doc. 32 at 15.)
Yeager reads the MRRA much too broadly. Construing the statute in this fashion would immunize providers of recreational activities from their own negligence. The Court finds that such a construction would be contrary to the statute’s plain words, the legislative intent in enacting the legislation, and would likely render the MRRA unconstitutional.
[HN6] Under the plain language of the MRRA, a risk must satisfy two requirements to constitute an “inherent risk” and thus fall within the Act’s protection. There must be (1) a danger or condition that is characteristic of, or intrinsic to the activity, and (2) the danger or condition must be one that cannot be prevented [*9] by the use of reasonable care. Mont. Code Ann. § 27-1-752(2). Therefore, the MRRA does not insulate a provider from all risks which are characteristic of, or intrinsic to the activity. It only provides protection for those risks which cannot be prevented with the use of reasonable care. In order to make this determination, it is necessary to look at the facts and circumstances of each case and the specific risk or condition involved.
Wyoming has a similar “Recreation Safety Act.” Wyo. Stat. Ann. §§ 1-1-121 through 1-1-123. Like the MRRA, the Wyoming Act provides that “[a]ny person who takes part in any sport or recreational opportunity assumes the inherent risk in that sport or recreational opportunity, whether those risks are known or unknown . . . .” Wyo. Stat. Ann. § 1-1-123(a). It also similarly states that a provider of the “recreational opportunity is not required to eliminate, alter, or control the inherent risks” of the activity. Wyo. Stat. Ann. § 1-1-123(b). One critical difference between the two acts, however, is the definition of an inherent risk. The MRRA and the Wyoming Act both define inherent risk to mean “those dangers or conditions which are characteristic of, intrinsic to, or an integral part” of the activity. Wyo. Stat. Ann. § 1-1-122(a)(i). But the Wyoming Act’s definition does not also include the MRRA’s requirement [*10] that the risk “cannot be prevented by the use of reasonable care.”
Nevertheless, the construction of the Wyoming Act is instructive as far as the similarities go. Courts which have construed and applied the Wyoming statute have rejected the broad, general interpretation advanced by Yeager in this case. To determine what risks are inherent, decisions under the Wyoming Act have consistently required that a court “go beyond a broad characterization and inquire into the specific circumstances of both [the plaintiff’s] actions and those of the recreation provider.” Creel v. L & L, Inc., 2012 WY 124, 287 P.3d 729, 736 (Wyo. 2012).
In Cooperman v. David, 214 F.3d 1162 (10th Cir. 2000), for example, the plaintiff was injured during a guided horseback trail ride. The injury occurred when the plaintiff’s saddle slipped around to the belly of the horse, causing the plaintiff to fall to the ground. The defendant moved for summary judgment under the Wyoming Recreation Safety Act, arguing that a slipping saddle is an inherent risk of horseback riding. In determining the application of the Act, the Tenth Circuit made clear that the risk in question must be not be evaluated broadly or generally, but in the context of the specific factual setting presented.
Horseback riding undoubtedly carries some inherent risk [*11] that the rider will fall off the horse and get injured. A horse could stumble on an uneven path, or rear, or simply begin to gallop for no apparent reason. All of these risks clearly would qualify as inherent risks of horseback riding. Simply because some risks are inherent in horseback riding, however, does not mean that all risks of falling from a horse are necessarily inherent; instead, it is necessary to look factually at the specific risk to which the rider was exposed. When attempting to determine whether a risk is inherent to a sport, we can not look at the risk in a vacuum, apart from the factual setting to which the rider was exposed. And, we must evaluate the risk at the greatest level of specificity permitted by the factual record. See Madsen, 31 F.Supp.2d at 1328 (“The Court believes that one must look to the specific facts of a case to see whether there is a duty, and not simply look to the abstract character of the risk.”).
Cooperman, 214 F.3d at 1167.
The same evaluation must be conducted under the MRRA. It is not enough to find that falling out of a boat and drowning is a general risk of fishing from a raft; therefore, drowning is an inherent risk in fishing. Although there may be circumstances where the risk of drowning [*12] cannot be prevented with the use of reasonable care, it is undoubtedly true the risk may be prevented in many other circumstances.
Therefore, each case must be examined in light of the specific factual context of the case to determine whether the specific risk involved could have been prevented using reasonable care. As the Wyoming Supreme Court points out, “[s]ome risks may occur from the choices a recreation provider makes on behalf of the participant and from the conditions in which the recreational opportunity is provided. Thus, atypical or uncharacteristic risks can arise even in those specific sports the Wyoming legislature clearly intended to exempt from liability for inherent risks.” Dunbar v. Jackson Hole Mtn. Resort Corp., 392 F.3d 1145, 1148–49 (10th Cir.2004).
In addition, Yeager’s broad interpretation of the MRRA would effectively immunize providers of a recreational opportunity from their own negligence. If providers were protected from all fishing-related drownings under the MRRA, they would be relieved of liability where the death was caused by negligence, or even by willful or wanton misconduct. For example, it would apply not only to situations where a participant falls out of a raft and drowns without negligent conduct by the provider; it would [*13] also apply where the provider negligently causes a raft to collide with a bridge abutment or other known obstruction in the river.
Such an application would be contrary to the legislative intent of the MRRA, which expressly provides that the Act does not “preclude an action based on the negligence of the provider. . . .” Mont. Code Ann. § 27-1-753. As recognized under the Wyoming Act, the “intent behind the Recreation Safety Act was not to preclude parties from suing for a provider’s negligence, it was merely to stop people from suing providers for those risks that were inherent to a sport.” Madsen v. Wyoming River Trips, 31 F.Supp.2d 1321, 1328 (D. Wyo. 1999).
Finally, construing the MRRA as Yeager urges would likely render the Act unconstitutional. [HN7] Statutes should be construed “to avoid an unconstitutional interpretation if possible.” Hernandez v. Bd. of Cty. Comm’rs, 2008 MT 251, 345 Mont. 1, 189 P.3d 638, 642 (Mont. 2008). The Montana Supreme Court found a prior version of Montana’s Skier Responsibility Act unconstitutional because it prohibited a skier “from obtaining legal recourse against an operator even if the injury is proximately caused by the negligent or even intentional actions of the operator.”3
Brewer v. Ski-Lift, Inc., 234 Mont. 109, 762 P.2d 226, 230 (Mont. 1988). The Court found that although the state had a legitimate interest in protecting the economic vitality of the ski industry, there was no rational relationship [*14] between that purpose and requiring that skiers assume all risks for injuries regardless of the presence of negligence by the ski area operator. Id. at 230. See also, Oberson v. U.S. Dept. of Ag., Forest Serv., 2007 MT 293, 339 Mont. 519, 171 P.3d 715 (Mont. 2007) (snowmobile liability statute’s gross negligence standard, which relieved snowmobile operators from their negligent conduct, violated equal protection).
3 The statute at issue in Brewer barred recovery from a ski area operator if the skier suffered an injury resulting “from participating in the sport of skiing.” Brewer, 762 P.2d at 229 (citing Mont. Code Ann. § 23-2-736(1)).
The purpose of the MRRA is substantially the same as the skier and snowmobile liability statutes — protection of providers of recreational activities from liability for risks over which the provider has no control. Under Yeager’s interpretation of the MRRA, providers of float fly fishing would be immune from liability for drownings, even when caused by the provider’s own negligence. Under Brewer and Oberson, such a construction would violate Plaintiffs’ rights to equal protection, due process, and access to the courts.
Therefore, whether the MRRA protects a provider of recreational opportunities from certain risks cannot be determined by looking at the broad, abstract character of the risk. Instead, the specific facts and circumstances in each case must be examined to determine whether the risk involved can be prevented by the use of reasonable care. If so, the MRRA does not [*15] shield the provider from liability.
That being established, the determination of whether McJunkin’s drowning resulted from an inherent risk of floating and fly fishing is not appropriate for summary judgment. While there may be cases where there are no genuine issue of material fact, and the issue may be appropriately decided as a matter of law, [HN8] the determination of whether a risk is an inherent risk is generally a factual determination for the jury to decide. See e.g. Mead v. M.S.B., Inc., 264 Mont. 465, 872 P.2d 782, 788-89 (Mont. 1994) (holding whether an inherent risk had been established under the Skier Responsibility Act was a question of fact to be resolved by the trier of fact); Cooperman, 214 F.3d at 1169 (noting the question of what is an inherent risk is normally a question of fact for the jury); Halpern v. Wheeldon, 890 P.2d 562, 566 (Wyo. 1995) (“when genuine issues of material fact exist, it is proper to present the issue to the jury of whether a risk is inherent to a particular activity.”).4
4 At the time the Halpern case was decided, the Wyoming Act’s definition of inherent risk was similar to the MRRA. It was defined as “any risk that is characteristic of or intrinsic to any sport or recreational opportunity and which cannot reasonably be eliminated, altered or controlled.” Halpern, 890 P.2d at 564. The highlighted portion of the definition was subsequently removed by the Wyoming legislature.
Here, there are genuine issues of material fact regarding whether the risk encountered by McJunkin was an inherent risk to the sport of float fishing, or whether Yeager could have prevented the risk using reasonable care. Yeager’s expert opined that drowning [*16] is an inherent risk of floating in a raft on a river, and McJunkin’s death was a result of that inherent risk. But Plaintiffs’ expert states the risk of drowning can be prevented by the use of reasonable care. Plaintiffs’ expert also opined that Yeager increased the risks to McJunkin, and failed to adhere to industry standards by not taking basic safety precautions and not having a plan or equipment to retrieve McJunkin from the water.
Accordingly, the Court finds there are genuine issues of material fact regarding whether the risks encountered by McJunkin could have been prevented by the use of reasonable care.
As such, Yeager’s Motion for Summary Judgment is DENIED as to Count I of the Complaint.
2. Plaintiffs’ Motion for Summary Judgment
McJunkin challenges the constitutionality of the MRRA on due process and equal protection grounds. [HN9] Statutes are presumed to be constitutional, and “the party challenging the constitutionality of a statute bears the burden of proving the statute unconstitutional beyond a reasonable doubt.” Globe v. Montana State Fund, 2014 MT 99, 374 Mont. 453, 325 P.3d 1211, 1216 (Mont. 2014). “‘The question of constitutionality is not whether it is possible to condemn, but whether it is possible to uphold the legislative action . . . .'” Davis v. Union Pac. R. Co., 282 Mont. 233, 937 P.2d 27, 31 (1997) (quoting Fallon County v. State 231 Mont. 443, 753 P.2d 338, 340 (Mont. 1988). “[E]very [*17] possible presumption must be indulged in favor of the constitutionality of the Act.” Id. Thus, courts “will construe a statute to further, rather than to frustrate, the Legislature’s intent according to the plain meaning of the statute’s language.” In re Custody and Parental Rights of D.S., 2005 MT 275, 329 Mont. 180, 122 P.3d 1239, 1243 (Mont. 2005). See also Hernandez, 189 P.3d at 642 (stating it is the court’s duty “to avoid an unconstitutional interpretation if possible”).
a. The MRRA is not Unconstitutionally Vague
Plaintiffs argue the MRRA is unconstitutionally vague on its face, and as applied. Plaintiffs contend the MRRA purports to limit liability for injuries that result from inherent risks, but it does not define “inherent risk” in any clear manner. Thus, Plaintiffs argue there is no fair way to apply the statute because it is unclear what constitutes an “inherent risk.”
[HN10] The void-for-vagueness doctrine chiefly applies to criminal statutes, but can apply to civil laws as well. Civil statutes, however, generally receive less exacting vagueness scrutiny. Vill. of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 498-99, 102 S. Ct. 1186, 71 L. Ed. 2d 362 (1982). The United States Supreme Court has held “[t]o find a civil statute void for vagueness, the statute must be so vague and indefinite as really to be no rule or standard at all.” Boutilier v. INS, 387 U.S. 118, 123, 87 S. Ct. 1563, 18 L. Ed. 2d 661 (1967). The Montana Supreme Court has similarly declared that a statute is unconstitutionally [*18] vague on its face only if it is shown “that the statute is vague ‘in the sense that no standard of conduct is specified at all.'” In re Custody, 2005 MT 275, 329 Mont. 180, 122 P.3d 1239, 1243 (Mont. 2005). “[P]erfect clarity and precise guidance are not required.” Id. A statute is not vague “simply because it can be dissected or subject to different interpretations.” Montana Media, Inc. v. Flathead Cty., 2003 MT 23, 314 Mont. 121, 63 P.3d 1129, 1140 (Mont. 2003).
Here, the Court finds the MRRA is not unconstitutionally vague on its face. Section 27-1-752(2) plainly provides a standard for assessing what constitutes an “inherent risk.” The standard is established with common, readily-understood terms, and it incorporates the familiar negligence standard of reasonable care. Mont. Code Ann. § 27-1-752(2).
Further, contrary to Plaintiffs’ argument, the fact the MRRA does not specifically enumerate the risks inherent in each of the 30 recreational activities listed in the statute does not make the Act unconstitutional. [HN11] The Montana Supreme Court has recognized that even if a term in a statute is not exhaustively defined, and allows the court some discretion in determining whether the evidence presented satisfies the statute, the statute will not be rendered unconstitutionally vague. See In re Custody, 122 P.3d at 1243 (holding that although § 41-3-423(2)(a) did not contain an exhaustive list of conduct that constitutes the term “aggravated circumstances,” [*19] the statute was not void for vagueness). Moreover, even the more specific recreational liability statutes that Plaintiffs uses for comparison, provide non-exclusive lists of inherent risks. See e.g. Mont. Code Ann. § 23-2-702(2) (“‘Inherent dangers and risks of skiing’ means those dangers or conditions that are part of the sport of skiing, including: . . .”); § 23-2-822(2) (“Risks inherent in the sport of off-highway vehicle operation include . . .”); § 27-1-726(7) (“‘Risks inherent in equine activities’ means dangers or conditions that are an integral part of equine activities, including but not limited to: . . .”).
The Court further finds the MRRA is not unconstitutionally vague as applied. A person of common intelligence can understand the risks associated with river sports or activities. There is no indication McJunkin would not have been able to appreciate such risks, including the potential risk involved in floating and fishing. Indeed, in their depositions Plaintiffs were able to articulate risks associated with floating on a river, such as falling out of the boat and drowning. Therefore, McJunkin could have understood that the MRRA may limit Yeager’s liability for accidents on the river.
Accordingly, the Court finds the MRRA is not [*20] void for vagueness.
b. The MRRA Does Not Violate the Constitutional Guarantee of Equal Protection
Plaintiffs also argue the MRRA violates the constitutional guarantee of equal protection in two ways. First, Plaintiffs assert the Act eliminates any theory of negligence on the part of recreational providers, essentially excusing them from the consequences of their own negligence. Second, Plaintiffs argue the MRRA arbitrarily treats certain groups of recreationalists differently. Plaintiffs assert that participants in activities covered by the MRRA are treated differently from those participating in activities covered under other activity-specific recreation statutes because the MRRA is vague, whereas the other statutes are not. Plaintiffs further assert the MRRA treats recreationists covered by the Act differently because the MRRA attempts to resurrect the “secondary” assumption of risk defense, and inserts a “primary” assumption of risk defense.
i. The MRRA Does not Eliminate All Theories of Negligence
As discussed above, although a provider is not liable for, or required to eliminate, alter, or control inherent risks under the MRRA, the provider still owes a duty of care for risks that [*21] can be prevented by the use of reasonable care. Thus, the Court finds the MRRA continues to permit negligence claims against a provider if the risk could have been prevented by the use of reasonable care. Thus, the MRRA does not violate Plaintiffs’ equal protection rights by immunizing providers from their own negligence.
ii. The MRRA Does Not Arbitrarily Treat Groups of Recreationists Differently
The MRRA is drawn broadly and defines “sport or recreational opportunity” by reference to a non-exhaustive list of 30 activities. Mont. Code. Ann. § 27-1-752(4). Some of the listed activities are also covered by their own activity-specific recreation liability statutes, such as skiing, snowmobiling and off-road vehicle use. Id.; §§ 23-2-651, et seq.; 23-2-702, et seq.; 23-2-822. Therefore, the MRRA goes on to exclude those activities from its scope. Mont. Code Ann § 27-1-754 (stating the MRRA does “not apply to duties, responsibilities, liability, or immunity related to” activities that are already subject to an activity-specific recreational statute).
Plaintiffs assert that this statutory scheme causes different groups of recreationists to be treated differently. Specifically, Plaintiffs assert the recreationists who fall under the MRRA are disadvantaged in several [*22] respects.
First, Plaintiffs argue the MRRA’s alleged vagueness only affects the subset of recreationists who participate in activities covered by the Act. Whereas, recreationists engaging in other sports, such as skiing or snowmobiling, have specific notice of their rights and the provider’s responsibilities. The Court has determined, however, that the MRRA is not unconstitutionally vague. Further, as noted above, even the activity-specific recreation statutes that specifically identify certain inherent risks do so in a non-exhaustive fashion. Thus, there is no significant difference in treatment between the recreationists who fall under the MRRA, and those who fall under other recreational statutes with respect to notice.
Next, Plaintiffs assert the MRRA departs from other recreational statutes by attempting to revive the “secondary” assumption of risk defense and by suggesting a “primary” assumption of risk defense. Historically, Montana has not used the terms “primary” and “secondary” assumption of risk. Nevertheless, legal commentators have explained [HN12] “primary” assumption of risk refers to the concept of duty, and “secondary” assumption of risk refers to contributory negligence.
[*23] See Dan B. Dobbs, et al., Dobbs’ Law of Torts § 238 (2d ed. 2018) (“[T]he term ‘primary assumption of risk’ is used to indicate the no-duty or no-breach conception and its attendant complete-bar effect; and the term ‘secondary assumption of risk’ is used to indicate the contributory negligence conception.”); 65A C.J.S. Negligence § 398 (2018) (“Primary assumption of risk limits the duty which a person owes to another. Secondary assumption of risk, on the other hand, which is a type of contributory negligence and is an affirmative defense, may be raised by the defendant after the plaintiff has met the burden of showing that the defendant breached a legal duty owed to the plaintiff.”); W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 68, 480-81 (5th Ed. 1984) (stating “primary” assumption of risk “is really a principle of no duty,” and explaining that under the duty perspective, “the plaintiff voluntarily enters into some relation with the defendant, with knowledge that the defendant will not protect him against one or more future risks that may arise from the relation . . . the legal result is that the defendant is simply relieved of the duty which would otherwise exist.”).
With regard to [*24] “secondary” assumption of risk, Plaintiffs assert the MRRA, “unlike any other recreation act in Montana,” resurrects the “secondary” assumption of risk defense, without articulating any specific inherent risks the participant would be assuming. (Doc. 29 at 15.) As Yeager points out, however, the MRRA is in fact similar to the other recreation statutes in that they also provide that the participant assumes the risks inherent in the particular activity. See e.g. Mont. Code Ann. § 23-2-736(4) (“A skier shall accept all legal responsibility for injury or damage of any kind to the extent that the injury or damage results from inherent dangers and risks of skiing.”); § 23-2-822 (1) (“An off-highway vehicle operator shall accept all legal responsibility for injury or damage of any kind to the extent that the injury or damage results from risks inherent in the sport of off-highway vehicle use. . . .”); 23-2-654(3) (“A snowmobiler shall accept all legal responsibility for injury or damage of any kind to the extent that the injury or damage results from risks inherent in the sport of snowmobiling.”). Further, as discussed in regard to Plaintiff’s vagueness challenge, the MRRA does not fail to put participants on notice of the inherent [*25] risks they are assuming. As such, recreationists participating in activities that fall under the MRRA are not on significantly different legal footing than participants in other recreational activities. Finally, Plaintiffs contend the MRRA’s suggestion of a “primary” assumption of risk defense amounts to an end-run around comparative negligence. As used here, the assumption of risk terminology in the MRRA refers to a principle of no duty. In Halpern v. Wheeldon, 890 P.2d 562, 565 (Wyo. 1995), the Wyoming Supreme Court found the assumption of risk language in the Wyoming Recreation Safety Act, “was intended to limit the duty to which a provider owes to a participant.” The Court explained that because primary assumption of risk was only intended to limit the provider’s duty, it did not affect the comparative negligence scheme. Id. Likewise, here, the Court finds the assumption of risk language in the MRRA affects only the provider’s duty. It does not revive contributory negligence or undermine Montana’s comparative negligence law. Moreover, as noted, the other activity-specific recreation statutes contain similar assumption of risk language. Thus, recreationists are treated the same under both the MRRA and other activity-specific recreation [*26] statutes, and there is no violation of equal protection.
c. The MRRA Does Not Unconstitutionally Interfere With the Right to Trial by Jury
Finally, Plaintiffs argue the MRRA infringes upon the province of the jury by injecting questions of ultimate fact into preliminary legal questions. As discussed above, however, whether McJunkin’s death was the result of an inherent risk of float fly fishing, and whether it could have been prevented by the use of reasonable care, are jury questions. Thus, the Court finds the MRRA does not unconstitutionally interfere with Plaintiffs’ fundamental right to trial by jury.
B. Yeager’s Motion for Summary Judgment on Plaintiffs’ Negligent Infliction of Emotional Distress Claim
Yeager contends Plaintiffs’ claim for negligent infliction of emotional distress (“NEID”) fails as a matter of law because there is insufficient evidence for a jury to find Plaintiffs suffered serious or severe emotional distress.5 The Court agrees.
5 Yeager also asserts Plaintiffs’ NIED claim fails because there is no actionable predicate act of negligence since the MRRA bars Plaintiffs’ negligence claim. As discussed, however, the Court has found there are disputed issues of material fact regarding Plaintiff’s negligence claim. Accordingly, Yeager’s argument fails in this regard.
[HN13] Under Montana law, an independent cause of action for NIED arises “under circumstances where serious or severe emotional distress to the plaintiff was the reasonably foreseeable consequence of the defendant’s negligent act or omission.” Sacco v. High Country Ind. Press, Inc., 271 Mont. 209, 896 P.2d 411, 426 (Mont. 1995). [*27] “To constitute ‘serious’ or ‘severe,’ the emotional distress must be ‘so severe no reasonable person could be expected to endure it.'” Feller v. First Interstate Bancsystem, Inc., 2013 MT 90, 369 Mont. 444, 299 P.3d 338, 344 (Mont. 2013). The question of whether the threshold level of emotional distress can be found is for the Court to determine. Sacco, 896 P.2d at 425 (“It is for the court to determine whether on the evidence severe [serious] emotional distress can be found; it is for the jury to determine whether, on the evidence, it has in fact existed.”) (quoting Restatement (Second) of Torts, § 46, comment j at 78).
In Feller, the Montana Supreme Court considered [HN14] several factors in determining whether there is sufficient evidence of severe emotional distress, including: (1) whether the plaintiff had any physical manifestations of grief; (2) whether counseling was sought or recommended; (3) whether the plaintiff took medication or the use of medication dramatically increased; (4) whether the plaintiff had continuous nights of sleeplessness or days without appetite; (5) whether the plaintiff maintained close relationships with family members and friends; (6) the duration of the emotional distress; and (7) the circumstances under which the infliction incurred, including whether the plaintiff witnessed the distressing event. Feller, 299 P.3d at 345.
Here, the Court finds [*28] Plaintiffs have not presented evidence of the type of emotional distress necessary to demonstrate serious or severe compensable emotional distress. Rhett McJunkin and Charles McJunkin, Jr. testified at deposition that they have both experienced grief, trouble sleeping and have had nightmares. Rhett McJunkin also testified he took sleep medication approximately one year after the accident, but could not recall what the medication was, who prescribed the medication, or how long own long it was taken. Rhett McJunkin also stated he has also experienced “angst” and “anxiety,” and Charles McJunkin, Jr. indicated his focus has been affected.
Nevertheless, there is no indication of any physical manifestation of grief, and neither has sought counseling, taken or increased medication to manage their emotional distress, have suffered a loss of appetite, are unable to maintain close family relationships, and neither witnessed the accident. The Court finds that consideration of the Feller factors does not lead to the conclusion that Plaintiffs’ emotional distress rises to the level where severe emotional distress may be found.
The Court certainly sympathizes with Plaintiffs’ grief for their loss [*29] of their father. Nevertheless, their testimony does not show their emotional distress was so severe that “no reasonable person could be expected to endure it.” Feller, 299 P.3d at 344.
Accordingly, Yeager’s Motion for Summary Judgment is GRANTED on Count II of the Complaint.
C. Yeager’s Motion for Summary Judgment on Plaintiffs’ Loss of Consortium Claim
Yeager argues Plaintiffs’ loss of consortium claim also fails as a matter of law because there is insufficient evidence to support the claim.6 The Court finds there are disputed issues of material fact that preclude summary judgment.
6 Yeager again asserts Plaintiffs’ loss of consortium claim fails because there is no actionable predicate act of negligence. As discussed, this argument is again rejected because there are disputed issues of material fact regarding Plaintiffs’ negligence claim.
[HN15] Montana law recognizes loss of consortium claims by an adult child of an injured parent. N. Pac. Ins. Co. v. Stucky, 2014 MT 299, 377 Mont. 25, 338 P.3d 56, 61 (Mont. 2014). In Stucky, the Montana Supreme Court held an adult child must meet the following two-part test7 to establish a claim for loss of parental consortium: “1) a third party tortuously caused the parent to suffer a serious, permanent and disabling mental or physical injury compensable under Montana law; and 2) the parent’s ultimate condition of mental or physical impairment was so overwhelming and severe that it has caused the parent-child relationship to be destroyed or nearly destroyed.” Id. at 66.
7 The Court adopted the two-part test from Keele v. St. Vincent Hosp. & Health Care Ctr., 258 Mont. 158, 852 P.2d 574 (Mont. 1993), which recognized parental loss of consortium claims by minor children. The Montana Supreme Court stated it found no reason to adopt a different standard for an adult child’s claim of loss of parental consortium. Stucky, 338 P.3d at 65. The Court specifically rejected adopting the more stringent “extraordinarily close and interdependent relationship” test from Hern v. Safeco Ins. Co. of Ill., 2005 MT 301, 329 Mont. 347, 125 P.3d 597 (Mont. 2005), which applies to loss of consortium claims brought by the parent of an adult child.
[HN16] In establishing a loss of parental consortium claim, the plaintiff [*30] may present evidence of the following factors, which the jury may consider in determining both whether the two-part test has been satisfied, and what damages are appropriate: “the severity of injury to the parent; the actual effect the parent’s injury has had on the relationship and is likely to have in the future; the child’s age; the nature of the child’s relationship with the parent; and the child’s emotional, physical and geographic characteristics.” Id.
Stucky involved an injury to a parent, rather than the death of a parent. Nevertheless, an adult child’s loss of a parent would readily meet the requirements established in Stucky for the maintenance of a consortium claim. The fact McJunkin died is sufficient to establish the first prong of the test, which requires serious permanent injury. Second, death is obviously an injury so “overwhelming and severe” as to destroy the parent-child relationship. Thus, the second prong of the test is clearly established.
Yeager points out that Plaintiffs are in their late 50’s/early 60’s, they lived hundreds of miles away from their father, received no financial support from him, and saw him only occasionally. Plaintiffs counter that they had [*31] a tight bond with their father, and that Charles McJunkin, Jr. talked to his father on a regular basis. This is evidence for the jury to assess. Stucky, 338 P.3d at 65.
Accordingly, the Court finds there are disputed issues of material fact that preclude summary judgment on Plaintiffs’ loss of consortium claim. Yeager’s Motion for Summary Judgment as to Count III of the Complaint is therefore, DENIED.
III. MOTION TO AMEND COMPLAINT
Plaintiffs have also filed a Motion to Amend the Complaint. (Doc. 23.) Plaintiffs seek to add a new theory of liability to the existing negligence claim. In particular, Plaintiffs seek to add the theory of strict liability based upon an abnormally dangerous activity. Yeager opposes the motion, arguing Plaintiffs were not diligent in moving to amend, and the proposed amendment is futile.
On June 1, 2017, the Court issued a Scheduling order setting the deadline to amend pleadings for July 3, 2017. (Doc. 20.) Plaintiffs filed the instant motion seeking leave to amend on November 29, 2017. (Doc. 23.)
[HN17] In situations where the deadline for amendments to pleadings has passed, a party must show good cause for not seeking leave to amend within the Court’s scheduling order. Fed.R.Civ.P. 16(b)(4) (“[a] schedule may [*32] only be modified for good cause and with the judge’s consent”); Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000).
In Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992), the Ninth Circuit explained that “[u]nlike Rule 15(a)’s liberal [HN18] amendment policy which focuses on the bad faith of the party seeking to interpose an amendment and the prejudice to the opposing party, Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the party seeking the amendment.” Good cause to excuse noncompliance with the scheduling order exists if the pretrial schedule “cannot reasonably be met despite the diligence of the party seeking the extension.” Id. (quoting Fed. R. Civ. P. 16 Advisory Committee’s Notes (1983 Amendment)).
Prejudice to the opposing party may provide an additional reason to deny a motion to amend, but “the focus of the inquiry is upon the moving party’s reasons for seeking modification.” Id. at 609. “If that party was not diligent, the inquiry should end.” Id.; see also In re Western States Wholesale Natural Gas Antitrust Litigation, 715 F.3d 716, 737 (9th Cir. 2013) (upholding denial of motion to amend where “the party seeking to modify the scheduling order has been aware of the facts and theories supporting amendment since the inception of the action”).
[HN19] If good cause exists for seeking amendment after the scheduling order’s deadline, the Court then turns to Rule 15(a) to determine whether amendment should be allowed. [*33] “Although Federal Rule of Civil Procedure 15(a) provides that leave to amend ‘shall be freely given when justice so requires,’ it ‘is not to be granted automatically.'” In re Western States, 715 F.3d at 738 (quoting Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir.1990)). Under Rule 15(a), the Ninth Circuit directs that courts consider the following five factors to assess whether to grant leave to amend: “(1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) futility of amendment; and (5) whether plaintiff has previously amended his complaint.” Id. Each of these factors is not given equal weight, however. “Futility of amendment can, by itself, justify the denial of a motion for leave to amend.” Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995).
A. Lack of Diligence
As noted above, Plaintiffs seek to amend the Complaint to include an additional theory of strict liability. The Court finds that Plaintiffs did not act diligently in seeking to amend the Complaint. The motion to amend was filed nearly five months after the Court’s deadline to amend pleadings. Plaintiffs’ explanation for the delay is that the additional theory of liability is premised upon Yeager’s expert report, which they did not receive until November 13, 2017.
The Court finds, however, that Plaintiffs were aware of the facts and theories supporting the amendment long prior to receipt of [*34] Yeager’s expert report. The expert report did not provide any new facts, but rather offered opinion evidence that fly fishing from a raft is inherently dangerous, and that the danger cannot be eliminated by reasonable precautions. But Plaintiffs have been aware that Yeager intended to raise an inherent risk defense since Yeager filed his answer on March 6, 2017, and raised the MRRA as an affirmative defense. (Doc. 4 at 7.) Yeager also filed a Preliminary Pretrial Statement approximately six months before the expert report was produced that put Plaintiffs on further notice of this theory of defense. (See Doc. 18 at 6) (stating that “[f]alling out of a raft on a river is a danger that cannot be prevented by the use of reasonable care.”) Therefore, Plaintiffs’ argument that they did not possess information supporting the abnormally dangerous activity theory of liability until after they received the expert report is not persuasive. See Bonin, 59 F.3d at 845 (holding a motion to amend may be denied “where the movant presents no new facts but only new theories and provides no satisfactory explanation for his failure to fully develop his contentions originally”).
B. Futility of Amendment
Even if the Court found “good cause,” under [*35] Rule 16, application of the Rule 15 factors dictate denial of the motion to amend. Although there is no indication Plaintiffs are acting in bad faith, or that amendment would unduly prejudice Yeager, the Court has found undue delay. Moreover, the Court finds the amendment would be futile.
In seeking to impose strict liability, Plaintiffs conflate the concept of inherent risk with an abnormally dangerous activity. The activity at issue here — fly fishing from a raft — is not the kind of activity that has been recognized as abnormally dangerous. [HN20] Simply because an activity has inherent risks, does not mean the activity is abnormally dangerous for purposes of strict liability. A comparison of activities that are considered abnormally dangerous illustrates the point. See e.g. Beckman v. Butte-Silver Bow Cty., 2000 MT 112, 299 Mont. 389, 1 P.3d 348 (Mont. 2000) (trenching); Sunburst Sch. Dist. No. 2 v. Texaco, Inc., 2007 MT 183, 338 Mont. 259, 165 P.3d 1079 (Mont. 2007) (operating a gas refinery near residences and a school); Ulmen v. Schwieger, 92 Mont. 331, 12 P.2d 856 (Mont. 1932) (highway construction); and Stepanek v. Kober Const., 191 Mont. 430, 625 P.2d 51 (Mont. 1981) (construction scaffolding). The Court does not find the characteristics and risks of fly fishing equate in any meaningful way with these types of activities.8
8 Likewise, the Restatement (Second) of Torts § 519, which has been adopted by the Montana Supreme Court, identifies the following as abnormally dangerous activities: “Water collected in quantity in unsuitable or dangerous place,” “Explosives in quantity in a dangerous place,” “Inflammable liquids in quantity in the midst of a city,” “Blasting, in the midst of a city,” “Pile driving, with abnormal risk to surroundings,” “Release into air of poisonous gas or dust,” “Drilling oil wells or operating refineries in thickly settled communities,” and “production of atomic energy.” Again, these activities are of a wholly different nature than float fly fishing.
“Whether an activity is abnormally dangerous is a question of law.” Chambers v. City of Helena, 2002 MT 142, 310 Mont. 241, 49 P.3d 587, 591 (Mont. 2002), overruled on other grounds, Giambra v. Kelsey, 2007 MT 158, 338 Mont. 19, 162 P.3d 134 (Mont. 2007). No court has held float fly fishing is an abnormally dangerous activity, and [*36] this Court declines Plaintiffs’ invitation to be the first to do so.
In addition, the Court has determined the MRRA is constitutional and applies to Plaintiff’s negligence claim. The MRRA limits a recreational provider’s liability. Mont. Code Ann. § 27-1-752(3); 27-1-753. The Montana Legislature enacted the MRRA to protect recreational providers from liability for injuries that are caused by the very characteristics of a particular activity that make it attractive to participants. 2009 Mt. Laws Ch. 331 (H.B. 150), preamble. The Legislature specifically intended to limit providers’ liability and to discourage claims based on damages that result from inherent risks in a sport or activity. Id. The Legislature enacted the MRRA to further the State’s interest in maintaining the economic viability of Montana’s sports and recreational industries. Id.
Imposing strict liability would eviscerate the purpose of the MRRA. Instead of limiting recreational provider’s liability for inherent risks, it would render them strictly liable for those risks. See Christian v. Atl. Richfield Co., 2015 MT 255, 380 Mont. 495, 358 P.3d 131, 150 (Mont. 2015) (“A claim based upon strict liability for the conduct of an abnormally dangerous activity . . . means that the defendant is liable for harm resulting from the activity, even [*37] if the defendant acted with reasonable care.”). In short, it would accomplish the exact opposite of what the MRRA was intended to do.
Therefore, because Plaintiffs have not shown good cause for their delay in seeking amendment, and because the amendment would be futile, Plaintiffs’ Motion to Amend the Complaint is DENIED.
IV. CONCLUSION
For the foregoing reasons, the Court ORDERS as follows: (1) Plaintiffs’ Motion to Amend (Doc. 23) is DENIED;
(2) Plaintiffs’ Motion for Partial Summary Judgment (Doc. 28) is DENIED; and
(3) Defendant’s Motion for Summary Judgment (Doc. 31) is GRANTED in part and DENIED in part.
IT IS ORDERED.
DATED this 28th day of September, 2018.
/s/ Timothy J. Cavan
TIMOTHY J. CAVAN
United States Magistrate Judge
Tennessee Supreme Court makes writing releases a little trickier.
Posted: January 7, 2019 Filed under: Release (pre-injury contract not to sue), Tennessee | Tags: Ambiguous, appointment, Bargaining Power, cases, circumstances, Contracts, courts, disparity, driver, enforceable, exculpatory, Exculpatory clause, exculpatory provision, factors, invalid, member of the public, overly broad, parties, patient, professional services, Public Interest, Public Policy, Regulation, Release, Services, Transportation, Trial court, unambiguous language, unenforceable, van, wheelchair Leave a commentThe facts support throwing out the release, but the way the court did makes it tough to write a release.
Copeland v. HealthSouth/Methodist Rehab. Hosp., 2018 Tenn. LEXIS 745
State: Tennessee
Plaintiff: Frederick Copeland
Defendant: MedicOne Medical Response Delta Region, Inc.
Plaintiff Claims: Negligence
Defendant Defenses: Release
Holding: For the plaintiff
Year: 2018
Summary
To get to a physical therapy appointment arranged by a hospital the patient was forced to sign a release. While exiting the car service the plaintiff was injured. The Tennessee Supreme Court worked hard but said if you treat people this badly, we will throw out your release and did.
Facts
Mr. Copeland was a seventy-seven-year-old hospital patient recovering from knee replacement surgery who needed to go to a follow-up appointment at his doctor’s office. Mr. Copeland did not select, hire, or pay MedicOne. Instead, the hospital where Mr. Copeland was a patient arranged for his transportation with MedicOne. The MedicOne driver presented Mr. Copeland with a pre-printed, two-sided document containing two different forms — the Run Report and the Agreement — which Mr. Copeland had limited time to review and sign before being transported to his doctor’s appointment. The Agreement consisted of nine single-spaced paragraphs, including three paragraphs of exculpatory language. The MedicOne driver spent only nineteen minutes at the hospital, which began with his arrival, and included going to Mr. Copeland’s room, pushing Mr. Copeland in a wheelchair to the hospital entrance, getting him into the van, loading his walker into the back of the van, and having Mr. Copeland review and sign the two forms.
The MedicOne driver presented the Agreement to Mr. Copeland on a take-it-or-leave-it basis with the expectation that he would sign it. The driver did not understand the implications of the Agreement, could not have explained it if asked, had no authority to alter it, and would not have transported Mr. Copeland to his appointment if he had not signed the document.
The Agreement consisted of nine single-spaced paragraphs, including three paragraphs of exculpatory language. The exculpatory language provided that Mr. Copeland was releasing MedicOne from any and all claims arising from or in any way associated with any transportation services provided by MedicOne.
Analysis: making sense of the law based on these facts.
The facts explain the plaintiff was put in a position where he had no choice, but to suffer further injury by missing his appointment or signing the document.
The court said releases are fine in Tennessee, but not this one.
We find the exculpatory language in the Agreement to be overly broad and ambiguous. Although the Agreement also contains a severability clause, the three paragraphs containing broad, all-encompassing exculpatory language combined with the severability paragraph do not make it clear and unmistakable what Mr. Copeland was giving up by signing the Agreement, especially during the limited time he was given to read and comprehend the document.
That practical necessity distinguishes this case from those involving purely voluntary or recreational activities, which generally do not affect the public interest or raise public policy concerns.
Based on the circumstances of the parties, including contemporary societal expectations, we conclude that enforcement of the Agreement against a member of the public in Mr. Copeland’s position would be contrary to the public interest.
The court went through the five steps necessary to write a valid release in Tennessee.
First, a party may not, for public policy reasons, exempt itself from liability for gross negligence, reckless conduct, or intentional wrongdoing.
Second, exculpatory provisions in contracts involving common carriers are unenforceable on the grounds of public policy and disparity of bargaining power.
Third, although exculpatory agreements are generally enforceable, in many states they are disfavored.
Fourth, most courts require that the exculpatory language be unequivocal and clear. An exculpatory clause must “clearly, unequivocally, specifically, and unmistakably” state the intention to exempt one of the parties from liability for its own negligence.
Fifth, most jurisdictions do not enforce exculpatory provisions that are contrary to public policy.
Releases in Tennessee are still valid in Tennessee.
After reviewing precedent in this state and across the country, we conclude that the public policy in Tennessee has historically favored freedom of contract. Thus, contracts exempting one party from liability for negligence are not disfavored and are generally enforceable.
However, the court tightened up the requirements for a release to be valid. The court then created 3 factors that any release must meet to be valid in Tennessee.
…we hold that the enforceability of an exculpatory agreement should be determined by considering the totality of the circumstances and weighing these non-exclusive factors: (1) relative bargaining power of the parties; (2) clarity. of the exculpatory language, which should be clear, unambiguous, and unmistakable about what the party who signs the agreement is giving up; and (3) public policy and public interest implications.
The court also decided the bargaining power of the parties should also be taken into consideration.
Relative bargaining power. Although there is no precise rule by which to define sufficient disparity in bargaining power between the parties to invalidate an exculpatory agreement, two key criteria are the importance of the service at issue for the physical or economic well-being of the party signing the agreement and the amount of free choice that party has in seeking alternate services.
The court did carve out a specific exception, to some extent for recreational activities.
That practical necessity distinguishes this case from those involving purely voluntary or recreational activities, which generally do not affect the public interest or raise public policy concerns.
So Now What?
If your activities are in Tennessee or your business is in Tennessee you need to check to make sure your release meets these new requirements.
What do you think? Leave a comment.
 Jim Moss |
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
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,
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.
If you are interested in having me write your release, download the form and return it to me.
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#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,
Texas appellate court upholds release for claims of gross negligence in trampoline accident that left plaintiff a paraplegic.
Posted: October 8, 2018 Filed under: Assumption of the Risk, Indoor Recreation Center, Release (pre-injury contract not to sue), Texas | Tags: #AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #BicyclingLaw, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #OutsideLawyer, #Rec-Law, #RecLaw, #RecLawBlog, #RecLawyer, #Recreation-Lawcom, #RecreationalLawyer, #RecreationLawBlog, #RecreationLawcom, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #SkiLaw, #SummerCamp, #Tourism, #YouthCamps, #ZipLineLawyer, Backpacking, by-stander, Camps, Cause of action, consortium, conspicuousness, cross-motion, derivative, distinguishable, enforceable, entity, Gross negligence, Hiking, Issue of Material Fact, JimMoss, Jumpstreet, Law, lettering, matter of law, mental anguish, Mountaineering, Negligence, negligence claims, Notice, notice requirements, OutdoorLaw, OutdoorRecreationLaw, OutsideLaw, parental, partial, pre-injury, Public Policy, Rec-LawBlog, Recreation-Law.com, RecreationLaw, signature line, signing, skiing, snowboarding, specifically named, Summary judgment, Texas, Trampoline, Trampoline Park, TravelLaw, unenforceable, Void, waive, waiving Leave a commentHowever, the decision is not reasoned and supported in Texas by other decisions or the Texas Supreme Court.
Quiroz et. al. v. Jumpstreet8, Inc., et. al., 2018 Tex. App. LEXIS 5107
State: Texas, Court of Appeals of Texas, Fifth District, Dallas
Plaintiff: Graciela Quiroz, Individually, a/n/f of Xxxx (“John Doe 1”) and Xxxx (“John Doe 2”), Minors, and Robert Sullivan, Individually, a/n/f of Xxxx (“John Doe 3”)
Defendant: Jumpstreet8, Inc., Jumpstreet, Inc. and Jumpstreet Construction, Inc.
Plaintiff Claims: negligence and gross negligence and as next friend of two minor children for their loss of parental consortium and their bystander claims for mental anguish.
Defendant Defenses: Release
Holding: for the Defendant
Year: 2018
Summary
Adult paralyzed in a trampoline facility sues for her injuries. The release she signed before entering stopped all of her claims, including her claim for gross negligence.
However, the reasoning behind the support for the release to stop the gross negligence claim was not in the decision, so this is a tenuous decision at best.
Facts
The plaintiff and her sixteen-year-old son went to the defendant’s business. Before entering she signed a release. While on a trampoline, the plaintiff attempted to do a back flip, landed on her head and was rendered a paraplegic from the waist down.
The plaintiff sued on her behalf and on behalf of her minor. Her claim was a simple tort claim for negligence. Her children’s claims were based on the loss of parental consortium and under Texas law bystander claims for seeing the accident or seeing their mother suffer. The plaintiff’s husband also joined in the lawsuit later for his loss of consortium claims.
The defendant filed a motion for summary judgment which the trial court granted and the plaintiff appealed.
Analysis: making sense of the law based on these facts.
The original entity named on the release was a corporation that was no longer in existence. Several successor entities now owned and controlled the defendant. The plaintiff argued the release did not protect them because the release only spoke to the one defendant.
The court did not agree, finding language in the release that stated the release applied to all “jumpstreet entities that engaged in the trampoline business.”
…it also stated the Release equally applied to “its parent, subsidiaries, affiliates, other related entities, successors, owners, members, directors, officers, shareholders, agents, employees, servants, assigns, investors, legal representatives and all individuals and entities involved in the operation of Jumpstreet.”
The next argument was whether the release met the requirements on Texas law for a release. The court pointed out bold and capital letters were used to point out important parts of the release. An assumption of the risk section was separate and distance from the release of liability section, and the release warned people to read the document carefully before signing.
Texas also has an express negligence rule, the requirements of which were also met by the way the release was written.
Further, on page one in the assumption of risk paragraphs, the person signing the Release acknowledges the “potentially hazardous activity,” and the Release lists possible injuries including “but not limited to” sprains, heart attack, and even death. Although paralysis is not specifically named as an injury, it is certainly less than death and thus would be included within the “but not limited to” language. Also, the release of liability paragraph above Quiroz’s signature expressly lists the types of claims and causes of action she is waiving, including “negligence claims, gross negligence claims, personal injury claims, and mental anguish claims.
Next the plaintiff argued that the release covered her and her sixteen-year-old minor son. As such the release should be void because it attempted to cover a minor and releases in Texas do not work for minors.
The court ignored this argument stating it was not the minor who was hurt and suing; it was the plaintiff who was an adult. The court then also added that the other plaintiffs were also covered under the release because all of their claims, loss of parental consortium and loss of consortium are derivative claims. Meaning they only succeed if the plaintiff s claim succeeds.
The final argument was the plaintiff plead negligence and gross negligence in her complaint. A release in Texas, like most other states, was argued by the plaintiff to not be valid.
The appellate court did not see that argument as clearly. First, the Texas Supreme Court had not reviewed that issue. Other appellate courts have held that there is no difference in Texas between a claim for negligence and a claim for gross negligence.
The Texas Supreme Court has not ruled on whether a pre-injury release as to gross negligence is against public policy when there is no assertion that intentional, deliberate, or reckless acts cause injury. Some appellate courts have held that negligence, and gross negligence are not separable claims and a release of liability for negligence also releases a party from liability for gross negligence.
(For other arguments like this see In Nebraska a release can defeat claims for gross negligence for health club injury.)
The court looked at the release which identified negligence and gross negligence as claims that the release would stop.
Quiroz’s Release specifically stated that both negligence and gross negligence claims were waived. The assumption of risk paragraph that lists the specific types of claims/causes of actions that were included in the Release was encased in a box, had all capital lettering, and appeared above the signature line. As noted above, Quiroz received fair notice regarding the claims being waived.
Although not specifically writing in the opinion why the release stopped the gross negligence claims, the court upheld the release for all the plaintiff claims.
…Quiroz’s Release specifically stated that both negligence and gross negligence claims were waived. The assumption of risk paragraph that lists the specific types of claims/causes of actions that were included in the Release was encased in a box, had all capital lettering, and appeared above the signature line. As noted above, Quiroz received fair notice regarding the claims being waived.
The court affirmed the trial court’s dismissal of the plaintiff’s claims.
So Now What?
First this case is a great example of believing that once you have a release you don’t have to do anything else. If the defendant’s release would have been checked every year, someone should have noticed that the named entity to be protected no longer existed.
In this case that fact did not become a major issue, however, in other states the language might not have been broad enough to protect everyone.
Second, this case is also proof that being specific with possible risks of the activities and have an assumption of risk section pays off.
Finally, would I go out and pronounce that Texas allows a release to stop claims for gross negligence. No. Finger’s crossed until the Texas Supreme Court rules on the issue or another appellate court in Texas provides reasoning for its argument, this is thin support for that statement.
What do you think? Leave a comment.
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Quiroz v. Jumpstreet8, Inc., 2018 Tex. App. LEXIS 5107
Posted: October 7, 2018 Filed under: Assumption of the Risk, Indoor Recreation Center, Legal Case, Release (pre-injury contract not to sue), Texas | Tags: bystander, Cause of action, consortium, conspicuousness, cross-motion, derivative, distinguishable, enforceable, entity, Gross negligence, Issue of Material Fact, Jumpstreet, lettering, matter of law, mental anguish, Negligence, negligence claims, Notice, notice requirements, parental, partial, pre-injury, Public Policy, signature line, signing, specifically named, Summary judgment, Texas, Trampoline, unenforceable, Void, waive, waiving Leave a commentGraciela Quiroz, Individually, a/n/f of Xxxx (“John Doe 1”) and Xxxx (“John Doe 2”), Minors, and Robert Sullivan, Individually, a/n/f of Xxxx (“John Doe 3”), Appellants v. Jumpstreet8, Inc., Jumpstreet, Inc. and Jumpstreet Construction, Inc., Appellees
No. 05-17-00948-CV
COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS
2018 Tex. App. LEXIS 5107
July 9, 2018, Opinion Filed
PRIOR HISTORY: [*1] On Appeal from the 298th Judicial District Court, Dallas County, Texas. Trial Court Cause No. 15-02671.
In re Quiroz, 2017 Tex. App. LEXIS 7423 (Tex. App. Dallas, Aug. 7, 2017)
CASE SUMMARY:
OVERVIEW: HOLDINGS: [1]-The trampoline facility owner met its burden of establishing it was entitled to summary judgment as a matter of law because the release was enforceable when it met both the fair notice requirement for conspicuousness and the express negligence rule.
OUTCOME: Order affirmed.
CORE TERMS: summary judgment, entity, gross negligence, public policy, negligence claims, partial, matter of law, cause of action, pre-injury, consortium, waive, cross-motion, notice requirements, trampoline, bystander, specifically named, unenforceable, signing, mental anguish, signature line, conspicuousness, distinguishable, enforceable, derivative, lettering, parental, waiving, notice, void, issue of material fact
COUNSEL: For Graciela Quiroz, et al, Appellant: John T. Kirtley, Lead counsel, Ferrer, Poirot and Wansbrough, Dallas, TX.
For Jumpstreet8, Inc., Jumpstreet, Inc. and Jumpstreet Construction, Inc., Appellee: Cassie Dallas, Shelby G. Hall, Wade C. Crosnoe, Lead Counsel, Thompson, Coe, Cousins & Irons, L.L.P., Dallas, TX; Michael A. Yanof, Lenahan Law, P.L.L.C., Dallas, TX; Randy Alan Nelson, Thompson Coe, Dallas, TX.
JUDGES: Before Justices Myers, Boatright, and O’Neill.1 Opinion by Justice O’Neill.
1 The Hon. Michael J. O’Neill, Justice, Assigned
OPINION BY: MICHAEL J. O’NEILL
OPINION
MEMORANDUM OPINION
Opinion by Justice O’Neill
Appellant Graciela Quiroz brought a negligence suit against appellees Jumpstreet8, Inc., Jumpstreet, Inc., and Jumpstreet Construction, Inc. (collectively Jumpstreet) for injuries she sustained while jumping on a trampoline at a Jumpstreet facility. Jumpstreet moved for summary judgment based upon a pre-injury release signed by Quiroz. Quiroz responded and filed a cross-motion for partial summary judgment. The trial court granted Jumpstreet’s motion for summary judgment, denied Quiroz’s cross-motion for partial summary judgment, and dismissed all of Quiroz’s claims. In one issue, Quiroz contends the trial court erred in granting Jumpstreet’s motion for summary judgment and denying her motion for partial summary judgment. We affirm the trial court’s order.
Background
On November 29, 2014, Quiroz and her sixteen-year-old son went to Jumpstreet. Prior to using the facility, Quiroz was given a pre-injury release form that was titled “Jumpstreet, LLC Release [*2] and Parent/Guardian Waiver of Liability and Assumption of Risk.” The Release recited the following statements under the title: “PLEASE READ THIS DOCUMENT CAREFULLY. BY SIGNING IT, YOU ARE GIVING UP LEGAL RIGHTS.” After signing the Release, Quiroz and her son jumped on a trampoline. When Quiroz attempted to do a flip, she injured her neck. Quiroz is now paralyzed from the waist down. Quiroz brought suit, individually, against Jumpstreet for negligence and gross negligence and as next friend of two minor children for their loss of parental consortium and their bystander claims for mental anguish. Robert Sullivan (Quiroz’s spouse) joined the suit for loss of consortium and as next friend of a third minor child for loss of parental consortium and a bystander claim for mental anguish.
Jumpstreet filed a “Traditional Motion for Summary Judgment” alleging summary judgment was proper because Quiroz had signed a Release. In the motion, Jumpstreet stated that because Quiroz alleged negligence and gross negligence claims against Jumpstreet arising from her utilizing a Jumpstreet facility, the Release signed by Quiroz expressly released any negligence and gross negligence claims. Jumpstreet asserted [*3] the Release was valid and enforceable because it specifically named the party to be released, it met the fair notice requirements of conspicuousness and the express negligence rule, and it met the contractual elements of mutual intent and valid consideration.
Quiroz filed a response to Jumpstreet’s motion for summary judgment and a cross-motion for partial summary judgment that alleged summary judgment for Jumpstreet was improper because there was an issue of material fact regarding the Release. Quiroz alleged she was entitled to a partial summary judgment because the Release was “void, voidable and unenforceable” because the named entity did not exist at the time of her injury, the Release was ambiguous, a parent could not waive claims of minors, and the Release could not waive gross negligence claims because it would be against public policy to do so. The trial court granted Jumpstreet’s traditional motion for summary judgment and denied Quiroz’s cross-motion for partial summary judgment. Quiroz timely filed this appeal.
Issue Presented
In her sole issue on appeal, Quiroz contends the trial court erred by granting Jumpstreet’s motion for summary judgment and denying her cross-motion [*4] for partial summary judgment. Quiroz asserts that as a matter of law, no contract existed between her and Jumpstreet, LLC, the entity named in the Release. Quiroz argues there was no “meeting of the minds on the contract’s essential terms” between her and Jumpstreet, LLC because Jumpstreet, LLC had been dissolved in June 2011 and did not exist at the time of her injury in November 2014. Quiroz contends that because a nonexistent entity cannot form or enter into a contract, the Release is void and unenforceable as a matter of law.
Quiroz further contends the Release did not meet the “fair notice requirement” because none of the Jumpstreet defendants are named in the Release; only the nonexistent entity “Jumpstreet, LLC” is specifically named in the Release. Quiroz argues the Release also never specifically identified or released a claim for an injury due to paralysis. Further, Quiroz asserts that as a matter of law, a parent cannot waive a minor’s claims, and a Release cannot waive any claims for gross negligence because that is against public policy.
Jumpstreet responds that the trial court properly granted summary judgment in their favor because Quiroz signed a valid, enforceable Release [*5] before using its facility. The Release satisfied both the fair notice requirement and the express negligence rule as to both negligence and gross negligence claims. Jumpstreet also argues the Release meets the general requirements of a valid contract because it shows a “meeting of the minds” and valid consideration. Jumpstreet further responds that because the consortium and bystander claims are derivative claims, they are barred as a matter of law.
Applicable Law
[HN1] We review a trial court’s summary judgment order de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). A party moving for summary judgment has the burden of showing that no genuine issue of material fact existed and that it was entitled to judgment as a matter of law. City of Dallas v. Dallas Morning News, LP, 281 S.W.3d 708, 712 (Tex. App.–Dallas 2009, no pet.); see also Tex. R. Civ. P. 166a(c). When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When both sides move for summary judgment, however, each party bears the burden of establishing it is entitled to judgment as a matter of law. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex. 2000). When the trial court grants one motion and denies the other, we review the summary judgment evidence presented by both parties and determine all the questions presented. [*6] S. Crushed Concrete, LLC v. City of Houston, 398 S.W.3d 676, 678 (Tex. 2013).
The Release signed by Quiroz was a prospective release of future claims, including claims based on Jumpstreet’s own negligence. [HN2] A release is an absolute bar to the released matter and extinguishes a claim or cause of action. Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 509 (Tex. 1993). Jumpstreet had to show that the Release’s language met the fair notice requirement of conspicuousness and the express negligence rule. See id. “Conspicuous” means the terms must be presented in a manner that a reasonable person against whom it is to operate ought to have notice. Quintana v. CrossFit Dallas, L.L.C., 347 S.W.3d 445, 450 (Tex. App.–Dallas 2011, no pet,).
The express negligence rule is not an affirmative defense, but it is a rule of contract interpretation. See Fisk Elec. Co. v. Constructors & Assocs., Inc., 888 S.W.2d 813, 814 (Tex. 1994). This rule states that if a party intends to be released from its own future negligence, it must express that intent in clear, unambiguous terms within the four corners of the contract. Atl. Richfield Co. v. Petroleum Pers., Inc., 768 S.W.2d 724, 726 (Tex. 1989); Quintana, 347 S.W.3d at 450.
Discussion
[HN3] Parties have the right to contract as they see fit as long as their agreement does not violate the law or public policy. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 129 & n.11 (Tex. 2004). Texas law recognizes and protects a broad freedom of contract. Fairfield Ins. Co. v. Stephens Martin Paving, LP, 246 S.W.3d 653, 671 (Tex. 2008). Under Texas law, a release is a contract and is subject to avoidance just like any other contract. Williams v. Glash, 789 S.W.2d 261, 264 (Tex. 1990). When construing a contract, the court’s primary concern is to give effect to the written [*7] expression of the parties’ intent. Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex. 1994). Public policy dictates that courts are not to interfere lightly with this freedom of contract. See, e.g., Gym-N-I Playgrounds, Inc. v. Snider, 220 S.W.3d 905, 912 (Tex. 2007) (commercial lease expressly waiving warranties); In re Prudential, 148 S.W.3d at 129 & n.11 (contractual jury waiver); BMG Direct Mktg., Inc. v. Peake, 178 S.W.3d 763, 767 (Tex. 2005) (liquidated damages clause); Missouri, K. & T. R. Co. v. Carter, 95 Tex. 461, 68 S.W. 159, 164 (Tex. 1902) (contract waiving responsibility for fires caused by railroad engines).
[HN4] A tortfeasor can claim the protection of a release only if the release refers to him by name or with such descriptive particularity that his identity or his connection with the tortious event is not in doubt. Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 420 (Tex. 1984); see also Frazer v. Tex. Farm Bureau Mut. Ins. Co., 4 S.W.3d 819, 823-24 (Tex. App.–Houston [1st Dist.] 1999, no pet.) (with use of “and its affiliated companies,” release sufficiently identified Texas Farm Bureau Underwriters such that its identity is not in doubt.). Here, the Release clearly and unambiguously stated it applied to all Jumpstreet entities that are engaged in the trampoline business. Although the Release specifically named “Jumpstreet, LLC,” it also stated the Release equally applied to “its parent, subsidiaries, affiliates, other related entities, successors, owners, members, directors, officers, shareholders, agents, employees, servants, assigns, investors, legal representatives and all individuals and entities involved in the operation of [*8] Jumpstreet.”
The record shows the entity named “Jumpstreet, LLC” was dissolved in June, 2011. The record also contains a deposition transcript from Martin L. Brooks who testified he and Tim Crawford were cousins and the sole owners of all the Jumpstreet entities, all the Jumpstreet entities were engaged in the trampoline business, and the entity named “Jumpstreet, Inc.” was the parent company. The record shows that in her original petition, Quiroz named seventeen different Jumpstreet entities, including “Jumpstreet, Inc.,” the parent company. In her “fourth amended petition” that was in effect at the time of the summary judgment hearing, however, she named only three of the Jumpstreet entities, including the parent company. The Jumpstreet appellees in this case are all engaged in the trampoline business and described with such particularity that their identity was never in doubt. Duncan, 665 S.W.2d at 420; Frazer, 4 S.W.3d at 823-24.
Although the Release in this case contains two pages, it conspicuously contains several paragraphs with bolded headings and capitalized font. On page one, an “assumption of risk” section is separate from a “release of liability” section. The Release warns prospective patrons to “please read this document [*9] carefully” and “by signing it, you are giving up legal rights.” This warning appears directly under the title of the Release and is written in all capital letters. On page two, the Release has an “assumption of the risk” paragraph in all capital letters and surrounded by a box, calling specific attention to it. On both pages, there are several references to the risks and dangers of participating in Jumpstreet services throughout the Release. The “waiver and release” language is repeated a final time, in capital lettering, immediately above the signature line where Quiroz printed her name, date of birth, age, address, and telephone number. See Quintana, 347 S.W.3d at 452 (concluding a two-page contract titled “Health Assessment Waiver and Goals Work Sheet” that included word “release” in larger and bold print near top of second page and initialed by party was “sufficiently conspicuous to provide fair notice”).
The Release also does not run afoul of the express negligence rule. As noted above, the waiver and release language is in capital lettering immediately above the signature line where Quiroz printed her name, date of birth, age, address, and telephone number. See Quintana, 347 S.W.3d at 452. Further, on page one in the assumption of [*10] risk paragraphs, the person signing the Release acknowledges the “potentially hazardous activity,” and the Release lists possible injuries including “but not limited to” sprains, heart attack, and even death. Although paralysis is not specifically named as an injury, it is certainly less than death and thus would be included within the “but not limited to” language. Also, the release of liability paragraph above Quiroz’s signature expressly lists the types of claims and causes of action she is waiving, including “negligence claims, gross negligence claims, personal injury claims, and mental anguish claims.” Id.
Quiroz next argues that a parent cannot waive a minor child’s claims. Quiroz asserts Munoz v. II Jaz Inc., 863 S.W.2d 207 (Tex. App.–Houston [14th Dist.] 1993), is the leading Texas case. In Munoz, the parents sued an amusement park for damages after their child was injured on a ride. The trial court granted the park’s motion for summary judgment based upon a pre-injury release signed by the parents. The appellate court reversed, holding that the Family Code did not give parents the power to waive a child’s cause of action for personal injuries. Munoz is distinguishable from Quiroz’s claims in that Quiroz sustained the injury and not her children. [*11] Moreover, [HN5] the cause of action for loss of parental consortium, like the cause of action for loss of spousal consortium, is a derivative cause of action. As such, the defenses that bar all or part of the injured parent’s recovery have the same effect on the child’s recovery. Reagan v. Vaughn, 804 S.W.2d 463, 468 (Tex. 1990), on reh’g in part (Mar. 6, 1991). And although bystander claims are considered independent and not derivative, it is also true that the bystander plaintiff cannot recover unless the injured person can recover. Estate of Barrera v. Rosamond Vill. Ltd. P’ship, 983 S.W.2d 795, 799-800 (Tex. App.–Houston [14th Dist.] 1998, no pet.).
Quiroz lastly argues a pre-injury release cannot apply to gross negligence claims because that is against public policy. Generally, a contract provision “exempting a party from tort liability for harm caused intentionally or recklessly is unenforceable on grounds of public policy. Restatement (Second) of Contracts § 195(1 (1981). Quiroz cites our case in Van Voris v. Team Chop Shop, 402 S.W.3d 915 (Tex. App.–Dallas 2013, no pet.), for this proposition. There is disagreement among the courts of appeals as to whether a party may validly release claims for gross negligence. The Texas Supreme Court has not ruled on whether a pre-injury release as to gross negligence is against public policy when there is no assertion that intentional, deliberate, or reckless acts cause injury.2 Some appellate courts have held that negligence [*12] and gross negligence are not separable claims and that therefore a release of liability for negligence also releases a party from liability for gross negligence. See Tesoro Petroleum Corp. v. Nabors Drilling U.S., 106 S.W.3d 118, 127 (Tex. App.–Houston [1st Dist.] 2002, pet. denied); Newman v. Tropical Visions, Inc., 891 S.W.2d 713, 722 (Tex. App.–San Antonio 1994, writ denied).
2 We note that Quiroz cited Zachry Construction Corp. v. Port of Houston Authority Of Harris County., 449 S.W.3d 98 (Tex. 2014), in her “First Supplemental Brief,” for the proposition that “a pre-injury release of future liability for gross negligence is void as against public policy.” In Zachry, the Texas Supreme Court had to decide, in a breach of contract case, whether a no-damages-for-delay provision shielded the owner from liability for deliberately and wrongfully interfering with the contractor’s work. In Zachry, the Texas Supreme Court held the no-damages-for-delay provision at issue was unenforceable as against public policy. Zachry, however, is distinguishable because that case concerned how a no-delay-for-damages provision could be enforced if the Port’s intentional misconduct caused the delay. Here, Quiroz has not asserted that Jumpstreet’s alleged negligence was intentional, deliberate, or reckless.
In contrast, we recently held that a plaintiff’s execution of a contract specifically releasing a defendant from liability for negligence did not release the defendant from liability for gross negligence. Van Voris, 402 S.W.3d at 926. We reasoned that the public policy requiring an express release from negligence also requires an express release from gross negligence. See id. We specifically pointed out that “our conclusion is limited to the context presented by this case.” See id. Other courts have held that pre-accident waivers of gross negligence are invalid as against public policy. See Sydlik v. REEIII, Inc., 195 S.W.3d 329, 336 (Tex. App.–Houston [14th Dist.] 2006, no pet.); Smith v. Golden Triangle Raceway, 708 S.W.2d 574, 576 (Tex. App.–Beaumont 1986, no writ).
Van Voris is distinguishable from the case here in that Quiroz’s Release specifically stated that both negligence and gross negligence claims were waived. The assumption of risk paragraph that lists the specific types of claims/causes of actions that were included in the Release was encased in a box, had all capital lettering, and appeared above the signature line. As noted above, Quiroz received fair notice regarding the [*13] claims being waived. See Quintana, 347 S.W.3d at 450.
Conclusion
The Release met both the fair notice requirement for conspicuousness and the express negligence rule. It was, thus, enforceable. See Quintana, 347 S.W.3d at 452. As a result, Jumpstreet met its burden of establishing it was entitled to summary judgment as a matter of law. See City of Garland, 22 S.W.3d at 356. We conclude the trial court properly granted Jumpstreet’s motion for summary judgment. See Travelers Ins. Co., 315 S.W.3d at 862.
We affirm the trial court’s order granting Jumpstreet’s motion for summary judgment and denying Quiroz’s cross-motion for partial summary judgment.
/s/ Michael J. O’Neill
MICHAEL J. O’NEILL
JUSTICE, ASSIGNED
In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellees Jumpstreet8, Inc., Jumpstreet, Inc. and Jumpstreet Construction, Inc. recover their costs of this appeal from appellants Graciela Quiroz and Robert Sullivan.
Judgment entered this 9th day of July, 2018.
Have you ever read your insurance policy? You should! The one at issue in this case specifically excluded the risks the policy was bought to cover.
Posted: October 1, 2018 Filed under: Insurance, Kentucky, Racing | Tags: activities, Additional Insured, Advertising, allegations, Ambiguity, appeals, Athletic, bodily injury, Capitol Specialty Insurance, concurrent, coverage, declaratory judgment, Definitions, Dictionary, endorsements, exclusions, Extreme Rampage, genuine, insurance application, Insurance policy, insured, matter of law, modified, Mud Run, Obstacle Course, Operations, participants, peril, policyholder, practicing, provides, proximate, sponsor, Summary judgment, Tough Mudder Leave a commentAn event organizer of a 5K Extreme Rampage purchased an insurance policy that specifically excluded coverage for a 5K run with obstacles, mud runs, and tough-guy races.
Johnson v. Capitol Specialty Ins. Corp., 2018 Ky. App. Unpub. LEXIS 447
State: Kentucky, Court of Appeals of Kentucky
Plaintiff: Chris Johnson D/B/A Extreme Rampage, and Chris Johnson, and Christopher Johnson, Rampage LLC, Christopher Johnson D/B/A Rampage, LLC, and/or Extreme Rampage, Casey Arnold, Individually and as Administratrix Of the Estate of Chad Arnold, and as Next Friend and Guardian/ Conservator for Miles Arnold, and as Assignee for All Claims Held By “The Johnson Parties
Defendant: Capitol Specialty Insurance Corporation
Plaintiff Claims: negligence; violation of the Kentucky Consumer Protection Act and the Unfair Claims Settlement Practices Act; fraud; and breach of contract
Defendant Defenses:
Holding:
Year: 2018
Summary
Insurance litigation about a claim for an event, service, trip, or liability is much costlier and time-consuming than any litigation concerning an injury.
In this case, the event owner and organizer of a mud run obstacle course in Kentucky purchased insurance for the event, which excluded all coverage needed for the event. Effectively, the plaintiff in this case paid for paper that had no value.
The trial courts and the appellate court agreed with the insurance company because the exclusions were in the policy that was available to the insured prior to the event.
Facts
The plaintiff in this appeal created and owned a mud run obstacle course the Extreme Rampage. Johnson the individual created Extreme Rampage LLC, which then organized and ran the event.
The event was a 3K obstacle race, similar if not identical to mud runs, death races, etc., The race was to be held at the Kentucky Horse Park. The horse park required a $1 million-dollar policy covering them.
Johnson contacted an insurance agent over the phone who completed an application and sent it off. A quote was received and accepted. The cost was $477.00, which should have been the first clue; it was too cheap. The only part of the application or proposal that Johnson saw was the “subjectivities page” which stated the policy was to be issued after a list of things were verified. The items to be verified list things as rallies, cattle drives, etc., but did not list obstacle courses, running events, or the like.
When the policy was issued it contained two exclusions. The first was labeled the sponsor exclusion by the court and stated:
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY
EXCLUSION — ATHLETIC OR SPORTS PARTICIPANTS
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART.
SCHEDULE
Description of Operations:
Special event — 5K run with obstacles.
. . .
With respect to any operations shown in the Schedule, this insurance does not apply to “bodily injury” to any person while practicing for or participating in any sports or athletic contest or exhibition that you sponsor.
And the second exclusion labeled by the court as the participant exclusion provided as follows:
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY EXCLUSION — PARTICIPANTS
(SPECIFIED ACTIVITIES/OPERATIONS)
SCHEDULE
Descriptions of Activity/Operations
Mud Runs and Tough Guy Races
This insurance does not apply to “bodily injury,” “property damage,” “personal or advertising injury” or medical expense arising out of any preparation for or participation in any of the activities or operations shown in the schedule above.
During the race, one of the participants collapsed and died. His wife sued. The insurance company denied coverage. That means the insurance company was not only not going to pay the claim, they were not going to pay for attorneys to defend the case.
The Insurance Company filed a declaratory action. This lawsuit was between Johnson, the policyholder, and the insurance company where the insurance company was looking for a ruling stating it had no duty to provide coverage. This is a request for an immediate decision from the court on the interpretation of the policy.
Johnson, the insured, and Arnold the family of the deceased participant both filed suit against the insurance company. The trial court combined the two lawsuits into one. Both filed motions for summary judgment and the insurance company filed its motion for summary judgment.
After reading the exclusions, the policy only covered spectators at the event. The spectators had to be 100′ from the event so any spectator injured that was closer than 100′ to the event could sue, and Johnson would have no coverage for that claim either. Basically, the policy was a worthless piece of paper for the event.
The trial court granted the insurance company’s motion for summary judgment, and this appeal ensued. Both Johnson and the Arnold family appealed.
Analysis: making sense of the law based on these facts.
Insurance policies have their own set of laws. Even though they are contracts, after the contract is formed, new ways of interpreting a policy are created.
One such rule is any ambiguity in the policy will be ruled or interpreted against the insurance company. Since policies are presented as a take it or leave it contract, any mistakes in the contract are ruled so the policyholder wins.
The first claim is a quasi-fraud claim based on the lack of information concerning the exclusions. The court looked at this more as a situation where the event organizer did not read the policy.
Johnson cannot avoid the terms of the insurance contract by pleading ignorance of its contents. It is axiomatic that “insured persons are charged with knowledge of their policy’s contents.
Because Johnson signed the policy (? Application not the policy, in reality) Johnson was held to the terms of the policy.
Although Johnson claims, based on his interaction with Delre, that the terms of the policy were not what he had anticipated, no genuine issue of material fact exists that Johnson signed the policy and, as a matter of law, was presumed to know its contents.
The next argument was the insurance agent the event organizer worked with was an agent of the insurance company Capitol. As such, the agents could be liable and the agents could create liability for Capitol. An agency is created when the principal, the insurance company, grants specific authority to the agent.
“Actual authority arises from a direct, intentional granting of specific authority from a principal to an agent.” The Restatement (Third) of Agency § 2.02(1) (2006) provides that “[a]n agent has actual authority to take action designated or implied in the principal’s manifestations to the agent and acts necessary or incidental to achieving the principal’s objectives, as the agent reasonably understands the principal’s manifestations and objectives when the agent determines how to act.”
However, there was no evidence in the record to show any agency between the insurance salesperson and the insurance company, even though the salesperson is called an agent.
The next argument was over the language in the policy. The event organizer argued the exclusion should not apply because the term “sponsor” was ambiguous.
Exclusions in insurance contracts are to be narrowly interpreted, and all questions resolved in favor of the insured. Exceptions and exclusions are to be strictly construed so as to render the insurance effective. Any doubt as to the coverage or terms of a policy should be resolved in favor of the insured. And since the policy is drafted in all details by the insurance company, it must be held strictly accountable for the language used.
After narrowly interpreting the policy, any ambiguity in the language of the policy must be interpreted in favor of the policyholder and against the insurance company.
…[t]he rule of strict construction against an insurance company certainly does not mean that every doubt must be resolved against it and does not interfere with the rule that the policy must receive a reasonable interpretation consistent with the parties’ object and intent or narrowly expressed in the plain meaning and/or language of the contract. Neither should a nonexistent ambiguity be utilized to resolve a policy against the company. We consider that courts should not rewrite an insurance contract to enlarge the risk to the insurer.
However, the court found the term in this case, was not ambiguous.
The event organizer then argued that the Concurrent Proximate Cause Doctrine should apply in this case. The concurrent proximate cause doctrine holds that when an insured event flows from an insured event, the protection afforded by the insurance policy flows with to the new event.
Where the loss is essentially caused by an insured peril with the contribution of an excluded peril merely as part of the chain of events leading to the loss, there is coverage under the policy. Stated alternately, coverage will exist where a covered and noncovered peril join to cause the loss provided that the covered peril is the efficient and dominant cause.
The court found that there was no insured event to begin with so nothing could “flow” to the uninsured event.
The appellate court upheld the motion in the declaratory action by the trial court stating the insurance company Capitol had no duty to defend the event organizer Johnson and thus any liability to the Arnold family.
So Now What?
This is simple. You MUST do the following things if you are the owners, sponsor, organizer, or insured with an insurance policy.
- Read it
- Understand it
- Make sure it covers what you need it to cover.
-
Find an agent who understands what you need and can communicate that to all the insurance companies he may be working with.
- If that means getting the insurance company out from behind their desk and down the river, to an event, or in your factory do that.
- If that means getting the insurance company out from behind their desk and down the river, to an event, or in your factory do that.
- Always confirm in writing or electronically that the coverage you requested and need is covered in the policy you are purchasing.
- Ask to see the policy and any exclusions, prerequisites, or other requirements before paying for it. Once you open your wallet, you won’t get your money back.
- If the price of the policy is too good to be true, start investigating. On average a policy should cost $5 to $10 per person per day for outdoor recreation coverage. That amount is the bottom line and can go beyond that. If you are purchasing a policy at 1980 prices of $2.00 per person per day, you are buying worthless paper.
You cannot be in business without an insurance policy. Contrary to popular belief, insurance policies do not attract lawsuits. How do people know if you are insured? If they do not know you are insured, how can someone decide to sue just because you have money.
If for no other reason, you need a policy that will pay to prove you are right. The attorney fees, court costs, exhibits, and witness fees alone on a small case will exceed $50K. That means with no policy or a bad policy, you are out $50 to $100K before you even begin to pay a claim.
Insurance policies are difficult. I spent six years, three before and three after working for Nationwide Insurance. Reading a policy, let alone understanding it is mind-numbing and hard. But you better or you will be standing in the cold because someone took your house.
|
James H. “Jim” Moss |
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 |
Outdoor Recreation Insurance, Risk Management, and Law
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.
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#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,
California decision imposes three specific requirements for a release to be valid. On requirement is a release must be understood by a person untrained in the law.
Posted: September 24, 2018 Filed under: Assumption of the Risk, California, Racing, Release (pre-injury contract not to sue) | Tags: altering, Appellate Court, Cardiac Arrest, cases, decedent, Doctrine of Primary Assumption of the Risk, finish line, Gross negligence, heirs, Inherent Risk, long-distance, Marathon, operators, Ordinary Negligence, organizer, participants, Primary Assumption of Risk, Primary Assumption of the Risk, Public Policy, recreational, recreational activity, riding, Risks, Services, Ski, Sport, Summary judgment, summary judgment motion, Trial court, Whitewater, wrongful death action, wrongful death claim Leave a commentLawsuit filed by family of deceased runner who died of cardiac arrest after crossing the finish line of a race. Release and assumption of the risk blocked all claims except the claim for gross negligence.
Hass v. RhodyCo Productions, 2018 Cal. App. LEXIS 710
State: California, Court of Appeal of California, First Appellate District, Division Four
Plaintiff: Eden Gonzalez Hass et al
Defendant: Rhodyco Productions
Plaintiff Claims: negligently organized and planned the Half Marathon; negligently “hired, retained, … supervised, [and] controlled” the medical team; and negligently “managed trained, supervised and controlled emergency and medical resources.
Defendant Defenses: Release and Primary Assumption of the Risk
Holding: Split decision, however case to continue on the issue of gross negligence
Year: 2018
Summary
This California Appellate decision added some new requirements for releases to be valid in California. Two of those new requirements stem from the requirements of the California wrongful death statute. The other two are simple.
Under California law, inherent is a limiting word when it is used to describe the risks in a release, and a release must be understandable by a non-lawyer.
Facts
The deceased, Peter Hass, crossed the finish line of the 2011 Kaiser Permanente San Francisco Half Marathon, suffered a cardiac arrest, collapsed and died. His wife and his two children, referred to as the Hess Family in the opinion, sued the event organizer for negligence.
Before entering the race, the deceased signed a release online.
Having signed a release (Release) in which he agreed, among other things, to “accept the inherent dangers and risks” arising from his participation in the race and to release RhodyCo from “any and all claims” based on injuries he might suffer “at or enroute to and from this event
The race organizer had been putting on events for twenty-five year. This even had approval from the city which approval required providing an emergency management plan. The plan stated that a medical team and ambulance would be at the finish line and stationed on the course. The medical team the family argued was inadequate.
Family highlighted the use of chiropractors rather than medical doctors, the use of chiropractic students rather than EMTs, the lack of ambulance personnel at the finish line, inadequate communication and communication devices, and inadequate AEDs and ambulances.
The Hess family sued. Initially, the trial court granted the defendant RhodyCo’s motion for summary judgment based on the release and assumption of the risk. The family objected and argued in a hearing they should have the right to amend their complaint and bring additional claims. After the hearing, the trial court agreed and granted the Hess family’s motion for a new trial.
Specifically, the court agreed with the Hass Family that primary assumption of the risk was inapplicable on these facts and further determined that the Hass Family should have been allowed to amend the Complaint to plead gross negligence. Although it refused to rule on the existence of a triable issue with respect to gross negligence pending the filing of the amended Complaint, it did reject RhodyCo’s argument that the Hass Family had not moved with diligence in taking the deposition of Dr. Brown.
The defendant RhodyCo filed a notice of appeal, and the Hess family filed a notice of cross appeal bringing the matter to the California Court of Appeals, which issued the opinion here.
Analysis: making sense of the law based on these facts.
The appellate court first looked at the wrongful death claim of the plaintiff Hess family. Under California law, a wrongful death claim is not a derivative claim. Meaning the claim does not arise from a superior claim of the plaintiff. It is a claim, in and of itself, and not a claim of the deceased by a claim of the deceased’s family.
In other words, although a decedent cannot release or waive a subsequent wrongful-death claim by the decedent’s heirs, that decedents “express agreement to waive the defendant’s negligence and assume all risks” acts as a complete defense to such a wrongful-death action.
Consequently, a release must be written differently under California law if it is to be used to stop a wrongful death claim.
The longstanding rule is that a wrongful death action is a separate and distinct right belonging to the heirs, and it does not arise until the death of the decedent.'” “Because a wrongful death claim is not derivative of the decedent’s claims, an agreement by the decedent to release or waive liability for [his or] her death does not necessarily bar a subsequent wrongful death cause of action
For a release to block a wrongful-death claim, the language in the release is not the law of releases. Looking at the entire document, is it clear the parties expressed the intent to assume the risk, thus blocking the wrongful death claim.
Under California law for a release to block a claim for wrongful death, it must also be an assumption of risk agreement that on its face shows the parties intended for the deceased to assume the risk.
…in the instant case, we conclude that Hass intended both to assume all risks associated with his participation in the race, up to and including the risk of death, and to release RhodyCo (on behalf of himself and his heirs) from any and all liability with respect to any injuries he might suffer as a result of his participation. This was sufficient to block the Hass Family’s wrongful death claim for ordinary negligence.
The plaintiff Hess family argued the assumption of the risk language was insufficient to make that claim because the release used the term “inherent” to describe the risks. As such the risks that killed the deceased were not covered in the release.
The Hass Family, however, argues that the Release executed by Hass, in this case, is ineffective as a defense to their wrongful death claim because the express assumption of the risk language is limited solely to risks “inherent” in race participation—I “accept the inherent dangers and risks … that arise from participation in the event”—which does not include any potentially negligent conduct by RhodyCo that may have increased those inherent risks.
Again, the release used terms that limited the scope of the risks the deceased was to assume, which limited the breadth of the release.
Use of the term Inherent in describing risks in a release limits the risks that can be assumed by the signor.
The court found that the language in other parts of the release were broad enough to cover the risks the deceased undertook and thus assumed.
Here, reading the Release as a whole—as would an ordinary person untrained in the law—we are convinced it expresses Hass’s intent to assume all risks arising from his participation in the Half Marathon, including any risks related to RhodyCo’s negligence.
California also has a requirement that the “release should be understood as speaking to an ordinary person untrained in the law.” This requirement was argued and stated twice in the decision.
A release under California law must be written so that an ordinary person untrained in the law can understand it.
The Hess family then argued the release was void because it violated public policy. The Hess Family claimed the defendants were negligent in providing the medical care that responded, and medical care is a necessity and as such should not be protected by a release.
The Hass Family, however, argues that, even if the Release might otherwise be deemed a valid bar to their negligence claim, it is void as against public policy to the extent it purports to apply to the provision of emergency medical services, as such services implicate the public interest. Civil Code section 1668 provides that “[a]ll contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.”
California Civil Code § 1668 does not allow a release to be sued to stop a claim if the service or the nature of the contract is based on public policy.
All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.
There is a six-part test to determine if the agreement is one affecting the public interest. Not all six of the requirements must be met.
“‘[1] It concerns a business of a type generally thought suitable for public regulation. [2] The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. [3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least any member coming within certain established standards. [4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. [5] In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. [6] Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.'”
However, courts in California have declined to find releases used for recreational activities as violating the statute and thus being void because of the public interest argument.
Most recreational activities may require first aid or greater medical services. However, people do not engage in the sport or activity because of first aid or medical issues. The first aid and medical issues are ancillary to the activity and as such not the main purpose for the activity or the release.
Many recreational activities may require the ancillary provision of first aid or emergency medical services by event organizers, but that fact alone does not change such pursuits into anything other than the voluntary leisure pastimes that they are. In particular, with reference to the Tunkl factors, we note that half marathons are not an activity of great importance to the general public and are certainly not a matter of necessity. No racer is required to enter a particular event or to run it in any particular way.
The next issue was the issues of pleading the claim for gross negligence. California like most, if not all, other states do not allow a release to stop a gross negligence claim. If the Hess family is able to argue to the trier of fact that the actions of the defendant, RhodyCo rose to the level of gross negligence the release is not a defense.
Under California law, gross negligence is a want of even scant care.
…”‘[g]ross negligence’ long has been defined in California and other jurisdictions as either a ‘”‘want of even scant care'”‘ or ‘”‘an extreme departure from the ordinary standard of conduct.'”‘[G]ross negligence” falls short of a reckless disregard of consequences, and differs from ordinary negligence only in degree, and not in kind.'” In assessing where on the spectrum a particular negligent act falls, “‘[t]he amount of care demanded by the standard of reasonable conduct must be in proportion to the apparent risk. As the danger becomes greater, the actor is required to exercise caution commensurate with it.'”
Normally, to appeal an issue or even argue an issue at the trial court level, you must first include the claim in your complaint or amend your complaint to bring a new issue in. The Hass family did not include any claim in their complaint for gross negligence.
However, the court found that there was no need in California to specifically plead gross negligence as it was part of negligence, sort of. The court never specifically stated why it was reviewing the gross negligence claim, only that other courts had found that it was not necessary to specifically plead gross negligence.
The court then found the plaintiff’s complaint, and arguments had raised enough issues that the plaintiffs might have a claim for gross negligence.
In this case, there are clearly factual and credibility questions that need to be answered regarding exactly what was required under the terms of the EMS Plan. For example, there is conflicting evidence as to whether the “finish line” included the crowded postrace expo area for purposes of compliance with the EMS Plan, and it must also be established exactly what medical personnel and equipment were required to be stationed at the finish line. We will not here catalogue every conceivable argument that the Hass Family could present in an attempt to prove grossly negligent conduct by RhodyCo in this context.
The primary assumption of the risk was the final issue reviewed by the court. Primary assumption of the risk is a complete bar to negligence claims, including gross negligence claims because it removes any duty on the part of the defendant to the plaintiff. Meaning, the defendant cannot be negligent because they have no duty to the plaintiff.
Specifically, our high court distinguished between two different types of assumption of the risk: primary assumption of the risk—”those instances in which the assumption of risk doctrine embodies a legal conclusion that there is ‘no duty’ on the part of the defendant to protect the plaintiff from a particular risk”—and secondary assumption of risk—”those instances in which the defendant does owe a duty of care to the plaintiff but the plaintiff knowingly encounters a risk of injury caused by the defendant’s breach of that duty.”
When applicable, primary assumption of the risk “operate[s] as a complete bar to the plaintiff’s recovery.”
Primary assumption of risk arose out of sports and recreational activities so that the activities could be played with intensity and vigor so that the reason and sport of the game were not lost.
The primary assumption of risk doctrine, a rule of limited duty, developed to avoid such a chilling effect. Where the doctrine applies to a recreational activity, operators, instructors and participants in the activity owe other participants only the duty not to act so as to increase the risk of injury over that inherent in the activity.”
The issue then becomes what duty is owed by the defendant to the plaintiff that was not assumed by the plaintiff to the extent that it was then breached by the defendant.
Here, RhodyCo asserts that the primary assumption of the risk doctrine serves as a complete bar to the Hass Family’s negligence claim, and thus the trial court erred in concluding otherwise. Specifically, RhodyCo argues that the risk of cardiac arrest is inherent to the sport of long-distance running and that, since it did nothing to increase Hass’s risk of suffering cardiac arrest in the way it conducted the Half Marathon, it owed no further duty to the Hass Family.
The court then stated that the organizer of the event does not have a duty to decrease the risk of any activity or event. However, there is a duty to minimize extrinsic risks.
While the operator or organizer of a recreational activity has no duty to decrease risks inherent to the sport, it does have a duty to reasonably minimize extrinsic risks so as not to unreasonably expose participants to an increased risk of harm.
The court reasoned this was a necessary departure from the encompassing defense provided by assumption of the risk to keep owners and organizers from avoiding “accountability for their gross negligence in this context, based on the primary assumption of the risk doctrine, would contravene public policy, not support it.”
The court did not point out specific facts or risks that created the issue that the defendant RhodyCo had been grossly negligent.
The case was sent back to trial on the sole issue of whether or not the actions of the defendant were grossly negligent.
So Now What?
At the end of the decision, the court awarded costs to the Hess family. Costs on appeal are awarded to the winner of the appeal, in terms of overall and in terms of the number of claims. The defendant won all but one of the issues on appeal in this case. The only claim the defendant did not win was the plaintiffs did not plead gross negligence in their complaint, so they cannot argue it now.
Yet the court still awarded costs to the plaintiffs. It is only a guess, but does this indicate leaning in favor of the plaintiffs in this case?
There are three specific takeaways from this decision affecting the law of California and releases.
1. Consequently, a release must be written differently under California law if it is to be used to stop a wrongful death claim.
2. Under California law for a release to block a claim for wrongful death, it must also be an assumption of risk agreement that on its face shows the parties intended for the deceased to assume the risk.
3. Use of the term Inherent in describing risks in a release limits the risks that can be assumed by the signor.
4. A release under California law must be written so that an ordinary person untrained in the law can understand it.
The final issue to come out of this decision is a new back door to defeating the primary assumption of the risk claim. Now if the risk is not enumerated in the release, the plaintiff is going to argue it is extrinsic and therefore, not covered by the doctrine of primary assumption of the risk to defeat the defense.
|
James H. “Jim” Moss |
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
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.
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Author: Outdoor Recreation Insurance, Risk Management and Law
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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,
Want a Job Working on the River? USFS has 6 River Ranger Positions Open on Snake River!
Posted: September 18, 2018 Filed under: Paddlesports, Rivers and Waterways, Wyoming | Tags: Forest Technician, Jackson, Jackson Ranger District, River Ranger, Snake River, USFS, Wyoming Leave a commentSeasonal hiring started earlier this year for Forest Service seasonal workforce for Summer 2019. The Application period open day on September 10, 2018 and close at midnight EST October 10, 2018
Jackson Ranger District will be hiring up to 6 Forestry Technician “River Ranger” in Jackson, Wyoming on the Snake River ranger from GS-04 to GS-06.. The GS-06 will be serve as the crew lead.
Announcement numbers
GS-04 19‐TEMP‐R4‐FTRECRR‐4DT‐BV
GS-05 19‐TEMP‐R4‐FTRECRVR‐5DT‐BV
GS -06 19‐TEMP‐R4‐FTREC‐6DT‐BV
Please contract for addition information or question about the River Ranger Positions
David Cernicek – River Manager
307-739-5417
dcernicek
John Newman – Lead River Ranger
307-739-5538
johnnewman
Thanks,
John B. Newman
“Supporting professionals who study, manage and protect North America’s rivers”
River Management Society ~ PO Box 5750, Takoma Park, MD USA 20913-5750 ~ +1-301-585-4677
The actual risk causing the injury to the plaintiff was explicitly identified in the release and used by the court as proof it was a risk of skiing and snowboarding. If it was in the release, then it was a risk.
Posted: September 17, 2018 Filed under: Assumption of the Risk, California, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: assumption of the risk, Groomer, grooming, Mammoth, Mammoth Mountain Ski Area, Mammoth Mt. Ski Area, Mammoth Mt. Ski Area LLC, Release, Season Pass, Season Pass Release, Ski, ski area, Ski Resort, skiing, snowboarding, Snowcat, Summary judgment, tiller Leave a commentPlaintiff hit a snowcat and was severely injured when she was sucked under the tiller. Mammoth Mountain Ski Area was not liable because of the release and snowcats on the mountain are an inherent risk of skiing and snowboarding.
Willhide-Michiulis v. Mammoth Mt. Ski Area, LLC, 2018 Cal. App. Unpub. LEXIS 4363
State: California, Court of Appeal of California, Third Appellate District
Plaintiff: Kathleen Willhide-Michiulis et al (and her husband Bruno Michiulis)
Defendant: Mammoth Mountain Ski Area, LLC
Plaintiff Claims: negligence, gross negligence and loss of consortium
Defendant Defenses: Assumption of the risk and release
Holding: for the defendant ski area Mammoth Mt. Ski Area
Year: 2018
Summary
When skiing or snowboarding you assume the risk of seeing a snowcat grooming on the slopes in California. If you run into a snowcat and get sucked into the tiller you have no lawsuit against the ski area.
A snowcat at Mammoth Mountain Ski Area is a great big red slow-moving machine with flashing lights and sirens. They are hard to miss, so therefore they are something you assume the risk when on the slopes.
Facts
The injury suffered by the plaintiff and how it occurred is gruesome. She hit a snowcat while snowboarding and fell between the cat and the tiller. Before the cat could stop she was run over and entangled in the tiller eventually losing one leg and suffering multiple other injuries.
Plaintiff Kathleen Willhide-Michiulis was involved in a tragic snowboarding accident at Mammoth Mountain Ski Area. On her last run of the day, she collided with a snowcat pulling a snow-grooming tiller and got caught in the tiller. The accident resulted in the amputation of her left leg, several skull fractures and facial lacerations, among other serious injuries
The plaintiff was snowboarding on her last run of the night. She spotted the snow cat 150 feet ahead of her on the run. When she looked up again, she collided with the snowcat.
While Willhide-Michiulis rode down mambo, she was in control of her snowboard and traveling on the left side of the run. She saw the snowcat about 150 feet ahead of her on the trail. It was traveling downhill and in the middle of the run. Willhide-Michiulis initiated a “carve” to her left to go further to the left of the snowcat. When she looked up, the snowcat had “cut off her path” and she could not avoid a collision. Willhide-Michiulis hit the back-left corner of the snowcat and her board went into the gap between the tracks of the snowcat and the tiller. Willhide-Michiulis was then pulled into the tiller.
The defendant Mammoth Mountain Ski Area posted warning signs at the top and bottom of every run warning that snowcats and other vehicles may be on the runs. The season pass releases the plaintiff, and her husband signed also recognized the risk of snowcats and identified them as such.
Further, in Willhide-Michiulis’s season-pass agreement, she acknowledged she understood “the sport involves numerous risks including, but not limited to, the risks posed by variations in terrain and snow conditions, . . . unmarked obstacles, . . . devices, . . . and other hazards whether they are obvious or not. I also understand that the sport involves risks posed by loss of balance . . . and collisions with natural and man-made objects, including . . . snow making equipment, snowmobiles and other over-snow vehicles.
The trial court concluded the plaintiff assumed the risks of her injury and granted the ski area motion for summary judgment. The plaintiff appealed that decision, and this appellate decision is the result of that appeal.
Analysis: making sense of the law based on these facts.
The decision included a massive recounting of the facts of the case both before the analysis and throughout it. Additionally, the court reviewed several issues that are not that important here, whether the trial court properly dismissed the plaintiff’s expert opinions and whether or not the location of the case was proper.
Releases in California are evolving into proof of express assumption of the risk. The court reviewed the issues of whether Mammoth met is burden of showing the risks the plaintiff assumed were inherent in the sport of snowboarding. The facts in the release signed by the plaintiff supported that assumption of the risk defense and was pointed out by the court as such.
…plaintiffs signed a season-pass agreement, which included a term releasing Mammoth from liability “for any damage, injury or death . . . arising from participation in the sport or use of the facilities at Mammoth regardless of cause, including the ALLEGED NEGLIGENCE of Mammoth.” The agreement also contained a paragraph describing the sport as dangerous and involving risks “posed by loss of balance, loss of control, falling, sliding, collisions with other skiers or snowboarders and collisions with natural and man-made objects, including trees, rocks, fences, posts, lift towers, snow making equipment, snowmobiles and other over-snow vehicles.”
California courts also look at the assumption of risk issue not as a defense, but a doctrine that releases the defendant of its duty to the plaintiff.
“While often referred to as a defense, a release of future liability is more appropriately characterized as an express assumption of the risk that negates the defendant’s duty of care, an element of the plaintiff’s case.” Express assumption of risk agreements are analogous to the implied primary assumption of risk doctrine. “The result is that the defendant is relieved of legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence.””
The court then is not instructed to look at the activity to see the relationship of the parties or examine the activity that caused the plaintiff’s injuries. The question becomes is the risk of injury the plaintiff suffered inherent in the activity in which the plaintiff was participating. The issue then becomes a question solely for the courts as in this case, does the scope of the release express the risk relieving the defendant of any duty to the plaintiff.
After the judge makes that decision then the question of whether or not the actions of the defendant rose to the level of gross negligence is reviewed. “The issue we must determine here is whether, with all facts and inferences construed in plaintiffs’ favor, Mammoth’s conduct could be found to constitute gross negligence.
Ordinary or simple negligence is a “failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm.”
“‘”[M]ere nonfeasance, such as the failure to discover a dangerous condition or to perform a duty,”‘ amounts to ordinary negligence. However, to support a theory of ‘”[g]ross negligence,”‘ a plaintiff must allege facts showing ‘either a “‘”want of even scant care”‘” or “‘”an extreme departure from the ordinary standard of conduct.”‘”[G]ross negligence’ falls short of a reckless disregard of consequences, and differs from ordinary negligence only in degree, and not in kind. . . .”‘”
When looking at gross negligence, the nature of the sport comes back into the evaluation.
“‘[A] purveyor of recreational activities owes a duty to a patron not to increase the risks inherent in the activity in which the patron has paid to engage.'” Thus, in cases involving a waiver of liability for future negligence, courts have held that conduct that substantially or unreasonably increased the inherent risk of an activity or actively concealed a known risk could amount to gross negligence, which would not be barred by a release agreement.
Skiing and snowboarding have a long list of litigated risks that are inherent in the sport and thus assumed by the plaintiff or better, to which the defendant does not owe the plaintiff a duty.
There the plaintiff argued the snow groomer was not an assumed risk. The court eliminated that argument by pointing out the plaintiff had signed a release which pointed out to the plaintiff that one of the risks she could encounter was a snow groomer on the slopes.
The main problem with plaintiffs’ argument that common law has not recognized collisions with snow-grooming equipment as an inherent risk of skiing, is that plaintiffs’ season-pass agreement did. When signing their season-pass agreement, both Willhide-Michiulis and her husband acknowledged that skiing involved the risk of colliding with “over-snow vehicles.” Willhide-Michiulis testified she read the agreement but did not know an “over-snow vehicle” included a snowcat. Plaintiffs, however, did not argue in the trial court or now on appeal that this term is ambiguous or that the parties did not contemplate collisions with snowcats as a risk of snowboarding. “Over-snow vehicles” is listed in the contract along with “snow making equipment” and “snowmobiles,” indicating a clear intent to include any vehicle used by Mammoth for snow maintenance and snow travel.
The court went on to find case law that supported the defense that snow groomers were a risk of skiing and boarding, and it was a great big slow moving bright-red machine that made it generally unavoidable.
Further, the snowcat Willhide-Michiulis collided with is large, bright red, and slow-moving, making it generally avoidable by those around it. Indeed, Willhide-Michiulis testified that she saw the snowcat about 150 feet before she collided with it. Although she claims the snowcat cut off her path, the snowcat was traveling less than ten miles an hour before standing nearly motionless while turning onto Old Boneyard Road downhill from Willhide- Michiulis.
Even if there were no warning signs, nothing on the maps of the ski area, nothing in the release, once the plaintiff spotted the snowcat the responsibility to avoid the snowcat fell on her.
The appellate court upheld the trial courts motion for summary judgement in favor of the defendant ski area Mammoth Mountain.
So Now What?
The California Appellate Court took 11 pages to tell the plaintiff if you see a big red slow-moving machine on the ski slopes to stay away from it.
What is also interesting is the evolution of the law in California from a release being a contractual pre-injury agreement not to sue to proof that the defendant did not owe a duty to the plaintiff because she assumed the risk.
Besides, how do you miss, let alone ski or snowboard into a big red slow-moving machine with flashing lights and sirens on a ski slope?
What do you think? Leave a comment.
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Johnson v. Capitol Specialty Ins. Corp., 2018 Ky. App. Unpub. LEXIS 447
Posted: September 12, 2018 Filed under: Insurance, Kentucky, Legal Case, Racing | Tags: activities, Additional Insured, Advertising, allegations, Ambiguity, appeals, Athletic, bodily injury, Capitol Specialty Insurance, concurrent, coverage, declaratory judgment, Definitions, Dictionary, endorsements, exclusions, Extreme Rampage, genuine, insurance application, Insurance policy, insured, matter of law, modified, Mud Run, Obstacle Course, Operations, participants, peril, policyholder, practicing, provides, proximate, sponsor, Summary judgment, Tough Mudder, Trial court Leave a comment-
To Read an Analysis of this decision see: Have you ever read your insurance policy? You should! The one at issue in this case specifically excluded the risks the policy was bought to cover.
Johnson v. Capitol Specialty Ins. Corp.
Court of Appeals of Kentucky
June 22, 2018, Rendered
NO. 2017-CA-000171-MR, NO. 2017-CA-000172-MR
2018 Ky. App. Unpub. LEXIS 447 *; 2018 WL 3090503CHRIS JOHNSON D/B/A EXTREME RAMPAGE, AND CHRIS JOHNSON, AND CHRISTOPHER JOHNSON, RAMPAGE LLC, CHRISTOPHER JOHNSON D/B/A RAMPAGE, LLC, AND/OR EXTREME RAMPAGE (COLLECTIVELY KNOWN AS “THE JOHNSON PARTIES”) BY AND THROUGH ASSIGNEE CASEY ARNOLD, APPELLANTS v. CAPITOL SPECIALTY INSURANCE CORPORATION, APPELLEE;CASEY ARNOLD, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF CHAD ARNOLD, AND AS NEXT FRIEND AND GUARDIAN/ CONSERVATOR FOR MILES ARNOLD, AND AS ASSIGNEE FOR ALL CLAIMS HELD BY “THE JOHNSON PARTIES”, APPELLANTS v. CAPITOL SPECIALTY INSURANCE CORPORATION, APPELLEE
Notice: THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.
Prior History: [*1] APPEAL FROM FAYETTE CIRCUIT COURT. HONORABLE KIMBERLY N. BUNNELL, JUDGE. ACTION NOS. 14-CI-00948 & 15-CI-00777. APPEAL FROM FAYETTE CIRCUIT COURT. HONORABLE KIMBERLY N. BUNNELL, JUDGE. ACTION NOS. 14-CI-00948 & 15-CI-00777.
Counsel: BRIEFS FOR APPELLANTS, CHRIS JOHNSON D/B/A EXTREME RAMPAGE, AND CHRIS JOHNSON, AND CHRISTOPHER JOHNSON, RAMPAGE LLC, CHRISTOPHER JOHNSON D/B/A RAMPAGE, LLC, AND/OR EXTREME RAMPAGE: Don A. Pisacano, Lexington, Kentucky.
BRIEFS FOR APPELLANTS, CASEY ARNOLD, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF CHAD ARNOLD, AND AS NEXT FRIEND AND GUARDIAN/ CONSERVATOR FOR MILES ARNOLD, AND AS ASSIGNEE FOR ALL CLAIMS HELD BY “THE JOHNSON PARTIES”: A. Neal Herrington, Christopher H. Morris, Louisville, Kentucky.
BRIEFS FOR APPELLEE, CAPITOL SPECIALTY INSURANCE CORPORATION: Richard J. Rinear, Zachary D. Bahorik, Cincinnati, Ohio.
Judges: BEFORE: CLAYTON, CHIEF JUDGE; MAZE AND THOMPSON, JUDGES. MAZE, JUDGE, CONCURS. THOMPSON, JUDGE, CONCURS IN RESULT ONLY.
AFFIRMING
CLAYTON, CHIEF JUDGE: These consolidated appeals1 are taken from a Fayette Circuit Court order entering declaratory summary judgment in favor of Capitol Specialty Insurance Corporation. The primary issue is whether a [*2] general commercial liability insurance policy issued by Capitol covers potential damages stemming from the death of a participant in an obstacle race, or whether exclusions in the policy bar recovery.
The obstacle race, known as “Extreme Rampage,” was organized and presented by Chris Johnson, the owner of Rampage, LLC. The 5K race, which included a climbing wall and mud pits, was held at the Kentucky Horse Park on March 2, 2013. Under the terms of his contract with the Horse Park, Johnson was required to “provide public liability insurance issued by a reputable company, which shall cover both participants and spectators with policy coverage of one million dollars ($1,000,000.00) minimum for each bodily injury[.]”
Johnson purchased the policy from Stephen Delre, an insurance agent employed at the Tim Hamilton Insurance Agency (“THIA”). Delre filled out an application for insurance on Johnson’s behalf and submitted it to Insurance Intermediaries, Inc. (“III”). III submitted the application to Capitol. Capitol prepared a proposal for coverage which III gave to THIA. Johnson accepted the proposal and III produced the policy based upon the terms offered by Capitol.
The policy contained two [*3] provisions excluding bodily injury to the event participants from its coverage. For purposes of this opinion, the exclusions will be referred to as the “sponsor” exclusion and the “arising out of” exclusion.
The sponsor exclusion provided as follows:
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY
EXCLUSION — ATHLETIC OR SPORTS PARTICIPANTS
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART.
SCHEDULE
Description of Operations:
Special event — 5K run with obstacles.
. . .
With respect to any operations shown in the Schedule, this insurance does not apply to “bodily injury” to any person while practicing for or participating in any sports or athletic contest or exhibition that you sponsor.
The participant exclusion provided as follows:
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY EXCLUSION — PARTICIPANTS
(SPECIFIED ACTIVITIES/OPERATIONS)
SCHEDULE
Descriptions of Activity/Operations
Mud Runs and Tough Guy Races
This insurance does not apply to “bodily injury,” “property damage,” “personal or advertising injury” or medical expense arising out of any preparation for or participation in any of the activities or operations [*4] shown in the schedule above.
During the course of the Extreme Rampage race, one of the participants, Chad Arnold, collapsed and died. His wife, Casey Arnold, acting individually, as the administratrix of his estate and as guardian/conservator for their minor son Miles (“Arnold”), filed a wrongful death suit naming numerous defendants, including Johnson. Johnson sought defense and indemnity under the Capitol policy. Capitol denied coverage and filed a declaratory judgment complaint in Fayette Circuit Court on March 17, 2014, asserting it had no duty to defend or indemnify Johnson because the policy expressly excluded coverage for event participants.
Johnson and Arnold subsequently filed a complaint in a different division of Fayette Circuit Court against Capitol, THIA, Delre, and III, asserting claims of negligence; violation of the Kentucky Consumer Protection Act and the Unfair Claims Settlement Practices Act; fraud; and breach of contract. On April 15, 2015, the two actions were consolidated by court order. Johnson and Arnold filed a motion for summary judgment; Capitol filed a motion for summary declaratory judgment. The trial court held extensive hearings on the motions and thereafter [*5] entered an order granting Capitol’s motion and dismissing with prejudice all claims asserted against Capitol by Johnson and Arnold. Additional facts will be set forth as necessary later in this opinion.
In granting summary declaratory judgment to Capitol, the trial court held that that the policy issued by Capitol to Johnson excluded coverage to the Johnson defendants for the underlying claims of the Arnold defendants because the sponsor exclusion was clear and unambiguous and the Johnson defendants are a “sponsor” within the plain meaning of the word as used in the exclusion. The trial court further held that, as a matter of law, neither the concurrent proximate cause doctrine nor the efficient proximate cause doctrine applies to afford coverage under the policy to the Johnson defendants for the claims of the Arnold defendants; that neither Delre nor THIA is an agent of any kind of Capitol; and finally, that no other oral or written contract modified and/or superseded the policy to afford coverage by Capitol.
These appeals by Johnson and Arnold followed.
In reviewing a grant of summary judgment, our inquiry focuses on “whether the trial court correctly found that there were no genuine [*6] issues as to any material fact and that the moving party was entitled to judgment as a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781, 43 1 Ky. L. Summary 17 (Ky. App. 1996) (citing Kentucky Rules of Civil Procedure (CR) 56.03). Summary judgment may be granted when “as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor and against the movant.” Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 483 (Ky. 1991) (internal quotation marks and citation omitted). “The record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor.” Id. at 480. On the other hand, “a party opposing a properly supported summary judgment motion cannot defeat it without presenting at least some affirmative evidence showing that there is a genuine issue of material fact for trial.” Id. at 482. “An appellate court need not defer to the trial court’s decision on summary judgment and will review the issue de novo because only legal questions and no factual findings are involved.” Hallahan v. The Courier-Journal, 138 S.W.3d 699, 705 (Ky. App. 2004).
We have grouped the Appellants’ arguments into the following six categories: first, that the terms of the policy do not reflect what Johnson requested from Delre; second, that Delre and THIA were actual or apparent agents of Capitol whose alleged misrepresentations [*7] or omissions to Johnson about the policy bound their principal; third, that neither the “sponsor” exclusion nor the “arising out of” exclusion in the policy was applicable; fourth, that the exclusions create an ambiguity in the policy when read with the coverage endorsements; fifth, that the concurrent proximate cause doctrine provides coverage under the policy; and sixth, that the trial court erred in dismissing all claims against Capitol.
1. The purchase of the policy
Johnson denies that the insurance policy attached to Capitol’s declaratory judgment complaint is a true and accurate copy of the policy he purchased and admits only that the document attached to the complaint is the document he received in the mail after he had paid for the policy.
According to deposition testimony, Johnson first spoke with Delre about obtaining insurance coverage for the Extreme Rampage event in a telephone conversation in December 2012. Johnson had purchased an insurance policy for a similar race event from Delre approximately six months earlier. Delre questioned Johnson about the type of coverage he was seeking. Johnson was unaware that Delre was simultaneously filling out a “special event” insurance [*8] application. According to Johnson, he told Delre he needed participant coverage and Delre specifically asked him how many participants would be involved in the event. Delre nonetheless left blank on the “special event” application form whether athletic participant coverage was requested. Delre signed Johnson’s name to the application for insurance without Johnson reviewing the document. After the insurance application was submitted, Delre sent a proposal to Johnson which he claims he never received.
On February 8, 2013, Johnson visited Delre and THIA’s office to pay for the policy in the amount of $477. He signed a “subjectivities page” which stated that the policy quote was subject to verification of the following:
No events involving the following: abortion rights, pro choice or right-to-life rallies/parades or gatherings, air shows or ballooning events, auto racing regardless of vehicle size (including go-karts, motorcycles and snowmobiles), cattle drives, events involving inherently dangerous or stunting activities, events with water rides/slides etc., political demonstrations or protest rallies by groups with a history of violent incidents, [n]o events with fireworks displays. AND [*9] — Spectators must be a safe distance (100 feet minimum) from the obstacle course.
Johnson was not shown the actual policy, nor was he informed of the participation exclusions in the insurance proposal.
A copy of the complete policy containing the “sponsor” exclusion and the “arising out of” exclusion was mailed to Johnson on February 27, 2013. Johnson asserts that the policy did not conform to what he agreed to in his conversation with Delre and that he was never informed that participants would be excluded from coverage. He points out that the policy was also later unilaterally modified by Delre after the Horse Park requested a certificate of insurance indicating that it was an “additional insured” on the policy.
Johnson cannot avoid the terms of the insurance contract by pleading ignorance of its contents. It is axiomatic that “insured persons are charged with knowledge of their policy’s contents[.]” Bidwell v. Shelter Mut. Ins. Co., 367 S.W.3d 585, 592 (Ky. 2012) (citing National Life & Accident Ins. Co. v. Ransdell, 259 Ky. 559, 82 S.W.2d 820, 823 (1935)). “In Midwest Mutual Insurance Company v. Wireman, 54 S.W.3d 177 (Ky. App. 2001), the Court of Appeals held an insured can waive UM coverage by signing the application for liability coverage, even if the insured alleges the agent never explained the meaning of UM coverage to him.” Moore v. Globe Am. Cas. Co., 208 S.W.3d 868, 870 (Ky. 2006). “All persons are presumed to know the law and the mere lack of knowledge [*10] of the contents of a written contract for insurance cannot serve as a legal basis for avoiding its provisions.” Id. (internal quotation and citation omitted).
Although Johnson claims, based on his interaction with Delre, that the terms of the policy were not what he had anticipated, no genuine issue of material fact exists that Johnson signed the policy and, as a matter of law, was presumed to know its contents. The trial court did not err in ruling that there was no genuine issue of material fact concerning the policy and that no other oral or written contract modified or superseded the policy to afford coverage to Johnson for Arnold’s claims.
2. Were Delre and THIA agents of Capitol
Arnold seeks to hold Capitol liable for any omissions or misrepresentations of Delre and THIA by arguing that they were Capitol’s actual or apparent agents. “Under common law principles of agency, a principal is vicariously liable for damages caused by torts of commission or omission of an agent or subagent, . . . acting on behalf of and pursuant to the authority of the principal.” Williams v. Kentucky Dep’t of Educ., 113 S.W.3d 145, 151 (Ky. 2003), as modified (Sept. 23, 2003) (internal citations omitted).
“Actual authority arises from a direct, intentional granting of [*11] specific authority from a principal to an agent.” Kindred Healthcare, Inc. v. Henson, 481 S.W.3d 825, 830 (Ky. App. 2014). The Restatement (Third) of Agency § 2.02(1) (2006) provides that “[a]n agent has actual authority to take action designated or implied in the principal’s manifestations to the agent and acts necessary or incidental to achieving the principal’s objectives, as the agent reasonably understands the principal’s manifestations and objectives when the agent determines how to act.” Kentucky’s Insurance Code provides that “[a]ny insurer shall be liable for the acts of its agents when the agents are acting in their capacity as representatives of the insurer and are acting within the scope of their authority.” Kentucky Revised Statutes (KRS) 304.9-035.
There is no evidence in the record that Capitol made a direct, intentional grant of authority to THIA and Delre to act as its agents or representatives; nor is there evidence that Capitol made any manifestations of its objectives to THIA or Delre with the expectation that they would act to achieve those objectives. Furthermore, as elicited in the hearing before the trial court, Capitol does not have a written agreement with THIA or Delre establishing them as its agents nor is there a registration or filing with the Kentucky Department of Insurance designating them as licensed [*12] agents of Capitol. By contrast, Delre and THIA are registered, authorized agents of Nationwide Insurance in Kentucky and Johnson actually believed he would be purchasing a Nationwide policy from Delre.
As evidence of an actual agency relationship, Arnold points to the fact that THIA and Capitol both have contracts with III, the intermediary brokerage company which sent Johnson’s application for insurance to Capitol, seeking a policy proposal. The existence of contracts with the same third party was not sufficient in itself to create an actual agency relationship between THIA and Delre and Capitol. Capitol prepared the insurance proposal in reliance on the information contained in the application submitted by III; Capitol had no contact with or control over Delre or THIA. Consequently, Capitol could not be bound by what Johnson believed Delre had promised.
Similarly, there is no evidence that THIA and Delre were apparent agents of Capitol. “Apparent authority . . . is not actual authority but is the authority the agent is held out by the principal as possessing. It is a matter of appearances on which third parties come to rely.” Mark D. Dean, P.S.C. v. Commonwealth Bank & Tr. Co., 434 S.W.3d 489, 499 (Ky. 2014) (quoting Mill St. Church of Christ v. Hogan, 785 S.W.2d 263, 267 (Ky. App. 1990)). “One who represents that another is his servant [*13] or other agent and thereby causes a third person justifiably to rely upon the care or skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he were such.” Paintsville Hosp. Co. v. Rose, 683 S.W.2d 255, 257 (Ky. 1985) (quoting Restatement (Second) of Agency § 267 (1958)).
The only representations made to Johnson by Capitol were in the form of the proposal and written policy he signed. Capitol never held out Delre and THIA as its agents. Johnson admitted he had no contact with Capitol whatsoever and did not even know the policy he purchased was provided by Capitol until after the Extreme Rampage event.
The trial court did not err in holding that no agency relationship, actual or apparent, existed between Capitol and Delre and THIA.
3. Applicability of the policy exclusions
The trial court ruled that the “sponsor” exclusion was clear and unambiguous and the Johnson defendants were a “sponsor” within the plain meaning of the word as it was used in the exclusion. The Appellants disagree, arguing that the multiple definitions of the term “sponsor,” which is not defined in the policy, render it ambiguous.
“Interpretation and construction of an insurance contract is a matter [*14] of law for the court.” Kemper Nat’l Ins. Companies v. Heaven Hill Distilleries, Inc., 82 S.W.3d 869, 871 (Ky. 2002). Exclusions in insurance contracts
are to be narrowly interpreted and all questions resolved in favor of the insured. Exceptions and exclusions are to be strictly construed so as to render the insurance effective. Any doubt as to the coverage or terms of a policy should be resolved in favor of the insured. And since the policy is drafted in all details by the insurance company, it must be held strictly accountable for the language used.
Eyler v. Nationwide Mut. Fire Ins. Co., 824 S.W.2d 855, 859-60 (Ky. 1992) (internal citations omitted).
[t]he rule of strict construction against an insurance company certainly does not mean that every doubt must be resolved against it and does not interfere with the rule that the policy must receive a reasonable interpretation consistent with the parties’ object and intent or narrowly expressed in the plain meaning and/or language of the contract. Neither should a nonexistent ambiguity be utilized to resolve a policy against the company. We consider that courts should not rewrite an insurance contract to enlarge the risk to the insurer.
St. Paul Fire & Marine Ins. Co. v. Powell-Walton-Milward, Inc., 870 S.W.2d 223, 226-27 (Ky. 1994).
The Appellants rely on an opinion of the federal district court for the Eastern District of Pennsylvania, Sciolla v. West Bend Mut. Ins. Co., 987 F. Supp. 2d 594 (E.D. Pa. 2013) which held an identical insurance exclusion [*15] to be inapplicable after concluding the term “sponsor” is ambiguous due to the lack of a universally accepted definition of the term by dictionaries and the courts. Sciolla, 987 F. Supp. 2d at 603. The Sciolla court assembled the following dictionary definitions of “sponsor:”
The full definition given by Merriam-Webster is: “a person or an organization that pays for or plans and carries out a project or activity; especially: one that pays the cost of a radio or television program usually in return for advertising time during its course.” Merriam-Webster’s Collegiate Dictionary, 1140 (9th ed. 1983). . . .
. . . [T]he American Heritage Dictionary defines sponsor, in relevant part, as “[o]ne that finances a project or an event carried out by another person or group, especially a business enterprise that pays for radio or television programming in return for advertising time.” American Heritage Dictionary of the English Language, 1679, (4th ed., 2009). Other dictionaries defines sponsor as “[o]ne that finances a project or an event carried out by another,” The American Heritage College Dictionary, 1315 (3d ed. 1993), or, as a verb, “to pay or contribute towards the expenses of a radio or television program, a performance, [*16] or other event or work in return for advertising space or rights.” Oxford English Dictionary, 306 (2d ed. 1989).
The Sciolla court grouped the definitions into two categories: “The first concept is that of a person or an organization that pays for a project or activity. . . . The second concept is of a person or an organization that plans and carries out a project or activity.” Id. (italics in original).
As recognized by the Sciolla court, in order to be found ambiguous, a term with multiple definitions must be subject to more than one interpretation when applied to the facts of the case before it. Id. at 603. “Because a word has more than one meaning does not mean it is ambiguous. The sense of a word depends on how it is being used; only if more than one meaning applies within that context does ambiguity arise.” Board of Regents of Univ. of Minnesota v. Royal Ins. Co. of Am., 517 N.W.2d 888, 892 (Minn. 1994). As the United States Supreme Court has observed in the context of statutory interpretation, “[a]mbiguity is a creature not of definitional possibilities but of statutory context[.]” Brown v. Gardner, 513 U.S. 115, 118, 115 S. Ct. 552, 555, 130 L. Ed. 2d 462 (1994).
It is the Appellants’ position that Johnson did not “sponsor” the Extreme Rampage but actually organized, promoted, and ran the event. In his deposition, Johnson stated that he was not a “sponsor” of the [*17] Extreme Rampage event but that he “owned” the event, and that he actually discovered Delre and THIA while seeking sponsorships for Rampage events. Delre in his deposition confirmed that Johnson asked him to be a sponsor. When he was asked how he got started funding Rampage, LLC, Johnson replied “Sponsorships and my own pocket.” Thus, the evidence indicates that Johnson helped to fund Extreme Rampage and also planned and carried it out. There is no evidence that he financed a project carried out by another or that he paid for the project in exchange for advertising space.
The fact that Johnson’s actions do not meet each and every one of the multiple definitions of “sponsor” does not render the term ambiguous, however, when the term is viewed in the context of the language of the exclusion, which applies to “bodily injury to any person while practicing for or participating in any sports or athletic contest or exhibition that you sponsor.” (Emphasis added.)
The policy provides the following definition of “you”: “Throughout this policy the words ‘you’ and ‘your’ refer to the Named Insured shown in the declarations, and any other person or organization qualifying as a Named Insured under [*18] this policy. The words ‘we’, ‘us’ and ‘our’ refer to the company providing this insurance.” Thus, Johnson, the Named Insured, is “you.” When the term “sponsor” is viewed within the context of an insurance policy covering one discrete event sponsored by the Named Insured, Johnson, it was plainly intended to refer to Johnson and to the specific Extreme Rampage event he was sponsoring.
The Appellants argue that the trial court did not have the right to choose which of the multiple competing definitions of sponsor applied. When viewed in the context of the exclusion, however, the definition is plainly limited to the sponsorship activities of the Name Insured, Johnson.
Because the trial court did not err in holding that the “sponsor” exclusion is applicable, we need not address the validity of the “arising out of” exclusion.
4. The applicability of the concurrent proximate cause doctrine
Johnson argues that even if the policy exclusions apply, the concurrent proximate cause doctrine provides coverage under the policy. Johnson contends that the doctrine was adopted by the Kentucky Supreme Court in Reynolds v. Travelers Indem. Co. of Am., 233 S.W.3d 197, 203 (Ky. App. 2007). Reynolds is an opinion of the Court of Appeals, and it did not officially adopt the doctrine; [*19] it approved of the reasoning in a case from our sister state in Bowers v. Farmers Insurance Exchange, 99 Wash. App. 41, 991 P.2d 734 (2000), which applied the “efficient proximate cause doctrine.” Reynolds, 233 S.W.3d at 203.
Where the loss is essentially caused by an insured peril with the contribution of an excluded peril merely as part of the chain of events leading to the loss, there is coverage under the policy. Stated alternately, coverage will exist where a covered and noncovered peril join to cause the loss provided that the covered peril is the efficient and dominant cause.
10A Couch on Insurance 3d § 148:61 (2005).
Applying the doctrine, Johnson argues that even if Chad Arnold’s participation in the race was an excluded peril, the loss was essentially caused by a peril that was insured. He contends that the allegations of Arnold’s complaint, such as failure to provide reasonable medical treatment; failure to plan and have proper policies and procedures; and failure to train, instruct, and supervise are not predicated upon a cause of action or risk that is excluded under the policy. He points to the affidavit of a doctor who reviewed Chad Arnold’s medical records and post-mortem examination and concluded that he died of a pre-existing heart condition unconnected [*20] with his participation in the race.
This argument ignores the fact that the “sponsor” exclusion does not reference causation or a specific “peril”; it merely excludes participants in the covered event from recovery for bodily injury, whatever the cause. It does not require a finding that the bodily injury was caused by participation in the event.
We agree with the reasoning of the federal district court for the Western District of Kentucky, which addressed a factually-similar situation involving a student who collapsed and died while practicing for his college lacrosse team. Underwriters Safety & Claims, Inc. v. Travelers Prop. Cas. Co. of Am., 152 F. Supp. 3d 933 (W.D. Ky. 2016), aff’d on other grounds, 661 F. App’x 325 (6th Cir. 2016). The college’s insurance policy contained an exclusion for athletic participants. The plaintiffs argued that the allegations of their complaint were focused on the college’s failure to provide pre-participation medical forms to physicians who examined the student and on the college’s failure to render proper medical treatment. The district court described these arguments as “red herrings” that attempted “to re-contextualize the fatal injury as a result of medical malpractice or concurrently caused by medical malpractice and engagement in athletic activity.” Underwriters, 152 F. Supp. 3d at 937. The complaint filed by the [*21] student’s estate “did not seek redress for a bodily injury that occurred during pre-participation athletic medical screenings. The policy specifically excludes bodily injury while engaged in athletic or sports activities. Passfield [the student] was engaged in such an activity at the time of the injury. While the Court liberally construes insurance policies in favor of the insured, the Court also strictly construes exclusions. This is an instance of the latter.” Id. Similarly, in the case before us, the exclusion applies specifically to bodily injury while participating in the Extreme Rampage. The exclusion does not require a causal link between the participation and the injury to apply. There is no genuine issue of fact that Chad Arnold was a participant in the race and that, as the complaint alleges, “during the course of the event, the decedent collapsed, consciously suffered for an undetermined amount of time, and died.”
5. Do the two exclusions create an ambiguity in the policy
Johnson further argues that the two exclusions create an ambiguity in the policy when read in conjunction with two coverage endorsements. Johnson claims that the “Combination Endorsement-Special Events” and [*22] the “Limitation-Classification Endorsement” provide unfettered coverage while the two exclusions limit coverage, thus creating an ambiguity. Johnson’s brief gives no reference to the record to show where the endorsements are found, nor does it indicate when or how the trial court addressed this issue. CR 76.12(4)(c)(v) requires an appellate brief to contain “ample supportive references to the record and . . . a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner.” The purpose of this requirement “is so that we, the reviewing Court, can be confident the issue was properly presented to the trial court and therefore, is appropriate for our consideration.” Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012). “[E]rrors to be considered for appellate review must be precisely preserved and identified in the lower court.” Skaggs v. Assad, 712 S.W.2d 947, 950 (Ky. 1986). We are simply “without authority to review issues not raised in or decided by the trial court.” Regional Jail Authority v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989). Nor is it the task of the appellate court to search the record for pertinent evidence “not pointed out by the parties in their briefs.” Baker v. Weinberg, 266 S.W.3d 827, 834 (Ky. App. 2008).
We recognize that the hearing on August 25, 2016, at which this issue may have been argued before the trial court, was not recorded. [*23] Nonetheless, “when the complete record is not before the appellate court, that court must assume that the omitted record supports the decision of the trial court.” Commonwealth v. Thompson, 697 S.W.2d 143, 145 (Ky. 1985).
6. Dismissal of all claims against Capitol.
Finally, Arnold argues that the trial court erred in dismissing all causes of action against Capitol. Arnold contends that the arguments before the trial court only concerned the applicability of the insurance policy, but never addressed the additional allegations in the complaint of negligence, consumer protection, unfair claims settlement practices, and fraud. Arnold does not explain what the grounds for Capitol’s liability on these claims would be if, as the trial court ruled, the “sponsor” exclusion is valid and Delre and THIA were not acting as Capitol’s agents. Under these circumstances, the trial court did not err in dismissing all claims against Capitol.
For the foregoing reasons, the order of the Fayette Circuit Court granting summary declaratory judgment to Capitol is affirmed.
THOMPSON, JUDGE, CONCURS IN RESULT ONLY.
Bibliography
CHRIS JOHNSON D/B/A EXTREME RAMPAGE, AND CHRIS JOHNSON, AND CHRISTOPHER JOHNSON, RAMPAGE LLC, CHRISTOPHER JOHNSON D/B/A RAMPAGE, LLC, AND/OR EXTREME RAMPAGE (COLLECTIVELY KNOWN AS “THE JOHNSON PARTIES”) BY AND THROUGH ASSIGNEE CASEY ARNOLD, APPELLANTS v. CAPITOL SPECIALTY INSURANCE CORPORATION, APPELLEE;CASEY ARNOLD, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF CHAD ARNOLD, AND AS NEXT FRIEND AND GUARDIAN/ CONSERVATOR FOR MILES ARNOLD, AND AS ASSIGNEE FOR ALL CLAIMS HELD BY “THE JOHNSON PARTIES”, APPELLANTS v. CAPITOL SPECIALTY INSURANCE CORPORATION, APPELLEE, 2018 Ky. App. Unpub. LEXIS 447, 2018 WL 3090503, (Court of Appeals of Kentucky June 22, 2018, Rendered).
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Willhide-Michiulis v. Mammoth Mt. Ski Area, LLC, 2018 Cal. App. Unpub. LEXIS 4363
Posted: September 12, 2018 Filed under: Assumption of the Risk, California, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: collided, Collision, conditions, declarations, driver's, Driving, expert testimony, extreme departure, grooming, Gross negligence, industry standard, Inherent Risk, mambo, Mammoth, Mammoth Mountain Ski Area, Mammoth Mt. Ski Area, Mammoth Mt. Ski Area LLC, Mountain, ordinary standard, plaintiffs', Risks, Season Pass, skier's, skiing, Snow, snow grooming, snow-grooming vehicle, snowboarding, Snowcat, Sport, Summary judgment, tiller, Trial court, Venue, Warning Leave a commentWillhide-Michiulis v. Mammoth Mt. Ski Area, LLC
Court of Appeal of California, Third Appellate District
June 27, 2018, Opinion Filed
C082306
2018 Cal. App. Unpub. LEXIS 4363 *; 2018 WL 3134581KATHLEEN WILLHIDE-MICHIULIS et al., Plaintiffs and Appellants, v. MAMMOTH MOUNTAIN SKI AREA, LLC, Defendant and Respondent.
Notice: NOT TO BE PUBLISHED IN OFFICIAL REPORTS. CALIFORNIA RULES OF COURT, RULE 8.1115(a), PROHIBITS COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 8.1115(b). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 8.1115.
Subsequent History: The Publication Status of this Document has been Changed by the Court from Unpublished to Published July 18, 2018 and is now reported at 2018 Cal.App.LEXIS 638.
Ordered published by, Reported at Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC, 2018 Cal. App. LEXIS 638 (Cal. App. 3d Dist., June 27, 2018)
Prior History: [*1] Superior Court of Mono County, No. CV130105.
Judges: Robie, Acting P. J.; Murray, J., Duarte, J. concurred.
Opinion by: Robie, Acting P. J.
Plaintiff Kathleen Willhide-Michiulis was involved in a tragic snowboarding accident at Mammoth Mountain Ski Area. On her last run of the day, she collided with a snowcat pulling a snow-grooming tiller and got caught in the tiller. The accident resulted in the amputation of her left leg, several skull fractures and facial lacerations, among other serious injuries. She and her husband, Bruno Michiulis, appeal after the trial court granted defendant Mammoth Mountain Ski Area‘s (Mammoth) motion for summary judgment finding the operation of the snowcat and snow-grooming tiller on the snow run open to the public was an inherent risk of snowboarding and did not constitute gross negligence. Plaintiffs contend the trial court improperly granted Mammoth’s motion for summary judgment and improperly excluded the expert declarations plaintiffs submitted to oppose the motion. They also assert the trial court improperly denied their motion to transfer venue to Los Angeles County.
We conclude the trial court did not abuse its discretion by excluding the expert declarations. Further, [*2] although snowcats and snow-grooming tillers are capable of causing catastrophic injury, as evidenced by Willhide-Michiulis’s experience, we conclude this equipment is an inherent part of the sport of snowboarding and the way in which the snowcat was operated in this case did not rise to the level of gross negligence. Because of this conclusion, the trial court properly granted Mammoth’s summary judgment motion based on the liability waiver Willhide-Michiulis signed as part of her season-pass agreement. With no pending trial, plaintiffs cannot show they were prejudiced by the court’s denial of their motion to transfer venue; thus we do not reach the merits of that claim. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I
The Injury
Mammoth owns and operates one of the largest snowcat fleets in the United States to groom snow and maintain snow runs throughout Mammoth Mountain Ski Area. A snowcat is a large snow-grooming vehicle — 30 feet long and 18 feet wide. It has five wheels on each side of the vehicle that are enclosed in a track. In front of the snowcat is a plow extending the width of the snowcat. In back is a 20-foot wide trailer containing a tiller. A tiller “spins at a [*3] high [speed] br[e]aking up the snow and slightly warming it and allowing it to refreeze in a firm skiable surface.” Mammoth strives not to have snowcats operating when the resort is open to the public; however, it may be necessary at times. Mammoth’s grooming guide instructs drivers that generally snowcats are operated at night or in areas closed to the public, except during: (1) emergency operations, (2) extremely heavy snow, or (3) transportation of personnel or materials. If a driver “must be on the mountain while the public is present,” however, the snowcat’s lights, safety beacon, and audible alarm must be on. The guide further directs drivers not to operate the tiller if anyone is within 50 feet or if on a snow run open to the public. In another section, the guide directs drivers not to operate the snowcat’s tiller when anyone is within 150 feet and “[n]ever . . . when the skiing public is present.”
Although the grooming guide directs drivers not to use the tiller on snow runs open to the public, there are exceptions to these rules. Snowcats use two large tracks, instead of wheels, to travel on the snow. If the tiller is not running, then the snowcat leaves behind berms and holes created by the [*4] tracks, also known as track marks. Mammoth’s grooming guide explains that “[t]rack marks are not acceptable anywhere on the mountain and back-ups or extra passes should be used to remove them.” Track marks are not safe for the skiing public, so whenever the snowcat is justified to be on an open run, drivers commonly operate the tiller to leave behind safe conditions.
In fact, it is common for skiers and snowboarders to chase snowcats that operate on public snow runs. For example, Taylor Lester, a Mammoth season-pass holder, has seen snowcats with tillers operate on snow runs open to the public. She, her friends, and her family, commonly ride close behind these snowcats so they can take advantage of the freshly tilled snow the snowcats produce. Freshly-tilled snow is considered desirable and “more fun” because it has not been tarnished by other skiers.
There is a blind spot in the snowcat created by the roll cage in the cab of the vehicle. This blind spot is mitigated by the driver using the mirrors of the snowcat and turning his or her head to look out the windows. Snowcats are also equipped with turn signals.
At the top and bottom of every chair lift, Mammoth posts signs warning of the presence [*5] of snowcats throughout the resort and on snow runs. Mammoth also includes these warnings in trail maps. Further, in Willhide-Michiulis’s season-pass agreement, she acknowledged she understood “the sport involves numerous risks including, but not limited to, the risks posed by variations in terrain and snow conditions, . . . unmarked obstacles, . . . devices, . . . and other hazards whether they are obvious or not. I also understand that the sport involves risks posed by loss of balance . . . and collisions with natural and man-made objects, including . . . snow making equipment, snowmobiles and other over-snow vehicles.” Willhide-Michiulis further agreed to release Mammoth from liability “for any damage, injury or death to me and/or my child arising from participation in the sport or use of the facilities at Mammoth regardless of cause, including the ALLEGED NEGLIGENCE of Mammoth.”
On March 25, 2011, Clifford Mann, the general manager of mountain operations, had to dig out various buildings using a snowcat during Mammoth’s hours of operation because between 27 and 44 inches of snow fell the night before. At approximately 3:15 p.m., Mann was digging out a building when a Mammoth employee [*6] called to ask him to fill in a hole she had created with her snowmobile on Old Boneyard Road. Less than an hour before her call, the employee had been driving her snowmobile on the unmarked service road and got it stuck in the snow. She called for assistance and she and another Mammoth employee dug out the snowmobile. Once the machine had been dug out of the snow, there was too big of a hole for her and her coworker to fill in. They decided to call Mann to have him fill in the hole with the snowcat because it was near the end of the day and the hole was a safety hazard for all other snowmobiles that would use the service road at closing. Mann agreed and drove his snowcat with the tiller running to Old Boneyard Road, which branched off of the bottom of mambo snow run. Before leaving for the Old Boneyard Road location, Mann turned on the snowcat’s warning beacon, lights, and audible alarm.
Around this same time, Willhide-Michiulis, a Mammoth season-pass holder, and her brother went for their last snowboard run of the day while Willhide-Michiulis’s husband went to the car. It was a clear day and Willhide-Michiulis and her brother split up after getting off the chair lift. Willhide-Michiulis [*7] snowboarded down mambo, while her brother took a neighboring run. While Willhide-Michiulis rode down mambo, she was in control of her snowboard and traveling on the left side of the run. She saw the snowcat about 150 feet ahead of her on the trail. It was traveling downhill and in the middle of the run. Willhide-Michiulis initiated a “carve” to her left to go further to the left of the snowcat. When she looked up, the snowcat had “cut off her path” and she could not avoid a collision. Willhide-Michiulis hit the back left corner of the snowcat and her board went into the gap between the tracks of the snowcat and the tiller. Willhide-Michiulis was then pulled into the tiller.
Mann did not use a turn signal before initiating the turn onto Old Boneyard Road. Before the collision, Mann had constantly been checking around the snowcat for people by utilizing the snowcat’s mirrors and by looking over his shoulders and through the windows. The snowcat did not have a speedometer, but Mann thought he was going less than 10 miles an hour. When he had nearly completed the turn from lower mambo onto Old Boneyard Road, Mann saw a “black flash” in his rearview mirror. He immediately stopped the snowcat, [*8] which also stopped the tiller.
Mann got out of the snowcat and lifted the protective flap to look under the tiller. He saw Willhide-Michiulis stuck in the tiller and called for help. When help arrived, it took 30 minutes to remove Willhide-Michiulis from the tiller. She suffered a near-complete amputation of her left leg above the knee, which doctors amputated in a subsequent surgery. Her right leg sustained multiple fractures and lacerations, and she dislocated her right hip. The tiller also struck Willhide-Michiulis’s face, leaving multiple facial fractures and lacerations.
II
Plaintiffs’ Suit
Plaintiffs initially filed suit against Mammoth and Kassbohrer All Terrain Vehicles, the manufacturer of the snowcat and tiller, in Los Angeles County.1 As to Mammoth, plaintiffs alleged breach of contract, gross negligence, negligence, and loss of consortium. Venue was later transferred to Mono County, where the trial court dismissed multiple causes of action pertaining to Mammoth.2 The operative complaint alleges two causes of action against Mammoth — gross negligence and loss of consortium. At the same time plaintiffs filed the operative complaint, they also filed a motion to transfer venue back [*9] to Los Angeles County because it was more convenient for the parties and because plaintiffs could not receive a fair trial in Mono County. The trial court denied plaintiffs’ motion to transfer venue without prejudice and we denied the petition for writ of mandate plaintiffs filed challenging that ruling.
Mammoth later moved for summary judgment on the two remaining causes of action arguing that plaintiffs’ case was barred by the primary assumption of risk doctrine and the express assumption of risk agreement Willhide-Michiulis signed as part of her season-pass contract. The court agreed and granted Mammoth’s motion for summary judgment finding primary assumption of risk and the waiver in Willhide-Michiulis’s season-pass agreement barred plaintiffs relief. It found there was no dispute over the material facts of plaintiffs’ claims and that Willhide-Michiulis was injured when “she fell and slid under a [Mammoth] operated snowcat and was caught in the operating tiller. [Willhide-Michiulis] was snowboarding on an open run as the snowcat was operating on the same run. It appears that the collision occurred as the snowcat operator was negotiating a left turn from the run to the service road.” [*10] It also found that accepting plaintiffs’ factual allegations as true, i.e., Mann operated a snowcat and tiller on an open run, he failed to use a turn signal when making a sharp left turn from the center of the run, he failed to warn skiers of his presence, and no signs marked the existence of Old Boneyard Road — plaintiffs could not show Mammoth was grossly negligent or lacked all care because Mann took several safety precautions while driving the snowcat, and warning signs were posted throughout Mammoth Mountain, on trail maps, and in Willhide-Michiulis’s season-pass contract. Because plaintiffs could not show gross negligence, the waiver of liability they signed as part of their season-pass agreement barred recovery.
The court further found plaintiffs’ factual allegations did not support a finding that Mann’s conduct increased the inherent risks of snowboarding and, in fact, colliding with snow-grooming equipment is an inherent risk of the sport. Citing Souza v. Squaw Valley Ski Corp. (2006) 138 Cal.App.4th 262, 41 Cal. Rptr. 3d 389, the court explained snowcats are plainly visible and generally avoidable and serve as their own warning sign because they are an obvious danger. The snowcat is equally obvious when it is moving as when it is stationary. Thus, the [*11] primary assumption of risk doctrine also barred plaintiffs from recovery.
The court also excluded the declarations of three experts plaintiffs attached to their opposition to dispute Mammoth’s claim that it did not act with gross negligence. The first expert, Michael Beckley, worked in the ski industry for 25 years and was an “expert of ski resort safety and snow cat safety.” He held multiple positions in the industry, including ski instructor, snowcat driver, and director of mountain operations. Beckley based his opinions on the topography of the snow run, Mammoth’s snow grooming manual and snow grooming equipment, and accounts of Mann’s conduct while driving the snowcat. He opined the operation of a snowcat on an open run with its tiller running was “extremely dangerous,” “an extreme departure from an ordinary standard of conduct,” and “violate[d] the industry standard.” He believed Mann increased the risk of injury to skiers and violated industry standards by driving down the middle of a snow run and failing to signal his turn. Mammoth’s failure to close the snow run, provide spotters, or comply with its own safety rules, Beckley declared, violated industry standards and the ordinary standard [*12] of conduct.
Plaintiffs’ second expert, Eric Deyerl, was a mechanical engineer for over 20 years, with a specialization in vehicle dynamics and accident reconstruction. In forming his opinions, Deyerl inspected the snow run and snowcat equipment and relied on photographs and various accounts of the incident. Relying on those accounts, Deyerl opined that the circumstances leading to Willhide-Michiulis’s collision were different than those related by eyewitnesses. Deyerl believed that before initiating his turn, Mann failed to activate his turn signal, monitor his surroundings, and verify that he was clear — especially in the blind spot at the back left portion of the snowcat. No signs indicated the existence of Old Boneyard Road, and skiers like Willhide-Michiulis would not know to expect a snowcat to stop and turn from the middle of the snow run. All of these circumstances in isolation and together increased “the potential for a collision” and the risk of injury. Deyerl also disputed the accounts of eyewitnesses to Willhide-Michiulis’s collision with the snowcat.
The third expert, Brad Avrit, was a civil engineer who specialized in evaluating “safety practices and safety issues.” He was [*13] also an “avid skier for over thirty years.” He based his opinions on the topography of the snow run, Mammoth’s snow grooming manual and equipment, and accounts of Mann’s driving. Avrit opined that operating a snowcat on an open snow run with an active tiller was “an extreme departure from the ordinary standard of conduct that reasonable persons would follow in order to avoid injury to others.” He also believed Mann’s conduct of failing to drive down the left side of the snow run, failing to monitor his surroundings, and failing to signal his left turn or verify he was clear to turn, “increase[d] the risk of collision and injury.” Avrit also thought the risk to skiers was increased by Mammoth’s failure to either close the snow run or use spotters while operating the snowcat when open to the public, or alternatively waiting the 30 minutes until the resort was closed to fix the hole on Old Boneyard Road.
Mammoth lodged both general and specific objections to these declarations. Generally, Mammoth asserted the experts’ opinions were irrelevant to the assumption of risk and gross negligence legal determinations before the court, the opinions lacked proper foundation, and the opinions were improper [*14] conclusions of law. Specifically, Mammoth objected to several paragraphs of material on predominantly the same grounds. Finding the experts’ opinions irrelevant and citing Towns v. Davidson (2007) 147 Cal.App.4th 461, 54 Cal. Rptr. 3d 568 (Towns), the trial court sustained Mammoth’s general objections and numerous specific objections.
DISCUSSION
I
The Court Properly Granted Mammoth’s Motion For Summary Judgment
Plaintiffs contend the trial court improperly granted Mammoth’s motion for summary judgment. They first contend the trial court abused its discretion when excluding their experts’ declarations, and thus improperly ruled on Mammoth’s motion without considering relevant evidence. They also contend primary assumption of risk does not apply because Mann’s negligent driving and operation of a tiller on an open run increased the inherent risks associated with snowboarding. Further, plaintiffs argue these same facts establish Mammoth’s conduct was grossly negligent and fell outside of the liability waiver Willhide-Michiulis signed as part of her season-pass agreement.
We conclude the trial court did not abuse its discretion when excluding plaintiffs’ experts’ declarations. Additionally, plaintiffs cannot show Mammoth was grossly negligent and violated [*15] the terms of the release of liability agreement found in Willhide-Michiulis’s season-pass contract. Because the express assumption of risk in the release applies, we need not consider the implied assumption of risk argument also advanced by plaintiffs. (Vine v. Bear Valley Ski Co. (2004) 118 Cal.App.4th 577, 590, fn. 2, 13 Cal. Rptr. 3d 370; Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1374-1375, 59 Cal. Rptr. 2d 813; Allabach v. Santa Clara County Fair Assn. (1996) 46 Cal.App.4th 1007, 1012-1013, 54 Cal. Rptr. 2d 330.)
A
The Court Did Not Abuse Its Discretion When Excluding The Expert Declarations Attached To Plaintiffs’ Opposition
As part of their argument that the court improperly granted Mammoth’s motion for summary judgment, plaintiffs contend the trial court abused its discretion when excluding the expert declarations attached to their opposition. Specifically, plaintiffs argue expert testimony was appropriate under Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 4 Cal. Rptr. 3d 103, 75 P.3d 30, because “the facts here certainly warrant consideration of the expert testimony on the more esoteric subject of assessing whether a negligently-driven snowcat is an inherent risk of recreational skiing.” Mammoth counters that the evidence was properly excluded because it was irrelevant and “offered opinions of legal questions of duty for the court to decide.” We agree with Mammoth.
“Generally, a party opposing a motion for summary judgment may use declarations by an expert to raise a triable issue of fact on an element of the [*16] case provided the requirements for admissibility are established as if the expert were testifying at trial. [Citations.] An expert’s opinion is admissible when it is ‘[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact . . . .’ [Citation.] Although the expert’s testimony may embrace an ultimate factual issue [citation], it may not contain legal conclusions.” (Towns, supra, 147 Cal.App.4th at p. 472.)
“In the context of assumption of risk, the role of expert testimony is more limited. ‘It is for the court to decide whether an activity is an active sport, the inherent risks of that sport, and whether the defendant has increased the risks of the activity beyond the risks inherent in the sport.’ [Citation.] A court in its discretion could receive expert factual opinion to inform its decision on these issues, particularly on the nature of an unknown or esoteric activity, but in no event may it receive expert evidence on the ultimate legal issues of inherent risk and duty.” (Towns, supra, 147 Cal.App.4th at pp. 472-473.)
In Kahn, the plaintiff was a 14-year-old member of a school swim team who broke her neck after diving in shallow water. (Kahn v. East Side Union High School Dist., supra, 31 Cal.4th at p. 998.) Her coach had previously assured her she would not have to dive [*17] at meets and she never learned how to dive in shallow water. Minutes before a meet, however, the coach told the plaintiff she would have to dive and threatened to kick her off the team if she refused. With the help of some teammates, the plaintiff tried a few practice dives but broke her neck on the third try. She sued based on negligent supervision and training. (Ibid.)
The court determined the case could not be resolved on summary judgment as there was conflicting evidence whether the coach had provided any instruction or, if so, whether that instruction followed the recommended training sequence, and whether plaintiff was threatened into diving. (Kahn v. East Side Union High School Dist., supra, 31 Cal.4th at pp. 1012-1013.) The court concluded the trial court was not compelled to disregard the opinions of a water safety instructor about the proper training a swimmer requires before attempting a racing dive in shallow water. (Id. at pp. 999, 1017.) In so ruling, the Kahn court stated, “[c]ourts ordinarily do not consider an expert’s testimony to the extent it constitutes a conclusion of law [citation], but we do not believe that the declaration of the expert in the present case was limited to offering an opinion on a conclusion of law. We do not rely upon expert opinion testimony to [*18] establish the legal question of duty, but ‘we perceive no reason to preclude a trial court from receiving expert testimony on the customary practices in an arena of esoteric activity for purposes of weighing whether the inherent risks of the activity were increased by the defendant’s conduct.'” (Id. at p. 1017.) Thus, while the Kahn court did not preclude the trial court from considering expert testimony about the “‘customary practices in an arena of esoteric activity,'” it did not mandate a court to consider it either.
Here, plaintiffs argue their experts’ declarations were necessary to inform the trial court of the “more esoteric subject” of whether Mann’s negligent driving of the snowcat increased the inherent risks of recreational snowboarding. The problem with plaintiffs’ argument is that the experts’ declarations did not inform the court “‘on the customary practices'” of the esoteric activity of snowcat driving. (See Kahn v. East Side Union High School Dist., supra, 31 Cal.4th at p. 1017.) While stating that Mann and Mammoth violated industry standards and increased the potential for collision, no expert outlined what the industry standards were for operating a snowcat and thus provided no context for the trial court to determine the legal question of duty. The [*19] expert in Kahn provided this type of context by declaring the proper procedures for training swimmers to dive, making it so the trial court could compare the defendant’s conduct to the industry standard. (Kahn, at pp. 999.) The declarations here merely repeated the facts contained in the discovery materials and concluded the risk of injury and collision was increased because of those facts.
The conclusory statements in the expert declarations make plaintiffs’ case like Towns, where the trial court did not abuse its discretion when excluding an expert’s opinion. (Towns, supra, 147 Cal.App.4th at pp. 472-473.) In Towns, the plaintiff sued the defendant after he collided with her on a ski run. (Id. at p. 465.) In opposition to the defendant’s motion for summary judgment, the plaintiff submitted the declaration of her expert, a member of the National Ski Patrol and a ski instructor. (Id. at pp. 466, 471-472.) In his declaration, the expert opined that the defendant’s behavior was reckless and “‘outside the range of the ordinary activity involved in the sport of skiing.'” (Id. at p. 472.)
The trial court excluded the declaration in its entirety and granted the motion for summary judgment. The appellate court affirmed explaining, “[t]he nature and risks of downhill skiing are commonly understood, the [*20] demarcation of any duty owed is judicially defined, and, most significantly, the facts surrounding the particular incident here are not in dispute. Thus, the trial court was deciding the issue of recklessness as a matter of law.” (Towns, supra, 147 Cal.App.4th at pp. 472-473.)
The court also noted the expert’s declaration “added nothing beyond declaring the undisputed facts in his opinion constituted recklessness. In short, he ‘was advocating, not testifying.’ [Citation.] He reached what in this case was an ultimate conclusion of law, a point on which expert testimony is not allowed. [Citation.] ‘Courts must be cautious where an expert offers legal conclusions as to ultimate facts in the guise of an expert opinion.’ [Citation.] This is particularly true in the context of assumption of risk where the facts are not in dispute.” (Towns, supra, 147 Cal.App.4th at p. 473.)
Like the expert in Towns, plaintiffs’ experts only provided ultimate conclusions of law. Although Beckley declared to be an expert in snowcat safety, he shed no light on the subject except to say Mann’s conduct was “an extreme departure from an ordinary standard of conduct,” and “violate[d] the industry standard.” Similarly, Avrit, who was an expert in evaluating safety practices, did nothing more than declare [*21] that Mann’s driving and Mammoth’s grooming practices “increase[d] the risk of collision and injury.” Deyerl, an expert in accident reconstruction, disputed the accounts of percipient witnesses and declared Mann’s driving and Mammoth’s grooming practices increased “the potential for a collision” and the risk of injury. In short, plaintiffs’ experts provided irrelevant opinions more akin to “‘advocating, not testifying.'” (Towns, supra, 147 Cal.App.4th at p. 473.) Thus, the court did not abuse its discretion when excluding the expert declarations attached to plaintiffs’ opposition.
B
Summary Judgment Was Proper
We review a trial court’s grant of summary judgment de novo. (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 388-389, 46 Cal. Rptr. 3d 668, 139 P.3d 56.) “In performing our de novo review, we must view the evidence in a light favorable to [the] plaintiff as the losing party [citation], liberally construing [the plaintiff’s] evidentiary submission while strictly scrutinizing [the] defendant[‘s] own showing, and resolving any evidentiary doubts or ambiguities in [the] plaintiff’s favor.” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768-769, 107 Cal. Rptr. 2d 617, 23 P.3d 1143.)
Summary judgment is proper when “all the papers submitted show that there is no triable issue as to any material fact and that [defendant] is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment meets [*22] its burden of showing there is no merit to a cause of action by showing one or more elements of the cause of action cannot be established or there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) Once the defendant has made the required showing, the burden shifts back to the plaintiff to show a triable issue of one or more material facts exists as to that cause of action or defense. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849, 853, 107 Cal. Rptr. 2d 841, 24 P.3d 493.)
1
Mammoth Met Its Burden Of Showing There Was No Merit To Plaintiffs’ Claim
As described, plaintiffs signed a season-pass agreement, which included a term releasing Mammoth from liability “for any damage, injury or death . . . arising from participation in the sport or use of the facilities at Mammoth regardless of cause, including the ALLEGED NEGLIGENCE of Mammoth.” The agreement also contained a paragraph describing the sport as dangerous and involving risks “posed by loss of balance, loss of control, falling, sliding, collisions with other skiers or snowboarders and collisions with natural and man-made objects, including trees, rocks, fences, posts, lift towers, snow making equipment, snowmobiles and other over-snow vehicles.” “While often referred to as a defense, a release of future liability is [*23] more appropriately characterized as an express assumption of the risk that negates the defendant’s duty of care, an element of the plaintiff’s case.” (Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 719, 183 Cal. Rptr. 3d 234.) Express assumption of risk agreements are analogous to the implied primary assumption of risk doctrine. (Knight v. Jewett (1992) 3 Cal.4th 296, 308, fn. 4, 11 Cal. Rptr. 2d 2, 834 P.2d 696; Amezcua v. Los Angeles Harley-Davidson, Inc. (2011) 200 Cal.App.4th 217, 227-228, 132 Cal. Rptr. 3d 567.) “‘”The result is that the defendant is relieved of legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence.”‘” (Eriksson, at p. 719, italics omitted.)
Generally, in cases involving an express assumption of risk there is no cause to analyze the activity the complaining party is involved in or the relationship of the parties to that activity. (Allabach v. Santa Clara County Fair Assn., supra, 46 Cal.App.4th at p. 1012; see also Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1484, 72 Cal. Rptr. 3d 471 [“With respect to the question of express waiver, the legal issue is not whether the particular risk of injury appellant suffered is inherent in the recreational activity to which the Release applies [citations], but simply the scope of the Release“]; see also Vine v. Bear Valley Ski Co., supra, 118 Cal.App.4th at p. 590, fn. 2 [“if the express assumption of risk in the release applies, the implied assumption of risk principles . . . would not come into play”].) However, where, as here, plaintiffs allege defendant’s conduct fell outside the scope of the agreement and a more detailed analysis of the scope of a defendant’s duty [*24] is necessary.
“[T]he question of ‘the existence and scope’ of the defendant’s duty is one of law to be decided by the court, not by a jury, and therefore it generally is ‘amenable to resolution by summary judgment.'” (Kahn v. East Side Union High School Dist., supra, 31 Cal.4th at pp. 1003-1004.) A release cannot absolve a party from liability for gross negligence. (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 750-751, 776-777, 62 Cal. Rptr. 3d 527, 161 P.3d 1095.) In Santa Barbara, our Supreme Court reasoned that “the distinction between ‘ordinary and gross negligence‘ reflects ‘a rule of policy’ that harsher legal consequences should flow when negligence is aggravated instead of merely ordinary.” (Id. at p. 776, quoting Donnelly v. Southern Pacific Co. (1941) 18 Cal.2d 863, 871, 118 P.2d 465.) The issue we must determine here is whether, with all facts and inferences construed in plaintiffs’ favor, Mammoth’s conduct could be found to constitute gross negligence. Plaintiffs alleged in the operative complaint that Mammoth was grossly negligent in the “operation of the subject snow cat,” by operating the tiller on an open run without utilizing spotters and failing to warn skiers of the snowcat’s presence on the run and the danger posed by its tiller. These allegations are insufficient to support a finding of gross negligence.
Ordinary negligence “consists of the failure to exercise the degree of care in a given situation that a reasonable person [*25] under similar circumstances would employ to protect others from harm.” (City of Santa Barbara v. Superior Court, supra, 41 Cal.4th at pp. 753-754.) “‘”[M]ere nonfeasance, such as the failure to discover a dangerous condition or to perform a duty,”‘ amounts to ordinary negligence. [Citation.] However, to support a theory of ‘”[g]ross negligence,”‘ a plaintiff must allege facts showing ‘either a “‘”want of even scant care”‘” or “‘”an extreme departure from the ordinary standard of conduct.”‘” [Citations.]’ [Citations.] ‘”‘[G]ross negligence‘ falls short of a reckless disregard of consequences, and differs from ordinary negligence only in degree, and not in kind. . . .”‘” (Anderson v. Fitness Internat., LLC (2016) 4 Cal.App.5th 867, 881, 208 Cal. Rptr. 3d 792.)
“[T]he nature of a sport is highly relevant in defining the duty of care owed by the particular defendant.” (Knight v. Jewett, supra, 3 Cal.4th at p. 315.) “‘[I]n the sports setting . . . conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself.’ [Citation.] [Our Supreme Court has] explained that, as a matter of policy, it would not be appropriate to recognize a duty of care when to do so would require that an integral part of the sport be abandoned, or would discourage vigorous participation in sporting events.” (Kahn v. East Side Union High School Dist., supra, 31 Cal.4th at p. 1004.) But the question of duty depends not only on the nature of the sport, but also on the [*26] role of the defendant whose conduct is at issue in a given case. (Ibid.) “‘[A] purveyor of recreational activities owes a duty to a patron not to increase the risks inherent in the activity in which the patron has paid to engage.'” (Id. at p. 1005.) Thus, in cases involving a waiver of liability for future negligence, courts have held that conduct that substantially or unreasonably increased the inherent risk of an activity or actively concealed a known risk could amount to gross negligence, which would not be barred by a release agreement. (See Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 856, 120 Cal. Rptr. 3d 90.)
Numerous cases have pondered the factual question of whether various ski resorts have increased the inherent risks of skiing or snowboarding. (See Vine v. Bear Valley Ski Co., supra, 118 Cal.App.4th at p. 591 [redesign of snowboarding jump]; Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354, 366, 114 Cal. Rptr. 2d 265 [construction of the unmarked race start area on the ski run]; Van Dyke v. S.K.I. Ltd. (1998) 67 Cal.App.4th 1310, 1317, 79 Cal. Rptr. 2d 775 [placement of signs in ski run].) It is well established that “‘”‘[e]ach person who participates in the sport of [snow] skiing accepts the dangers that inhere in that sport insofar as the dangers are obvious and necessary. Those dangers include, but are not limited to, injuries which can result from variations in terrain; surface or subsurface snow or ice conditions; bare spots; rocks, trees and other forms of natural [*27] growth or debris; collisions with ski lift towers and their components, with other skiers, or with properly marked or plainly visible snow-making or snow-grooming equipment.'”‘” (Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8, 12, 45 Cal. Rptr. 2d 855, italics omitted; see also Lackner v. North (2006) 135 Cal.App.4th 1188, 1202, 37 Cal. Rptr. 3d 863; Towns, supra, 147 Cal.App.4th at p. 467.)
Plaintiffs argue the above language is simply dicta and no authority has ever held that colliding with snow-grooming equipment is an inherent risk in snowboarding or skiing. Because there is no authority specifically addressing the inherent risk of snow-grooming equipment, plaintiffs argue, colliding with a snowcat is not an inherent risk of snowboarding. Further, even if it were, Mammoth increased the inherent risk of snowboarding by operating a snowcat and tiller on an open run. We disagree.
The main problem with plaintiffs’ argument that common law has not recognized collisions with snow-grooming equipment as an inherent risk of skiing, is that plaintiffs’ season-pass agreement did. When signing their season-pass agreement, both Willhide-Michiulis and her husband acknowledged that skiing involved the risk of colliding with “over-snow vehicles.” Willhide-Michiulis testified she read the agreement but did not know an “over-snow vehicle” included a snowcat. Plaintiffs, however, [*28] did not argue in the trial court or now on appeal that this term is ambiguous or that the parties did not contemplate collisions with snowcats as a risk of snowboarding. “Over-snow vehicles” is listed in the contract along with “snow making equipment” and “snowmobiles,” indicating a clear intent to include any vehicle used by Mammoth for snow maintenance and snow travel.
Moreover, common law holds that collisions with snow-grooming equipment are an inherent risk of skiing and snowboarding. In Connelly, the plaintiff collided with an unpadded ski lift tower while skiing. (Connelly v. Mammoth Mountain Ski Area, supra, 39 Cal.App.4th at p. 8.) In affirming summary judgment for the defendant, the court found this risk was inherent in the sport and the obvious danger of the tower served as its own warning. (Id. at p. 12.) In concluding that contact with the tower was an inherent risk of the sport, the Connelly court relied on Danieley v. Goldmine Ski Associates, Inc. (1990) 218 Cal.App.3d 111, 266 Cal. Rptr. 749. (Connelly, at p. 12.) In Danieley, a skier collided with a tree. (Danieley, at p. 113.) The Danieley court, in turn, relied on a Michigan statute that set forth certain inherent risks of skiing, including both trees and “‘collisions with ski lift towers and their components'” along with properly marked or plainly visible “‘snow-making or snow-grooming equipment.'” (Id. at p. 123.) “[B]ecause the Michigan [*29] Ski Area Safety Act purports to reflect the preexisting common law, we regard its statutory pronouncements as persuasive authority for what the common law in this subject-matter area should be in California.” (Danieley, at p. 123.)
Although there may not be a published case specifically addressing the inherent risk of snowcats to skiers and snowboarders, a snowcat, otherwise known as snow-grooming equipment, is one of the risks explicitly adopted as California common law by the Danieley and Connelly courts. (Danieley v. Goldmine Ski Associates, Inc., supra, 218 Cal.App.3d at p. 123; Connelly v. Mammoth Mountain Ski Area, supra, 39 Cal.App.4th at p. 12.) Thus, in California, colliding with snow-grooming equipment is an inherent risk of the sport of snowboarding.
Nevertheless, plaintiffs argue operating the tiller of the snowcat on an open snow run increased the inherent risk snowcats pose to snowboarders. We recognize assumption of the risk, either express or implied, applies only to risks that are necessary to the sport. (Souza v. Squaw Valley Ski Corp., supra, 138 Cal.App.4th at pp. 268-269.) In Souza, a child skier collided with a plainly visible aluminum snowmaking hydrant located on a ski run. (Id. at p. 262.) Following Connelly, we affirmed summary judgment for the defendant, finding the snowmaking hydrant was visible and a collision with it was an inherent risk of skiing. (Souza, at pp. 268-272.) The snowmaking equipment in Souza was necessary [*30] and inherent to the sport of skiing because nature had failed to provide adequate snow. (Id. at p. 268.)
Here, plaintiffs claim snowcats operating on open runs are not necessary or inherent to the sport because “[p]recluding a snowcat from operating on an open run would minimize the risks without altering the nature of the sport one whit.” As in Souza, we find the following quote apt: “‘”As is at least implicit in plaintiff’s argument, . . . the doctrine of [primary] assumption of risk . . . would not apply to obvious, known conditions so long as a defendant could feasibly have provided safer conditions. Then, obviously, such risks would not be ‘necessary’ or ‘inherent’. This would effectively emasculate the doctrine, . . . changing the critical inquiry . . . to whether the defendant had a feasible means to remedy [the dangers].”‘” (Souza v. Squaw Valley Ski Corp., supra, 138 Cal.App.4th at p. 269.)
Snow-grooming equipment, including the snowcat and tiller at issue here, are necessary to the sport of snowboarding because the snowcat grooms the snow needed for snowboarding into a skiable surface. Without the tiller also grooming the snow, the snowcat leaves behind an unusable and unsafe surface riddled with berms and holes. This surface is so unsafe that Mammoth’s grooming [*31] guide prohibits snowcat drivers from leaving behind such hazards. Given the purpose of the snowcat and tiller, it cannot be said that they are not inherent and necessary to the sport of snowboarding.
The fact that the snowcat and tiller Willhide-Michiulis collided with was operating during business hours and on an open run does not affect our analysis. Willhide-Michiulis’s husband testified that, although uncommon, he had seen snowcats operating at Mammoth during business hours transporting people. Further, Taylor Lester, a witness to Willhide-Michiulis’s collision and a longtime Mammoth season-pass holder, testified that she had seen snowcats operating at Mammoth on prior occasions as well. Out of the 10 years she has been a season-pass holder, Lester had seen snowcats operating during business hours at Mammoth 20 to 40 times, half of which had been using their tillers.
In fact, Lester testified that it was common for her and her friends, and also her sister and father, to ride close behind snowcats that were tilling so that they could take advantage of the freshly tilled snow the snowcats produced. Freshly-tilled snow is considered desirable and “more fun” because it has not been tarnished [*32] by other skiers. Lester’s sister also testified she liked to “sneak behind” snowcats while they groom runs to ride on the freshly-tilled snow. Even after Willhide-Michiulis’s collision, Lester’s sister still snowboarded behind snowcats to ride the freshly groomed snow.
Given this testimony, we conclude that the use of snowcats and their tillers on ski runs during business hours is inherent to the sport of snowboarding, the use of which does not unreasonably increase the risks associated with the sport. To find Mammoth liable because it operated a snowcat and tiller during business hours would inhibit the vigorous participation in the sport Lester and her sister testified about. Instead of racing to freshly tilled snow to take advantage of its unspoiled status, snowboarders and skiers alike would be prohibited from chasing snowcats and instead have to settle for inferior skiing conditions. Further, snowcats would no longer be used as modes of transportation at ski resorts, a common practice testified to by Willhide-Michiulis’s husband. Or snowcats would operate, but without their tiller, leaving behind unsafe skiing conditions that would doubtlessly interfere with full and vigorous participation [*33] in the sport. (See Kahn v. East Side Union High School Dist., supra, 31 Cal.4th at p. 1004 [“it would not be appropriate to recognize a duty of care when to do so would require that an integral part of the sport be abandoned, or would discourage vigorous participation in sporting events”].)
Regardless of the fact that snowcats and tillers are inherent in the sport of snowboarding, plaintiffs also allege the snowcat Willhide-Michiulis collided with was not obvious and Mammoth was grossly negligent because it failed to provide spotters or warn skiers of the snowcat’s presence on the run or the dangerousness of its tiller. As described, gross negligence requires a showing of “‘either a “‘”want of even scant care”‘” or “‘”an extreme departure from the ordinary standard of conduct.”‘”‘” (Anderson v. Fitness Internat., LLC., supra, 4 Cal.App.5th at p. 881.)
Here, Mammoth did warn plaintiffs of the presence of snowcats and other snow-grooming equipment at the ski resort. At the top and bottom of every chair lift, Mammoth posts signs warning of the presence of snowcats throughout the resort and on snow runs. Mammoth also included these warnings in its trail maps. These warnings were also apparent in plaintiffs’ season-pass agreement, which warned that “the sport involves numerous risks including, but not limited to, the risks [*34] posed by . . . collisions with natural and man-made objects, including . . . snow making equipment, snowmobiles and other over-snow vehicles.” Willhide-Michiulis acknowledged that she saw the warning contained in her season-pass agreement.
Not only were plaintiffs warned about the possible presence of snow-grooming equipment throughout the ski resort, but Willhide-Michiulis was warned of the presence of the specific snowcat she collided with. Before going down the mambo run to fix the pothole on Old Boneyard Road, Mann turned on the safety beacon, warning lights, and audible alarm to the snowcat. This provided warning to all those around the snowcat, whether they could see it or not, to the snowcat’s presence. Further, the snowcat Willhide-Michiulis collided with is large, bright red, and slow-moving, making it generally avoidable by those around it. Indeed, Willhide-Michiulis testified that she saw the snowcat about 150 feet before she collided with it. Although she claims the snowcat cut off her path, the snowcat was traveling less than ten miles an hour before standing nearly motionless while turning onto Old Boneyard Road downhill from Willhide-Michiulis. As the trial court found, [*35] “‘the very existence of a large metal plainly-visible [snowcat] serves as its own warning.'” (Citing Souza v. Squaw Valley Ski Corp., supra, 138 Cal.App.4th at p. 271.) Upon seeing such a warning, it was incumbent upon Willhide-Michiulis to avoid it — nothing was hidden from Willhide-Michiulis’s vision by accident or design.
Given these facts, we cannot conclude, as plaintiffs would have us do, that Mann’s failure to timely signal his turn or Mammoth’s failure to provide spotters or warn of the specific dangers of a tiller constituted gross negligence. Given all the other warnings provided by Mammoth and Mann, plaintiffs cannot show “‘either a “‘”want of even scant care”‘” or “‘”an extreme departure from the ordinary standard of conduct.”‘”‘” (Anderson v. Fitness Internat., LLC., supra, 4 Cal.App.5th at p. 881.) Accordingly, Mammoth was successful in meeting its burden to show the allegations in plaintiffs’ complaint lacked merit.
2
No Triable Issue Of Fact Exists To Preclude Summary Judgment
Because Mammoth met its initial burden, plaintiffs now have the burden to show that a triable issue of fact exists. Plaintiffs argue that one does exist because the way Mann drove the snowcat at the time of the collision was grossly negligent. In addition to the allegations in the complaint — that operating a snowcat and tiller [*36] on an open run was grossly negligent — plaintiffs alleged in their opposition that Mann was grossly negligent also for failing to use a turn signal when making a sharp left turn from the center of a snow run onto an unmarked service road without warning skiers of his presence or the possibility that a snowcat would turn at the locations of Old Boneyard Road. They point to their experts’ declarations and Mann’s violations of Mammoth’s safety standards as support for this contention.
“‘Generally it is a triable issue of fact whether there has been such a lack of care as to constitute gross negligence [citation] but not always.'” (Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 640, 189 Cal. Rptr. 3d 449, quoting Decker v. City of Imperial Beach (1989) 209 Cal.App.3d 349, 358, 257 Cal. Rptr. 356; see also City of Santa Barbara v. Superior Court, supra, 41 Cal.4th at p. 767 [“we emphasize the importance of maintaining a distinction between ordinary and gross negligence, and of granting summary judgment on the basis of that distinction in appropriate circumstances”].) Where the evidence on summary judgment fails to demonstrate a triable issue of material fact, the existence of gross negligence can be resolved as a matter of law. (See Honeycutt v. Meridian Sports Club, LLC (2014) 231 Cal.App.4th 251, 260, 179 Cal. Rptr. 3d 473 [stating a mere difference of opinion regarding how a student should be instructed does not amount to gross negligence]; Frittelli, Inc. v. 350 North Canon Drive, LP (2011) 202 Cal.App.4th 35, 52-53, 135 Cal. Rptr. 3d 761 [no triable issue of material fact precluding summary [*37] judgment, even though the evidence raised conflicting inferences regarding whether measures undertaken by the defendants were effective to mitigate effects on commercial tenant of remodeling project]; Grebing v. 24 Hour Fitness USA, Inc. (2015) 234 Cal.App.4th 631, 639, 184 Cal. Rptr. 3d 155 [no triable issue of material fact where defendant took several measures to ensure that its exercise equipment, on which plaintiff was injured, was well maintained].)”
As described, Mann’s driving of the snowcat with a tiller on an open run was not grossly negligent and was, in fact, an inherent part of the sport of snowboarding and conduct contemplated by the parties in the release of liability agreement. The question now is whether the additional conduct alleged in plaintiffs’ opposition — Mann’s failure to use a turn signal, making of a sharp left turn from the middle of the snow run, failure to warn skiers on mambo of his presence, and failure to warn skiers of the existence of Old Boneyard Road — elevated Mann’s conduct to gross negligence. We conclude it does not.
We have already described why plaintiffs’ claims that Mann failed to provide adequate warning of his existence on the snow run and of his turn did not rise to the level of gross negligence. His additional alleged conduct [*38] of driving down the middle of the snow run and making a sharp left turn onto an unmarked service road also do not justify a finding of gross negligence in light of the precautions taken by both Mammoth and Mann. Mammoth warned plaintiffs of the possible presence of snow-grooming equipment in its season-pass contracts, trail maps, and throughout the ski resort. Mann also turned on the snowcat’s warning lights, beacon, and audible alarm before driving down mambo. Mann testified he constantly looked for skiers and snowboarders while driving the snowcat down mambo and that he checked through the snowcat’s mirrors and windows to make sure he was clear before making the turn onto Old Boneyard Road. He also testified he did not drive the snowcat faster than ten miles an hour while on mambo and was traveling even slower during the turn. This fact was confirmed by Lester. Given these affirmative safety precautions, Mann’s failure to use a turn signal when turning from the middle of the run onto an unmarked service road did not equate to “‘either a “‘”want of even scant care”‘” or “‘”an extreme departure from the ordinary standard of conduct.”‘”‘” (See Anderson v. Fitness Internat., LLC, supra, 4 Cal.App.5th at p. 881.)
Plaintiffs dispute this conclusion by [*39] citing to their expert declarations and Mammoth’s grooming guide as support that Mann’s conduct was an extreme departure from industry standards and Mammoth’s own safety policies. Evidence of conduct that evinces an extreme departure from safety directions or an industry standard could demonstrate gross negligence. (See Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal.App.4th 546, 561, 188 Cal. Rptr. 3d 228.) Conversely, conduct demonstrating the failure to guard against, or warn of, a dangerous condition typically does not rise to the level of gross negligence. (See DeVito v. State of California (1988) 202 Cal.App.3d 264, 272, 248 Cal. Rptr. 330.)
To illustrate this point, plaintiffs cite two cases. First, they rely on Jimenez. In Jimenez, one of the plaintiffs was injured when she fell backwards off of a moving treadmill and hit her head on an exercise machine that was approximately four feet behind the treadmill. (Jimenez v. 24 Hour Fitness USA, Inc., supra, 237 Cal.App.4th at p. 549.) The plaintiffs presented evidence “indicating a possible industry standard on treadmill safety zones,” including the manufacturer’s statement in its manual that a six-foot space behind the treadmill was necessary for user safety and an expert’s statement that placing other equipment so close to the back of the treadmill greatly increased the risk of injury. (Id. at p. 556.) The court concluded, based on this evidence, a jury could reasonably find [*40] the failure to provide the minimum safety zone was an extreme departure from the ordinary standard of care, and thus a triable issue of fact existed to preclude summary judgment. (Id. at p. 557.)
In Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 122 Cal. Rptr. 3d 22, also relied upon by plaintiffs, the plaintiff was riding a motorcycle when he fell near a platform in an area out of view of other riders at a motocross facility, and was struck by another cyclist. (Id. at pp. 1072, 1077.) The caution flagger, who was supposed to have staffed the platform to alert riders to the presence of fallen cyclists, was not on duty when plaintiff fell. The court found the release plaintiff signed unenforceable against a claim of gross negligence. (Id. at pp. 1077, 1081.) It noted the dangerous nature of the sport, and also found a specific duty on the part of the course operator to provide some form of warning system such as the presence of caution flaggers. (Id. at p. 1084.) Also, the course owner had a safety manual requiring flaggers to stay at their stations whenever riders were on the course, and expert testimony was presented that caution flaggers were required at all such times. (Id. at p. 1086.) Because the evidence could support a finding that the absence of a caution flagger was an extreme and egregious departure from the standard of [*41] care given the applicable safety manual and in light of knowledge of the particular dangers posed, the claim of gross negligence should have survived summary judgment. (Id. at p. 1089.)
Plaintiffs’ reliance on these cases is misplaced for two reasons. First, unlike Jimenez and Rosencrans, plaintiffs presented no expert evidence regarding the safety standards applicable to snowcat drivers. (See Rosencrans v. Dover Images, Ltd., supra, 192 Cal.App.4th at pp. 1086-1087 [triable issue of fact as to gross negligence where a safety expert’s declaration described common safety precautions for motocross and stated that the defendant’s failure to take those safety precautions constituted an extreme departure from the ordinary standard of conduct and showed a blatant disregard for the safety of the participants].) And second, plaintiffs did not produce evidence showing that Mammoth failed to take any safety precautions required by company safety policies.
As described, the trial court did not abuse its discretion in excluding the experts’ declarations from evidence. The declarations did nothing more than to provide conclusions that Mann’s and Mammoth’s conduct violated industry standards and constituted gross negligence. The experts did not articulate what the industry standards [*42] for driving a snowcat or for protecting the skiing public from a snowcat actually were, let alone how Mann and Mammoth violated them. Instead, the experts merely provided their opinions that Mammoth and Mann failed to guard from or warn of the dangerous condition the snowcat and tiller posed. This is insufficient for a showing of gross negligence. (See DeVito v. State of California, supra, 202 Cal.App.3d at p. 272.)
Plaintiffs’ reliance on Mammoth’s grooming guide is likewise misplaced. Plaintiffs characterize the grooming guide as containing “safety standard[s],” which Mann violated by operating the snowcat’s tiller while the public was present. The grooming guide, however, does not purport to be a safety guide or to set safety standards for Mammoth’s snowcat operators. Instead, it is a “manual” where snowcat operators “will find a basis for all training that is a part of the Slope Maintenance Department.” While “all training” may also include safety training, nothing submitted by plaintiffs indicate that the excerpts they rely on are industry or company-wide safety standards as opposed to Mammoth’s guide to “acceptable high quality” grooming.
For example, the grooming guide instructs drivers to “[n]ever operate the tiller when the skiing public is present.” But [*43] the guide also justifies a snowcat’s presence in areas open to the public during emergencies, periods of extremely heavy snow, or for transportation of personnel or materials. Here, there was extremely heavy snow and a hazardous condition requiring Mann to drive a snowcat on public snow runs. The guide further instructs drivers that track marks left behind by a snowcat without a tiller are “not acceptable” and must be removed. It was Mann’s understanding from these guidelines that once a snowcat’s presence was justified in an area open to the public, the tiller also had to be running to leave behind safe skiing conditions.
Further, the guide instructs snowcat drivers to travel on a groomed snow run instead of on ungroomed snow on either side of the run. This is because ungroomed snow is made of unstable soft snow that cannot support the weight of a snowcat. According to the grooming guide, driving on a finished groomed run “is better than risking your cat or your life” on the ungroomed snow on the sides of the run. Thus, Mann did not violate Mammoth’s safety policy by driving down the center of a snow run when traveling to Old Boneyard Road and operating the snowcat’s tiller on a public [*44] run. Because it is not reasonable a jury would find Mann violated safety policies contained in the grooming guide, let alone that that violation constituted more than mere negligence, plaintiffs have not shown that Mann’s or Mammoth’s conduct rose to the level of gross negligence.
II
Venue
Plaintiffs contend the trial court abused its discretion when denying their motion to transfer venue to Los Angeles County where they initially filed their suit. Specifically, plaintiffs argue their motion should have been granted because it was more convenient for the parties and their witnesses to have trial in Los Angeles County and because plaintiffs could not receive a fair trial in Mono County. Thus, plaintiffs argue, “upon reversal of summary judgment, the trial court should be directed to issue an order transferring this action back to Los Angeles.”
As plaintiffs acknowledge, a reversal of the court’s summary judgment order is a vital initial step to reversal of the trial court’s order regarding venue. This is because without first showing that their case is active and trial is pending, plaintiffs cannot show a miscarriage of justice resulting from the denial of their venue motion.
We are enjoined [*45] by our Constitution not to reverse any judgment “for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13; see also Code Civ. Proc., § 475.) Prejudice is not presumed, and “our duty to examine the entire cause arises when and only when the appellant has fulfilled his duty to tender a proper prejudice argument.” (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106, 87 Cal. Rptr. 2d 754.)
Plaintiffs cannot show prejudice resulting from the denial of their venue motion because we upheld the trial court’s summary judgment ruling and their case has been dismissed. Thus, even if the venue motion should have been granted and venue transferred to Los Angeles for trial, there is no trial to be had. Accordingly, we need not address plaintiffs’ claim of error regarding their motion to transfer venue.
DISPOSITION
The judgment is affirmed. Costs are awarded to defendants. (Cal. Rule of Court, rule 8.278, subd. (a)(1).)
Recreation Law 