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Gibbud et al., v Camp Shane, Inc., 30 A.D.3d 865; 817 N.Y.S.2d 435; 2006 N.Y. App. Div. LEXIS 8254; 2006 NY Slip Op 5075

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

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Barnes and a. v. New Hampshire Karting Association, Inc, 128 N.H. 102; 509 A.2d 151; 1986 N.H. LEXIS 254

Posted: February 5, 2017 | Author: Recreation Law | Filed under: Legal Case, New Hampshire, Racing, Release (pre-injury contract not to sue) | Tags: Go Karting, Karting Association | Leave a comment

Barnes & a. v. New Hampshire Karting Association, Inc, 128 N.H. 102; 509 A.2d 151; 1986 N.H. LEXIS 254

John E. Barnes & a. v. New Hampshire Karting Association, Inc. & a.

No. 85-204

Supreme Court of New Hampshire

128 N.H. 102; 509 A.2d 151; 1986 N.H. LEXIS 254

May 12, 1986

COUNSEL: David J. KillKelley, of Laconia, by brief and orally, for the plaintiffs.

Sulloway Hollis & Soden, of Concord (Edward M. Kaplan and Robert J. Lanney on the brief, and Mr. Kaplan orally), for the defendants.

JUDGES: King, C.J. All concurred.

OPINION BY: KING

OPINION

[*104] [**152] The plaintiffs, John E. and Virginia A. Barnes, sued the New Hampshire Karting Association (NHKA), David E. Whitesell, Midway Raceway, Inc. d/b/a Bryar Motorsport Park (Bryar), the World Karting Association (WKA) and International Insurance Company (International) for damages arising from injuries sustained by John Barnes (Barnes, or the plaintiff) in an Enduro kart collision at Bryar in 1981. Defendants Whitesell, NHKA, WKA and Bryar moved for summary judgment, claiming that the release executed by Barnes barred him from seeking recovery. Following a hearing, the Master (Louie C. Elliott, Jr., Esq.) recommended that the defendants’ motion for summary judgment be granted as to all counts asserted by John Barnes against Whitesell, NHKA, WKA and Bryar. The master recommended denial of the motion for summary judgment as to the [***2] claims asserted by Virginia Barnes and ruled that the release did not bar claims against International. The Superior Court (DiClerico, J.) approved the master’s recommendations. We affirm.

On August 29, 1981, before entering the pit area at the Bryar Motorsport Park, John Barnes signed a “pit pass” containing the release at issue. The pass comprised three parts; the participant was given the top portion, which stated “THE HOLDER ACKNOWLEDGES SIGNING WAIVER & RELEASE FROM LIABILITY BEFORE ENTERING TRACK AREA.” The middle section, which each participant was required to sign in order to receive a number for the race, provided:

“RELEASE AND WAIVER OF LIABILITY AND INDEMNITY AGREEMENT

IN CONSIDERATION of being permitted to enter for any purpose any RESTRICTED AREA (herein defined as including but not limited to, the racing surface, pit areas, infield, burn out area, approach area, shut down area, and all walkways, concessions and other areas appurtenant to [*105] any area where any activity related to the event shall take place), or being permitted to compete, officiate, observe, work for, or for any purpose participate in any way in the event, EACH OF THE UNDERSIGNED [***3] . . .

HEREBY RELEASES, WAIVES, DISCHARGES AND COVENANTS NOT [**153] TO SUE . . . from all liability to the undersigned . . . for any and all loss or damage, and any claim or demands therefor on account of injury to the person or property or resulting in death of the undersigned, whether caused by the negligence of the releases [sic] or otherwise while the undersigned is in or upon the restricted area, and/or competing, officiating in, observing, working for, or for any purpose participating in the event;

. . .

HEREBY ASSUMES FULL RESPONSIBILITY FOR AND RISK OF BODILY INJURY, DEATH OR PROPERTY DAMAGE due to the negligence of releasees or otherwise while in or upon the restricted area and/or while competing, officiating, observing, or working for or for any purpose participating in the event.

EACH OF THE UNDERSIGNED expressly acknowledges and agrees that the activities of the event are very dangerous and involve the risk of serious injury and/or death and/or property damage. . . .

THE UNDERSIGNED HAS READ AND VOLUNTARILY SIGNS THE RELEASE AND WAIVER OF LIABILITY AND INDEMNITY AGREEMENT, and further agrees that no oral representations, statements of inducements [sic] [***4] apart from the foregoing written agreement have been made.”

The master found that Barnes did not read the release portion before signing the pit pass on this occasion or on the previous occasions he had raced at the track. Nonetheless, Barnes admitted that he had read the top portion and understood that the document he was signing was “[s]ome sort of waiver or release.”

Barnes proceeded to take a practice run. As he rounded a blind turn, his kart collided with a disabled kart on the track. No flagman was present to warn drivers of hazards out of view beyond that turn. John Barnes and his wife, Virginia, sued the defendants for injuries and loss of consortium, respectively, alleging liability for ordinary and gross negligence.

[*106] The question presented for review is whether the plaintiff’s causes of action are barred by the release and waiver of liability and indemnity agreement he signed. Barnes contends that the release does not bar his claims because it violates public policy, is ambiguous, and does not apply to risks not inherent in the sport, which were not within the contemplation of the parties. He further argues that the release does not cover gross negligence, [***5] and that it is void because it involves an illegal tying arrangement.

[HN1] Exculpatory agreements call into conflict two tenets of the law. First, a party should be liable for the consequences of the negligent breach of a duty owed another. As this court stated in a recent case involving an amusement ride accident, the owner of a place of public amusement “must exercise that degree of care which, under the same or similar circumstances, would be exercised by an ordinarily careful or prudent individual.” Siciliano v. Capitol City Shows, Inc., 124 N.H. 719, 730, 475 A.2d 19, 25 (1984). Failure to do so will result in liability for injuries proximately caused by the breach of duty.

Contraposed against this basic rule of tort law is the principle that, [HN2] as a matter of efficiency and freedom of choice, parties should be able to contract freely about their affairs. ABA Special Committee on the Tort Liability System, Towards a Jurisprudence of Injury: The Continuing Creation of a System of Substantive Justice in American Tort Law § 5-27 (Nov. 1984); Morrow v. Auto Championship Racing Ass’n, Inc., 8 Ill. App. 3d 682, 685, 291 N.E.2d 30, 32 (1972). Under this rule, parties may bargain [***6] for various levels of risk and benefit as they see fit. Thus, a plaintiff may agree in advance that the defendant has no legal duty toward him and thereby assume the risk of injury arising from the defendant’s conduct. See W. Keeton, D. Dobbs, R. Keeton, D. Owen, [**154] Prosser and Keeton on the Law of Torts § 68, at 480-81 (5th ed. 1984) (hereinafter cited as Prosser & Keeton).

In New Hampshire, exculpatory contracts are generally prohibited. [HN3] A defendant seeking to avoid liability must show that the exculpatory agreement does not contravene public policy; i.e., that no special relationship existed between the parties and that there was no other disparity in bargaining power. Where the defendant is a common carrier, innkeeper or public utility, or is otherwise charged with a duty of public service, the defendant cannot by contract rid itself of its obligation of reasonable care. Restatement (Second) of Torts § 496B, comment g (1965); Restatement of Contracts § 575 (1932); see Wessman v. Railroad, 84 N.H. 475, 152 A. 476 (1930).

[*107] Courts have refused to uphold such agreements because one party is at an obvious disadvantage in bargaining power. Prosser [***7] & Keeton, supra § 68, at 482.

“The disparity in bargaining power may arise from the defendant’s monopoly of a particular field of service, from the generality of use of contract clauses insisting upon assumption of risk by all those engaged in such a field, so that the plaintiff has no alternative possibility of obtaining the service without the clause; or it may arise from the exigencies of the needs of the plaintiff himself, which leave him no reasonable alternative to the acceptance of the offered terms.”

Restatement (Second) of Torts § 496B, comment j (1965). Cf. Cailler v. Humble Oil & Refining Co., 117 N.H. 915, 919, 379 A.2d 1253, 1256 (1977). Where there is a disparity in bargaining power, the plaintiff may not be deemed to have freely chosen to enter into the contract; accordingly, courts refuse to enforce the agreement. See Shaer Shoe Corporation v. Granite State Alarm, Inc., 110 N.H. 132, 135, 262 A.2d 285, 287 (1970).

[HN4] Once an exculpatory agreement is found unobjectionable as a matter of public policy, it will be upheld only if it appears that the plaintiff understood the import of the agreement or that a reasonable person in his position [***8] would have known of the exculpatory provision. Furthermore, the plaintiff’s claims must have been within the contemplation of the parties at the time of the execution of the agreement. Arnold v. Shawano County Agr. Society, 106 Wis. 2d 464, 470, 317 N.W.2d 161, 164 (1982), aff’d, 111 Wis. 2d 203, 330 N.W.2d 773 (1983). The parties need not, however, have contemplated the precise occurrence that resulted in the plaintiff’s injuries. They may adopt language to cover a broad range of accidents, as they did in this case by specifying injuries involving negligence on the part of the defendants.

Nonetheless, since the terms of the contract are strictly construed against the defendant, the contract must clearly state that the defendant is not responsible for the consequences of his negligence. Prosser & Keeton, supra § 68, at 483-84. As long as the language of the release clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence, the agreement will be upheld. Cf. Commercial Union Assurance Co. v. Brown Co., 120 N.H. 620, 623, 419 A.2d 1111, 1113 (1980).

[*108] As a preliminary [***9] matter, we note that the plaintiff’s failure to read the entire release does not preclude enforcement of the agreement. Barnes testified that he was in a line of people waiting to pay money and obtain numbers for the race and that the workers wanted to “get [them] on [their] way.” There was no evidence, however, that Barnes was denied the opportunity to read the body of the release. “[H]aving failed to avail himself of that opportunity, yet gaining the admission to which his signature was a condition precedent, he cannot now complain that he had no notice of the import of the paper . . . he signed.” Lee v. Allied Sports Associates, Inc., 349 Mass. 544, 550, 209 N.E.2d 329, 332 (1965).

[**155] With these principles in mind, we now consider whether the release bars the plaintiff’s claims in this case. The first question is whether the release is contrary to public policy. The defendants do not fall within any of the commonly-recognized classes of persons charged with a duty of public service. The record indicates that the 1981 Enduro kart races at Bryar were organized by the NHKA, which is associated with the WKA and which manages its races in accordance with WKA [***10] rules and regulations. Although the defendants serve a segment of the public, we cannot say that Enduro kart racing is affected with a public interest. Provision of racing facilities is not a service of great importance to the public, nor is racing a matter of practical necessity. Winterstein v. Wilcom, 16 Md. App. 130, 138, 293 A.2d 821, 825 (1972).

Moreover, there was no substantial disparity in bargaining power among the parties, despite the fact that Barnes was required to sign the release in order to use the racetrack. The plaintiff was under no physical or economic compulsion to sign the release. Since the defendants’ service is not an essential one, the defendants had no advantage of bargaining strength over Barnes or others who sought to participate in Enduro kart racing. Cailler, 117 N.H. at 919, 379 A.2d at 1256; Schlessman v. Henson, 83 Ill. 2d 82, 86-87, 413 N.E.2d 1252, 1254 (1980). Barnes wished to compete and voluntarily agreed not to hold others liable for his injuries. Hence, we conclude that the release was not barred by public policy and may be upheld.

The plaintiff cites a number of cases from other jurisdictions that hold on public policy grounds [***11] that an exculpatory agreement does not release defendants from liability for gross negligence. These cases are inapposite because New Hampshire law does not distinguish causes of action based on ordinary and gross negligence. “[T]he doctrine of definitive degrees of negligence is not recognized as a part of our common law. . . .” Lee v. Chamberlin, 84 N.H. 182, 188, [*109] 148 A. 466, 469 (1929). The plaintiff advances no reasons for abandoning this rule and we decline to create an exception to allow him to pursue his claims of gross negligence.

We now examine the language of the release to determine the extent of its coverage. Barnes contends that the accident did not occur in a “restricted area” because, although he was on the racing surface, the area did not become restricted until numbers were given and racing had begun, and he was merely taking a practice lap at the time of the accident. In interpreting this contract, we will give language used by the parties its common meaning, Murphy v. Doll-Mar, Inc., 120 N.H. 610, 611-12, 419 A.2d 1106, 1108 (1980), and will give the contract itself the meaning that would be attached to it by a reasonable person. [***12] Kilroe v. Troast, 117 N.H. 598, 601, 376 A.2d 131, 133 (1977).

The first paragraph of the release states that the release is given “IN CONSIDERATION of being permitted to enter for any purpose any RESTRICTED AREA . . . or being permitted to compete . . . or for any purpose participate in any way in the event . . . .” The agreement defines “restricted area” as including “the racing surface, pit areas, infield, burn out area, approach area, shut down area, and all walkways, concessions and other areas appurtenant to any area where any activity related to the event shall take place.” Finally, the agreement states that the defendants are released “from all liability to the undersigned . . . whether caused by the negligence of the releases [sic] or otherwise while the undersigned is in or upon the restricted area, and/or competing . . . or for any purpose participating in the event.”

We find that participation in practice laps on the racing surface comes within the terms of the release. The restricted areas are defined in terms of physical spaces, not in terms of function, and the reference to “enter[ing] for any purpose” contemplates that the racing surface is a restricted area [***13] [**156] during practice runs and during the actual race. Although the plaintiff testified that he had practiced on occasion without signing a release, he signed the release prior to taking a practice lap on the day in question. One can contemplate that racers are exposed to a variety of hazards while in the racing arena regardless of whether the actual race is taking place. We believe that the practice run taken by Barnes in preparation for the race later that day may reasonably be construed as part of “participat[ion] in the event.” We therefore uphold the master’s conclusion that the language of the agreement was not ambiguous and that the release applied to practice laps.

[*110] Barnes contends that the release is unenforceable because it involves an illegal tying arrangement. He asserts that, in violation of RSA 417:4, XIII, the pit pass and certain insurance coverage were offered at a single price, without an option to take one “product” and not the other. [HN5] RSA 417:4, XIII provides that it is an unfair method of competition and an unfair and deceptive act and practice in the business of insurance to:

“Arrang[e] or participat[e] in any plan to offer [***14] or effect in this state as an inducement to the purchase or rental by the public of any property or services, any insurance for which there is no separate charge to the insured. . . .”

Although it appears that no separate charge was made for the insurance, we find that the insurance was not offered as an inducement to the purchase of the pit pass or the use of the Bryar Motorsport Park.

Affirmed.

It is not a perfect world and perfection is not required of camp counselors in New York.

Posted: January 30, 2017 | Author: Recreation Law | Filed under: Minors, Youth, Children, New York, Summer Camp | Tags: Counselor, Horse Play, Negligence, Summer Camp | Leave a comment

The camp counselor’s reaction when a large camper jumped on his back was not negligence. The injury the plaintiff received was from his own actions, not from the horseplay of others.

State: New York, Supreme Court of New York, Appellate Division, Third Department

Plaintiff: Benjamin W. Gibbud, an Infant, by Melissa H. Gibbud, His Parent, et al.,

Defendant: Camp Shane, Inc.

Plaintiff Claims: Negligence and Negligent Supervision

Defendant Defenses: No negligence

Holding: For the defendant

Year: 2006

This is a simple case. When a large, almost as large as the counselor, camper jumps on the counselor’s back, the counselor’s reaction as long as not overly violent or extreme, is not negligence.

In this case it was raining and the counselor and campers were in their cabin. The campers were baiting one another and one camper who was only 20 pounds lighter than the 335 counselor and one inch taller jumped on the counselor’s back. The counselor shrugged him off and either the camper hit the ground breaking his ankle or broke his ankle when the counselor shoved the camper.

The camper and his mother sued. The trial court granted the defendant summary judgment and the plaintiff’s appealed.

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

The court set out the various New York Laws affecting this case. New York law states the duty of care owed children by persons supervising them is one “is that which a reasonably prudent parent would observe under comparable circumstances.”

Horseplay is always found around groups of kids and is associated with camps. Horseplay is “only to be discouraged when it becomes dangerous.”

Moreover, a parent, teacher or other person entrusted [*867] with the care or supervision of a child may use such physical force as he or she reasonably believes to be necessary to maintain control and discipline

Moreover the court found the horse play which preceded the event giving rise to the injury of the plaintiff had nothing to do with the plaintiff getting injured. Horseplay was not the cause of the plaintiff’s injury. The case of the plaintiff’s injury was the plaintiff jumping on the back of the counselor, “it was the manner in which he did so, his own impulsive and reckless act of grabbing Wendorf [the counselor] from behind, that led to his injury.”

Given that Wendorf did not know who had suddenly jumped on his back, his reaction to being blindsided and having his arms pinned to his sides in a bear hug by the physically imposing plaintiff raises no issue of his inappropriate or unreasonable use of force.

The court found there was no duty or breach of duty and also found that the injury was not a result of any alleged breach of duty. Three of the four requirements to prove negligence were not met. The decision of the trial court was upheld.

So Now What?

It is also nice to see a case where common sense is obvious in the reasoning of the case. Kids will be kids and whenever there is a group of kids, there will be fooling around. Until the kidding and horse play get dangerous, there is no duty in New York to stop it.

On top of that, when you participate in horse play and get hurt, you can’t blame anyone but yourself.

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

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A.M.D., a Minor, vs. Young Men’s Christian Association of Greater Indianapolis, 2013 Ind. App. Unpub. LEXIS 913; 990 N.E.2d 527

Mobile Site: http://m.recreation-law.com

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

Gibbud et al., v Camp Shane, Inc., 30 A.D.3d 865; 817 N.Y.S.2d 435; 2006 N.Y. App. Div. LEXIS 8254; 2006 NY Slip Op 5075

Posted: January 29, 2017 | Author: Recreation Law | Filed under: Minors, Youth, Children, New York, Summer Camp | Tags: Counselor, Horse Play, Negligence, Summer Camp | Leave a comment

Gibbud et al., v Camp Shane, Inc., 30 A.D.3d 865; 817 N.Y.S.2d 435; 2006 N.Y. App. Div. LEXIS 8254; 2006 NY Slip Op 5075

Benjamin W. Gibbud, an Infant, by Melissa H. Gibbud, His Parent, et al., Appellants, v Camp Shane, Inc., Respondent.

99126

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT

30 A.D.3d 865; 817 N.Y.S.2d 435; 2006 N.Y. App. Div. LEXIS 8254; 2006 NY Slip Op 5075

June 22, 2006, Decided

June 22, 2006, Entered

Mercure, J.P., Peters, Spain and Kane, JJ., concur. Ordered that the order and judgment are affirmed, with costs.

COUNSEL: Keegan, Keegan & Strutt, L.L.P., White Plains (Barry R. Strutt of counsel), for appellants.

Gordon & Silber, P.C., New York City (Andrew B. Kaufman of counsel), for respondent.

JUDGES: Before: Mercure, J.P., Peters, Spain, Rose and Kane, JJ. Mercure, J.P., Peters, Spain and Kane, JJ., concur.

OPINION BY: Rose

OPINION

[*865] [**436] Rose, J. Appeals (1) from an order of the Supreme Court (Clemente, J.), entered March 9, 2005 in Sullivan County, which granted defendant’s motion for summary judgment dismissing the complaint, and (2) from the judgment entered thereon.

[*866] After being told that he and his bunkmates could “sleep in” one rainy morning at defendant’s summer camp, 15-year-old plaintiff Benjamin W. Gibbud (hereinafter plaintiff) fractured his right ankle when he attempted to engage in horseplay in his cabin by jumping on his counselor’s back. Alleging negligent supervision, plaintiff and his mother commenced this action against defendant. When defendant moved [***2] for summary dismissal of the complaint, Supreme Court granted the motion, finding, among other things, that defendant’s counselor was not shown to have been negligent. Plaintiffs appeal, and we affirm.

At the time of the incident, plaintiff was 6 feet 3 inches and weighed 302 pounds. Alex Wendorf, plaintiff’s cabin counselor, was 21 years old, 6 feet 2 inches and weighed 335 pounds. When another camper, Noah Zilberstein, tried to goad Wendorf into a wrestling match by snapping a rat-tailed bath towel at him, Wendorf grabbed the towel out of Zilberstein’s hand. In his deposition, plaintiff described the encounter between Wendorf and Zilberstein as “just horsing around,” which he later explained as “pushing back and forth” or “trying to grab each other.” Zilberstein then tried to induce the other campers in the cabin to join in and “get” Wendorf. Out of a dozen or so campers, [**437] plaintiff was the only one who responded. Approaching Wendorf from behind, he jumped on Wendorf’s back and grabbed him in a bear hug, pinning Wendorf’s arms to his sides. Wendorf immediately raised his arms, shrugging plaintiff off, and pivoted to see who it was. According to Wendorf and Zilberstein, [***3] plaintiff slid off Wendorf’s back and fell to the floor. Plaintiff’s own account is that Wendorf turned, grabbed him and “started to force [him] down to the ground.” In either event, plaintiff’s foot struck the floor in such a way as to fracture his ankle.

Plaintiffs contend that Supreme Court improperly discredited plaintiff’s account in finding no questions of fact as to whether Wendorf had acted negligently immediately before and after plaintiff jumped on his back. We disagree. [HN1] While the duty of care owed by persons supervising children in a summer camp setting is that which a reasonably prudent parent would observe under comparable circumstances (see Douglas v John Hus Moravian Church of Brooklyn, Inc., 8 AD3d 327, 328, 778 NYS2d 77 [2004]; Gustin v Association of Camps Farthest Out, 267 AD2d 1001, 1002, 700 NYS2d 327 [1999]), “[a] certain amount of horseplay is almost always to be found in gatherings of young people, and is generally associated with children’s camps. It is only to be discouraged when it becomes dangerous” (Kosok v Young Men’s Christian Assn. of Greater N.Y., 24 AD2d 113, 115, 264 NYS2d 123 [1965], affd 19 NY2d 935, 228 NE2d 398, 281 NYS2d 341 [1967]). [***4] Moreover, [HN2] a parent, teacher or other person entrusted [*867] with the care or supervision of a child may use such physical force as he or she reasonably believes to be necessary to maintain control and discipline (see Sindle v New York City Tr. Auth., 33 NY2d 293, 297, 307 NE2d 245, 352 NYS2d 183 [1973]; Matter of Collin H., 28 AD3d 806, 28 AD3d 806, 812 NYS2d 702 [2006]; see also Restatement [Second] of Torts § 147).

Viewing the record in a light most favorable to plaintiffs and accepting plaintiff’s account, we find no factual basis to conclude that Wendorf’s responses to either Zilberstein’s rat-tailing or having been set upon from behind by plaintiff were negligent. Despite plaintiffs’ argument to the contrary, the admissible evidence fails to show that Wendorf’s efforts to quell horseplay by Zilberstein were negligent. In any event, that conduct was not the proximate cause of plaintiff’s injury. While Zilberstein’s interaction with Wendorf may have furnished the occasion for plaintiff to decide to leave his bunk and join in, it was the manner in which he did so, his own impulsive and reckless act of grabbing Wendorf from behind, that led to his [***5] injury (see Lee v New York City Hous. Auth., 25 AD3d 214, 219, 803 NYS2d 538 [2005], lv denied 6 NY3d 708, 812 NYS2d 443, 845 NE2d 1274 [2006]; Loder v Greco, 5 AD3d 978, 979, 774 NYS2d 231 [2004]; Ascher v Scarsdale School Dist., 267 AD2d 339, 339, 700 NYS2d 210 [1999]. Given that Wendorf did not know who had suddenly jumped on his back, his reaction to being blindsided and having his arms pinned to his sides in a bear hug by the physically imposing plaintiff raises no issue of his inappropriate or unreasonable use of force. By plaintiff’s own account, Wendorf merely turned, grabbed him and pushed him down. Under these circumstances, we can draw no inference of negligence (compare Gonzalez v City of New York, 286 AD2d 706, 707-708, 730 NYS2d 154 [2001]).

Mercure, J.P., Peters, Spain and Kane, JJ., concur. ORDERED that the order and judgment are affirmed, with costs.

An ugly case balancing the marketing program to make people feel safe, which is then used to prove the incident giving rise to the negligence claim, was foreseeable.

Posted: January 16, 2017 | Author: Recreation Law | Filed under: Indiana, Minors, Youth, Children, Summer Camp, Youth Camps | Tags: Causation, Foreseeability, Intervening Cause, Release, Sexual Preditor, Superseding Cause | Leave a comment

YMCA summer camp sued in Indiana for sexual assault on a minor by a predator hiding in the woods. The brochure marketing the program specifically outlined how bathroom procedures were to be done. The procedure was not followed in this case, which led to a successful lawsuit.

State: Indiana, Court of Appeals of Indiana

Plaintiff: A.M.D., a Minor, by his Parents and Guardians, John Doe and Jane Doe, and John Doe and Jane Doe, individually

Defendant: Young Men’s Christian Association of Greater Indianapolis

Plaintiff Claims: 1) The YMCA negligently supervised A.M.D.; 2) the YMCA failed to prevent foreseeable intentional conduct by a third-party; 3) the YMCA did not have to be the sole cause of A.M.D.’s injuries; and 4) the YMCA is not released from its responsibility to A.M.D. and his parents by virtue of the exculpatory clause contained in the camper application form signed by Jane Doe.

Defendant Defenses: Release and Superseding or Intervening Cause

Holding: for the Plaintiff

Year: 2013

First, this is a case based on a sexual assault of a minor at a day or summer camp offered by the defendant. The case is awful, ugly, and sad.

Second, the issue of whether or not the release was valid for the minor’s injuries was never part of the case. The issue is how the defendant’s rules created a small issue for the situation that of course blew up when the problem the rules attempted to prevent occurred.

The minor was enrolled in a day camp offered by the defendant. The camp was for kids in kindergarten through sixth grade. On the day of the incident, 20 minors and three counselors went to a park to go rafting. The group arrived at the park around 2:00 PM.

The park was not known for any incidents, and no one was spotted that day that gave any concern to the counselors.

When the rafting began, one counselor was stationed at the start and two counselors at the end. Shortly after the rafting started the plaintiff minor told one of the counselors he had to go to the bathroom. The public restrooms were a 10-15-minute walk away. The counselor instructed the minor to go pee on a bush that was within her view. The counselor new about the defendant’s bathroom policy.

Raab [counselor] instructed A.M.D. [minor] to urinate in the bushes, she knew that the YMCA’s bathroom policy required at least one counselor and one buddy to go with a camper to the restroom. No campers were to go to the bathroom by themselves.

When the counselor turned her attention to the creek to check on the other children the minor disappeared.

Unknown to A.M.D. and the YMCA counselors, there was a sexual predator hiding in the woods near where A.M.D. was going to the bathroom. It was later determined that Stephen Taylor was the person hiding in the woods, and who attacked A.M.D. Taylor was so well hidden that A.M.D. did not see Taylor approach him from the front until after he had finished going to the bathroom.

Once the counselor knew the minor was missing she started screaming his name and looking for him.

The family of the minor filed suit against the defendant YMCA alleging negligence. The YMCA filed a motion for summary judgment claiming:

1) The YMCA was not the proximate cause of A.M.D.’s injuries because Taylor’s criminal actions were not reasonably foreseeable; and 2) the exculpatory clause contained in the camper application signed by Jane Doe released the YMCA from any and all claims.

The plaintiff’s opposed the motion for summary judgment claiming four theories:

…1) The YMCA negligently supervised A.M.D.; 2) the YMCA failed to prevent foreseeable intentional conduct by a third-party; 3) the YMCA did not have to be the sole cause of A.M.D.’s injuries; and 4) the YMCA is not released from its responsibility to A.M.D. and his parents by virtue of the exculpatory clause contained in the camper application form signed by Jane Doe.

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

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

The appellate court started by establishing the elements the plaintiff’s must prove to win their case. Indiana uses a three-part test to establish negligence.

Whether or not there was a duty owed is also a 3-part test in Indiana.

…(1) the relationship between the parties, (2) the reasonable foreseeability of harm to the person injured, and (3) public policy concerns, but that analysis is not necessary where the duty is well settled.

The trial court found the defendant owed a duty to the minor, and this issue was not argued during the appeal. The issue then was causation.

We have held that causation is an essential element of a negligence claim. The injurious act must be both the proximate cause and the cause, in fact, of an injury. Generally, causation, and proximate cause, in particular, is a question of fact for the jury’s determination.

Causation can be broken by a superseding and intervening causation. This means a third party or third action caused the real injury or interrupted the chain of events for the original cause so that the defendant is not longer liable.

The doctrine of superseding or intervening causation has long been part of Indiana’s common law. It provides that when a negligent act or omission is followed by a subsequent negligent act or omission so remote in time that it breaks the chain of causation, the original wrongdoer is relieved of liability. A subsequent act is “superseding” when the harm resulting from the original negligent act “could not have reasonably been foreseen by the original negligent actor.” Whether the resulting harm is “foreseeable” such that liability may be imposed on the original wrongdoer is a question of fact for a jury.

Meaning that the action of the predator in attacking the minor was a superseding and intervening cause of action.

However, if the superseding or intervening cause of action was foreseeable by the defendant, then it does not relieve the defendant of liability. The Restatement (Second) of Torts §449, known as the very duty doctrine, provides an example.

If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act, whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby. At the heart of these concepts is the necessity for an analysis of foreseeability.

The brochure the defendant created, stated the rules for the camper’s bathroom procedure. This was obviously not followed by the counselor.

No camper is ever alone, and no camper is ever alone with a staff member. All campers will take trips to the bathroom with entire camp and/or camp groups and camp staff. Campers will only use bathrooms inspected for safety by camp staff.

There was additional information requiring the day campers to go to the bathroom in pairs. The defendant also had a code of conduct covering restroom supervision.

[Why is a restroom procedure in a code of conduct?]

3. Restroom supervision: Staff will make sure the restroom is not occupied by suspicious or unknown individuals before allowing children to use the facilities. Staff will stand in the doorway while children are using the restroom. This policy allows privacy for the children and protection for the staff (not being alone with a child). If staff are assisting younger children, doors to the facility must remain open. No child, regardless of age, should ever enter a restroom alone on a field trip. Always send children in pairs, and whenever possible, with staff.

Finally, the court found that counselors were instructed to never leave a child unsupervised.

In particular, a day camp counselor, the position Raab held with the YMCA at the time of the molestation, has the general function of directly supervising approximately twelve campers and taking responsibility for each child’s safety.

The counselor at her deposition testified she knew the procedures.

The court found this information, provided by the defendants own documents and training, showed the defendant knew this type of incident was foreseeable.

The court found three factors were important in the analysis of the issue.

First, courts on review have examined whether the intervening actor is independent from the original actor. Id. Next, we examine whether the instrumentality of harm was under the complete control of the intervening actor. Id. Third, we examine whether the intervening actor as opposed to the original actor is in a better position to prevent the harm.

Consequently, the appellate court held that whether or not the criminal act by the third party was foreseeable was for a jury to decide.

Whether the criminal assault on A.M.D. by a stranger, Taylor, was foreseeable by the YMCA such that the chain of causation was broken, should be decided by a trier of fact and not as a matter of law.

The case was sent back to trial for a jury trial to determine if the actions of the third party were foreseeable.

So Now What?

First, it sucks to have a case like this; however, it has a lot of useful information.

Fifteen to twenty children, some as young as kindergartener’s and three adults for an activity around water, the first issue I suspect most of you thought of was, there are not enough counselors.

Second, with all the written documentation that the defendant created, I don’t believe foreseeability will be difficult to find by the jury. In fact, anyone can argue that the paper was created in response to this possibility, and then obviously the issue was foreseeable.

At the same time, how do you get across to the members of your staff the issues at play here without creating your own noose? Some documentation is required. Create it under the write heading, in the right document if needed. More importantly, train your staff. Don’t just throw paper at them.

Documentation is proof of just being lazy over the winter in this type of situation. Probably because the documentation was found in at least three different places, it was “make work” for three different people. Writing rules down over the winter is easy and lasts for years (decades in too many situations). However, training your staff lasts a lifetime.

Look at who you need to understand what you are writing down. In most cases young men and women who seem not to read much but who can absorb a lot of information. If you expect 20 year olds to read a book for a job, you are your own worst enemy. You are only creating documentation that will be used to prove you or your staff was negligent.

Training allows the information to be absorbed in the way necessary and provides the understanding of the rules. Training says this is how you do it, now show me you know how to do it, and then tell me why you do it this way. Training is a pain for you, and your senior staff, but if you want to solve problems and really help the people, your employees, trains them. Let them know why you have to do things this way and then teach them to do things this way.

Think about it. What is going to be more effective. Giving everyone a book to read at night or creating a scenario from this incident and having your staff act it out and go through the issues.

Don’t create documentation because you have nothing else to do over the winter, or you are trying not to train your staff.

Never create documentation just to punish employees. Those will always come back to haunt you. You can’t sue an employee as a defense anyway, except in extremely rare cases, so why create a situation that will come back to haunt you in other ways.

This is a sad case all around.

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

What do you think? Leave a comment.

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Marsh v. Dixon, 707 N.E.2d 998; 1999 Ind. App. LEXIS 372; CCH Prod. Liab. Rep. P15, 479

Mobile Site: http://m.recreation-law.com

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

Under Indiana’s law, you cannot sue based on a product liability claim for what is actually a service. Meaning Wind tunnels and Climbing Walls provides a service in Indiana, they are not products sold to the public.

Posted: January 9, 2017 | Author: Recreation Law | Filed under: Indiana, Release (pre-injury contract not to sue), Skydiving, Paragliding, Hang gliding | Tags: Product liability, Release, Service, Wind Tunnel | Leave a comment

Product liability claims are difficult to defend against because they have fewer or more limited defenses. Product Liability claims also award more damages than simple negligence claims. Consequently, if you provide a service and thus are not subject to a product liability claim your risk, and exposures are much lower.

That issue saved the defendant in this case because the release used by the defendant was written poorly and did not protect the defendant from the claims.

State: Indiana, Court of Appeals of Indiana, Fifth District

Plaintiff: Jason C. Marsh and Rhonda Marsh

Defendant: Kirk Dixon, Dyna Soar Aerobatics, Inc.,

Plaintiff Claims: negligence (or gross negligence) and product liability

Defendant Defenses: Release and the Indiana Product Liability statute

Holding: for the plaintiff on the release and the defendant on the product liability claim.

Year: 1999

The plaintiff paid to ride in the defendant’s wind tunnel. The wind tunnel was owned by Dyna Soar Aerobatics, Inc., which was owned by Kirk Dixon. Kirk Dixon was the sole owner and officer of Dyna Soar, Inc.

Before riding the plaintiff was told when turned on he would soar 3-4 feet upward in the air. The plaintiff also signed a release before riding the wind tunnel. When the wind tunnel was turned on he shot 15’ in the air and broke his ankle when he landed.

The plaintiff sued for negligence and product liability claims. The trial court granted the defendant’s motion for summary judgment based on the release, and the plaintiff appealed.

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

The first issue the court tackled was a procedural issue. The plaintiff sued for gross negligence and not simple negligence. The defendant argued that because they did not plead negligence and appealed a negligence claim and plead gross negligence but did not appeal a gross negligence claim they should be stopped from arguing a negligence claim of any type.

However, the court found through various arguments that those issues were moot and not at issue.

The next argument was the plaintiff’s claim the release was not sufficient under Indiana’s law to prevent a negligence claim. The court agreed.

Indiana generally supports releases, but requires the language of the release be sufficient to deny the claims being made.

It is well settled in Indiana that exculpatory agreements are not against public policy. Generally, parties are permitted to agree that a party owes no obligation of care for the benefit of another, and thus, shall not be liable for consequences that would otherwise be considered negligent. Id. In Powell, however, this court held that an exculpatory clause will not act to absolve the drafting party from liability unless it “specifically and explicitly refers to the negligence of the party seeking release from liability.”

The language in the release must clearly and unequivocally state what the release is preventing and who is being protected for those claims. Meaning the release is void if it does not clearly and unequivocally states the release is to protect the defendant from the defendant’s negligence.

This rule is based on the principle that an agreement to release a party from its own negligence “clearly and unequivocally manifest a commitment by [the plaintiff], knowingly and willing [sic] made, to pay for damages occasioned by [the defendant’s] negligence.” We note, however, that an exculpatory clause not referring to the negligence of the releasee may act to bar liability for those damages incurred which are inherent in the nature of the activity, or, as Powell stated, the exculpatory clause is void only to the extent it purports to release a defendant from liability caused by its own negligence. The requirement of specificity is only necessary when the risk of harm is a latent danger, i.e. the defendant’s own negligence.

The release stated the plaintiff “fully discharged and released” the defendant from all “liability, claims, demands, actions, and causes of action.” Nowhere did it state the release, released D S from its own negligence. Nor would the court interpret the language of the release to cover that. The specific language was needed for the release to work.

We conclude that the release is not sufficient to release Dyna-Soar because the release did not specifically and explicitly refer the Dyna-Soar’s “own negligence.” While this exculpatory clause may act to bar some types of liability, it cannot act to bar liability arising from Dyna Soar’s own negligence. Therefore, the trial court erred when it entered summary judgment in favor of Dyna Soar based on the release.

The next issue was the product liability claim. The Indiana Products Liability Act defines a manufacturer as the seller of a product, “a person engaged in the business of selling or leasing a product for resale, use, or consumption.”

Ind. Code § 33-1-1.5-2(5). 2 A product is defined as follows:

Product” means any item or good that is personalty at the time it is conveyed by the seller to another party. It does not apply to a transaction that, by its nature, involves wholly or predominantly the sale of a service rather than a product.

Personality is another name for something owned that is not attached to the land.

The plaintiff argued that the defendant created a machine, which was a product and sold what the machine did. However, the court found that what the plaintiff bought was a service.

A service is not subject to the Indian Product Liability Act.

The case was sent back to the trial court to go forward on the negligence claim of the plaintiff.

So Now What?

Simply put this lawsuit is based on a poorly written release. I repeat myself, but have someone who understands you and your business or program write a release based upon the law where the release will be applied.

Let me put it another way. Unless you wrote a check or paid money for your release, you would probably end up in court. Attorneys provide free releases not as a service, but knowing there are flaws in the document that will allow them to make a lot more money defending against the lawsuit.

If you got your release from a competitor, how do you know, the competitor gave you a good release? If you got your release from the Internet, how do you know it is for your activity, in your state and covers your law?

And if you think, it is not worth your money; figure that you will lose thirty (30) days of work the first year you are sued, 15-30 days each year until trial and probably 45-days the year of the trial. A good release can keep you at work and out of depositions and courtrooms.

The defendant got lucky on the product’s liability claim. Most states have a broader definition of a product. Put in the release that you are providing a service not selling a product if you have any doubts.

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

What do you think? Leave a comment.

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Stone v. Life Time Fitness, Inc., 2016 Colo. App. LEXIS 1829

Mobile Site: http://m.recreation-law.com

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

Marsh v. Dixon, 707 N.E.2d 998; 1999 Ind. App. LEXIS 372; CCH Prod. Liab. Rep. P15,479

Posted: January 5, 2017 | Author: Recreation Law | Filed under: Indiana, Legal Case, Release (pre-injury contract not to sue), Skydiving, Paragliding, Hang gliding | Tags: Product liability, Release, Service, Wind Tunnel | Leave a comment

Marsh v. Dixon, 707 N.E.2d 998; 1999 Ind. App. LEXIS 372; CCH Prod. Liab. Rep. P15,479

Jason C. Marsh and Rhonda Marsh, Appellant-Plaintiffs, vs. Kirk Dixon, Dyna Soar Aerobatics, Inc., Appellee-Defendants.

No. 49A05-9803-CV-146

COURT OF APPEALS OF INDIANA, FIFTH DISTRICT

707 N.E.2d 998; 1999 Ind. App. LEXIS 372; CCH Prod. Liab. Rep. P15,479

March 12, 1999, Filed

PRIOR HISTORY: [**1] APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Richard H. Huston, Judge. Cause No. 49D10-9610-CT-1378.

DISPOSITION: Affirmed in part and reversed in part.

COUNSEL: For APPELLANT: JAMES F. LUDLOW, Indianapolis, Indiana.

For APPELLEE: MICHAEL A. ASPY, Landau, Omahana & Kopka, Carmel, Indiana.

JUDGES: ROBB, Judge. BAKER, J., and GARRARD, J., concur.

OPINION BY: ROBB

OPINION

[*999] OPINION

ROBB, Judge

Case Summary

Appellants-Plaintiffs, Jason C. Marsh and Rhonda Marsh (collectively referred to as “Marsh”), appeal the trial court’s order granting summary judgment in favor of Appellees, Kirk Dixon and Dyna Soar Aerobatics, Inc. (collectively referred to as “Dyna Soar”) on Marsh’s gross negligence and products liability claim. We affirm in part and reverse in part.

Issues

Marsh raises two issues for our review which we restate as:

I. Whether the trial court erred by entering summary judgment in favor of Dyna Soar when it determined that the release signed by Marsh was valid; and

II. Whether the trial court erred by entering summary judgment in favor of Dyna Soar when it determined that the facts of this case do not support a products liability claim.

Facts and Procedural [**2] History

The facts most favorable to the judgment show that on October 9, 1994, Marsh decided to ride in a wind tunnel (“Dyna Soar Machine”) constructed by Kirk Dixon (“Dixon”) for Dyna Soar Aerobatics, Inc. Dixon is the sole officer of this company. The Dyna Soar Ride simulates the experience of free-fall by projecting columns of air through a cable trampoline upon which patrons of the ride levitate. Marsh signed a release which discharged Dyna Soar, its director, and its employees from liability in the event of an accident. While on the Dyna Soar ride, Marsh fell off of a column of air and fractured his ankle. Marsh sued Dyna Soar, bringing both a negligence claim and a products liability claim. The trial court entered summary judgment in favor of Dyna Soar finding that “the facts do not support a products liability claim or a misrepresentation claim.” (R. 159). This appeal ensued.

Discussion and Decision

Before we reach Marsh’s first issue, we note that Dyna Soar argues in their brief that Marsh waives the issue regarding the validity of the release for two reasons. First, Dyna Soar argues that Marsh failed to make a negligence claim in his original complaint. In [**3] his original complaint, Marsh filed a claim under a gross negligence theory. Second, Marsh failed to raise the same issue in his Motion to Correct Errors.

First, we find that Dyna Soar has waived their argument regarding the fact that Marsh made a gross negligence claim rather than a negligence claim. In their brief, they cite no cases and outline no argument developing this position. [HN1] Ind. Appellate Rule 8.3 requires Dyna Soar to support each contention with an argument, including citations to the authorities, statutes, and record for support. App.R. 8.3(A)(7); Burnett v. Cincinnati Ins. Co., 690 N.E.2d 747, 749 (Ind. Ct. App. 1998). Failure of a party to [*1000] present a cogent argument in his or her brief is considered a waiver of that issue. Id.

Second, we conclude that a party does not waive their right to appeal a claim by omitting the same from its Motion to Correct Errors. Marsh raised two issues in its Motion to Correct Errors. He argued that he presented sufficient evidence to create a genuine issue of material fact as to whether Dyna Soar was grossly negligent, and he argued that he had a viable products liability claim. He did not raise the issue of whether the release [**4] was valid. Indiana Trial Rule 59(A) provides that only two issues must be addressed in a Motion to Correct Errors before they may be appealed to this court: newly discovered material evidence and claims that a jury verdict is excessive or inadequate. T.R. 59(A)(1) and (2). The trial rule states that any other issues that are “appropriately preserved during trial may be initially addressed in the appellate brief.” Id. Trial Rule 59(D) states that a Motion to Correct Errors “need only address those errors found in Trial Rule 59(A)(1) and (2). Id. Based on the plain language of Trial Rule 59, therefore, we conclude that [HN2] a party does not waive its right to appeal a trial court’s decision if it fails to raise an issue in its Motion to Correct Errors which was properly preserved at trial. Dyna Soar’s claims to the contrary are based on cases referring to Trial Rule 59 before it was amended. Accordingly, we conclude that the following issue is properly before this court.

Marsh argues that the trial court erred when it entered summary judgment on his negligence claim. In particular, he argues that the release he signed exculpating Dyna Soar was not sufficient to release [**5] Dyna Soar for its own negligence. We agree.

[HN3] It is well settled in Indiana that exculpatory agreements are not against public policy. Powell v. American Health Fitness Center, 694 N.E.2d 757, 760 (Ind. Ct. App. 1998). Generally, parties are permitted to agree that a party owes no obligation of care for the benefit of another, and thus, shall not be liable for consequences that would otherwise be considered negligent. Id. In Powell, however, this court held that an exculpatory clause will not act to absolve the drafting party from liability unless it “specifically and explicitly refers to the negligence of the party seeking release from liability.” 694 N.E.2d at 761. In Powell, the clause at issue stated that Powell released the defendant “from ‘any damages’ and placed the responsibility on Powell for ‘any injuries, damages or losses.” Id. The Powell court concluded:

As a matter of law, the exculpatory clause did not release [the defendant] from liability resulting from injuries she sustained while on its premises that were caused by its alleged negligence. Therefore, the exculpatory clause is void to the extent it purported to release [the defendant] from [**6] liability caused by its own negligence.

694 N.E.2d at 761-62 (emphasis added). This rule is based on the principle that an agreement to release a party from its own negligence “clearly and unequivocally manifest a commitment by [the plaintiff], knowingly and willing [sic] made, to pay for damages occasioned by [the defendant’s] negligence.” Indiana State Highway Commission v. Thomas, 169 Ind. App. 13, 346 N.E.2d 252, 260 (Ind. Ct. App. 1976) (emphasis in original). We note, however, that [HN4] an exculpatory clause not referring to the negligence of the releasee may act to bar liability for those damages incurred which are inherent in the nature of the activity, or, as Powell stated, the exculpatory clause is void only to the extent it purports to release a defendant from liability caused by its own negligence. See Powell, 694 N.E.2d at 761-62. The requirement of specificity is only necessary when the risk of harm is a latent danger, i.e. the defendant’s own negligence. See 694 N.E.2d at 761.

In this case, we are presented with a similar exculpatory clause as in Powell. The release states in pertinent part:

I hereby fully and forever discharge and release [**7] . . . Dyna-Soar Aerobatics, Inc. and all of the partners, directors, officers, employees, and agents for the aforementioned companies from any and all liability, claims, demands, actions, and causes of action whatsoever arising out of any damages, [*1001] both in law and in equity, in any way resulting from personal injuries, conscious suffering, death or property damage sustained while flying Dyna-Soar.

(R. 275). Obviously, the release fails to specifically and explicitly refer to Dyna Soar’s own negligence. The injury sustained by Marsh was not allegedly derived from a risk which was inherent in the nature of the ride. Dixon instructed Marsh that he would only levitate three to four feet from the ground. When the ride started, however, Marsh was allegedly shot fifteen feet in the air and subsequently dropped to the ground. Such a risk is not inherent in the nature of a wind tunnel ride. Thus, if, indeed, the accident occurred as Marsh describes, the injury must have resulted from the negligence of Dyna-Soar. We conclude that the release is not sufficient to release Dyna-Soar because the release did not specifically and explicitly refer the Dyna-Soar’s “own negligence.” While this [**8] exculpatory clause may act to bar some types of liability, it cannot act to bar liability arising from Dyna Soar’s own negligence. Therefore, the trial court erred when it entered summary judgment in favor of Dyna Soar based on the release.

Dyna Soar argues that the Powell decision should not be applied retroactively. In support of this argument, Dyna Soar cites Sink & Edwards, Inc. v. Huber, Hunt & Nichols, Inc., 458 N.E.2d 291 (Ind. Ct. App. 1984). In Sink, the court held that ” [HN5] pronouncements of common law made in rendering judicial opinions of civil cases have retroactive effect unless such pronouncements impair contracts made or vested rights acquired in reliance on an earlier decision.” Id. at 295 (emphasis added). Dyna Soar argues that Powell changed the common law, and therefore, it should not apply to exculpatory agreements made prior to said decision. We disagree. Before the Powell decision, Indiana courts had never decided whether an exculpatory clause required specific language. In fact, in Powell, this court was careful to distinguish other cases which have upheld exculpatory clauses similar to the clause used by Dyna Soar:

Although [**9] we have upheld exculpatory clauses which have used similar language, those cases can be distinguished. In Shumate [v. Lycan, 675 N.E.2d 749 (Ind.Ct.App.1997), trans. denied] and Terry v. Indiana State University, 666 N.E.2d 87 (Ind.Ct.App.1996), the nonspecificity of the language in the exculpatory clauses was not put at issue nor addressed. In Marshall [v. Blue Springs Corp., 641 N.E.2d 92 (Ind.Ct.App.1994)], the focus of the appeal was that there was a genuine issue of material fact as to whether the releases were signed “willingly” or under economic or other compulsion. The nonspecificity of the language used to effect release for the defendant’s own negligence was not presented as an issue nor addressed. In LaFrenz [v. Lake Cty. Fair Bd., 172 Ind. App. 389, 360 N.E.2d 605 (1977)], we noted “the form and language of the agreement explicitly refers to the appellees’ [party released] negligence.” Therefore, had the issue been raised, the language contained the specific and explicit reference to negligence we now hold to be necessary.

Powell, 694 N.E.2d at 762 (citations omitted). From the language of the Powell decision itself, we [**10] conclude that Powell did not change Indiana common law. Thus, Dyna Soar can not show that they relied on earlier Indiana decisions when drafting its exculpatory agreement.

II.

Marsh also argues that the trial court erred when it entered summary judgment on his products liability claim. In particular, he argues that the Dyna Soar machine is a product for purposes of the Indiana Products Liability Act. ¹ We disagree.

1 The Indiana Products Liability was codified at Ind. Code § 33-1-1.5-1 et seq. Since the inception of this litigation, however, the Act has been recodified at Ind. Code § 34-20-1-1 et seq. Hereinafter, we shall refer to the Indiana Products Liability Act using its former citation.

[HN6] In order to be subject to liability under the Indiana Products Liability Act, Dyna Soar must be defined as the seller of a product. The Act defines a seller as “a person engaged in the business of selling or leasing a product for resale, use, or consumption.” [*1002] Ind. Code § 33-1-1.5-2(5). ² A product [**11] is defined as follows:

” [HN7] Product” means any item or good that is personalty at the time it is conveyed by the seller to another party. It does not apply to a transaction that, by its nature, involves wholly or predominantly the sale of a service rather than a product.

Ind. Code § 33-1-1.5-2(6). ³ Marsh claims that Dixon created a machine, a product, and provided a service. He argues that his claim should not be barred just because a service was provided in this case. In support of his argument, he points this court to Ferguson v. Modern Farm Systems, Inc., 555 N.E.2d 1379 (Ind. Ct. App. 1990). In Ferguson, a worker fell off of a ladder that was attached to a grain bin. The plaintiffs sued the manufacturers of the grain bin and its component parts under a products liability theory. In determining that the Indiana Products Liability Act applied to the plaintiffs’ claims, the Ferguson court stated: “the legislature did not contemplate a distinction between movable and nonmovable property, but rather sought to exclude transactions which relate primarily to the act of providing a service, such as that provided by an accountant, attorney, or physician.” 555 N.E.2d at 1384-85. [**12] Marsh claims that no such service was provided in his case. We do not find Ferguson dispositive. The crucial issue in Ferguson concerned whether the real estate improvement statute of limitations or the products liability statute of limitations applied to the plaintiffs’ products liability claim. Thus, the Ferguson court discussed whether property affixed to real estate constitutes a product. Such is not the issue in the present case.

2 See now Ind. Code § 34-6-2-136

3 See now Ind. Code § 34-6-2-114

We find Hill v. Rieth-Riley Const. Co., Inc., 670 N.E.2d 940 (Ind. Ct. App. 1996) more applicable to the set of facts presented here. In Hill, the defendants removed and reset guardrails to facilitate the resurfacing of U.S. 31. The plaintiff struck one of these guardrails and brought suit against the defendants under the Indiana Products Liability Act. This court held that the contract between the Indiana Department of Transportation and the plaintiffs was predominantly a contract for [**13] services. The Hill court stated: “even if it were true that 31 new concrete plugs were installed and some rusted rails replaced, the [plaintiffs] have presented no evidence that this contract was not “for the most part” about the service of resurfacing the roadway.” 670 N.E.2d at 943. In this case, the transaction between Marsh and Dyna Soar wholly involved a service. By purchasing a ticket from Dyna Soar, Marsh received the limited right to ride the Dyna Soar machine. He did not receive an interest in any property. In fact, Dyna Soar retained all rights to operate and control the machine in question. We conclude that the trial court did not err by entering summary judgment against Marsh on his products liability claim.

Affirmed in part and reversed in part.

BAKER, J., and GARRARD, J., concur.

A.M.D., a Minor, vs. Young Men’s Christian Association of Greater Indianapolis, 2013 Ind. App. Unpub. LEXIS 913; 990 N.E.2d 527

Posted: January 5, 2017 | Author: Recreation Law | Filed under: Indiana, Legal Case, Minors, Youth, Children, Release (pre-injury contract not to sue), Youth Camps | Tags: Causation, Foreseeability, Intervening Cause, Release, Sexual Preditor, Superseding Cause | Leave a comment

A.M.D., a Minor, vs. Young Men’s Christian Association of Greater Indianapolis, 2013 Ind. App. Unpub. LEXIS 913; 990 N.E.2d 527

A.M.D., a Minor, by his Parents and Guardians, John Doe and Jane Doe, and John Doe and Jane Doe, individually, Appellants, vs. Young Men’s Christian Association of Greater Indianapolis, Appellee.

No. 49A04-1211-CT-551

COURT OF APPEALS OF INDIANA

2013 Ind. App. Unpub. LEXIS 913; 990 N.E.2d 527

July 19, 2013, Decided

July 19, 2013, Filed

NOTICE: PURSUANT TO INDIANA APPELLATE RULE 65(D), THIS MEMORANDUM DECISION SHALL NOT BE REGARDED AS PRECEDENT OR CITED BEFORE ANY COURT EXCEPT FOR THE PURPOSE OF ESTABLISHING THE DEFENSE OF RES JUDICATA, COLLATERAL ESTOPPEL, OR THE LAW OF THE CASE.

PUBLISHED IN TABLE FORMAT IN THE NORTH EASTERN REPORTER.

SUBSEQUENT HISTORY: Transfer denied by A.M.D. v. YMCA of Greater Indianapolis, 997 N.E.2d 356, 2013 Ind. LEXIS 883 (Ind., Nov. 7, 2013)

PRIOR HISTORY: [*1]

APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Heather Welch, Judge. Cause No. 49D12-0805-CT-20350.

Taylor v. State, 891 N.E.2d 155, 2008 Ind. App. LEXIS 1678 (Ind. Ct. App., 2008)

CORE TERMS: summary judgment, camper, causation, counselor, bathroom, staff, proximate cause, restroom, superseding, intervening, exculpatory clause, foreseeability, foreseeable, bush, rafting, looked, matter of law, superseding cause, reasonably foreseeable, duty to supervise, chain of causation, omission, sexual assaults, suspicious, violent, negligent act, question of fact, supervision, supervising, designated

COUNSEL: ATTORNEY FOR APPELLANTS:DANIEL S. CHAMBERLAIN, Doehrman Chamberlain, Indianapolis, Indiana.

ATTORNEYS FOR APPELLEE: MARK D. GERTH, JEFFREY D. HAWKINS, MICHAEL WROBLEWSKI, Kightlinger & Gray, LLP, Indianapolis, Indiana.

JUDGES: FRIEDLANDER, Judge. ROBB, C.J., and KIRSCH, J., concur.

OPINION BY: FRIEDLANDER

OPINION

MEMORANDUM DECISION – NOT FOR PUBLICATION

FRIEDLANDER, Judge

A.M.D., a minor, by his parents and guardians, John Doe and Jane Doe, and John Doe and Jane Doe individually, appeal from the trial court’s order granting summary judgment in favor of Young Men’s Christian Association of Greater Indianapolis and YMCA of Greater Indianapolis (collectively, the YMCA) in an action brought by the Does alleging negligence against the YMCA. The following issue is presented in this appeal: Did the trial court err by granting summary judgment in favor of the YMCA under the doctrine of superseding causation?

We reverse.

The facts designated to the trial court for purposes of ruling on the motion for summary judgment follow. When A.M.D. was eight years old, he participated in a summer day camp through the YMCA’s Day Camp [*2] Program at Lions Park in Zionsville, Indiana. The camp was offered to children in grades kindergarten through sixth grade. On June 27, 2006, YMCA camp counselors accompanied A.M.D. and the other camp participants to Creekside Park, which is a park immediately adjacent to Lions Park. On that particular day there were fifteen to twenty children, ranging in age from six years old to twelve years old, and three camp counselors at the park.

The purpose of the trip to Creekside Park was to give the children the opportunity to enjoy rafting and playing in and around the water. The camp began that day at 7:00 a.m. and the group walked over to Creekside Park at approximately 2:00 p.m. Until the time of the incident giving rise to this appeal, there was nothing out of the ordinary at the park and there were no activities or individuals that gave anyone at the YMCA cause for concern. In particular, there was no one at the park who was lingering around, looked out of place, or generally looked suspicious.

During the rafting excursion, the counselors were situated such that one counselor, Megan Donaldson, was positioned where the rafting began, and two counselors, Melissa Raab and Jay Binkert, were [*3] positioned where the rafting ended. Shortly after the rafting began, A.M.D. told Raab that he needed to go to the bathroom. Since the public restroom was a ten-to-fifteen minute walk away, Raab allowed A.M.D. to urinate by some bushes that were within Raab’s direct and unobstructed view. Raab instructed A.M.D. to remain by the bush and to return when he was finished. At the time Raab instructed A.M.D. to urinate in the bushes, she knew that the YMCA’s bathroom policy required at least one counselor and one buddy to go with a camper to the restroom. No campers were to go to the bathroom by themselves.

A.M.D. went to the bathroom by the bushes as instructed and was within Raab’s line of sight. Raab momentarily turned her attention towards the creek to check on the other children, and turned her attention away from A.M.D. for less than a minute. When Raab looked back to check on A.M.D., he was gone. Unknown to A.M.D. and the YMCA counselors, there was a sexual predator hiding in the woods near where A.M.D. was going to the bathroom. It was later determined that Stephen Taylor was the person hiding in the woods, and who attacked A.M.D. Taylor was so well hidden that A.M.D. did not see Taylor [*4] approach him from the front until after he had finished going to the bathroom.

Once Taylor emerged from the woods, he approached A.M.D., told him he was a doctor, and offered to give A.M.D. a piggy-back ride, which A.M.D. accepted. Taylor successfully lured A.M.D. farther into the woods where they were both alone and out of sight from any of the YMCA camp counselors. While hidden in the woods, Taylor sexually assaulted A.M.D. Once Raab noticed that A.M.D. was not by the bushes, she immediately began looking for A.M.D. and screaming his name. Ultimately, A.M.D. was found, but the perpetrator had run away. Approximately six months later, Taylor was arrested on an unrelated charge and was subsequently identified as the person who had sexually assaulted A.M.D. Taylor was convicted of a class A felony and was sentenced to fifty years in the Department of Correction. See Taylor v. State, 891 N.E.2d 155 (Ind. Ct. App. 2008), trans. denied, cert. denied, 555 U.S. 1142, 129 S. Ct. 1008, 173 L. Ed. 2d 301 (2009), reh’g denied, 556 U.S. 1148, 129 S. Ct. 1665, 173 L. Ed. 2d 1032; Taylor v. State, No. 06A04-1009-PC-557, 951 N.E.2d 312 (July 29, 2011), trans. denied.

Prior to June 27, 2006, the YMCA was not aware of any criminal incidents or crimes that [*5] were committed at the Lions or Creekside Parks. Prior to June of 2006, there were no other incidents of violent or sexual assaults reported at Creekside Park. There have been no incidents of violent or sexual assaults reported at Lions Park for at least the past twenty-five years.

On May 7, 2008, the Does individually, and on behalf of A.M.D., filed a negligence action against the YMCA. The YMCA filed a motion for summary judgment in the action presenting the following two claims: 1) The YMCA was not the proximate cause of A.M.D.’s injuries because Taylor’s criminal actions were not reasonably foreseeable; and 2) the exculpatory clause contained in the camper application signed by Jane Doe released the YMCA from any and all claims. The Does filed their opposition to the YMCA’s motion for summary judgment claiming that the following four theories precluded the entry of summary judgment in the YMCA’s favor: 1) The YMCA negligently supervised A.M.D.; 2) the YMCA failed to prevent foreseeable intentional conduct by a third-party; 3) the YMCA did not have to be the sole cause of A.M.D.’s injuries; and 4) the YMCA is not released from its responsibility to A.M.D. and his parents by virtue [*6] of the exculpatory clause contained in the camper application form signed by Jane Doe.

On September 17, 2012, the trial court held a hearing on the YMCA’s motion for summary judgment. In part, the trial court’s order on summary judgment reads as follows:

The Court hereby finds that the Defendant, YMCA, is entitled to summary judgment as a matter of law and the Court hereby GRANTS the Defendant, YMCA’s, Motion for Summary Judgment. The Court hereby DENIES the Plaintiffs’ Partial Motion for Summary Judgment regarding the exculpatory clause. The Court further notes that the Defendant never disputed that they had a duty to supervise A.M.D. Thus, the Court does not find this issue was before the Court and the Court declines to address the Plaintiffs[sic] Motion for Partial Summary Judgment on this issue as it is moot due to the Court’s ruling on the issue of proximate cause. There is no just reason for delay, and [the YMCA] is entitled to judgment in their favor and against A.M.D., a Minor, by His Parents and Guardians, JOHN DOE AND JANE DOE, and JOHN DOE AND JANE DOE, Individually on the Plaintiffs’ Complaint as a matter of law. This Judgment is a full, complete, and final Judgment on the [*7] Plaintiffs’ Complaint as to [the YMCA] in this case. The Clerk of this Court shall enter the Judgment in the Judgment Docket.

Appellant’s Appendix at 21. A.M.D. and the Does appeal. Additional facts will be supplied where necessary.

A.M.D. and the Does contend that the trial court erred by granting the YMCA’s motion for summary judgment and by denying their motion for partial summary judgment on the issue of the impact of the exculpatory clause in the camper application signed by Jane Doe. The trial court included in its summary judgment order specific findings of fact and conclusions of law. A trial court’s specific findings and conclusions are not required, and, while they offer insight into the trial court’s rationale for the judgment entered, and facilitate our review, we are not limited to reviewing the trial court’s reasons for granting or denying summary judgment. Trustcorp Mortg. Co. v. Metro Mortg. Co., Inc., 867 N.E.2d 203 (Ind. Ct. App. 2007). A trial court’s order granting summary judgment may be affirmed upon any theory supported by the designated materials. Id. Additionally, the fact that the parties filed cross-motions for summary judgment does not alter our standard of [*8] review. Id. In that situation, we consider each motion separately in order to determine whether the moving party is entitled to judgment as a matter of law. Id.

A plaintiff seeking damages for negligence must establish (1) a duty owed to the plaintiff by the defendant, (2) a breach of the duty, and (3) an injury proximately caused by the breach of duty. Pfenning v. Lineman, 947 N.E.2d 392 (Ind. 2011). “Absent a duty, there can be no breach, and therefore, no recovery for the plaintiff in negligence.” Vaughn v. Daniels Co. (West Virginia), Inc., 841 N.E.2d 1133, 1143 (Ind. 2006). Where the action involves negligent supervision of a child, we have made the following observation:

[T]here is a well-recognized duty in tort law that persons entrusted with children have a duty to supervise their charges. The duty is to exercise ordinary care on behalf of the child in custody. The duty exists whether or not the supervising party has agreed to watch over the child for some form of compensation. However, the caretaker is not an insurer of the safety of the child and has no duty to foresee and guard against every possible hazard.

Davis v. LeCuyer, 849 N.E.2d 750, 757 (Ind. Ct. App. 2006). Our Supreme [*9] Court announced the three-part test for determining whether to impose a duty at common law in Webb v. Jarvis, 575 N.E.2d 992 (Ind. 1991), viz. (1) the relationship between the parties, (2) the reasonable foreseeability of harm to the person injured, and (3) public policy concerns, but that analysis is not necessary where the duty is well settled. Northern Ind. Pub. Serv. Co. v. Sharp, 790 N.E.2d 462 (Ind. 2003). Furthermore, the trial court found and the parties do not contest the finding that the YMCA owed a duty to supervise A.M.D.

In this case, the question presented on appeal concerns the issue of causation. We have held that causation is an essential element of a negligence claim. Bush v. N. Ind. Pub. Serv. Co., 685 N.E.2d 174, 178 (Ind. Ct. App. 1997). “The injurious act must be both the proximate cause and the cause in fact of an injury. Generally, causation, and proximate cause in particular, is a question of fact for the jury’s determination.” Correll v. Ind. Dep’t of Transp., 783 N.E.2d 706, 707 (Ind. Ct. App. 2002). In the present case, the trial court entered summary judgment in favor of the YMCA after engaging in an analysis of causation, which we reproduce in pertinent [*10] part as follows:

Summary Judgment Standard

. . . .

11. This Court notes the issue presented by YMCA’s Motion for Summary Judgment only addresses the element of causation. The Court does find under well-settled Indiana Law that the YMCA had a duty to supervise A.M.D. However, the issue for this Court is whether there is a material dispute of fact on the element of proximate cause.

12. In order to prevail in a negligence action, the plaintiff must demonstrate all the requisite elements of a cause of action: “(1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty by the defendant, and (3) an injury to the plaintiff as a proximate result of the breach.” Ford Motor Co. v Rushford, 868 N.E.2d 806, 810 (Ind. 2007). The question of whether the defendant owes the plaintiff a legal duty is generally one of law for the court. Stephenson v. Ledbetter, 596 N.E.2d 1369, 1371 (Ind. 1992).

. . . .

17. Causation is an essential element of a negligence claim. Bush v. Northern Indiana Pub. Serv. Co., 685 N.E.2d 174, 178 (Ind. Ct. App. 1997), trans. denied (1999). “Proximate cause has two components: causation-in-fact and scope of liability. City of Gary ex rel. King v. Smith & Wesson Corp., 801 N.E.2d 1222, 1243-44 (Ind. 2003). [*11] To establish factual causation, the plaintiff must show that but for the defendant’s allegedly tortious act or omission, the injury at issue would not have occurred. Id. The scope of liability doctrine asks whether the injury was a “natural and probable consequence” of the defendant’s conduct, which in the light of the circumstances, should have been foreseen or anticipated. Id. at 1244. Liability is not imposed on the defendant if the ultimate injury was not “reasonably foreseeable” as a consequence of the act or omission. Id. Therefore, the fundamental test of proximate cause is “reasonable foreseeability”. Lutheran Hospital of Indiana, Inc v. Blaser, 634 N.E.2d 864, 871 (Ind. Ct. App. 1994).

18. Generally, causation, and proximate cause in particular, is a question of fact for the jury’s determination. Adams Twp. Of Hamilton County v. Sturdevant, 570 N.E.2d 87, 90 (Ind. Ct. App. 1991). However, “Where only a single conclusion can be drawn from the set of facts, proximate cause is a question of law for the court to decide.[“] Merchants National Bank v. Simrell’s, 741 N.E.2d 383, 389 (Ind. Ct. App. 2000).

19. In this case, the facts are undisputed and only a single conclusion can be [*12] drawn or inferred from the facts. Therefore, the Court finds that the issue of proximate cause is a question of law not fact.

Appellant’s Appendix at 13-16. The trial court then analyzed cases addressing the issue whether intentional criminal acts of third parties break the chain of causation under the doctrines of superseding and intervening causation.¹

1 The Supreme Court described the doctrine as follows:

The doctrine of superseding or intervening causation has long been part of Indiana common law. It provides that when a negligent act or omission is followed by a subsequent negligent act or omission so remote in time that it breaks the chain of causation, the original wrongdoer is relieved of liability. A subsequent act is “superseding” when the harm resulting from the original negligent act “could not have reasonably been foreseen by the original negligent actor.” Whether the resulting harm is “foreseeable” such that liability may be imposed on the original wrongdoer is a question of fact for a jury.

Control Techniques, Inc. v. Johnson, 762 N.E.2d 104 (Ind. 2002) (internal citations omitted)(emphasis supplied).

Our Supreme Court in Control Techniques examined whether Indiana’s Comparative [*13] Fault Act² had subsumed or abrogated the doctrines of superseding and intervening causation, and the impact of the viability of those doctrines, such that error could be predicated upon the refusal to instruct the jury thereon. In concluding that no instruction on the doctrine of superseding causation was warranted, the Supreme Court stated as follows:

For the reasons expressed below, we agree with the Court of Appeals that no separate instruction is required. In capsule form, we conclude that the doctrines of causation and foreseeability impose the same limitations on liability as the “superseding cause” doctrine. Causation limits a negligent actor’s liability to foreseeable consequences. A superseding cause is, by definition, one that is not reasonably foreseeable. As a result, the doctrine in today’s world adds nothing to the requirement of foreseeability that is not already inherent in the requirement of causation.

Control Techniques, Inc. v. Johnson, 762 N.E.2d at 108. The court went on to hold that the adoption of the Comparative Fault Act did not affect the doctrine of superseding cause. Id.

2 Ind. Code Ann. § 34-51-2-1 et seq. (West, Westlaw current through June 29 2013, excluding [*14] P.L. 205-2013).

The YMCA argues that the trial court correctly found that Taylor’s criminal conduct was a superseding or intervening cause of the harm to A.M.D. and cites Restatement (Second) of Torts § 448 in support. The Restatement provides as follows:

The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.

The YMCA claims that it was not foreseeable that a sexual predator would be lying in wait in the woods in an attempt to sexually molest one of their campers, and in particular, A.M.D.

Restatement (Second) of Torts §449, known as the very duty doctrine, provides as follows: If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, [*15] negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby. At the heart of these concepts is the necessity for an analysis of foreseeability.

The YMCA’s bathroom procedure for the camp, as set forth in the camp brochures provides as follows:

No camper is ever alone and no camper is ever alone with a staff member. All campers will take trips to the bathroom with entire camp and/or camp groups and camp staff. Campers will only use bathrooms inspected for safety by camp staff.

Appellant’s Appendix at 179. Additionally, day campers were to go to the bathroom in pairs, with one counselor present. The YMCA’s Code of Conduct for Day Camp Counselors provided as follows with respect to restroom supervision:

3. Restroom supervision: Staff will make sure the restroom is not occupied by suspicious or unknown individuals before allowing children to use the facilities. Staff will stand in the doorway while children are using the restroom. This policy allows privacy for the children and protection for the staff (not being alone with a child). If staff are assisting younger children, doors to the facility must remain open. No child, regardless [*16] of age, should ever enter a restroom alone on a field trip. Always send children in pairs, and whenever possible, with staff.

Id. at 213.

Further, the counselors were instructed that they shall never leave a child unsupervised. In particular, a day camp counselor, the position Raab held with the YMCA at the time of the molestation, has the general function of directly supervising approximately twelve campers and taking responsibility for each child’s safety. Several of the major responsibilities of the Camp Site Director involved the protection of the campers, such as personally supervising the campers at all times, being directly responsible for the daily safety and schedule of the campers, and maintaining a clean, neat, and safe campsite.

Raab’s deposition testimony indicated her understanding that an eight-year-old child should not be allowed to go to the restroom by himself or wander off because the YMCA did not want the child to get lost, suffer any harm, or be attacked. She further attested to the fact that under the YMCA’s rules campers are allowed to use only those bathrooms inspected by staff to make sure there was no one suspicious lurking around or lingering. Another YMCA employee [*17] attested as follows:

Q: What are the bathroom procedures for the YMCA?

A: For one staff person to accompany two children to the restroom.

Q: And why do you have that procedure or policy?

A: To protect children and to protect the staff.

Q: Protect children from what?

A: Potential child-on-child abusers or any interaction of any kind that’s inappropriate, fighting.

Q: Well, you would also have that policy and procedure for the one staff and two children to prevent sexual molestation from third parties, correct?

A: Correct.

Q: And that’s exactly what happened here; Mr. Taylor came upon the scene, found this child and assaulted him?

A: I can’t . . . .

Id. at 181.

Other designated evidence before the trial court suggested that until the time of the incident giving rise to this appeal, there was nothing out of the ordinary at the park and there were no activities or individuals that gave anyone at the YMCA cause for concern on the day in question. In particular, there was no one at the park who was lingering around, looked out of place, or generally looked suspicious. Furthermore, prior to June 27, 2006, the YMCA was not aware of any criminal incidents or crimes that were committed at the Lions or Creekside [*18] Parks. Additionally, prior to June of 2006, there were no other incidents of violent or sexual assaults reported at Creekside Park. There have been no incidents of violent or sexual assaults reported at Lions Park for at least the past twenty-five years.

We disagree that only one conclusion can be drawn or inferred from the undisputed facts. “[A]n actor need not foresee the exact manner in which harm occurs, but must, in a general way, foresee the injurious consequences of his act.” Rauck v. Hawn, 564 N.E.2d 334, 339 (Ind. Ct. App. 1990). Furthermore, a determination of whether Taylor’s act was a superseding or intervening cause of A.M.D.’s harm such that the original chain of causation has been broken depends on a determination of whether it was reasonably foreseeable under the circumstances that an actor would intervene in such a way as to cause the resulting injury. Scott v. Retz, 916 N.E.2d 252 (Ind. Ct. App. 2009).

In order to make that determination, three factors are pertinent to the analysis. First, courts on review have examined whether the intervening actor is independent from the original actor. Id. Next, we examine whether the instrumentality of harm was under the complete [*19] control of the intervening actor. Id. Third, we examine whether the intervening actor as opposed to the original actor is in a better position to prevent the harm. Id. At a minimum, the facts pertinent to the third factor are in dispute. Whether the criminal assault on A.M.D. by a stranger, Taylor, was foreseeable by the YMCA such that the chain of causation was broken, should be decided by a trier of fact and not as a matter of law.³

3 The trial court did not resolve the issue of whether the exculpatory clause in the camper application signed by Jane Doe released YMCA from liability because the issue was moot. We do not address the arguments pertaining to the release of liability because there is no ruling on this issue subject to our review.

Judgment reversed.

ROBB, C.J., and KIRSCH, J., concur.

Colorado Appellate Court rules that fine print and confusing language found on most health clubs (and some climbing wall) releases is void because of the Colorado Premises Liability Act.

Posted: January 2, 2017 | Author: Recreation Law | Filed under: Colorado, Health Club, Release (pre-injury contract not to sue) | Tags: Colorado Premises Liability Act, Fine Print, Gym, Health club, Invitee, Legal Jargon, Locker Room, PLA, Premises Liability Act, Release | 2 Comments

Door swings both ways in the law. Ski areas used the Colorado Premises Liability Act to lower the standard of care and effectively eliminate claims for lift accidents in Colorado. Here the same act is used to rule a release is void for accidents occurring on premises. However, the release was badly written and should have been thrown out.

State: Colorado, Colorado Court of Appeals

Plaintiff: Wendy Jane Stone

Defendant: Life Time Fitness, Inc., a Minnesota corporation doing business in the State of Colorado, d/b/a Life Time Fitness; Life Time Fitness Foundation; and LTF Club Operations Company, Inc.

Plaintiff Claims: Negligence and violation of the Colorado Premises Liability Act

Defendant Defenses: Release

Holding: For the Plaintiff

Year: 2016

This case is going to change a lot of releases in Colorado, and possibly nationwide. Similar decisions concerning health club releases have occurred in other states for the same or similar reasons. Basically, your have to write a release correctly, or it is void.

Remember the articles about Vail using the Colorado Premises Liability Act to defeat claims for lift accidents? (See Colorado Premises Liability act eliminated common law claims of negligence as well as CO Ski Area Safety Act claims against a landowner and Question answered; Colorado Premises Liability Act supersedes Colorado Ski Area Safety act. Standard of care owed skiers on chairlift’s reasonable man standard?) The same act has been used to void a release in a health club case.

The Colorado Premises Liability Act is a law that tells a landowner (which is broadly defined to include renters as well as landowners indoors and out) how they must treat three types of people on their land or as in this case, a person who is in a health club.

Here the plaintiff had washed her hands in the locker room, and as she was leaving she tripped over the blow dryer cord fracturing her right ankle.

Stone was a member of a Life Time fitness club located in Centennial. According to the complaint, she sustained injuries in the women’s locker room after finishing a workout. Stone alleged that she had washed her hands at a locker room sink and then “turned to leave when she tripped on the blow dryer cord that was, unbeknownst to her, hanging to the floor beneath the sink and vanity counter top.” She caught her foot in the cord and fell to the ground, fracturing her right ankle.

The plaintiff’s injuries arose from her being the land, not for using the benefits of the health club.

The plaintiff sued for negligence and for violation of the Colorado Premises Liability Act. The Colorado Premises Liability Act sets for the duties owed by a landowner to someone on their land based on the relationship between the landowner and the person on the land. Pursuant to an earlier Colorado Supreme Court decision, the Colorado Premises Liability Act provides the sole remedies available to persons injured on the property of another.

The trial court dismissed the plaintiff’s claims based upon the release used by the health club, and the plaintiff appealed.

This decision is new and there is a possibility that it could be appealed to the Colorado Supreme Court and reversed.

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

The plaintiff filed here a complaint with two claims, negligence and breach of the Colorado Premises Liability Act. The court first looked at the negligence claim. The court found that negligence claim was properly dismissed, but for a different reason that the release stopped the claim. Here, the Colorado Premises Liability Act provides the only legal recourse against a landowner, so the negligence claim has no validity.

The PLA thus provides the sole remedy against landowners for injuries on their property established that the PLA abrogates common law negligence claims against landowners.

Accordingly, albeit for reasons different from those expressed by the trial court, we conclude that Stone could not bring a claim for common law negligence, and the trial court; therefore, correctly ruled against her on that claim.

When a statute as in this case the Colorado Premises Liability Act, states the only way to sue is under this act, the statute bars all other ways or theories to sue.

The plaintiff’s argument then was the release that was written and signed by the plaintiff only covered the activities in the health club and did not provide protection from a suit for simply being on the premises.

As we understand Stone’s contentions, she does not dispute that the exculpatory language in the Agreement would preclude her from asserting claims under the PLA for any injuries she might sustain when working out on a treadmill, stationary bicycle, or other exercise equipment or playing racquetball. We therefore do not address such claims. Instead, Stone argues that the exculpatory clauses do not clearly and unambiguously apply to her injuries incurred after washing her hands in the women’s locker room.

The court then reviewed the general rules surrounding release in Colorado law.

Generally, exculpatory agreements have long been disfavored.” Determining the sufficiency and validity of an exculpatory agreement is a question of law for the court. This analysis requires close scrutiny of the agreement to ensure that the intent of the parties is expressed in clear, unambiguous, and unequivocal language.

Under Colorado law, clear and unambiguously language is reviewed based on the lengthy, the amount of legal jargon and the possibility of confusion.

To determine whether the intent of the parties is clearly and unambiguously expressed, we have previously examined the actual language of the agreement for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions.

Colorado has a four-part test to determine the validity of a release.

Under Jones, a court must consider four factors in determining whether an exculpatory agreement is valid: (1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties was expressed in clear and unambiguous language.

The court quickly ruled that the first three factors were not at issue in this case.

In Colorado, there is no public duty based on recreational services. Recreational services are neither essential nor a matter of practical necessity. The third factor was also met because the defendant did not have any advantage. The plaintiff was free to obtain the services of the defendant someplace else.

The fourth factor provided the issue the case would resolve around, “Whether the intention of the parties was clear and unambiguous.”

The issue is not whether a detailed textual analysis would lead a court to determine that the language, even if ambiguous, ultimately would bar the plaintiff’s claims. Instead, the language must be clear and unambiguous and also “unequivocal” to be enforceable.

The court found eight ways the release in this case failed.

First, the release was very small type, dense fine print.

First, as explained by the New York Court of Appeals, “a provision that would exempt its drafter from any liability occasioned by his fault should not compel resort to a magnifying glass and lexicon.” Here, the Agreement consists of extremely dense fine print, for which a great many people would require a magnifying glass or magnifying reading glasses.

Second, the release was full of confusing legal jargon, including the following terms:

…affiliates, subsidiaries, successors, or assigns”; “assumption of risk”; “inherent risk of injury”; “includes, but is not limited to”; and “I agree to defend, indemnify and hold Life Time Fitness harmless.

This jargon was found to mitigate against the idea the release was clear and simple to understand.

Third, the release, referenced clauses, identified as chapters, which even the attorneys for the defendant found confusing. Nor could anyone explain what the references to chapters referred to.

Fourth the focus of the release was on the use of the exercise equipment. The court pointed out five instances in the release that related to the use of the equipment and none relating to occupation of the premises. Meaning the court found a release must release the claims the plaintiff is complaining of.

The fifth reason was the use of the term “inherent.” (As I’ve stated before and given presentations on, inherent is a limiting term you do not want to use in a release.) The court said the use of this term was only applied under Colorado law to apply to activities that are dangerous or potentially dangerous. A locker room is not inherently dangerous so the term is confusing in this case.

In light of this statutory and case law backdrop, the use of the inherent risk language in the assumption of risk clause, and the Agreement’s focus on the use of exercise equipment and facilities and physical injuries resulting from strenuous exercise, one could reasonably conclude that by signing the Agreement he or she was waiving claims based only on the inherent risks of injury related to fitness activities, as opposed to washing one’s hands.

The sixth issue the court had was the language between the different release terms was “squirrely.” (In 35 years of practicing law, I have used the term a lot, but never in a courtroom, and I’ve never seen it in a decision.) The way the language referred back to other clauses in the release and attempting to identify what injuries were actually covered created ambiguities and confusion. The defense counsel for the health club admitted the language was squirrely.

The seventh issue was the general language of the release used to broaden the release, (after using the narrowing term inherent). The release was full of “but for” or “but is not” type of phrases. It was an attempt to broaden the language in the release, which only made the release more confusing.

Seventh, the exculpatory clauses repeatedly use the phrases “includes, but is not limited to” and “including and without limitation,” as well as simply “including.” The repeated use of these phrases makes the clauses more confusing, and the reader is left to guess whether the phrases have different meanings. The problem is compounded by conflicting views expressed by divisions of this court on whether the similar phrase “including, but not limited to” is expansive or restrictive.

The use of these terms created more ambiguity in the release. Specifically, the language created an expansive versus restrictive flow in the release, none of which referenced the locker room.

Based on the above language the court found the release was not clear, unambiguous and unequivocal.

Based on the foregoing discussion, and after scrutinizing the exculpatory clauses, we conclude that the Agreement uses excessive legal jargon, is unnecessarily complex, and creates a likelihood of confusion or failure of a party to recognize the full extent of the release provisions. Accordingly, the Agreement does not clearly, unambiguously, and unequivocally bar Stone’s PLA claim based on the injuries she alleges she sustained after she washed her hands in the women’s locker room.

The negligence claim was dismissed, and the claim under the Colorado Premises Liability Act was allowed to proceed.

So Now What?

First remember, this case could still be appealed and changed by the Colorado Supreme Court. However, the logic and reasoning behind the Colorado Appellate Court decision is well laid out and clear. I don’t think these are issues the Colorado Supreme Court is going to take on.

Colorado has jumped onto the release bandwagon I’ve been telling people about for 25 years. Your release has to be written in English, it needs to be understandable, and it needs to cover everything. Most importantly, it needs to be a separate document with no fine print, no legal jargon and easily read. You can no longer hide your release on the back of an agreement using fine print and expect it to protect you from claims.

Colorado has been a state where releases are rarely over-turned. However, this was a crappy piece of paper that had release language on it. The print was too small; the language was so confusing the attorney for the health club did not understand it and the court pointed this fact out.

Your release needs to be well written, needs to be written by an attorney, needs to be written by an attorney who understands what you do and the risks you are presenting to your guests/customers/participants.

If you are interested in having me prepare a release for you, download the information form and agreement here: information-and-agreement-to-write-a-release-for-you-1-1-17

For more articles on this type of releases found in health clubs see:

Sign-in sheet language at Michigan’s health club was not sufficient to create a release. http://rec-law.us/28J1Cs8

For articles explaining why using the term inherent in a release is bad see:

Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release. http://rec-law.us/1SqHWJW

What do you think? Leave a comment.

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Limones, Sr., et al., v. School District of Lee County et al., 161 So. 3d 384; 2015 Fla. LEXIS 625; 40 Fla. L. Weekly S 182

Mobile Site: http://m.recreation-law.com

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

Stone v. Life Time Fitness, Inc., 2016 Colo. App. LEXIS 1829

Posted: December 30, 2016 | Author: Recreation Law | Filed under: Colorado, Health Club, Legal Case, Release (pre-injury contract not to sue) | Tags: Colorado Premises Liability Act, Health club, Invitee, Licensee, Premises, Premises Liability Act, Release, Trespasser | Leave a comment

* Formatting in this case maybe different when finalized by the Court.

Stone v. Life Time Fitness, Inc., 2016 Colo. App. LEXIS 1829

Wendy Jane Stone, Plaintiff-Appellant, v. Life Time Fitness, Inc., a Minnesota corporation doing business in the State of Colorado, d/b/a Life Time Fitness; Life Time Fitness Foundation; and LTF Club Operations Company, Inc., Defendants-Appellees.

Court of Appeals No. 15CA0598

COURT OF APPEALS OF COLORADO, DIVISION I

2016 Colo. App. LEXIS 1829

December 29, 2016, Decided

OPINION

[*1] City and County of Denver District Court No. 14CV33637 Honorable R. Michael Mullins, Judge

Opinion by JUDGE MILLER

Taubman and Fox, JJ., concur

Announced December 29, 2016

Charles Welton P.C., Charles Welton, Denver, Colorado, for Plaintiff-Appellant

Markusson Green & Jarvis, John T. Mauro, H. Keith Jarvis, Denver, Colorado, for Defendants-Appellees

¶ 1 In this action seeking recovery for personal injuries sustained at a fitness club, plaintiff, Wendy Jane Stone, appeals the summary judgment entered in favor of defendants, Life Time Fitness, Inc.; Life Time Fitness Foundation; and LTF Club Operations Company, Inc. (collectively, Life Time), on Stone’s negligence and Premises Liability Act (PLA) claims based on injuries sustained when she tripped on a hair dryer cord after washing her hands. The principal issue presented on appeal is whether the district court correctly ruled that Stone’s claims are contractually barred based on assumption of risk and liability release language contained in a member usage agreement (Agreement) she signed when she became a member of Life Time.

¶ 2 We disagree with the district court’s conclusion that the exculpatory provisions of the Agreement are valid as applied [*2] to Stone’s PLA claim. Consequently, we reverse the judgment as to that claim and remand the case for further proceedings. We affirm the district court’s judgment on the negligence claim.

I. Background

¶ 3 Stone was a member of a Life Time fitness club located in Centennial. According to the complaint, she sustained injuries in the women’s locker room after finishing a workout. Stone alleged that she had washed her hands at a locker room sink and then “turned to leave when she tripped on the blow dryer cord that was, unbeknownst to her, hanging to the floor beneath the sink and vanity counter top.” She caught her foot in the cord and fell to the ground, fracturing her right ankle.

¶ 4 Stone alleged that allowing the blow dryer cord to hang below the sink counter constituted a trip hazard and a dangerous condition and that, by allowing the condition to exist, Life Time failed to exercise reasonable care. She asserted a general negligence claim and also a claim under Colorado’s PLA, section 13-21-115, C.R.S. 2016.

¶ 5 Life Time moved for summary judgment, relying on assumption of risk and liability release language contained in the Agreement Stone signed when she joined Life Time. Life Time argued that the Agreement was [*3] valid and enforceable, that it expressly covered the type and circumstances of her injuries, and that it barred Stone’s claims as a matter of law. A copy of the Agreement appears in the Appendix to this opinion.

¶ 6 After full briefing, the district court granted Life Time’s motion, concluding that the Agreement was “valid and enforceable” and that Stone had released Life Time from all the claims asserted in the complaint.

II. Discussion

¶ 7 She contends that the district court, therefore, erred in entering summary judgment and dismissing her action.

A. Summary Judgment Standards

¶ 8 Summary judgment is appropriate if the pleadings and supporting documents establish that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Gagne v. Gagne, 2014 COA 127, ¶ 24; see C.R.C.P. 56(c). We review de novo an order granting a motion for summary judgment. Gagne, ¶ 24; see Ranch O, LLC v. Colo. Cattlemen’s Agric. Land Tr., 2015 COA 20, ¶ 12.

B. Negligence Claim

¶ 9 In her complaint, Stone alleged common law negligence and PLA claims, and she pursues both claims on appeal. The trial court’s summary judgment ruled in favor of Life Time without distinguishing between Stone’s negligence and PLA claims. It simply concluded that the [*4] exculpatory clauses in the Agreement were “valid and enforceable” and released Life Time from all claims asserted against it.

¶ 10 We turn to the negligence claim first because we may affirm a correct judgment for reasons different from those relied on by the trial court. English v. Griffith, 99 P.3d 90, 92 (Colo. App. 2004).

¶ 11 The parties agree that the PLA applies to this case. In section

13-21-115(2), the statute provides:

In any civil action brought against a landowner by a person who alleges injury occurring while on the real property of another and by reason of the condition of such property, or activities conducted or circumstances existing on such property, the landowner shall be liable only as provided in subsection (3) of this section.

The PLA thus provides the sole remedy against landowners for injuries on their property. Vigil v. Franklin, 103 P.3d 322, 328-29 (Colo. 2004); Wycoff v. Grace Cmty. Church of Assemblies of God, 251 P.3d 1260, 1265 (Colo. App. 2010). Similarly, it is well

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

Section 13-21-115(1), C.R.S. 2016, defines “landowner” as including “a person in possession of real property and a person legally responsible for the condition of real property or for the activities conducted or circumstances existing on real property.” In its answer, Life Time admitted that it owned and operated the club where Stone was injured and that the PLA governs her [*5] claims.

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

established that the PLA abrogates common law negligence claims against landowners. Legro v. Robinson, 2012 COA 182, ¶ 20, aff’d, 2014 CO 40.

¶ 12 Accordingly, albeit for reasons different from those expressed by the trial court, we conclude that Stone could not bring a claim for common law negligence, and the trial court therefore correctly ruled against her on that claim. We now turn to the effect of the exculpatory clauses in the Agreement on Stone’s PLA claim.

C. Application of Exculpatory Clauses to PLA Claim

¶ 13 As we understand Stone’s contentions, she does not dispute that the exculpatory language in the Agreement would preclude her from asserting claims under the PLA for any injuries she might sustain when working out on a treadmill, stationary bicycle, or other exercise equipment or playing racquetball. We therefore do not address such claims. Instead, Stone argues that the exculpatory clauses do not clearly and unambiguously apply to her injuries incurred after washing her hands in the women’s locker room. We agree.

1. Law

¶ 14 “Generally, exculpatory agreements have long been disfavored.” B & B Livery, Inc. v. Riehl, 960 P.2d 134, 136 (Colo. 1998). Determining the sufficiency and validity of an exculpatory agreement is a question of law for the court. Id.; Jones [*6] v. Dressel, 623 P.2d 370, 375 (Colo. 1981). This analysis requires close scrutiny of the agreement to ensure that the intent of the parties is expressed in clear, unambiguous, and unequivocal language. Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004). Our supreme court has explained:

Id.

¶ 15 Under Jones, a court must consider four factors in determining whether an exculpatory agreement is valid: (1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties was expressed in clear and unambiguous language. 623 P.2d at 375.

2. Analysis

a. The First Three Jones Factors

¶ 16 The first three Jones factors provide little help for Stone’s position. The supreme court has specified that no public duty is implicated if a business provides recreational services. See Chadwick, 100 P.3d at 467 (addressing guided hunting services and noting that providers of recreational activities owe “no special duty [*7] to the public”); Jones, 623 P.2d at 376-78 (skydiving services); see also Hamill, 262 P.3d at 949 (addressing recreational camping services and noting supreme court authority).

¶ 17 With regard to the second factor, the nature of the services provided, courts have consistently deemed recreational services to be neither essential nor a matter of practical necessity. See Chadwick, 100 P.3d at 467; Hamill, 262 P.3d at 949; see also Brooks v. Timberline Tours, Inc., 941 F. Supp. 959, 962 (D. Colo. 1996) (snowmobiling not a matter of practical necessity), aff’d, 127 F.3d 1273 (10th Cir. 1997); Lahey v. Covington, 964 F. Supp. 1440, 1445 (D. Colo. 1996) (whitewater rafting not an essential service), aff’d sub nom. Lahey v. Twin Lakes Expeditions, Inc., 113 F.3d 1246 (10th Cir. 1997). Stone attempts to distinguish those cases by asserting that people join fitness centers “to promote their health, not for the thrill of a dangerous recreational activity.” She cites no authority for such a distinction, and we are not persuaded that such activities as camping and horseback riding, at issue in the cases cited above, are engaged in for a dangerous thrill as opposed to the healthful benefits of outdoor exercise. Consequently, the recreational nature of the services Life Time provides does not weigh against upholding or enforcing the Agreement.

¶ 18 With respect to the third factor, a contract is fairly entered into if one party [*8] is not at such an obvious disadvantage in bargaining power that the effect of the contract is to place that party at the mercy of the other party’s negligence. See Hamill, 262 P.3d at 949; see also Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 784 (Colo. 1989). Possible examples of unfair disparity in bargaining power include agreements between employers and employees and between common carriers or public utilities and members of the public. See Heil Valley Ranch, Inc., 784 P.2d at 784. However, this type of unfair disparity is generally not implicated when a person contracts with a business providing recreational services. See id.; see also Hamill, 262 P.3d at 949-50.

¶ 19 In evaluating fairness, courts also examine whether the services provided could have been obtained elsewhere. Hamill, 262 P.3d at 950. Nothing in the record indicates that Stone could not have taken her business elsewhere and joined a different fitness club or recreation center. Nor is there any other evidence that the parties’ relative bargaining strengths were unfairly disparate so as to weigh against enforcing the Agreement.

¶ 20 We therefore turn to the fourth prong of the Jones test – whether the intention of the parties was expressed in clear and unambiguous language. [*9]

b. The Fourth Jones Factor

¶ 21 The validity of exculpatory clauses releasing or waiving future negligence claims usually turns on the fourth Jones factor – whether the intention of the parties is expressed in clear and unambiguous language. Wycoff, 251 P.3d at 1263 (applying the Jones factors to a PLA claim). This case also turns on that factor.

¶ 22 The issue is not whether a detailed textual analysis would lead a court to determine that the language, even if ambiguous, ultimately would bar the plaintiff’s claims. Instead, the language must be clear and unambiguous and also “unequivocal” to be enforceable. Chadwick, 100 P.3d at 467; see also Threadgill v. Peabody Coal Co., 34 Colo. App. 203, 209, 526 P.2d 676, 679 (1974), cited with approval in Jones, 623 P.2d at 378.

¶ 23 We conclude that the Agreement fails this test for numerous reasons.

¶ 24 First, as explained by the New York Court of Appeals, “a provision that would exempt its drafter from any liability occasioned by his fault should not compel resort to a magnifying glass and lexicon.” Gross v. Sweet, 400 N.E.2d 306, 309 (N.Y. 1979), cited with approval in Jones, 623 P.2d at 378. Here, the Agreement consists of extremely dense fine print, for which a great many people would require a magnifying glass or magnifying reading glasses.

¶ 25 Second, the two clauses are replete with legal jargon, using phrases and terms such as “affiliates, subsidiaries, [*10] successors, or assigns”; “assumption of risk”; “inherent risk of injury”; “includes, but is not limited to”; and “I agree to defend, indemnify and hold Life Time Fitness harmless.” The use of such technical legal language militates against the conclusion that the release of liability was clear and simple to a lay person.

¶ 26 Third, the first of the two clauses relied on by Life Time bears the following heading: “under Chapter 458, 459, 460, or Chapter 461 ASSUMPTION OF RISK.” At oral argument, counsel for Life Time conceded that the reference to multiple chapters was ambiguous and confusing, and he could not explain to what the chapters referred. Our research has not enlightened us on the subject. Conscientious lay persons could reasonably have skipped over the fine print appearing under that heading, believing it did not apply to them because they would have no reason to understand that chapters 458, 459, 460, or 461 had any relevance to their situation. Thus, the assumption of risk heading was not clear and unambiguous.

¶ 27 Fourth, the dominant focus of the Agreement is on the risks of strenuous exercise and use of exercise equipment at the fitness center:

The opening paragraph [*11] of the Agreement contains the following warning: “All members are strongly encouraged to have a complete physical examination by a medical doctor prior to beginning any work out program or strenuous new activity. If I have a history of heart disease, I agree to consult a physician before becoming a Life Time Fitness member.”
Under the confusing assumption of risk heading, the first sentence states, “I understand that there is an inherent risk of injury, whether caused by me or someone else, in the use of or presence at a Life Time Fitness Center, the use of equipment and services at a Life Time Fitness Center, and participation in Life Time Fitness’ programs.”
There then follows a listing of types of risks, including the use of “indoor and outdoor pool areas with waterslides, a climbing wall area, ball and racquet courts, cardiovascular and resistance training equipment,” and other specified programs, as well as
“[i]njuries arising from the use of Life Time Fitness’ centers or equipment” and from activities and programs sponsored by Life Time; “[i]njuries or medical disorders resulting from exercise at a
Life Time Fitness center, including, but not limited to heart attacks, strokes, [*12] heart stress, spr [sic] broken bones and torn muscles or ligaments”; and “[i]njuries resulting from the actions taken or decisions made regarding medical or survival procedures.”

¶ 28 Fifth, the term “inherent risk of injury” that appears in the assumption of risk clause has been applied in various Colorado statutes and case law to address waivers of liability only for activities that are dangerous or potentially dangerous. Thus, the General Assembly has provided for releases from liability in circumstances such as activities involving horses and llamas, section 13-21-119, C.R.S. 2016; being a spectator at baseball games, section 13-21-120, C.R.S. 2016; agricultural recreation or agritourism activities (including hunting, shooting, diving, and operating a motorized recreational vehicle on or near agricultural land), section 13-21-121, C.R.S. 2016; skiing, section 33-44-109, C.R.S. 2016; and spaceflight activities, section 41-6-101, C.R.S. 2016. Significantly, not one of these statutory exemptions from liability extends to the use of locker rooms, rest rooms, or dressing rooms associated with these activities. Rather, the releases of liability extend only to the dangerous or potentially dangerous activities themselves.

¶ 29 Colorado’s published cases concerning the term “inherent risks” similarly concern dangerous or potentially [*13] dangerous activities. For example, the term “inherent risks” has been addressed in cases involving skiing, Graven v. Vail Assocs., Inc., 909 P.2d 514, 519 (Colo. 1995); horseback riding, Heil Valley Ranch, Inc., 784 P.2d at 782; medical procedures or surgical techniques, Mudd v. Dorr, 40 Colo. App. 74, 78-79, 574 P.2d 97, 101 (1977); and attendance at roller hockey games, Teneyck v. Roller Hockey Colo., Ltd., 10 P.3d 707, 710 (Colo. App. 2000). Thus, in reported cases, the term “inherent risks” has been limited to dangerous or potentially dangerous activities, rather than accidents occurring in more common situations, such as using locker rooms.

¶ 30 In light of this statutory and case law backdrop, the use of the inherent risk language in the assumption of risk clause, and the Agreement’s focus on the use of exercise equipment and facilities and physical injuries resulting from strenuous exercise, one could reasonably conclude that by signing the Agreement he or she was waiving claims based only on the inherent risks of injury related to fitness activities, as opposed to washing one’s hands. Indeed, Stone so stated in her affidavit submitted in opposition to the motion for summary judgment.

¶ 31 Sixth, Life Time contends that the only relevant language we need consider is that set forth in the second exculpatory clause, labeled “RELEASE OF LIABILITY.” That provision begins [*14] by stating that “I waive any and all claims or actions that may arise against Life Time . . . as a result of any such injury.” (Emphasis added.) The quoted language, however, is the first use of the term “injury” in the release of liability clause. So the scope of the release can be determined only by referring back to the confusing assumption of risk clause. It is not surprising then that Life Time’s counsel characterized the release’s reference to “such injury” as “squirrely.” In any event, all of the ambiguities and confusion in the assumption of risk clause necessarily infect the release clause.

¶ 32 Seventh, the exculpatory clauses repeatedly use the phrases “includes, but is not limited to” and “including and without limitation,” as well as simply “including.” The repeated use of these phrases makes the clauses more confusing, and the reader is left to guess whether the phrases have different meanings. The problem is compounded by conflicting views expressed by divisions of this court on whether the similar phrase “including, but not limited to” is expansive or restrictive. Compare Maehal Enters., Inc. v. Thunder Mountain Custom Cycles, Inc., 313 P.3d 584, 590 (Colo. App. 2011) (declining to treat the phrase as restrictive and citing Bryan A. Garner, A Dictionary of Modern [*15] Legal Usage 432 (2d ed. 1995)), with Ridgeview Classical Sch. v. Poudre Sch. Dist., 214 P.3d 476, 483 (Colo. App. 2008) (declining to conclude that the phrase took the statute out of the limiting rule of ejusdem generis). For purposes of deciding this case we need not resolve this conflict; the relevance of the conflict for present purposes is that it creates another ambiguity.

¶ 33 That ambiguity – expansive versus restrictive – is critical because nothing in the Agreement refers to risks of using sinks or locker rooms. The assumption of risk clause refers to the “risk of loss, theft or damage of personal property” for the member or her guests while “using any lockers” at a Life Time fitness center. That is quite a separate matter, however, from suffering a physical injury in a locker room.

¶ 34 Significantly, when Life Time intends to exclude accidental injuries occurring in locker rooms, it knows how to draft a clear waiver of liability doing so. In Geczi v. Lifetime Fitness, 973 N.E.2d 801, 803 (Ohio Ct. App. 2012), the plaintiff entered into a membership agreement with Life Time in 2000 (eleven years before Stone entered into the Agreement), which provided in relevant part:

[T]he undersigned agrees to specifically assume all risk of injury while using any of the [*16] Clubs[‘] facilities, equipment, services or programs and hereby waives any and all claims or actions which may arise against LIFE TIME FITNESS or its owners and employees as a result of such injury. The risks include, but are not limited to

. . . .

(4) Accidental injuries within the facilities, including, but not limited to the locker rooms, . . . showers and dressing rooms.

Id. at 806. Life Time chose not to include similar language in the Agreement signed by Stone.

c. The Agreement Is not Clear, Unambiguous, and Unequivocal

¶ 35 Based on the foregoing discussion, and after scrutinizing the exculpatory clauses, we conclude that the Agreement uses excessive legal jargon, is unnecessarily complex, and creates a likelihood of confusion or failure of a party to recognize the full extent of the release provisions. See Chadwick, 100 P.3d at 467. Accordingly, the Agreement does not clearly, unambiguously, and unequivocally bar Stone’s PLA claim based on the injuries she alleges she sustained after she washed her hands in the women’s locker room.

III. Conclusion

¶ 36 The judgment on Stone’s negligence claim is affirmed, the judgment on her PLA claim is reversed, and the case is remanded for further proceedings on that claim.

JUDGE [*17] TAUBMAN and JUDGE FOX concur.

State AED laws may create liability; make sure you understand what your state laws say. Florida, an AED law affecting high schools created liability for the HS.

Posted: December 19, 2016 | Author: Recreation Law | Filed under: First Aid, Florida, Medical, Sports | Tags: #Soccer, AED, Automatic External Defibrillator, High School Team, Supervision, Use | Leave a comment

A Florida statute requiring schools to acquire and train all employees on the use of AED’s, created liability when the AED was not used.

State: Florida, Supreme Court of Florida

Plaintiff: Abel Limones, Sr., et al

Defendant: School District of Lee County et al.

Plaintiff Claims: Common Law negligence and breach of a duty required by statute, Florida Statute 1006.165

Defendant Defenses: No duty and Immune under 1006.165 and 768.1325

Holding: for the Plaintiff

Year: 2015

The deceased was a 15-year-old boy who played on a high school soccer team. While playing a high school soccer game he collapsed. His coach ran onto the field and started CPR and was assisted by two nurses who were sitting in the stands.

Allegedly, the coach asked several times for an AED (Automatic External Defibrillator). An AED was located in a storage are at the end of the field. However, no one ever retrieved the AED.

Ten minutes later, the fire department arrived and attempted to revive the student with their AED. That did not work. Twenty-six minutes later, an ambulance arrived and with the application of the ambulance AED and the application of drugs, EMS was able to restore the student’s heart rate.

The plaintiff’s expert witness testified that the 26 minutes without the use of the AED, not having a heartbeat, deprived the student of oxygen, which caused brain damage. The student was left in a persistent vegetative state.

The trial court granted the defendants motion for summary judgment. The plaintiff appealed and the Florida Appellate Court upheld the dismal by the trial court. The Florida Supreme Court then heard the appeal and issued this decision.

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

The Supreme Court of Florida first looked at basic negligence claims pursuant to Florida’s law. Florida’s law applies the same four steps to prove negligence as most other states.

We have long held that to succeed on a claim of negligence, a plaintiff must establish the four elements of duty, breach, proximate causation, and damages. Of these elements, only the existence of a duty is a legal question because duty is the standard to which the jury compares the conduct of the defendant.

A legal question is one that must be answered by the courts. So whether or not a duty existed, in proving negligence, is first reviewed by the trial judge. Factual questions are reviewed by the finder of fact, most commonly called the jury. Looking at the issue of duty, the court found under Florida Law, there were four sources of duty.

Florida law recognizes the following four sources of duty: (1) statutes or regulations; (2) common law interpretations of those statutes or regulations; (3) other sources in the common law; and (4) the general facts of the case.

Rarely do courts define how duties are created. Consequently, reviewing how a duty is created is interesting. The last way, general facts of the case, are how most duties are determined. The plaintiff argues there is a duty because of how others act or fail to act or based on the testimony from expert witnesses. Alternatively, an organization or trade association has published a list of the standards of care, which are then used to prove the duty failed.

The court then must examine if the minimum requirements for a duty have been met.

As in this case, when the source of the duty falls within the first three sources, the factual inquiry necessary to establish a duty is limited. The court must simply determine whether a statute, regulation, or the common law imposes a duty of care upon the defendant. The judicial determination of the existence of a duty is a minimal threshold that merely opens the courthouse doors.

In this case, the parties were relying on a statute; the Florida Statute that put AED’s in schools and required all school employees to be trained on their use, 768.1325. Once the court determines that a duty existed, then the jury must decide all other issues of the case.

Once a court has concluded that a duty exists, Florida law neither requires nor allows the court to further expand its consideration into how a reasonably prudent person would or should act under the circumstances as a matter of law. We have clearly stated that the remaining elements of negligence–breach, proximate causation, and damages–are to be resolved by the fact-finder.

The court then looked into the duty of schools with regard to students. A special relationship exists between a student (and their parents) and schools. A special relationship then takes the duty out from limited if any duty at all to a specific duty of care. Here that relationship creates a duty upon the school to act as a reasonable man would.

As a general principle, a party does not have a duty to take affirmative action to protect or aid another unless a special relationship exists which creates such a duty. When such a relationship exists, the law requires the party to act with reasonable care toward the person in need of protection or aid. As the Second District acknowledged below, Florida courts have recognized a special relationship between schools and their students based upon the fact that a school functions at least partially in the place of parents during the school day and school-sponsored activities.

The duty thus created or established requires a school to reasonably supervise students.

This special relationship requires a school to reasonably supervise its students during all activities that are subject to the control of the school, even if the activities occur beyond the boundaries of the school or involve adult students.

It should be noted, however, when referring to “school” in this manner; the courts are talking about public schools and students under the age of 18. Colleges have very different duties, especially outside of the classroom or off campus.

That supervision duty schools have, has five sub-elements or additional duties when dealing with student athletes.

Lower courts in Florida have recognized that the duty of supervision creates the following specific duties owed to student athletes: (1) schools must adequately instruct student athletes; (2) schools must provide proper equipment; (3) schools must reasonably match participants; (4) schools must adequately supervise athletic events; and (5) schools must take appropriate measures after a student is injured to prevent aggravation of the injury.

Here, several of the specific duties obviously could be applied to the case. Consequently, the court found the school owed a duty to the deceased.

Having determined the duty owed by the school to the deceased the court held that the school had a duty to the deceased that was breached. The use of an AED, required at the school by statute, was a reasonable duty owed to the deceased.

Therefore, we conclude that Respondent owed Abel a duty of supervision and to act with reasonable care under the circumstances; specifically, Respondent owed Abel a duty to take appropriate post-injury efforts to avoid or mitigate further aggravation of his injury. “Reasonable care under the circumstances” is a standard that may fluctuate with time, the student’s age and activity, the extent of the injury, the available responder(s), and other facts. Advancements with technology and equipment available today, such as a portable AED, to treat an injury were most probably unavailable twenty years ago, and may be obsolete twenty years from now.

The plaintiffs also argued there were additional duties owed based on the Florida School AED statute. However, the court declined to review this issue. Meaning, it is undecided and could go either way in the future.

The defendant then argued they were immune from suit based on the Florida AED Good Samaritan Act. The court then looked at the immunity statute set forth in the Florida School AED Statute. The Statute required schools to have AED’s and have to train all employees in the use of the AED. The court found that employees and volunteers could be covered under the Florida AED Good Samaritan Act. If they used the AED’s they would be immune from suit.

The court in reading the Florida AED Good Samaritan Act found two different groups of people were created by the act. However, only one was protected by the act and immune from suit. Those who use or attempt to use an AED are immune. Those that only acquire the AED, are not immune because they did not attempt to use the AED.

Users are clearly “immune from civil liability for any harm resulting from the use or attempted use” of an AED. § 768.1325(3), Fla. Stat. Additionally, acquirers are immune from “such liability,” meaning the “liability for any harm resulting from the use or attempted use” referenced in the prior sentence. Thus, acquirers are not immune due to the mere fact that they have purchased and made available an AED which has not been used; rather, they are entitled to immunity from the harm that may result only when an AED is actually used or attempted to be used.

That immunity only applied to the use of the AED. Here there was no use of the AED, so the statute did not provide any immunity.

It is undisputed that no actual or attempted use of an AED occurred in this case until emergency responders arrived. Therefore, we hold that Respondent is not entitled to immunity under section 768.1325 and such section has absolutely no application here.

The court summarized its analysis.

We hold that Respondent owed a common law duty to supervise Abel, and that once injured, Respondent owed a duty to take reasonable measures and come to his aid to prevent aggravation of his injury. It is a matter for the jury to determine under the evidence whether Respondent’s actions breached that duty and resulted in the damage that Abel suffered. We further hold Respondent is not entitled to immunity from suit under section 768.1325, Florida Statutes.

So Now What?

So in Florida, a statute that requires someone, such as a school to have AED’s then requires the school to use the AED’s and if they do not, they breach the common law duty of care to their students.

AED laws are going to become a carnival ride in attempting to understand and use them without creating liability or remaining immune from suit. You probably not only want to be on top of the law that is being passed in your state; you should probably go down and testify so the legislature in an attempt to save a life does not sink your business.

It is sad when a young man dies, especially, if he could have been saved. That issue is probably going to trial.

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Boisson v. Arizona Board Of Regents, et. al., 236 Ariz. 619; 343 P.3d 931; 2015 Ariz. App. LEXIS 36; 708 Ariz. Adv. Rep. 7

Mobile Site: http://m.recreation-law.com

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

Limones, Sr., et al., v. School District of Lee County et al., 161 So. 3d 384; 2015 Fla. LEXIS 625; 40 Fla. L. Weekly S 182

Posted: December 18, 2016 | Author: Recreation Law | Filed under: First Aid, Florida, Medical, Sports | Tags: #Soccer, AED, Automatic External Defibrillator, High School Team | Leave a comment

Limones, Sr., et al., v. School District of Lee County et al., 161 So. 3d 384; 2015 Fla. LEXIS 625; 40 Fla. L. Weekly S 182

Abel Limones, Sr., et al., Petitioners, vs. School District of Lee County et al., Respondents.

No. SC13-932

SUPREME COURT OF FLORIDA

161 So. 3d 384; 2015 Fla. LEXIS 625; 40 Fla. L. Weekly S 182

April 2, 2015, Decided

PRIOR HISTORY: [**1] Application for Review of the Decision of the District Court of Appeal – Direct Conflict of Decisions. Second District – Case No. 2D11-5191. (Lee County).

Limones v. Sch. Dist. of Lee County, 111 So. 3d 901, 2013 Fla. App. LEXIS 1821 (Fla. Dist. Ct. App. 2d Dist., 2013)

COUNSEL: David Charles Rash of David C. Rash, P.A., Weston, Florida, and Elizabeth Koebel Russo of Russo Appellate Firm, P.A., Miami, Florida, for Petitioners.

Traci McKee of Henderson, Franklin, Starnes & Holt, P.A., Fort Myers, Florida, and Scott Andrew Beatty of Henderson, Franklin, Starnes & Holt, P.A., Bonita Springs, Florida, for Respondents.

Jennifer Suzanne Blohm and Ronald Gustav Meyer of Meyer, Brooks, Demma and Blohm, P.A., Tallahassee, Florida, for Amicus Curiae Florida School Boards Association, Inc.

Leonard E. Ireland, Jr., Gainesville, Florida, for Amicus Curiae Florida High School Athletic Association, Inc.

Mark Miller and Christina Marie Martin, Pacific Legal Foundation, Palm Beach Gardens, Florida, for Amicus Curiae Pacific Legal Foundation.

JUDGES: LABARGA, C.J., and PARIENTE, QUINCE, and PERRY, JJ., concur. CANADY, J., dissents with an opinion, in which POLSTON, J., concurs.

OPINION BY: LEWIS

OPINION

[*387] LEWIS, J.

Petitioners Abel Limones, Sr., and Sanjuana Castillo seek review of the decision of the Second District Court of Appeal in Limones v. School District of Lee County, 111 So. 3d 901 (Fla. 2d DCA 2013), asserting that it expressly [**2] and directly conflicts with the decision of this Court in McCain v. Florida Power Corp., 593 So. 2d 500 (Fla. 1992), and several other Florida decisions.

BACKGROUND

At approximately 7:40 p.m. on November 13, 2008, fifteen-year-old Abel Limones, Jr., suddenly collapsed during a high school soccer game. There is no evidence in the record to suggest that Abel collapsed due to a collision with another player. The event involved a soccer game between East Lee County High School, Abel’s school, and Riverdale High School, the host school. Both schools belong to the School District of Lee County. When Abel was unable to rise, Thomas Busatta, the coach for East Lee County High School, immediately ran onto the field to check his player. Abel tried to speak to Busatta, but within three minutes of the collapse, he appeared to stop breathing and lost consciousness. Busatta was unable to detect a pulse. An administrator from Riverdale High School who called 911, and two parents in the stands who were nurses, joined Busatta on the field. Busatta and one nurse began to perform cardiopulmonary resuscitation (CPR) on Abel. Busatta, who was certified in the use of an automated external defibrillator (AED), testified that he yelled for an AED. The AED in the [**3] possession of Riverdale High School was actually at the game facility located at the end of the soccer field, but it was never brought on the field to Busatta to assist in reviving Abel.

Emergency responders from the fire department arrived at approximately 7:50 p.m. and applied their semi-automatic AED to revive Abel, but that was unsuccessful. Next, responders from the Emergency Medical Service (EMS) arrived and utilized a fully automatic AED on Abel and also administered several drugs in an attempt to restore his heartbeat. After application of shocks and drugs, emergency responders revived Abel, but not until approximately 8:06 p.m., which was twenty-six minutes after his initial collapse. Although Abel survived, he suffered a severe brain injury due to a lack of oxygen over the time delay involved. As a result, he now remains in a nearly persistent vegetative state that will require full-time care for the remainder of his life.

Petitioners, Abel’s parents, retained an expert, Dr. David Systrom, M.D., who determined that Abel suffered from a previously undetected underlying heart condition. Dr. Systrom further opined that if shocks from an AED had been administered earlier, oxygen [**4] would have been restored [*388] to Abel’s brain sooner and he would not have suffered the brain injury that left him in the current permanent vegetative state. Petitioners then filed an action against Respondent, the School Board of Lee County.¹ They alleged that Respondent breached both a common law duty and a statutory duty as imposed by section 1006.165, Florida Statutes (2008),² when it failed to apply an AED on Abel after his collapse. The School Board moved for summary judgment, which the trial court granted and entered final judgment.

1 Petitioners initially filed an action against the School District of Lee County and the School Board of Lee County. All parties conceded that the only proper respondent in this case is the School Board of Lee County.

2 [HN1] Section 1006.165, Florida Statutes, requires all public schools that participate in the Florida High School Athletic Association to acquire an AED, train personnel in its use, and register its location with the local EMS.

On appeal, the Second District recognized that Respondent owed a duty to supervise its students, which in the context of student athletes included a duty to prevent aggravation of an injury. Limones, 111 So. 3d at 904-05 (citing Rupp v. Bryant, 417 So. 2d 658 (Fla. 1982); Leahy v. Sch. Bd. of Hernando Cnty., 450 So. 2d 883, 885 (Fla. 5th DCA 1984)). However, the Second District proceeded to expand its consideration of the duty owed and enlarged [**5] its consideration into a factual scope, extent, and performance of that duty analysis. Id. at 905 (citing Cerny v. Cedar Bluffs Junior/Senior Pub. Sch., 262 Neb. 66, 628 N.W.2d 697, 703 (Neb. 2001)). In this analysis, the Second District considered and evaluated whether post-injury efforts in connection with satisfying the duty to Abel should have included making available, diagnosing the need for, or using an AED. Id. The Second District relied on the discussion provided by the Fourth District Court of Appeal in L.A. Fitness International, LLC v. Mayer, 980 So. 2d 550 (Fla. 4th DCA 2008), even though that case did not consider the same “duty” and the health club did not have a duty involving students or any similar relationship.

In L.A. Fitness, the Fourth District considered whether a health club breached its duty of reasonable care owed to a customer who was using training equipment when the health club failed to acquire or use an AED on a customer in cardiac distress. Id. at 556-57. After a review of the common law duties owed by a business owner to its invitees, the Fourth District determined that a health club owed no duty to provide or use an AED on a patron in cardiac distress. Id. at 562. The Second District in Limones found no distinction between L.A. Fitness and the present case, even though the differences are extreme, and concluded that reasonably prudent post-injury [**6] efforts did not require Respondent to provide, diagnose the need for, or use an AED. Limones, 111 So. 3d at 906. The Second District also determined that neither the undertaker’s doctrine³ nor section 1006.165, Florida Statutes, imposed a duty to use an AED on Abel. Id. at 906-07. Finally, after it concluded that Respondent was immune from civil liability under section 768.1325(3), Florida Statutes (2008), the Second District affirmed the decision [*389] of the trial court. Id. at 908-09. This review follows.

3 [HN2] The undertaker’s doctrine imposes a duty of reasonable care upon a party that freely or by contract undertakes to perform a service for another party. See, e.g., Clay Elec. Coop., Inc. v. Johnson, 873 So. 2d 1182, 1186 (Fla. 2003) (citing Restatement (Second) of Torts § 323 (1965)). The undertaker is subject to liability if: (a) he or she fails to exercise reasonable care, which results in increased harm to the beneficiary; or (b) the beneficiary relies upon the undertaker and is harmed as a result. See id.

ANALYSIS

Jurisdiction

We first consider whether jurisdiction exists to review this matter. Petitioners assert that the decision below expressly and directly conflicts with the decision of this Court in McCain and other Florida decisions. See art. V, § 3(b)(3), Fla. Const. Specifically, Petitioners claim that the Second District defined the duty in a manner that conflicts with the approach delineated in McCain. We agree.

We have long [**7] held that [HN3] to succeed on a claim of negligence, a plaintiff must establish the four elements of duty, breach, proximate causation, and damages. See, e.g., U.S. v. Stevens, 994 So. 2d 1062, 1065-66 (Fla. 2008). Of these elements, only the existence of a duty is a legal question because duty is the standard to which the jury compares the conduct of the defendant. McCain, 593 So. 2d at 503. Florida law recognizes the following four sources of duty: (1) statutes or regulations; (2) common law interpretations of those statutes or regulations; (3) other sources in the common law; and (4) the general facts of the case. Id. at 503 n.2. As in this case, when the source of the duty falls within the first three sources, the factual inquiry necessary to establish a duty is limited.⁴ The court must simply determine whether a statute, regulation, or the common law imposes a duty of care upon the defendant. The judicial determination of the existence of a duty is a minimal threshold that merely opens the courthouse doors. Id. at 502. Once a court has concluded that a duty exists, Florida law neither requires nor allows the court to further expand its consideration into how a reasonably prudent person would or should act under the circumstances as a matter of law.⁵ We have clearly stated that the [**8] remaining elements of negligence–breach, proximate causation, and damages–are to be resolved by the fact-finder. See Dorsey v. Reider, 139 So. 3d 860, 866 (Fla. 2014); Williams v. Davis, 974 So. 2d 1052, 1056 n.2 (Fla. 2007) (citing McCain, 593 So. 2d at 504); see also Orlando Exec. Park, Inc. v. Robbins, 433 So. 2d 491, 493 (Fla. 1983) (“[I]t is peculiarly a jury function to determine what precautions are reasonably required in the exercise of a particular duty of due care.” (citation omitted)), receded from on other grounds by Mobil Oil Corp. v. Bransford, 648 So. 2d 119, 121 (Fla. 1995).

4 [HN4] Even when the duty is rooted in the fourth prong, factual inquiry into the existence of a duty is limited to whether the “defendant’s conduct foreseeably created a broader ‘zone of risk’ that poses a general threat of harm to others.” McCain, 593 So. 2d at 502.

5 Of course, as McCain acknowledges, [HN5] some facts must be established to determine whether a duty exists, such as the identity of the parties, their relationship, and whether that relationship qualifies as a special relationship recognized by tort law and subject to heightened duties. See 593 So. 2d at 503-04. However, further factual inquiry risks invasion of the province of the jury.

The Second District determined that a clearly recognized common law duty existed under both Rupp and Leahy. Rupp established that [HN6] school employees must reasonably supervise students during activities that are subject to the control of the school. 417 So. 2d at 666; see also Leahy, 450 So. 2d at 885 (explaining [**9] that the duty of supervision owed by a school to its students included a duty to prevent aggravation of an injury). [HN7] However, the Second District incorrectly expanded Florida law and invaded the province of the [*390] jury when it further considered whether post-injury efforts required Respondent to make available, diagnose the need for, or use the AED on Abel. Limones, 111 So. 3d at 905. This detailed analysis exceeded the threshold requirement that this Court established in McCain. Therefore, conflict jurisdiction exists to consider the merits of this case and we choose to exercise our discretion to resolve this conflict. [HN8] We review de novo rulings on summary judgment with respect to purely legal questions. See, e.g., Clay Elec. Coop., Inc. v. Johnson, 873 So. 2d 1182, 1185 (Fla. 2003).

Common Law Duty

[HN9] As a general principle, a party does not have a duty to take affirmative action to protect or aid another unless a special relationship exists which creates such a duty. See Restatement (Second) of Torts § 314 cmt. a (1965). When such a relationship exists, the law requires the party to act with reasonable care toward the person in need of protection or aid. See id. § 314A cmt. e. As the Second District acknowledged below, Florida courts have recognized a special relationship between schools and their students based upon the fact that [**10] a school functions at least partially in the place of parents during the school day and school-sponsored activities. See, e.g., Nova Se. Univ., Inc. v. Gross, 758 So. 2d 86, 88-89 (Fla. 2000) (citing Rupp, 417 So. 2d at 666). Mandatory education of children also supports this relationship. Rupp, 417 So. 2d at 666.

[HN10] This special relationship requires a school to reasonably supervise its students during all activities that are subject to the control of the school, even if the activities occur beyond the boundaries of the school or involve adult students. See Nova Se. Univ., 758 So. 2d at 88-89 (applying the in loco parentis doctrine to a relationship between an adult student and a university when the university mandated participation by the student in an off-campus internship); Rupp, 417 So. 2d at 666-67 (concluding that a duty of supervision existed during an unsanctioned off-campus hazing event by a school-sponsored club); cf. Kazanjian v. Sch. Bd. of Palm Beach Cnty., 967 So. 2d 259, 268 (Fla. 4th DCA 2007) (finding that the duty of supervision did not extend to a student who was injured when she left school premises without authorization). This duty to supervise requires teachers and other applicable school employees to act with reasonable care under the circumstances. Wyke v. Polk Cnty. Sch. Bd., 129 F.3d 560, 571 (11th Cir. 1997) (citing Florida law); see also Nova Se. Univ., 758 So. 2d at 90 (noting that the university had a duty to use reasonable care when it assigned students to off-campus internships). Thereafter, it [**11] is for the jury to determine whether, under the relevant circumstances, the school employee has acted unreasonably and, therefore, breached the duty owed. See La Petite Acad., Inc. v. Nassef ex rel. Knippel, 674 So. 2d 181, 182 (Fla. 2d DCA 1996) (citing Benton v. Sch. Bd. of Broward Cnty., 386 So. 2d 831, 834 (Fla. 4th DCA 1980)); see also Zalkin v. Am. Learning Sys., 639 So. 2d 1020, 1021 (Fla. 3d DCA 1994) (concluding that whether alleged negligent supervision by school employees resulted in injury to a student was a jury issue).

[HN11] Lower courts in Florida have recognized that the duty of supervision creates the following specific duties owed to student athletes: (1) schools must adequately instruct student athletes; (2) schools must provide proper equipment; (3) schools must reasonably match participants; (4) schools must adequately supervise athletic events; and (5) schools must take appropriate measures after a student is injured to prevent aggravation of the injury. See [*391] Limones, 111 So. 3d at 904 (citing Leahy, 450 So. 2d at 885); see also Zalkin, 639 So. 2d at 1021. Other jurisdictions have acknowledged similar duties owed to student athletes. See Avila v. Citrus Cmty. Coll. Dist., 38 Cal. 4th 148, 41 Cal. Rptr. 3d 299, 131 P.3d 383, 392 (Cal. 2006) (“[I]n interscholastic and intercollegiate competition, the host school and its agents owe a duty to home and visiting players alike to, at a minimum, not increase the risks inherent in the sport.”); Kleinknecht v. Gettysburg Coll., 989 F.2d 1360, 1370 (3d Cir. 1993) (college owed duty to recruited athlete to take reasonable safety precautions against the risk of death); see also Jarreau v. Orleans Parish School Bd., 600 So. 2d 1389, 1393 (La. Ct. App. 1992) (school board owed duty to [**12] injured high school athlete to provide access to medical treatment); Stineman v. Fontbonne Coll., 664 F.2d 1082, 1086 (8th Cir. 1981) (college owed duty to provide medical assistance to injured student athlete).

In this case, Abel was a student who was injured while he participated in a school-sponsored soccer game under the supervision of school officials. Therefore, we conclude that Respondent owed Abel a duty of supervision and to act with reasonable care under the circumstances; specifically, Respondent owed Abel a duty to take appropriate post-injury efforts to avoid or mitigate further aggravation of his injury. See Rupp, 417 So. 2d at 666; Leahy, 450 So. 2d at 885. “Reasonable care under the circumstances” is a standard that may fluctuate with time, the student’s age and activity, the extent of the injury, the available responder(s), and other facts. Advancements with technology and equipment available today, such as a portable AED, to treat an injury were most probably unavailable twenty years ago, and may be obsolete twenty years from now. We therefore leave it to the jury to determine, under the evidence presented, whether the particular actions of Respondent’s employees satisfied or breached the duty of reasonable care owed.

For several reasons, we reject the decision of the Second [**13] District to narrowly frame the issue as whether Respondent had a specified duty to diagnose the need for or use an AED on Abel. First, as stated above, reasonable care under the circumstances is not and should not be a fixed concept. Such a narrow definition of duty, a purely legal question, slides too easily into breach, a factual matter for the jury. See McCain, 593 So. 2d at 502-04. We reject the attempt below to specifically define each element in the scope of the duty as a matter of law, as this case attempted to remove all factual elements from the law and digitalize every aspect of human conduct. We are also cognizant of the concern raised by Respondent and its amici that if a defined duty could require every high school to provide an AED at every athletic practice and contest, the result could be great expense. Instead, the flexible nature of reasonable care delineated here can be evaluated on a case by case basis. The duty does not change with regard to using reasonable care to supervise and assist students, but the methods and means of fulfilling that duty will depend on the circumstances.

Additionally, we reject the position of the Second District and Respondent that L.A. Fitness governs this case. [**14] The Fourth District in L.A. Fitness determined that the duty owed by a commercial health club to an adult customer only required employees of the club to reasonably summon emergency responders for a patron in cardiac distress. 980 So. 2d at 562; see also De La Flor v. Ritz-Carlton Hotel Co., 930 F. Supp. 2d 1325, 1330 (S.D. Fla. 2013) (citing L.A. Fitness, 980 So. 2d at 562). [*392] The adult customer and the health club stand in a far different relationship than a student involved in school activities with school board officials. Although some courts in other jurisdictions have determined that fitness clubs and other commercial entities do not owe a legal duty to provide AEDs to adult customers,⁶ the commercial context and relationship of parties in these cases is a critical distinction from the case before us. Despite the fact the business proprietor-customer and school district-student relationships are both recognized as relationships, these relationships are markedly different. We initially note that the proprietor-customer relationship most frequently involves two adult parties, whereas the school-student relationship usually involves a minor. Furthermore, the business invitee freely enters into a commercial relationship with the proprietor.

6 See, e.g., Verdugo v. Target Corp., 59 Cal. 4th 312, 173 Cal. Rptr. 3d 662, 327 P.3d 774, 792 (Cal. 2014) (holding that a retailer did not owe a common law duty to [**15] acquire and make available an AED to a patron); Miglino v. Bally Total Fitness of Greater N.Y., Inc., 20 N.Y.3d 342, 985 N.E.2d 128, 132, 961 N.Y.S.2d 364 (N.Y. 2013) (statute that required large health clubs to acquire an AED did not impose duty to use it); Rotolo v. San Jose Sports & Entm’t, LLC, 151 Cal. App. 4th 307, 59 Cal. Rptr. 3d 770, 774-75 (Cal. Ct. App. 2007) (refusing to impose a duty on owners of a sports facility to notify patrons of the existence and location of an AED), modified on other grounds by Verdugo, 327 P.3d at 784; Salte v. YMCA of Metro. Chi. Found., 351 Ill. App. 3d 524, 814 N.E.2d 610, 615, 286 Ill. Dec. 622 (Ill. App. Ct. 2004) (holding that a health club’s duty of reasonable care to its guests did not require it to obtain and use an AED on a guest).

By contrast, [HN12] Florida, along with the rest of the country, has mandated education of our minor children. § 1003.21, Fla. Stat. (2014). Compulsory schooling creates a unique relationship, a fact that has been recognized both by Florida courts and the Florida Legislature. Florida common law recognizes a specific duty of supervision owed to students and a duty to aid students that is not otherwise owed to the business customer. See Rupp, 417 So. 2d at 666-67. Furthermore, the Florida Legislature has specifically mandated that high schools that participate in interscholastic athletics acquire an AED and train appropriate personnel in its use. § 1006.165(1)-(2), Fla. Stat. Notably, the Legislature has not so regulated health clubs or other commercial facilities, even though the foreseeability for the need to use an AED may be similar in both contexts. See [**16] L.A. Fitness, 980 So. 2d at 561. The relationship between a commercial entity and its patron quite simply cannot be compared to that between a school and its students. We therefore conclude that the facts of this case are not comparable to those in L.A. Fitness.

Other Sources of Duty

Although Petitioners alleged in their pleadings that Respondent owed a statutory duty under section 1006.165, Florida Statutes, Petitioners did not clearly articulate before this Court the basis for such a duty. We therefore do not address it here. See, e.g., Chamberlain v. State, 881 So. 2d 1087, 1103 (Fla. 2004). Moreover, because we decide as a dispositive issue that Respondent’s motion for summary judgment was improperly granted because Respondent owed a common law duty to Abel, we decline to address Petitioners’ claim under the undertaker’s doctrine.

Immunity

Because we conclude that Respondent owed a common law duty to Abel, we must now consider whether Respondent is immune from suit under sections 1006.165 and 768.1325, Florida Statutes. [*393] See Wallace v. Dean, 3 So. 3d 1035, 1044 (Fla. 2009) (emphasizing that the existence of a duty is “conceptually distinct” from the determination of whether a party is entitled to immunity). Respondent claims that these statutory provisions grant it immunity. [HN13] The question of statutory immunity is a legal question that we review de novo. See, e.g., Found. Health v. Westside EKG Assocs., 944 So. 2d 188, 193-94 (Fla. 2006).

[HN14] Section 1006.165 requires all public schools [**17] that are members of the Florida High School Athletic Association to have an operational AED on school property and to train “all employees or volunteers who are reasonably expected to use the device” in its application. § 1006.165(1)-(2), Fla. Stat. Further, “[t]he use of [AEDs] by employees and volunteers is covered under [sections] 768.13 and 768.1325,” which generally regulate immunity under Florida’s Good Samaritan Act and the Cardiac Arrest Survival Act. § 1006.165(4).⁷ Subsection (3) of the Cardiac Arrest Survival Act states:

[HN15] Notwithstanding any other provision of law to the contrary, and except as provided in subsection (4), any person who uses or attempts to use an [AED] on a victim of a perceived medical emergency, without objection of the victim of the perceived medical emergency, is immune from civil liability for any harm resulting from the use or attempted use of such device. In addition, notwithstanding any other provision of law to the contrary, and except as provided in subsection (4), any person who acquired the device and makes it available for use, including, but not limited to, a community organization . . . is immune from such liability . . . .

§ 768.1325(3), Fla. Stat. (emphasis supplied). There is no immunity for criminal misuse, gross negligence, or similarly egregious misuse of an AED. § 768.1325(4)(a).

7 Although section 1006.165 references [**18] both the Good Samaritan Act, section 768.13, and the Cardiac Arrest Survival Act, section 768.1325, Respondent seeks immunity only under the Cardiac Arrest Survival Act. We therefore do not consider whether the Good Samaritan Act provides immunity under these circumstances. See, e.g., Chamberlain, 881 So. 2d at 1103.

[HN16] Under a plain reading of the statute, this subsection creates two classes of parties that may be immune from liability arising from the misuse of AEDs: users (actual or attempted), and acquirers. Users are clearly “immune from civil liability for any harm resulting from the use or attempted use” of an AED. § 768.1325(3), Fla. Stat. Additionally, acquirers are immune from “such liability,” meaning the “liability for any harm resulting from the use or attempted use” referenced in the prior sentence. Id. (emphasis supplied). Thus, acquirers are not immune due to the mere fact that they have purchased and made available an AED which has not been used; rather, they are entitled to immunity from the harm that may result only when an AED is actually used or attempted to be used. It is undisputed that no actual or attempted use of an AED occurred in this case until emergency responders arrived. Therefore, we hold that Respondent is not entitled to immunity under [**19] section 768.1325 and such section has absolutely no application here.

Despite the protests of Respondent and its amici, we do not believe that this straightforward reading of the statute defeats the legislative intent. The passage of section 1006.165 demonstrates that the Legislature was clearly concerned about the risk of cardiac arrest among high school athletes. The Legislature also explicitly [*394] linked this statute to the Cardiac Arrest Survival Act, which grants immunity for the use–actual or attempted–of an AED. The emphasis on the use or attempted use of an AED in the statute underscores the intent of the Legislature to encourage bystanders to use a potentially life-saving AED when appropriate. Without this grant of immunity, bystanders would arguably be more likely to hesitate to use an AED for fear of potential liability. To extend the shield of immunity to those who make no attempt to use an AED would defeat the intended purpose of the statute and discourage the use of AEDs in emergency situations. The argument that immunity applies when an AED is not used is spurious. The immunity is with regard to harm caused by the use of an AED, not a failure to otherwise use reasonable care.

CONCLUSION

We hold that Respondent [**20] owed a common law duty to supervise Abel, and that once injured, Respondent owed a duty to take reasonable measures and come to his aid to prevent aggravation of his injury. It is a matter for the jury to determine under the evidence whether Respondent’s actions breached that duty and resulted in the damage that Abel suffered. We further hold Respondent is not entitled to immunity from suit under section 768.1325, Florida Statutes. We therefore quash the decision below and remand this case for trial.

It is so ordered.

LABARGA, C.J., and PARIENTE, QUINCE, and PERRY, JJ., concur.

CANADY, J., dissents with an opinion, in which POLSTON, J., concurs.

DISSENT BY: CANADY

DISSENT

CANADY, J., dissenting.

Because I conclude that the decision of the district court of appeal, Limones v. School District of Lee County, 111 So. 3d 901 (Fla. 2d DCA 2013), does not expressly and directly conflict with McCain v. Florida Power Corp., 593 So. 2d 500 (Fla. 1992), I would dismiss review of this case for lack of jurisdiction under article V, section 3(b)(3), of the Florida Constitution. I therefore dissent.

In McCain, the plaintiff was injured when the blade of a trencher he was operating made contact with an underground electrical cable owned by Florida Power Corporation. The Court held that because cables transmitting electricity had “unquestioned power to kill or maim,” the defendant had created a “foreseeable zone of risk” and therefore, as a matter [**21] of law, had a duty to take reasonable precautions to prevent injury to others. McCain, 593 So. 2d at 503-04. In Limones, the district court of appeal held as a matter of law that a school district “had no common law duty to make available, diagnose the need for, or use” an automated external defibrillator on a student athlete who “collapsed on the field . . . stopped breathing and had no discernible pulse” during a high school soccer match. Limones, 111 So. 3d at 903, 906. The two decisions are clearly distinguishable based on their totally different facts. Therefore, there is no express and direct conflict and we lack jurisdiction to review the district court’s decision. POLSTON, J., concurs.

Florida AED Statute for Schools

Posted: December 18, 2016 | Author: Recreation Law | Filed under: First Aid, Florida, Medical | Tags: AED, AED Good Samaritan Act, Automatic External Defibrillator, Good Samaritan law | Leave a comment

Fla. Stat. § 1006.165 (2016)

§ 1006.165. Automated external defibrillator; user training.

(1) Each public school that is a member of the Florida High School Athletic Association must have an operational automated external defibrillator on the school grounds. Public and private partnerships are encouraged to cover the cost associated with the purchase and placement of the defibrillator and training in the use of the defibrillator.

(2) Each school must ensure that all employees or volunteers who are reasonably expected to use the device obtain appropriate training, including completion of a course in cardiopulmonary resuscitation or a basic first aid course that includes cardiopulmonary resuscitation training, and demonstrated proficiency in the use of an automated external defibrillator.

(3) The location of each automated external defibrillator must be registered with a local emergency medical services medical director.

(4) The use of automated external defibrillators by employees and volunteers is covered under ss. 768.13 and 768.1325.

Florida AED Good Samaritan Act

Fla. Stat. § 768.1325 (2016)

§ 768.1325. Cardiac Arrest Survival Act; immunity from civil liability.

(1) This section may be cited as the “Cardiac Arrest Survival Act.”

(2) As used in this section:

(a) “Perceived medical emergency” means circumstances in which the behavior of an individual leads a reasonable person to believe that the individual is experiencing a life-threatening medical condition that requires an immediate medical response regarding the heart or other cardiopulmonary functioning of the individual.

(b) “Automated external defibrillator device” means a lifesaving defibrillator device that:

1. Is commercially distributed in accordance with the Federal Food, Drug, and Cosmetic Act.

2. Is capable of recognizing the presence or absence of ventricular fibrillation, and is capable of determining without intervention by the user of the device whether defibrillation should be performed.

3. Upon determining that defibrillation should be performed, is able to deliver an electrical shock to an individual.

(c) “Harm” means damage or loss of any and all types, including, but not limited to, physical, nonphysical, economic, noneconomic, actual, compensatory, consequential, incidental, and punitive damages or losses.

(3) Notwithstanding any other provision of law to the contrary, and except as provided in subsection (4), any person who uses or attempts to use an automated external defibrillator device on a victim of a perceived medical emergency, without objection of the victim of the perceived medical emergency, is immune from civil liability for any harm resulting from the use or attempted use of such device. In addition, notwithstanding any other provision of law to the contrary, and except as provided in subsection (4), any person who acquired the device and makes it available for use, including, but not limited to, a community association organized under chapter 617, chapter 718, chapter 719, chapter 720, chapter 721, or chapter 723, is immune from such liability, if the harm was not due to the failure of such person to:

(a) Properly maintain and test the device; or

(b) Provide appropriate training in the use of the device to an employee or agent of the acquirer when the employee or agent was the person who used the device on the victim, except that such requirement of training does not apply if:

1. The device is equipped with audible, visual, or written instructions on its use, including any such visual or written instructions posted on or adjacent to the device;

2. The employee or agent was not an employee or agent who would have been reasonably expected to use the device; or

3. The period of time elapsing between the engagement of the person as an employee or agent and the occurrence of the harm, or between the acquisition of the device and the occurrence of the harm in any case in which the device was acquired after engagement of the employee or agent, was not a reasonably sufficient period in which to provide the training.

(4) Immunity under subsection (3) does not apply to a person if:

(a) The harm involved was caused by that person’s willful or criminal misconduct, gross negligence, reckless disregard or misconduct, or a conscious, flagrant indifference to the rights or safety of the victim who was harmed;

(b) The person is a licensed or certified health professional who used the automated external defibrillator device while acting within the scope of the license or certification of the professional and within the scope of the employment or agency of the professional;

(c) The person is a hospital, clinic, or other entity whose primary purpose is providing health care directly to patients, and the harm was caused by an employee or agent of the entity who used the device while acting within the scope of the employment or agency of the employee or agent;

(d) The person is an acquirer of the device who leased the device to a health care entity, or who otherwise provided the device to such entity for compensation without selling the device to the entity, and the harm was caused by an employee or agent of the entity who used the device while acting within the scope of the employment or agency of the employee or agent; or

(e) The person is the manufacturer of the device.

(5) This section does not establish any cause of action. This section does not require that an automated external defibrillator device be placed at any building or other location or require an acquirer to make available on its premises one or more employees or agents trained in the use of the device.

(6) An insurer may not require an acquirer of an automated external defibrillator device which is a community association organized under chapter 617, chapter 718, chapter 719, chapter 720, chapter 721, or chapter 723 to purchase medical malpractice liability coverage as a condition of issuing any other coverage carried by the association, and an insurer may not exclude damages resulting from the use of an automated external defibrillator device from coverage under a general liability policy issued to an association.

Arizona University did not owe student a duty of care during a study abroad program when the students organized an “off campus” trip, which resulted in a student’s death

Posted: December 12, 2016 | Author: Recreation Law | Filed under: Arizona | Tags: College, duty, Duty Owed, Negligence, No Duty Owed, Study Abroad, University, Wrongful Death | Leave a comment

Two different issues determine most outcomes in lawsuits against college & universities, whether the class was for credit or not and whether the incident occurred off campus or on campus.

State: Arizona, Court of Appeals of Arizona, Division One

Plaintiff: Elizabeth Boisson

Defendant: Arizona Board Of Regents, a public entity; State of Arizona, a public entity; Nanjing American University, L.L.C., an Arizona corporation doing business as, or under the trade name of Yangtze International Study Abroad

Plaintiff Claims: negligence

Defendant Defenses: no duty owed

Holding: for the defendant

Year: 2015

The deceased signed up for an international study abroad trip in China through the defendant university. While in China, the deceased and several other students organized a trip to Everest base camp. While at Everest base camp the deceased suffered altitude sickness and died.

From China, you can drive to the North Side base camp of Everest, which is at 19,000 feet.

During a student-organized trip, 14 study abroad students — including Morgan — flew to Lhasa, Tibet. The students then drove to the Mount Everest base camp a few days later. While at base camp, which is approximately 18,000 feet above sea level, Morgan developed and then died of altitude sickness.

The trial court dismissed the plaintiff’s claims based on the defendant’s motion for summary judgment. This appeal followed.

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

The court first looked at the requirements to prove negligence in Arizona.

Although described in various ways, a plaintiff alleging a claim for negligence under Arizona common law has the burden to show: (1) duty; (2) breach of that duty; (3) cause-in-fact; (4) legal (or proximate) causation and (5) resulting damages.

Arizona uses a five-step test for negligence when most other states use a four-point test. The difference is Arizona expands the definition of proximate causation requiring an actual cause and a proximate cause to prove negligence.

Of the five steps, the first, whether or not there was a duty, is a decision that is made by the court.

The existence of a duty of care is a distinct issue from whether the standard of care has been met in a particular case. As a legal matter, the issue of duty involves generalizations about categories of cases. Duty is defined as an “obligation, recognized by law, which requires the defendant to conform to a particular standard of conduct in order to protect others against unreasonable risks of harm.” . . . .

Whether the defendant owes the plaintiff a duty of care is a threshold issue; absent some duty, an action for negligence cannot be maintained. Thus, a conclusion that no duty exists is equivalent to a rule that, for certain categories of cases, defendants may not be held accountable for damages they carelessly cause, no matter how unreasonable their conduct.

Foreseeability is not an issue under Arizona’s law. Whether or not the defendant could foresee the injury to the plaintiff does not come into play when determining if a duty existed.

The court then looked at the duties owed by a college in Arizona to a student. Most duties arise when the relationships between the school and the student are custodial. Arizona does owe students a duty of reasonable care for on campus activities.

However, the duties owed for off-campus activities by a university to a student are different.

Therefore, in the student-school relationship, the duty of care is bounded by geography and time, encompassing risks such as those that occur while the student is at school or otherwise under the school’s control.

This analysis has seven steps to determine the duty owed, if any, by an Arizona college.

…Arizona cases have identified the following factors in determining whether an off-campus activity is deemed a school activity: (1) the purpose of the activity, (2) whether the activity was part of the course curriculum, (3) whether the school had supervisory authority and responsibility during the activity, and (4) whether the risk students were exposed to during the activity was independent of school involvement. Courts elsewhere also have looked at whether (5) the activity was voluntary or was a required school activity; (6) whether a school employee was present at or participated in the activity or was expected to do so and (7) whether the activity involved a dangerous project initiated at school but built off campus.

Here the trip was conceived and organized by the students. The students dealt with a Chinese tour company to make the arrangements. Not all the students in the study abroad program undertook the trip. The college offered no academic credit for the trip, and the trip was not in the curriculum of the program.

Defendants had no supervisory authority over, or responsibility for, the trip, and no faculty or staff went on the trip. The risk of altitude sickness was present independent of any involvement by Defendants and the trip did not involve a potentially dangerous project initiated at school but built off campus. Accordingly, applying these factors, the Tibet trip was not an off-campus school activity for which Defendants owed Morgan a duty under Arizona law.

The plaintiff hired an expert witness who stated that the university absolutely had a duty to the plaintiff. However, the court ignored the expert finding the determination of a duty was solely within the province of the court, and the expert witness’s opinion did not matter.

The trial court’s determination was upheld because the appellate court found that the school owed no duty to the deceased.

So Now What?

One important thing that parents seem to forget when their sons and daughters leave for college is not only are they leaving home, but they are also leaving any real supervision, custody or control. Colleges and universities are not baby sitters or parents and parents probably should be reminded of that fact.

Here, the effects were disastrous; however, the issues were clear. A group of students left campus to do something. Where campus is, did not matter and where the students went did not matter. Whether or not the effects of altitude on a student at 19, 000 did also not matter because the college did not arrange, run, manage or control the students.

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Johnson et al., v. Spokane to Sandpoint, LLC, et al., 176 Wn. App. 453; 309 P.3d 528; 2013 Wash. App. LEXIS 1696

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

185 Mile Running Race release was clear and under Washington, law was sufficient to beat a Public Policy & ambiguous argument by plaintiff

Posted: December 5, 2016 | Author: Recreation Law | Filed under: Racing, Washington | Tags: #race, Exculpatory clause, Gross negligence, Race Handbook, Release, Waiver Clause, Washington | Leave a comment

Decision clearly sets forth the requirements for the plaintiff to prove her claims which she failed to do.

State: Washington, Court of Appeals of Washington, Division Three

Plaintiff: Robin Johnson and Craig Johnson

Defendant: Spokane to Sandpoint, LLC, et al.

Plaintiff Claims: Negligence & Gross Negligence

Defendant Defenses: Release

Holding: for the defendant

Year: 2013

The plaintiff, an attorney signed up for the Spokane to Sandpoint race. The race is a team race run over two days and nights. The race is 185 miles long and an open course, meaning there is traffic on the course.

Spokane to Sandpoint promotes a long-distance relay race from the Spokane area to Sandpoint, Idaho, involving teams running a 185-mile course over two days, day and night. The course is open, meaning it is not closed to public traffic.

The racers sign up online and sign an electronic release. The racers also receive a race handbook. The handbook explains the race and includes sections on crossing roads, highways and train tracks.

The plaintiff was crossing a highway, and she was hit by a car. The driver of the car stated the plaintiff walked out in front of her without looking. The plaintiff settled with the driver before this appeal.

As Ms. Johnson was crossing U.S. Route 2, Madilyn Young was driving about 63 miles per hour southbound in the outside lane on U.S. Route 2, approaching the Colbert Road intersection. Ac-cording to Ms. Young’s statement to the police, she saw Ms. Johnson crossing the northbound lanes of U.S. Route 2 and saw her continue into the southbound lanes without looking for cars. Ms. Young was unable to stop in time to avoid a collision. Ms. Johnson suffered severe injuries.

The defendant filed a motion for summary judgment, which was granted and this appeal followed.

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

The appellate court first looked at the requirements for the plaintiff to survive and proceed to trial.

To prevail on a negligence claim against Spokane to Sandpoint, the Johnsons must establish Spokane to Sandpoint owed them a duty. Whether such a duty exists is a question of law. Id. The parties may, subject to certain exceptions, expressly agree in advance that one party is under no obligation of care to the other, and shall not be held liable for ordinary negligence.

The court then looked at the requirements for releases to be valid under Washington’s law. (Of note, the court calls the exculpatory clause a waiver clause. However, the court refers to the agreement as a release.)

The function of a waiver provision is “to deny an injured party the right to recover damages from the person negligently causing the injury.” The general rule in Washington is that a waiver provision is enforceable unless (1) it violates public policy, (2) the negligent act falls greatly below the legal standard for protection of others, or (3) it is inconspicuous.

Under Washington’s law, releases are valid, unless they violate public policy. There are six different factors identified as attributable to public policy in Washington.

Six factors are considered in determining whether exculpatory agreements violate public policy. The court considers whether (1) the agreement concerns an endeavor 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) such party holds itself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards; (4) because 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 the 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; and (6) the person or property of members of the public seeking such services must be placed under the control of the furnisher of the services, subject to the risk of carelessness on the part of the furnisher, its employees, or agents.

The court then went through all six factors and eliminated them all in one paragraph.

First, 185-mile relay races are not regulated; second, Spokane to Sandpoint is not performing an important public service such as a school; third, not all members of the public participate in relay races, unlike schools; fourth, Spokane to Sandpoint had no control over how Ms. Johnson ran or when she decided to cross U.S. Route 2; fifth, there was no inequality of bargaining since Ms. Johnson could have easily chosen not to participate and could have selected a different event; and sixth, while Spokane to Sandpoint set up the course, it did not control in what manner Ms. Johnson ran the race.

Generally, Washington law looks at whether the issues that identify a public policy issue are those that affect the majority of the public in Washington. The court also found that other Washington decisions have found that recreational activities were not a public interest.

The second issue was the plaintiff’s claim the defendant was grossly negligent. Like most states, a release in Washington will not stop a claim for gross negligence. Gross negligence is greater than ordinary negligence and is care appreciably less than care required in an ordinary negligence claim.

“Gross negligence” is “negligence substantially and appreciably greater than ordinary negligence,” i.e., “care substantially or appreciably less than the quantum of care inhering in ordinary negligence.” (“gross negligence” is “the failure to exercise slight care”). A plaintiff seeking to overcome an exculpatory clause by proving gross negligence must supply “substantial evidence” that the defendant’s act or omission represented care appreciably less than the care inherent in ordinary negligence. To meet this burden of proof on summary judgment, the plaintiff must offer something more substantial than mere argument that the defendant’s breach of care rises to the level of gross negligence.

The court then went through the facts and found that nothing required the defendant to do more than what the defendant did. Consequently, since there was no duty to do more, there was no breach of a duty, let alone acts, which were substantially below the duty.

The final argument the plaintiff argued was the release was ambiguous and not conspicuous. Here again, Washington’s law set forth the requirements for ambiguous and conspicuous quite clearly.

Factors in deciding whether a waiver and release provision is conspicuous include whether the waiver is set apart or hidden within other provisions, whether the heading is clear, whether the waiver is set off in capital letters or in bold type, whether there is a signature line below the waiver provision, what the language says above the signature line, and whether it is clear that the signature is related to the waiver.

The requirements basically require the release to be seen by the signor and not hidden. The exculpatory provisions must be evident, conspicuous and not hidden. The language must stand out so it is easily recognized with capital letters and/or bold type and there must be a signature line below the exculpatory provisions so that you can see your signature is related to the exculpatory provisions.

In this case, the release provisions were found not to be ambiguous. Additionally, the plaintiff admitted in her deposition that she understood from a legal perspective that the release would release her from claiming damages for any injuries.

The appellate court agreed with the trial court and affirmed the decision.

So Now What?

This decision is refreshing because it clearly sets out the requirements needed to prove a release valid and invalid. The definition of gross negligence also easily defined to that you can understand your duties and a substantial breach of your duties leading to a gross negligence claim.

Also of note, which the court pointed out was the information provided to the plaintiff and other racers in the racer handbook. Although not an express assumption of risk agreement, the handbook was still proof, the plaintiff assumed the risk, even though that issue was not argued. The risks of the race were set forth as well as the steps taken by the defendant to protect the runners in the handbook.

Again, the more information you provide to your clients, the more information you give them the better your chances of winning if your release fails.

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Morgan, v. Kent State University et al., 2016-Ohio-3303; 54 N.E.3d 1284; 2016 Ohio App. LEXIS 2160

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

Doctrine of Primary Assumption of Risk precludes a student for suing for injuries in a for credit college karate class

Posted: November 28, 2016 | Author: Recreation Law | Filed under: Assumption of the Risk, Ohio | Tags: Class, For Credit, Karate, Kent State University, Recreation, Sport | Leave a comment

Ohio holds there is no difference between a sport and recreation and a for credit class sport, assumption of the risk applies evenly to both.

State: Ohio, Court of Appeals of Ohio, Tenth Appellate District, Franklin County

Plaintiff: Aaron S. Morgan

Defendant: Kent State University et al.

Plaintiff Claims: Negligence

Defendant Defenses: primary assumption of the risk and release

Holding: for the Defendant

Year: 2016

The plaintiff enrolled in a for credit karate class with the defendant university. The syllabus stated the students would be using holds, releases, throwing punches and kicks, that the students were expected to protect themselves from. Students were also expected to wear a mouth guard and padded gloves.

The course syllabus for beginning karate listed objectives for the students, including: “[d]emonstrat[ing] basic self-defense techniques including release from various holds and counter attacks, joint locks and throws.” Additionally, the syllabus listed a variety of fighting techniques, including punches and kicks, that the students were expected to perform. Students enrolled in the class were required to wear a mouth guard and padded gloves.

One day the plaintiff was sparring with the instructor. The instructor was not wearing padded gloves. The student was expected to protect himself from punches. If the student dropped their guard, normally the exercise was paused till the student was able to protect themselves again.

In this case as the plaintiff lost his footing he dropped his guard and the instructor punched him in the face.

On October 24, 2012, while appellant was sparring with Malecki, he lost his balance and dropped his guard. When appellant dropped his guard, Malecki punched appellant in the face. According to appellant, Malecki’s palm struck him on the nose. Malecki was not wearing padded gloves when he struck appellant. Appellant’s nose immediately started bleeding. Malecki and a student employee helped to stop appellant’s bleeding and then filled out an incident report. Appellant later sought medical care and was told that he suffered a nasal fracture.

The student suffered injuries from the punch and sued. Lawsuits in against the State of Ohio are brought in the Ohio Court of Claims. Kent State University is a state school, owned by the State of Ohio.

The Court of Claims granted the defendants motion for summary judgment and the student appealed to the Ohio Appellate Court.

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

The plaintiff argued four different reasons why the Court of Claims decision should be reversed. The appellate court looked at the second argument first. That argument was the doctrine of primary assumption of risk as defined in Ohio did not apply to his claim.

The court first examined the requirements to establish a negligence claim under Ohio law.

“[I]n order to establish actionable negligence, one seeking recovery must show the existence of a duty, the breach of the duty, and injury resulting proximately therefrom.” “Under the law of negligence, a defendant’s duty to a plaintiff depends on the relationship between the parties and the foreseeability of injury to someone in the plaintiff’s position.”

A defendant has a duty to plead assumption of the risk if it is applicable in a case. That duty means the defense is an affirmative defense and must be plead with the answer or lost.

Ohio recognizes three different Assumption of the Risk defenses.

Ohio law recognizes three categories of assumption of the risk as defenses to a negligence claim: express, primary, and implied or secondary.” Ohio courts have historically applied the doctrine of primary assumption of the risk to cases involving sporting events and recreational activities.

Primary assumption of the risk is the defense that is argued when a participant in a sporting event is injured by an inherent risk of the activity.

“Under the doctrine of primary assumption of the risk, a plaintiff who voluntarily engages in a recreational activity or sporting event assumes the inherent risks of that activity and cannot recover for injuries sustained in engaging in the activity unless the defendant acted recklessly or intentionally in causing the injuries.”

An inherent risk in a sport or activity is one that is so much a part of the sport that to eliminate the risk, the sport would not exist. If there is not inherent risk, then a claim of negligence may occur.

When applied to sporting events in Ohio, the knowledge or consent of the injured plaintiff is not at issue. It is not what the plaintiff knew or assumed that is important, it is solely a question of the risks of the sport.

When considering a defense of primary assumption of the risk, “the injured plaintiff’s subjective consent to and appreciation for the inherent risks are immaterial to the analysis.” Thus, even persons “‘entirely ignorant of the risks of a sport, still assume the risk * * * by participating in a sport or simply by attending the game. The law simply deems certain risks as accepted by plaintiff regardless of actual knowledge or consent.

Primary assumption of the risk is a look at the sport or activity, not the plaintiff, the plaintiff’s knowledge or ascent to the activity.

…’primary assumption of [the] risk requires an examination of the activity itself and not plaintiff’s conduct. If the activity is one that is inherently dangerous and from which the risks cannot be eliminated, then a finding of primary assumption of [the] risk is appropriate.’

If the risk is an inherent risk of the activity, then the doctrine of primary assumption of the risk applies and the defendant did not owe a duty to the plaintiff. If no duty is owed, then no breach occurred. If no duty is owed then no negligence occurred.

“The affirmative defense of primary assumption of the risk completely negates a negligence claim because the defendant owes no duty to protect the plaintiff against the inherent risks of the recreational activity in which the plaintiff engages.” “‘Because a successful primary assumption of risk defense means that the duty element of negligence is not established as a matter of law, the defense prevents the plaintiff from even making a prima facie case.'”

The court found the risks the plaintiff suffered were an inherent risk of karate and the plaintiff assumed the inherent risks of the sport.

The Court of Claims found that “[t]here is no question that the martial arts class was a sports or recreational activity with an inherent risk of injury.” Furthermore, the Court of Claims found that “[p]hysical contact between participants during karate sparring is simply a foreseeable hazard of the activity.”

Karate is a recreational activity involving physical contact in the form of punches, kicks, and other techniques as detailed in the course outline for the beginning karate course in which appellant was enrolled. Thus, by its very nature, karate, as a martial art, is an inherently dangerous activity from which the risk of harm cannot be eliminated. Indeed, the course outline notes that a “mouthguard; sparring gloves; athletic supporter w/cup” are required. As danger is inherent in karate, it is common knowledge that such danger exists, and appellant’s injury occurred during the course of participating in the inherently dangerous activity, we find that the doctrine of primary assumption of the risk applies in this case.

Because the risk was inherent, it was assumed and the plaintiff had no claim because there was no negligence.

Under the doctrine of primary assumption of the risk, KSU owed no duty to protect appellant from the inherent risks of the activity. As a result, appellant is precluded from establishing a prima facie case of negligence, and the trial court did not err in granting KSU’s motion for summary judgment.

After making this finding, the court held that the plaintiff’s first and third assignment of error were moot. Moot meaning no longer at issue because of the finding on the second assignment of error by the court.

The fourth assignment of error was a procedural claim for attorney fees and the court ruled no attorney fees were to be paid to the plaintiff.

The appellate court agreed with the lower courts and the case was dismissed.

So Now What?

First it is always interesting to see how a court will rule when a student is injured in a for credit class at a college or university. The syllabus is always entered as an exhibit. Consequently, as a professor, lecturer, instructor, adjunct or whatever word someone has coined to describe the person in front of a classroom out of high school, make sure you syllabus includes the risk of the activity.

This might mean your syllabus becomes an assumption of the risk document. A syllabus in many states is an agreement between the student and the college (without a signature, but never the less a contract). Consequently use that opportunity to inform the student of the risks they may encounter in your class.

Second, if you are doing an activity where the court may not fully understand the risks of the activity, you need to prepare that defense in advance of any litigation. Do not limit your documents to identifying just the inherent risks of an activity, but all of the risks of an activity. Have videos available or on your website for your guests to review so they understand what is going to happen and what the real risks are.

Most importantly, do what you do best. Educate. The more your students know before their desks, they should fully understand all aspects of what they are going to encounter.

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Laliberte v. White Water Mountain Resorts, 2004 Conn. Super. LEXIS 2194

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

Connecticut court determines that a release will not bar a negligent claim created by statute.

Posted: November 21, 2016 | Author: Recreation Law | Filed under: Assumption of the Risk, Connecticut, Minors, Youth, Children, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: Connecticut Skier Safety Act, High School Team, Minor, parent, Release, ski area, skiing, Snow Making | Leave a comment

Statute requires ski area to mark equipment on the slope. The ski area argued the release protected them from negligence claims based on the statute, and the court disagreed.

State: Connecticut, Superior Court of Connecticut, Judicial District of Tolland, Complex Litigation Docket at Rockville

Plaintiff: Alexandra Laliberte

Defendant: White Water Mountain Resorts

Plaintiff Claims: negligence

Defendant Defenses: Connecticut Skier Safety Act & release

Holding: for the plaintiff

Year: 2004

The plaintiff was skiing as part of a high school varsity ski team. She hit a snow making device which was inadequately identified and placed on the trail according to the plaintiff.

The defendant moved for summary judgment based on the Connecticut Skier Safety Act and a release the plaintiff had signed to participate on the ski team.

The release had been signed when the plaintiff was a minor, however, she did not rescind the release when she became an adult.

As noted above, the plaintiffs concede that the release was signed by the plaintiffs knowingly and willingly. Also, the plaintiffs make no attack on the efficacy of the waiver because Ms. Laliberte was a minor at the time of its execution.

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

The first argument was whether the Connecticut Skier Safety Act shielded the defendant from liability. The act requires the ski area operator to mark conspicuously the location of snow making equipment.

Sec. 29-211. (Formerly Sec. 19-418k). Duties of operator of passenger tramway or ski area.

In the operation of a passenger tramway or ski area, each operator shall have the obligation to perform certain duties including, but not limited to: (1) Conspicuously marking all trail maintenance vehicles and furnishing the vehicles with flashing or rotating lights which shall be operated whenever the vehicles are working or moving within the skiing area; (2) conspicuously marking the entrance to each trail or slope with a symbol, adopted or approved by the National Ski Areas Association, which identifies the relative degree of difficulty of such trail or slope or warns that such trail or slope is closed; (3) ensuring that any lift tower that is located on a trail or slope is padded or otherwise protected; (4) maintaining one or more trail boards, at prominent locations within the ski area, displaying such area’s network of ski trails and slopes, designating each trail or slope in the same manner as provided in subdivision (2) of this section and notifying each skier that the wearing of ski retention straps or other devices used to prevent runaway skis is required by section 29-213, as amended by this act; (5) in the event maintenance personnel or equipment are being employed on any trail or slope during the hours at which such trail or slope is open to the public, conspicuously posting notice thereof at the entrance to such trail or slope; (6) conspicuously marking trail or slope intersections; (7) ensuring that passenger tramways, as defined in subparagraph (D) of subdivision (1) of section 29-201, as amended by this act, are equipped with restraint devices; (8) at the entrance of a passenger tramway, as defined in subparagraph (D) of subdivision (1) of section 29-201, as amended by this act, conspicuously posting instructions regarding the proper use of a restraint device on such passenger tramway and notice that the use of a restraint device on such passenger tramway is required by section 29-213, as amended by this act; and (9) ensuring that any hydrant, snow-making equipment and pipes that are located within the borders of a designated slope, trail or area that is approved and open for skiing by the operator and regularly groomed as part of the operator’s normal maintenance activities are padded or marked by portable fencing or a similar device.

Emphasize (bold) added

The plaintiff’s argued it was not marked. The ski area argued that the snow making device was not located on a ski trail or slope. Consequently, the court held that because there was a factual dispute, this matter had to go to trial.

The next issue was whether the release stopped claims created or based upon the statute. Normally, these claims are called negligence per se claims. (See Instructional Colorado decision Negligence, Negligence Per Se and Premises Liability or Motion for Summary Judgement failed because the plaintiff’s claim was based upon a failure to follow a statute or rule creating a negligence per se defense to the release in this Pennsylvania sailing case for more on Negligence Per Se claims.) Negligence per se claims are negligence claims based on a statute or rule created to protect people. Normally, releases do not work against negligence per se claims. That wording or pleading in describing the claim was not used in this case.

The parties agreed that the release itself was valid. The issue was what the release applied to.

“The interpretation of an exculpatory contract is colored by two diametrically opposed legal principles: the first, that it is against public policy to contract away one’s liability for negligent acts in advance and the second, that the court will enforce agreements of the parties made with consideration.”

Squarely presented, however, is the issue of whether a preinjury release is enforceable to relieve the defendant of civil liability for an alleged negligent violation of a statutorily created duty with respect to the operation of a recreational facility.

The court first looked at the Connecticut Skier Safety Act and found the act was silent on the effect of a release. The court then reviewed other Connecticut cases and decisions from other states where a release was raised as a defense to a negligence claim based upon a statute. Generally, the court found “… the statute created a public duty which the tenant had no power to extinguish. Private parties cannot “suspend the law by waiver or express consent.” Quoting from another case the court found ““parties may not stipulate for protection against liability for negligence in the performance of a duty imposed by law or where public interest requires performance.”

The court found two bases for invalidating releases when argued to bar claims like this.

These cases invalidating preinjury waivers where the basis of liability is a violation of a statute appear to be based either on a presumption that such releases are against public policy or on the legal inability of the releasor to waive a duty which protects the public or a class of persons of which the releasor is only one member.

Here the court found using a release to avoid liability for a statutory duty would allow defendants to have free reign to ignore the statute.

If liability for breach of statutory duty may be waived preinjury, the operator of a recreational facility could design, construct, and run a facility in total disregard of the legislatively prescribed rules with impunity, as to civil damages, simply by restricting use of the facility to those patrons willing to sign a release. In other words, the operator could repeal the protection of the legislatively selected class member by member.

The motion for summary judgment was denied and the case set for trial.

So Now What?

This result is probably the result you will find in all cases where the release is raised as a defense to a statutory duty. The only way to avoid this is to have the statute that creates the duty, include a clause that states the release is still valid.

Similar arguments are used by courts when they have determined that a statute that may have statutory duties and also has statutory protections eliminates the use of a release in full. Meaning the statute provided the protection the legislature wanted, that is all you get. Hawaii did this (Hawaii attempts to limit liability increases the amount of money every injured party will recover. Legislation to limit liability lost recreation business the opportunity to use a release) and New Mexico in Berlangieri v. Running Elk Corporation, 132 N.M. 332; 2002 NMCA 60; 48, P.3d 70; 2002 N.M. App. 39; 41 N.M. St. B. Bull. 25.

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Santho et al., v. Boy Scouts of America et al., 168 Ohio App. 3d 27; 2006-Ohio-3656; 857 N.E.2d 1255; 2006 Ohio App. LEXIS 3606

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

BSA (Cub Scout) volunteer was not liable for injuries to cub because cub assumed the risk of his injuries. The BSA & Council were not liable because volunteer was not an agent.

Posted: November 14, 2016 | Author: Recreation Law | Filed under: Assumption of the Risk, Minors, Youth, Children, Ohio | Tags: Boy Scouts, Boy Scouts of America, BSA, Cub Scout, Den Leader, Ice skating, Scouting | Leave a comment

A volunteer is not an employee or under the control of the sponsoring organization or BSA councils. Additionally, the plaintiff was injured due to an inherent risk of the sport and therefore the defendants owed him no duty because of the doctrine of primary assumption of risk.

State: Ohio, Court of Appeals of Ohio, Tenth Appellate District, Franklin County

Plaintiff: Lynn and Rick Santho, on behalf of their son, Jamie Santho

Defendant: Boy Scouts of America, Simon Kenton Council, Prince of Peace Lutheran Church, and the Chiller Ice Rink

Plaintiff Claims: negligence, reckless/intentional conduct, respondeat superior, and loss of consortium

Defendant Defenses: Assumption of the Risk, No Duty

Holding: For the defendant

Year: 2006

A Cub Scout & his family went on a Cub Scout event at a skating rink. The Defendant volunteer of the Cub Scout Pack was a contractor for the skating rink, but not working at the time. She was a Den Mother in the Cub Pack.

The plaintiff played hockey. On the night in question, the plaintiff was racing with his friends, and he crashed into the boards suffering a concussion. The Defendant Ice Rink had rules that prohibited racing.

The plaintiff sued the Ice Rink, the Volunteer, the BSA Council and the Chartered Organization, a church.

The defendants filed various motions for summary judgment, but not all. A trial was held and at close of arguments, the court granted the defendant volunteer a directed verdict.

A directed verdict is one that after all the evidence has been presented at trial, the plaintiff has failed to prove their case, and the court directs a verdict for the defendant.

Motions for summary judgment and for directed verdict address the same issue, albeit at different times during the process of litigation. Whether in summary judgment proceedings or during trial, the ultimate issue under either Civ.R. 56 or 50 is whether the evidence is sufficient to present an issue for determination by the trier of fact. Summary judgment raises this question prior to trial; directed verdict raises the question during trial. A court does not consider the weight of the evidence or credibility of the witnesses in ruling on either a motion for summary judgment under Civ.R. 56, or in ruling on a motion for directed verdict under Civ.R. 50. The question is whether there is sufficient evidence to create a genuine issue for a jury to decide.

The plaintiff appealed the directed verdict and various motions for summary judgment that were granted.

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

The appellate court started by reviewing the motions for summary judgment based on primary assumption of the risk. In Ohio, primary assumption of risk is a defense to claims for injuries from recreational activities.

Under the doctrine of primary assumption of the risk, an individual injured in the course of a recreational activity is presumed to have assumed the ordinary risks of that activity unless it can be shown that another actor acted recklessly or intentionally in causing the injury. The doctrine serves to remove liability for negligence under these circumstances.

Proof of primary assumption of the risk is a three-part test.

The test requires that: (1) the danger is ordinary to the game; (2) it is common knowledge that the danger exists; and (3) the injury occurs as a result of the danger during the course of the game.

The court found that it was foreseeable that anytime a person was ice skating or stepping on ice that falls or coming into contact with barriers was real.

There is no question that Jamie was participating in a recreational activity at the time he was injured. Falling is an ordinary danger of ice-skating. Colliding with the perimeter boards is an ordinary danger of ice rink skating. It was during the course of ice-skating and participating in the relay race that Jamie was injured.

In reviewing the facts of the defense presented and the arguments made supporting the doctrine of primary assumption of the risk, the age of the plaintiff as well as the knowledge of the plaintiff are not factors. Meaning in primary assumption of the risk there is no requirement to prove the plaintiff knew in advance of the risks they may encounter in the activity.

The appellant’s age and ability to appreciate the danger involved is immaterial to the doctrine of primary assumption of the risk. Only the conduct of defendant is relevant to recovery.

If the court finds that the doctrine of primary assumption of the risk has been found, then there is not negligence. That is because the first requirement to prove negligence, a duty, does not exist. If the recreational activity has risks, the plaintiff assumes those risks; consequently, there is no duty to protect the plaintiff from the risks on the part of the defendant.

However, a recreation provider ordinarily owes no duty to a participant or spectator of an active sport to eliminate the risks inherent in the sport. Here, Bennett organized the fun skate for Pack 210, as she had on several previous occasions. That was her main project for the pack. Therefore, Bennett qualifies as a recreation provider.

The next issue was whether the volunteer acted recklessly. In Ohio, recklessness is defined as:

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

Violating a rule or a statute is not enough to create a recklessness claim. Recklessness is an intentional act in creating a higher risk resulting in serious harm.

Furthermore, the Restatement notes that simply violating a statute or rule is not enough to constitute a reckless disregard for safety. The violation of the rule must (1) be intentional; and (2) be recognized as resulting in a significantly higher risk that serious harm will occur. A plaintiff cannot recover from any injuries that stemmed from “conduct that is a foreseeable, customary part” of the activity in which the plaintiff was injured.

Because the defendant volunteer did not increase the risk of harm by organizing the event or the race that injured the plaintiff, the defendant was not reckless. Nor did not require the plaintiff to wear a helmet constitute recklessness.

Appellants further argue that Bennett was reckless in not requiring Jamie to wear a helmet. No evidence was submitted to support this claim. Jamie’s father testified that he allowed his son to participate in the recreational skate without a helmet. Other testimony presented at trial showed that no fun skate participants were wearing helmets and that helmets are typically worn only while playing hockey. Finally, there was evidence that requiring helmets is not an industry standard.

The remaining defendants were part of the case because the plaintiff argued they were liable based on vicarious liability. There was no evidence that the defendant was an agent because they had no control over the volunteer defendant.

In contrast, there is no evidence to suggest that Bennett was acting as the agent of the BSA, SKC or POPLC. Bennett organized the family fun skate outside the framework of the BSA organization. The fun skate was held at a facility completely independent of the BSA. There is no evidence that the BSA, SKC or POPLC were aware of or had any control over the conduct of either Bennett or the fun skate. There is no evidence that Bennett acted as an agent of the Boy Scouts or any of the other organizations.

The ice rink was also not liable for the defendant based on the theory of respondeat superior. Respondeat superior states an employer is liable for the acts of its employee. However, at the time of the accident, the defendant ice rink was not paying or employing the defendant volunteer.

At the time of the fun skate, Bennett was not being paid by the Chiller. She was not acting as a rink guard. According to the evidence presented by the trial court, rink guards wore distinctive clothing that identified them in that capacity. There is no evidence that Bennett was acting as, or held herself out as a rink guard for the Chiller. Instead, the evidence supports only that Bennett was acting as a den mother of Pack 210 and organized the fun skate for Pack 210. She was there as a volunteer for Pack 210 and as a parent. Therefore, the trial court did not err in finding that there was insufficient evidence to show that Bennett was an agent of the Chiller and acting on behalf of the Chiller at the time Jamie was injured.

Because the volunteer defendant was found not to be reckless, the remaining defendants were not liable based on claims of vicarious liability.

So Now What?

The outcome of this case was first based upon an understanding of the relationship between a volunteer, the chartering organization, the BSA Council and the Boy Scouts of America by the appellate court. It is always important for the court to understand the legal relationship between the parties.

Volunteers are under the supervision and control, if any, of the chartering organization. The National Council of the Boy Scouts of America grants to the chartering organization the right to use its program. That grant is through, he local council who approves the chartering organization. Neither the National Council nor the local council have any real control over the volunteers the chartering organization approves.

Again primary assumption of the risk prevented the claims of the plaintiff because the plaintiff was participating in a sport or recreational activity and the injury the plaintiff suffered was an inherent risk of the sport or recreational activity.

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Bastable v. Liberty Tree Mall Limited Partnership, 6 Mass. L. Rep. 217; 1996 Mass. Super. LEXIS 64

Mobile Site: http://m.recreation-law.com

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

Elliott, v. Carter, 2016 Va. LEXIS 151

Posted: November 11, 2016 | Author: Recreation Law | Filed under: Camping, Legal Case, Minors, Youth, Children, Virginia | Tags: Boy Scouts of America, BSA, Gross negligence, Heart of Virginia Council, Rappahannock River, Senior Patrol Leader, SPL, VA, Virginia | Leave a comment

Chancy M. Elliott, Administrator of the Estate of Caleb Mckinley Smith, Deceased v. Trevor Carter

Record No. 160224

SUPREME COURT OF VIRGINIA

October 27, 2016, Decided

PRIOR HISTORY: [*1] FROM THE CIRCUIT COURT OF RICHMOND COUNTY. Harry T. Taliaferro, III, Judge.

Elliott v. Carter, 2016 Va. LEXIS 49 (Va., Apr. 12, 2016)

DISPOSITION: Affirmed.

COUNSEL: David R. Simonsen, Jr. (Keith B. Marcus; ParisBlank, on briefs), for appellant.

W.F. Drewry Gallalee (Harold E. Johnson; Williams Mullen, on brief), for appellee.

JUDGES: OPINION BY JUSTICE S. BERNARD GOODWYN. JUSTICE McCULLOUGH, with whom JUSTICE MIMS joins, dissenting.

OPINION BY: S. BERNARD GOODWYN

OPINION

PRESENT: All the Justices.

OPINION BY JUSTICE S. BERNARD GOODWYN

In this appeal, we consider the evidence required to submit a question of gross negligence to a jury.

Background

This matter arises from a wrongful death suit brought by Chancy M. Elliott (Elliott) on behalf of the estate of Caleb McKinley Smith (Caleb), alleging gross negligence on the part of Trevor Carter (Carter), the peer leader of Caleb’s Boy Scout troop, after Caleb drowned on a Scout camping trip. The material facts are not in dispute.

On June 25, 2011, Caleb was a 13-year-old Boy Scout on an overnight camping trip with his troop along the Rappahannock River near Sharps, Virginia. Carter, then 16 years old, was the Senior Patrol Leader, the troop’s peer leader. Caleb had been taking lessons to learn how to swim–he had had one from Carter that morning–but he could [*2] not yet swim.

At about 11:00 a.m., Carter led Caleb and two other Boy Scouts into the river along a partially submerged sandbar. One of the other two Scouts could swim (Scott), and the other could not (Elijah).

When they were approximately 150 yards into the river, Carter and Scott decided to swim back to shore. Carter told Caleb and Elijah to walk back to shore the way they had come, along the sandbar. As Caleb and Elijah walked back to shore along the sandbar, they both fell into deeper water. Caleb yelled to Carter for help and Carter attempted to swim back and rescue him. Although Elijah was rescued, neither Carter nor three adult Scout leaders, who attempted to assist, were able to save Caleb.

Elliott filed a wrongful death action in the Circuit Court of Richmond County against Carter, four adult Scout leaders, the Boy Scouts of America, and the affiliated Heart of Virginia Council, Inc. (collectively, Defendants), alleging that they had failed to adequately supervise Caleb. The court granted the Defendants’ demurrer asserting charitable immunity.

Elliott amended her complaint to allege both gross and willful and wanton negligence by Carter and gross negligence by the four adult Scout [*3] leaders, and demanded a jury trial.^* Defendants filed a motion for summary judgment arguing that, based upon undisputed material facts, there was no gross negligence because there was no complete lack of care alleged and the danger of drowning was open and obvious. Defendants relied upon Elliott’s responses to requests for admission and allegations in the amended complaint in establishing the undisputed material facts.

* Elliott non-suited the actions against the Boy Scouts of America and the Heart of Virginia Council, Inc.

Following a hearing and supplemental briefing, the court granted the motion for summary judgment as to all Defendants. It found that, while the undisputed material facts would be sufficient to submit the question regarding a claim of simple negligence to a jury, the facts did not support a claim for gross negligence, because in Virginia, “there is not gross negligence as a matter of law where there is even the slightest bit of care regardless of how insufficient or ineffective it may have been,” and there was evidence that Carter did try to save Caleb.

Elliott appeals the ruling of the circuit court only as to Carter. On appeal, she argues that the circuit court erred [*4] in granting summary judgment and in concluding that, as a matter of law, a jury could not find Carter’s actions constituted gross negligence.

Analysis

[HN1] “In an appeal from a circuit court’s decision to grant or deny summary judgment, this Court reviews the application of law to undisputed facts de novo.” St. Joe Co. v. Norfolk Redev’t & Hous. Auth., 283 Va. 403, 407, 722 S.E.2d 622, 625 (2012).

[HN2] Gross negligence is “a degree of negligence showing indifference to another and an utter disregard of prudence that amounts to a complete neglect of the safety of such other person.” Cowan v. Hospice Support Care, Inc., 268 Va. 482, 487, 603 S.E.2d 916, 918 (2004).

It is a heedless and palpable violation of legal duty respecting the rights of others which amounts to the absence of slight diligence, or the want of even scant care. Several acts of negligence which separately may not amount to gross negligence, when combined may have a cumulative effect showing a form of reckless or total disregard for another’s safety. Deliberate conduct is important evidence on the question of gross negligence.

Chapman v. City of Virginia Beach, 252 Va. 186, 190, 475 S.E.2d 798, 800-01 (1996) (citations and internal quotation marks omitted). [HN3] Gross negligence “requires a degree of negligence that would shock fair-minded persons, although demonstrating something less than willful recklessness.” Cowan, 268 Va. at 487, 603 S.E.2d at 918; see also Thomas v. Snow, 162 Va. 654, 661, 174 S.E. 837, 839 (1934) (“Ordinary and gross negligence differ in degree of inattention”; [*5] while “[g]ross negligence is a manifestly smaller amount of watchfulness and circumspection than the circumstances require of a person of ordinary prudence,” “it is something less than . . . willful, wanton, and reckless conduct.”).

[HN4] “Ordinarily, the question whether gross negligence has been established is a matter of fact to be decided by a jury. Nevertheless, when persons of reasonable minds could not differ upon the conclusion that such negligence has not been established, it is the court’s duty to so rule.” Frazier v. City of Norfolk, 234 Va. 388, 393, 362 S.E.2d 688, 691, 4 Va. Law Rep. 1220 (1987). Because “the standard for gross negligence [in Virginia] is one of indifference, not inadequacy,” a claim for gross negligence must fail as a matter of law when the evidence shows that the defendants exercised some degree of care. Kuykendall v. Young Life, 261 Fed. Appx. 480, 491 (4th Cir. 2008) (relying on Frazier, 234 Va. at 392, 362 S.E.2d at 690-91, Chapman, 252 Va. at 190, 475 S.E.2d at 801, and Cowan, 268 Va. at 486-87, 603 S.E.2d at 918 to interpret Virginia law); see, e.g., Colby v. Boyden, 241 Va. 125, 133, 400 S.E.2d 184, 189, 7 Va. Law Rep. 1368 (1991) (affirming the circuit court’s ruling that the plaintiff failed to establish a prima facie case of gross negligence when the evidence showed that the defendant “‘did exercise some degree of diligence and care’ and, therefore, as a matter of law, his acts could not show ‘utter disregard of prudence amounting to complete neglect of the safety of another'”).

Here, even viewing the evidence in the [*6] light most favorable to Elliott, the non-moving party, as required in considering a motion for summary judgment, Commercial Business Systems v. Bellsouth Services, 249 Va. 39, 41-42, 453 S.E.2d 261, 264 (1995), the undisputed material facts support the conclusion that Carter exercised some degree of care in supervising Caleb. Therefore, his conduct did not constitute gross negligence.

First, it is not alleged that Caleb had any difficulty walking out along the sandbar with Carter. Second, there is no allegation that Carter was aware of any hidden danger posed by the sandbar, the river or its current. Third, Carter instructed Caleb to walk back to shore along the same route he had taken out into the river, and there was no evidence that conditions changed such that doing so would have been different or more dangerous than initially walking out, which was done without difficulty. Finally, Carter tried to swim back and assist Caleb once Caleb slipped off the sandbar, which is indicative that Carter was close enough to attempt to render assistance when Caleb fell into the water, and that Carter did attempt to render such assistance. Thus, although Carter’s efforts may have been inadequate or ineffectual, they were not so insufficient as to constitute the indifference and utter disregard [*7] of prudence that would amount to a complete neglect for Caleb’s safety, which is required to establish gross negligence.

Because a claim of gross negligence must fail as a matter of law when there is evidence that the defendant exercised some degree of diligence and care, the circuit court did not err in finding that no reasonable jurist could find that Carter did nothing at all for Caleb’s care. As such, there was no question for the jury, and the circuit court properly granted Carter’s motion for summary judgment.

Accordingly, the judgment of the circuit court will be affirmed.

Affirmed.

DISSENT BY: McCULLOUGH

DISSENT

JUSTICE McCULLOUGH, with whom JUSTICE MIMS joins, dissenting.

Ordinarily, whether gross negligence has been established is a matter of fact to be decided by a jury. Frazier v. City of Norfolk, 234 Va. 388, 393, 362 S.E.2d 688, 691, 4 Va. Law Rep. 1220 (1987). Of course, when “persons of reasonable minds could not differ upon the conclusion that such negligence has not been established, it is the court’s duty to so rule.” Id. In my view, the facts presented in this tragic case were sufficient to present a jury question. Accordingly, I respectfully dissent.

Here, Caleb could not swim, a fact that was known to the defendants. He did not walk out on his own into the river. Rather, he was [*8] led, without a life jacket or other safety equipment, over a partially submerged sandbar far into the river. The complaint alleges that “the Rappahannock River . . . is a major river with a strong current.” Caleb was then abandoned on a sandbar in the middle of the river and told to walk back. A partially submerged sandbar in the middle of a river with a strong current is a very dangerous place to be, particularly for a non-swimmer without a life vest. Ever-shifting sandbars, obviously, are not stable structures. They can easily dissipate. A major river with strong currents like the Rappahannock presents a different situation than a tranquil pond. Carter then swam away too far to effectuate a rescue should Caleb slip and fall into the river. In my view, “reasonable persons could differ upon whether the cumulative effect of these circumstances constitutes a form of recklessness or a total disregard of all precautions, an absence of diligence, or lack of even slight care.” Chapman v. City of Virginia Beach, 252 Va. 186, 191, 475 S.E.2d 798, 801 (1996).

I would also find that the purported acts of slight care, separated in time and place from the gross negligence at issue, do not take the issue away from the jury. The only two acts of slight care the defendants identify [*9] are the fact that Caleb was given a swimming lesson before he drowned — but there is no indication that Caleb could swim — and that Carter, after swimming too far away to make any rescue effectual, tried to swim back to save Caleb after he had fallen into the river. Significantly, Carter led Caleb into danger in the first place. When the defendant has led the plaintiff into danger, an ineffectual and doomed to fail rescue attempt does not in my judgment take away from the jury the question of gross negligence. Accordingly, I would reverse and remand the case for a trial by jury.

Releases work for exercise programs when a mall, for free, opens up early to help people age in Massachusetts

Posted: November 7, 2016 | Author: Recreation Law | Filed under: Massachusetts, Release (pre-injury contract not to sue) | Tags: Comprehensive, Mall, Release, Shopping Center, Walking | Leave a comment

Any exception to a release in Massachusetts must be specifically identified in the release. This means that if a plaintiff wants to argue the release does not apply to “this” which caused my injury; “this” must be identified as something the release does not apply to.

State: Massachusetts; Superior Court of Massachusetts, at Middlesex

Plaintiff: Rosamond Bastable

Defendant: Liberty Tree Mall Limited Partnership

Plaintiff Claims: negligence

Defendant Defenses: release

Holding: for the Defendant

Year: 1996

Outdoor recreation normally does not cover walking indoors; however, it is an important component for a lot of former recreationists (and it is probably in all of our futures). In this case, the local hospital and the mall teamed up to offer seniors the opportunity to exercise indoors in the mall before it opened.

On September 12, 1993, Bastable enrolled in the “STEPPIN’ OUT!” walking program sponsored by Liberty Tree Mall and Beverly Hospital. The program permitted people in the community to walk in the mall for exercise each day prior to the mall opening to the public. In order to participate in the program, Bastable was required to sign a release.

While exciting the mall one day after walking, the plaintiff fell. The plaintiff argued cracked tile caused her fall and injuries. She sued, and the court dismissed her complaint based on the release.

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

The first issue addressed by the court was the issue of validity of releases in Massachusetts. Releases are valid in Massachusetts.

The release Bastable signed was a valid and lawful waiver. “There is no rule of general application that a person cannot contract for exemption from liability for his own negligence. Moreover, a release which allocates risk is not against public policy.

In an effect to have the release not apply to the plaintiff’s injuries; she argued the release only applied to “general maintenance activities,’ which she described as now removal and landscaping. The plaintiff’s injuries did not arise from that general maintenance but from specific failed maintenance issues. Meaning the release was written for water on the floor rather than a tile the needed repaired. However, that did not work.

Bastable does not allege that the release was unlawful; rather, she claims that the release applies only to injuries caused by general maintenance activities (such as snow removal and landscaping) and that her injury did not arise from these activities.

Under Massachusetts law, releases are to be interpreted broadly if the language of the release is comprehensive in nature. Any exception to a release must be specifically identified in the release as an exception. “Additionally, Massachusetts courts have held that if the parties intend that an exception to a general release exists, they must include that exception in the release.”

Meaning if the drafters and parties to the release wanted a broadly written comprehensive release not to cover a specific issue or possible risk, it must be identified in the release as not being covered in the release.

If Liberty had intended to limit its liability to only those accidents arising from maintenance tasks, it would have specifically stated so in its release. Instead, the release holds Liberty harmless for “any . . . injury that may take place on mall property” whether or not it results from a maintenance activity.

Because the damaged tile or this type of maintenance was not identified in the release as not being covered by the release, the release prevented the suit for those issues also.

The defendant won this case because the release was written broadly enough to cover all issues.

So Now What?

A policy under release law would eliminate numerous arguments made by plaintiff’s that the release did not affect their claim because their claim was not specifically or generally contemplated by the release. Here, the courts said the release was written broadly, and that breadth covered your injuries.

This is not something can be easily changed in a state, as it is a court policy decided over the years. However, it is possibly an issue that should be brought up and argued in release cases so courts understand it should be an issue they review.

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