In Nebraska a release can defeat claims for gross negligence for health club injury
Posted: April 8, 2013 Filed under: Health Club, Nebraska, Release (pre-injury contract not to sue) | Tags: Alegent Health, Defendant, Fitness Center, Gross negligence, Health club, Inc., Lakeside Wellness Center, Negligence, Plaintiff, Precor, Precor USA, Release, Treadmill Leave a commentPalmer v. Lakeside Wellness Center, 281 Neb. 780; 798 N.W.2d 845; 2011 Neb. LEXIS 62
Manufacturer of the health club equipment was able to squeak out a win by making sure the equipment met the applicable standards when the treadmill was manufactured.
This case is a health club fitness which is interesting because it covers several legal issues in ways that most courts will not. It also points out some simple things you can do to keep yourself out of court or losing in court.
A husband and wife, plaintiffs, joined a health club. After five weeks at the club the wife, went to get on a treadmill. She did not notice it was running and upon stepping on the treadmill she was thrown backwards into an elliptical trainer. The plaintiff had an injured hand and chest from the accident.
The area around the treadmill was allegedly, not well lit, however the plaintiff had not complained about the lighting. When she stepped on the treadmill she looked at the control panel but did not look at the belt. The treadmill was in a row of treadmills and the treadmills on either side of the treadmill in question were running. The plaintiff also said the treadmill area was loud.
The plaintiff had been using treadmills for 21 years. She had been using treadmills at the defendants approximately five times a week for five weeks and had used the treadmill in question 10 to 15 times. When she joined the defendant health club she received instructions from a trainer, but she stated she did not need instructions on how to operate a treadmill. The plaintiff also had a treadmill at home.
When the plaintiff and her husband joined the defendant health club she signed two documents which contained releases. The first was titled Membership agreement what had a release that included the word negligence in the language of the contract. The second form was a health history questionnaire which was signed by the plaintiff and also included release language.
The plaintiff and her husband sued the manufacturer of the treadmill, Precor, and the health club, Lakeside Wellness Center for her injuries. She claimed both defendants were negligent and were grossly negligent. Precor was allegedly negligent in making a treadmill without proper safety features and the health club was liable for not providing adequate lighting around the treadmill. There was also a claim that the health club had modified the treadmill belt so that it was unsafe.
The trial court granted both of the defendant’s motions for summary judgment. The plaintiff appealed saying the trial court erred in:
(1) granting summary judgment in favor of Lakeside and Precor;
(2) holding that the waiver and release contained in the membership agreement and health history questionnaire signed by Palmer were clear, understandable, and unambiguous; and
(3) holding that Palmer assumed the risk of using the treadmill.
Summary of the case
The court first looked at the issue of the release. The court ignored the issues of whether the release worked against negligence and reviewed the issues of releases and claims of gross negligence. However before starting its analysis, it dismissed Precor’s argument that it was a third party beneficiary of the release.
A third party beneficiary of a contract is usually identified as someone who is not named in the agreement, but obvious to all parties that they are to receive benefits of the agreement. An example would be a contract between a health club and a supplier of fitness equipment. The third party beneficiaries of that agreement would be the membership of the health club. When the third party beneficiary is not obvious in the agreement then the third parties as usually not construed as beneficiaries and do not have an interest in the contract.
In order for those not named as parties to recover under a contract as third-party beneficiaries, it must appear by express stipulation or by reasonable intendment that the rights and interest of such unnamed parties were contemplated and that provision was being made for them. The right of a third party benefited by a contract to sue thereon must affirmatively appear from the language of the instrument when properly interpreted or construed.
Here the court found that the agreement between a member and the health club did not identify the defendant manufacture by name or by any other identification. Because of that, the manufacturer could not be a third party beneficiary of the release.
Court then went back to the issue of the claim of gross negligence. Under Nebraska law gross negligence is defined as
Gross negligence is great or excessive negligence, which indicates the absence of even slight care in the performance of a duty. 5 Whether gross negligence exists must be ascertained from the facts and circumstances of each particular case and not from any fixed definition or rule.
Under Nebraska law the court could rule on whether the allegations of the complaint give rise to gross negligence. Here the court found the allegations did not. Inadequate lighting and the installation of a new belt on the treadmill did not meet the level needed to prove gross negligence.
Precor, the making of the treadmill in its motion to the trial court presented an affidavit stating that at the time the treadmill was made the treadmill “met or exceeded the voluntary guidelines set by the American Society for Testing and Materials” The affidavit included photographs of the treadmill to show what handrails existed and the fact that treadmill came with a clip that could be attached to the user’s clothing. If the clip was pulled it would disconnect and stop the treadmill. The treadmill was also made 7 years prior to the accident.
The plaintiff hired an expert who stated that the treadmill “should” have various safety features that were not on the treadmill. The court took note that the plaintiff’s expert did not say the treadmill had to have, did not speak in absolutes with regard to the safety features. Because the plaintiff’s expert was hesitant or could not be explicit on what was missing the court held that Precor was not negligent.
A third defense was raised on appeal, assumption of the risk, by the defendants. Because the court had dismissed the claims raised by the plaintiff already, the court did not get into that defense.
So Now What?
Obviously the better your release the greater your chances of winning. However there are several other issues here that you should pay attention too.
The plaintiff claimed that her injury was due to the fact the new belt on the treadmill did not contain markings that would indicate the treadmill was moving. If you replace or repair something, make sure you use equipment that meets the manufactures specs when you bought the machine or better. If the manufacturer had markings on the treadmill belt that indicated that the belt was moving you need to install a replacement belt that has similar markings.
Moreover, if you have the opportunity, whether or not the original belt was marked, to install a belt with markings, why not.
The assumption of the risk defense was not discussed by the court in its analysis, but was definitely part of the facts. In this case the defense team was able to elicit a lot of treadmill experience from the plaintiff. Many times, after an accident, the plaintiff will change their story. Getting experience or history up front is always safer.
And why not!
Why not include in your release language that protects everyone you can from litigation. There was a claim by the husband that one of the people running on the treadmill next to the one at issue had left that treadmill on. In some states, that would be enough to bring that other gym member into the suit. Write your release to keep you out of a lawsuit, also write it to keep everyone associated with your or that you benefit from out of the lawsuit. Just because you might not be named as the negligent party, you can still be brought in by the person who is named as the defendant. Protect you, your employees, other guests, visitors, volunteers, sponsors, and manufacturers dependent on what you do.
How many new customers are going to sign up as members if the word gets out you allowed one of them to be sued for an accident to another member.
If you do hear of problems from your guests or members, you need to respond. One issue that would have made the outcome different in this case would be a stack of “accident forms” or complaints about the lighting. If the plaintiff could prove that the lighting was bad because other people had complained about it or blamed it for their injuries, then I believe this would have had a different outcome. Don’t collect paperwork, solve problems.
Plaintiff: April Palmer
Defendant: Lakeside Wellness Center, Doing Business as Alegent Health, and Precor, Inc.
Plaintiff Claims: Negligence and Gross Negligence
Defendant Defenses: Release, Assumption of the Risk
Holding: for the defendants
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Palmer v. Lakeside Wellness Center, 281 Neb. 780; 798 N.W.2d 845; 2011 Neb. LEXIS 62
Posted: April 8, 2013 Filed under: Assumption of the Risk, Health Club, Legal Case, Nebraska, Release (pre-injury contract not to sue) | Tags: Alegent Health, Appeal, Appellant, Fitness Center, Gross negligence, Health club, Inc., Lakeside Wellness Center, Negligence, Precor, Release, Summary judgment, Treadmill, Waiver Leave a commentPalmer v. Lakeside Wellness Center, 281 Neb. 780; 798 N.W.2d 845; 2011 Neb. LEXIS 62
April Palmer, Appellant, v. Lakeside Wellness Center, Doing Business as Alegent Health, and Precor, Inc., Appellees.
No. S-10-974.
281 Neb. 780; 798 N.W.2d 845; 2011 Neb. LEXIS 62
June 24, 2011, Filed
PRIOR HISTORY: [***1]
Appeal from the District Court for Douglas County: JOSEPH S. TROIA, Judge.
DISPOSITION: AFFIRMED.
HEADNOTES
1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower court’s granting of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, the court views the evidence in the light most favorable to the party against whom the judgment was granted, and gives that party the benefit of all reasonable inferences deducible from the evidence.
3. Contracts: Parties: Intent. In order for those not named as parties to recover under a contract as third-party beneficiaries, it must appear by express stipulation or by reasonable intendment that the rights and interest of such unnamed parties were contemplated and that provision was being made for them.
4. Contracts: Parties. The right of a third party benefited by a contract to sue must affirmatively appear from the language of the instrument when properly inter preted or construed.
5. Negligence: Words and Phrases. Gross negligence is great or excessive negligence, which indicates the absence of even slight care in the performance of a duty.
6. Negligence. Whether gross negligence exists must be ascertained from the facts and circumstances of each particular case and not from any fixed definition or rule.
7. Negligence: Summary Judgment. The issue of gross negligence is susceptible to resolution in a motion for summary judgment.
COUNSEL: Heather Voegele-Andersen and Brenda K. George, of Koley Jessen, P.C., L.L.O., for appellant.
David L. Welch and Ashley E. Dieckman, of Pansing, Hogan, Ernst & Bachman, L.L.P., for appellee Lakeside Wellness Center.
Albert M. Engles and Cory J. Kerger, of Engles, Ketcham, Olson & Keith, P.C., for appellee Precor, Inc.
JUDGES: HEAVICAN, C.J., CONNOLLY, GERRARD, STEPHAN, and MCCORMACK, JJ. WRIGHT and MILLER-LERMAN, JJ., not participating.
OPINION BY: HEAVICAN
OPINION
[**847] [*781] Heavican, C.J.
INTRODUCTION
The appellant, April Palmer, was injured while on a treadmill at Lakeside Wellness Center (Lakeside). The district court granted summary judgment in favor of Lakeside, doing business as Alegent Health, and Precor, Inc. Palmer appeals. We affirm.
FACTUAL BACKGROUND
Palmer’s Accident.
Palmer and her husband joined Lakeside in November 2006. The accident occurred several months later, on March 7, 2007. On that date, Palmer approached the treadmill in question to begin her workout. Unaware that the treadmill belt was running, Palmer stepped onto the treadmill from the back and was thrown off the belt and into an elliptical training [**848] machine located behind [***2] her. During her deposition, Palmer stated that she looked at the treadmill’s control panel before getting on, but did not look at the belt of the treadmill. Palmer indicated that had she looked at the belt, she probably would have been able to see that it was operating, but that since she assumed the treadmill was off, she did not look further. According to Palmer, she thought the area was poorly lit, though she had never complained about it to any Lakeside staff members. And Palmer indicated that the facility was loud and that she was unable to hear whether the machine was operating.
This treadmill was located in a row of treadmills, and the treadmills to the right and left of the machine in question were [*782] being used at the time of the accident. In Palmer’s husband’s deposition, he testified that the woman on a neighboring treadmill told him she had been on that treadmill briefly before switching to the neighboring machine and had mistakenly thought she had turned it off.
Palmer’s Familiarity With Treadmills.
During her deposition, Palmer was asked about her exercise history and her familiarity with treadmills. Palmer testified that she and her husband had been members of other gyms prior [***3] to joining Lakeside. Palmer testified that she received instruction from a trainer after joining Lakeside, though she stated that she did not need specific instruction on how to operate a treadmill. According to Palmer’s testimony, she had been using treadmills for approximately 21 years. At the time of the accident, Palmer had been using the Lakeside facility at least 5 times a week and had used that actual treadmill 10 to 15 times total prior to the accident. Palmer also testified that she had a treadmill in her home.
Palmer’s Membership Agreement and Health History Questionnaire.
At the time Palmer and her husband became members at Lakeside, Palmer filled out and signed a membership agreement and a health history questionnaire. The membership agreement provided:
WAIVER AND RELEASE–You acknowledge that your attendance or use of [Lakeside] including without limitation to your participation in any of [Lakeside’s] programs or activities and your use of [Lakeside’s] equipment and facilities, and transportation provided by [Lakeside] could cause injury to you. In consideration of your membership in [Lakeside], you hereby assume all risks of injury which may result from or arise out of your [***4] attendance at or use of [Lakeside] or its equipment, activities, facilities, or transportation; and you agree, on behalf of yourself and your heirs, executors, administrators, and assigns to fully and forever release and discharge [Lakeside] and affiliates and their respective officers, directors, employees, agents, [*783] successors and assigns, and each of them (collectively the “Releasees”) from any and all claims, damages, rights of action or causes of action, present or future, known or unknown, anticipated or unanticipated, resulting from or arising out of your attendance at or use of [Lakeside] or its equipment, activities, facilities or transportation, including without limitation any claims, damages, demands, rights of action or causes of action resulting from or arising out of the negligence of the Releasees. Further, you hereby agree to waive any and all such claims, damages, demands, rights of action or causes of action. Further you hereby agree to release and discharge the Releasees from any and all liability for any loss or theft of, or damage to, personal property. You acknowledge that you have [**849] carefully read this waiver and release and fully understand that it is a waiver [***5] and release of liability.
The health history questionnaire signed by Palmer stated in relevant part as follows:
1. In consideration of being allowed to participate in the activities and programs of [Lakeside] and to use its facilities, equipment and machinery in addition to the payment of any fee or charge, I do hereby waive, release and forever discharge [Lakeside] and its directors, officers, agents, employees, representatives, successors and assigns, administrators, executors and all other [sic] from any and all responsibilities or liability from injuries or damages resulting from my participation in any activities or my use of equipment or machinery in the above mentioned activities. I do also hereby release all of those mentioned and any others acting upon their behalf from any responsibility or liability for any injury or damage to myself, including those caused by the negligent act or omission of any way arising out of or connected with my participation in any activities of [Lakeside] or the use of any equipment at [Lakeside]. . . .
2. I understand and am aware that strength, flexibility and aerobic exercise, including the use of equipment are a potentially hazardous activity. [***6] I also understand that fitness activities involve the risk of injury and even death, [*784] and that I am voluntarily participating in these activities and using equipment and machinery with knowledge of the dangers involved. I hereby agree to expressly assume and accept any and all risks of injury or death. . . .
Palmer sued Lakeside and Precor for her injuries, which generally consisted of an injured hand and chest. Both Lakeside and Precor filed motions for summary judgment, which were granted. Palmer appeals.
ASSIGNMENTS OF ERROR
Palmer assigns that the district court erred in (1) granting summary judgment in favor of Lakeside and Precor; (2) holding that the waiver and release contained in the membership agreement and health history questionnaire signed by Palmer were clear, understandable, and unambiguous; and (3) holding that Palmer assumed the risk of using the treadmill.
STANDARD OF REVIEW
[1] [HN1] An appellate court will affirm a lower court’s granting of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as [***7] a matter of law. 1
1 Wilson v. Fieldgrove, 280 Neb. 548, 787 N.W.2d 707 (2010).
[2] [HN2] In reviewing a summary judgment, the court views the evidence in the light most favorable to the party against whom the judgment was granted, and gives that party the benefit of all reasonable inferences deducible from the evidence. 2
2 Id.
ANALYSIS
Waiver and Release.
Palmer first argues that the district court erred in finding that the waiver and release contained in the membership agreement and health history questionnaire she completed and signed when joining Lakeside were clear, understandable, and unambiguous. We read Palmer’s argument as contending that the waivers, [**850] while perhaps applicable to instances of ordinary negligence, [*785] could not operate to relieve Lakeside or Precor from gross negligence or willful and wanton misconduct. We further understand Palmer to argue that both Lakeside and Precor committed gross negligence or willful and wanton misconduct–Precor by delivering a treadmill without proper safety features, and Lakeside by not providing adequate space or lighting around the treadmill and by modifying the treadmill’s belt such that the treadmill became unsafe.
[3,4] Before reaching the merits [***8] of Palmer’s argument, we note that contrary to Precor’s argument, Precor is not protected from liability as a result of the waivers signed by Palmer. Precor contends in its brief that it is a third-party beneficiary of these waivers. This court recently addressed a similar issue in Podraza v. New Century Physicians of Neb. 3 In Podraza, we noted that we have traditionally strictly construed who has the right to enforce a contract as a third-party beneficiary.
[HN3] In order for those not named as parties to recover under a contract as third-party beneficiaries, it must appear by express stipulation or by reasonable intendment that the rights and interest of such unnamed parties were contemplated and that provision was being made for them. The right of a third party benefited by a contract to sue thereon must affirmatively appear from the language of the instrument when properly interpreted or construed.
Authorities are in accord that one suing as a third-party beneficiary has the burden of showing that the provision was for his or her direct benefit. Unless one can sustain this burden, a purported third-party beneficiary will be deemed merely incidentally benefited and will not be permitted [***9] to recover on or enforce the agreement. 4
3 Podraza v. New Century Physicians of Neb., 280 Neb. 678, 789 N.W.2d 260 (2010).
4 Id. at 686, 789 N.W.2d at 267.
A review of the record shows that Precor was not explicitly mentioned in the language of the waiver. Nor is there any other evidence that Precor was an intended third-party beneficiary. Precor has the burden to show its status as a third-party beneficiary, and it has failed to meet that burden. As such, Precor [*786] is not shielded from liability as a result of the waivers signed by Palmer.
Lakeside’s Gross Negligence or Willful and Wanton Conduct.
At oral argument, Palmer conceded that by virtue of these waivers, Lakeside was not liable to Palmer for damages caused by ordinary negligence. But, as noted above, Palmer contends that Lakeside is nevertheless liable, because its actions were grossly negligent or were willful and wanton.
Having examined the record in this case, we find that as a matter of law, Palmer’s allegations against Lakeside do not rise to the level of gross negligence. Palmer alleges that the Lakeside facility had inadequate lighting and inadequate spacing between equipment and that Lakeside’s employees modified the treadmill [***10] in question by installing a treadmill belt that did not contain markings.
[5-7] [HN4] Gross negligence is great or excessive negligence, which indicates the absence of even slight care in the performance of a duty. 5 Whether gross negligence exists must be ascertained from the facts and circumstances of each particular case and not from any fixed definition or rule. 6 [**851] The issue of gross negligence is susceptible to resolution in a motion for summary judgment. 7 We simply cannot conclude that the allegations against Lakeside–inadequate lighting and spacing and the installation of a new treadmill belt–rise to such a level. We therefore conclude that as a matter of law, any negligence by Lakeside was not gross negligence or willful or wanton conduct. As such, the district court did not err in granting Lakeside’s motion for summary judgment.
5 Bennett v. Labenz, 265 Neb. 750, 659 N.W.2d 339 (2003).
6 Id.
7 Id.
Precor’s Negligence.
We next turn to the question of whether the district court erred in granting summary judgment in favor of Precor. Because we concluded above that the waiver signed by Palmer did not [*787] act to relieve Precor from liability, we address whether there was a genuine issue of material [***11] fact on the issue of whether Precor breached any duty it had to Palmer.
In arguing that Precor was liable, Palmer alleges that Precor breached its duty by not equipping the treadmill with (1) a safety feature that would prevent the treadmill from operating when no one was on it and (2) handrails extending down the sides toward the back of the treadmill. Palmer originally argued that Precor was also liable because the belt on its treadmill failed to contain adequate markings, but it is this court’s understanding that Palmer no longer makes such allegations with regard to Precor because the belt on the treadmill at the time of the incident was not original to the treadmill and had been installed by Lakeside.
In response to Palmer’s allegations, Precor introduced evidence in the form of an affidavit from its director of product development, Greg May. May averred that at the time of manufacture and delivery, the treadmill met or exceeded the voluntary guidelines set by the American Society for Testing and Materials in that group’s international standard specifications for motorized treadmills in all ways, including handrails. Though there was no specific feature on this treadmill designed [***12] to stop the treadmill from running when no one was operating it, the machine was manufactured with a clip to be attached to the user’s clothing. The manual for this treadmill noted that “by taking this precaution, a tug on the safety switch cord trips the safety switch and slows the running speed to a safe stop.” May also averred that the treadmill in question left Precor’s control on July 29, 1999, or over 7 years prior to the date of the incident.
In addition to May’s affidavit, Precor also introduced photographs of the treadmill at issue, which photographs showed that the treadmill did have front handrails, though not side handrails.
In an attempt to rebut May’s affidavit and show a genuine issue of material fact, Palmer introduced the affidavit of a fitness consultant. That affidavit noted in part that
based on [the consultant’s] experience, in order for treadmills to meet appropriate safety standards from the late [*788] 1990s forward, treadmills should contain adequate safety features, emergency/safety stop mechanisms, warning labels, and markings on a treadmill belt. A treadmill should contain a safety stop mechanism such that the treadmill will turn off if no one is currently on the [***13] treadmill, adequate handrails extending towards the back of the treadmill and warning labels at the rear of the treadmill.
Even after drawing all reasonable inferences in favor of Palmer, we conclude that there is no genuine issue of material fact as to Precor’s alleged breach of duty. While the fitness consultant’s affidavit indicates that treadmills “should” contain [**852] various safety features, he does not speak in absolutes and does not refer specifically to this treadmill. On the other hand, May’s affidavit references the treadmill at issue in this case and details the safety features this treadmill possessed, as well as Precor’s compliance with all applicable, though voluntary, safety standards when manufacturing the treadmill. Because the record affirmatively shows that Precor did not breach any duty it owed to Palmer, we conclude that the district court did not err in granting Precor’s motion for summary judgment.
Assumption of Risk.
Palmer also argues that the district court erred in finding that she assumed the risk of injury when she used the treadmill. Because we conclude that the district court did not err in granting Lakeside’s and Precor’s motions for summary judgment for the [***14] foregoing reasons, we need not address Palmer’s assignment of error regarding the assumption of the risk.
CONCLUSION
The district court’s order granting summary judgment in favor of Lakeside and Precor is affirmed.
AFFIRMED.
Wright and Miller-Lerman, JJ., not participating.
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Discover Maine in a whole new way!
Posted: April 6, 2013 Filed under: Cycling, Maine | Tags: Bicycling, Bike, BikeMaine, Cycling, MAINE Leave a comment
Discover Maine by Bike
The Bicycle Coalition of Maine has launched a week-long bicycle ride, BikeMaine, that will run from September 7-14, 2013.
The 400 mile loop ride travels on mostly rural, low traffic roads offering magnificent scenery and allows riders to explore six host communities, each providing a unique Maine experience: college town, mill town, arts community, historic maritime village, summer colony, and traditional Maine camp.
Riders will enjoy meals featuring locally sourced, in season food, tours and nightly entertainment. The $875 registration fee includes a fully supported route, 18 meals, ample beverages and snacks during each day’s ride, baggage transport, camping facilities, hot showers, and other rider amenities.
Visit BikeMaine for more detailed information. This year’s ride is limited to 350 riders, so sign up today to ensure your place in the inaugural BikeMaine ride.
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Hawaii’s deceptive trade practices act sends this case and release back to the trial court
Posted: April 1, 2013 Filed under: Assumption of the Risk, Equine Activities (Horses, Donkeys, Mules) & Animals, Hawaii, Release (pre-injury contract not to sue) | Tags: Contract, Dahana Ranch, Deceptive Trade Practices, Defendant, equestrian, HI, Horse, horseback riding, Inc., Law, Plaintiff, stable, Summary judgment, Trial court, Waiver Leave a commentCourbat v. Dahana Ranch, Inc., 111 Haw. 254; 141 P.3d 427; 2006 Haw. LEXIS 386
The court agrees that the issue of not finding out that you had to sign a waiver until the time of the activity might be a deceptive practice.
This is a very interesting case. A couple booked several activities through a third-party booking agency. The activity in question was a horseback ride. The plaintiffs had booked the ride several months in advance of the ride and upon showing up, were handed a release.
Upon arriving at the defendant, the plaintiff read the waiver signed it, and passed it on to her husband. The husband signed it, testifying in his deposition that he relied on his wife to read such documents.
The record demonstrates that the Courbats were given adequate time and opportunity to fully review the waiver presented to them before they signed it and that both knew that by signing it; they were waiving legal rights in return for being allowed to participate in the ride.
Of note was a statement made by the court that no guest of the defendant had ever refused to sign the waiver.
During the ride, one horse kicked the plaintiff in the shin causing her an injury. She and her husband sued for negligence, gross negligence, and for unfair and deceptive practices.
The defendant responded that the plaintiff assumed the risk, the release barred the plaintiff’s claims and the ranch had done nothing to bring it into the purview of the Hawaiian Deceptive Trade Practices Act. (HRS §§ 480-2 and 480-13)
The trial court granted the defendant’s motion for summary judgment, and the decision was appealed.
Summary of the case
The court spent the most time on the issue that booking a ride several months in advance and not finding out that a waiver had to be signed on arrival was a deceptive practice.
…they assert that the Ranch’s practice of booking ride reservations through an activity company, receiving payment prior to the arrival of the guest, and then, upon the guest’s arrival at the Ranch, requiring the guest to sign a liability waiver as a precondition to horseback riding is an unfair and deceptive business practice to which the remedies of HRS ch. 480 apply.
The plaintiffs did not argue that the waiver was deceptive, only the fact that they were not informed that a waiver had to be signed. If the practice was found to be deceptive, then the waiver would be void.
The Courbats do not allege that the waiver itself is deceptive; rather, they urge that the deceptive practice at issue was the booking agent’s failure to inform them of the waiver requirement during the negotiation and execution of the underlying contract. Nevertheless, if any deceptive omission occurred with respect to the negotiation and execution of the original contract, the operation of HRS § 480-12, see supra note 1, would render both the original contract and the waiver, signed afterward, void.
After analyzing the fact the court found that there was an issue: “…whether a waiver requirement would be materially important in booking a horseback tour remains one for the trier of fact.”
However, if the trier of fact (jury) finds that a failure to warn the plaintiff was not deceptive, then the waiver would be valid.
The court then looked at the waiver to determine if met Hawaiian law. The court found that if the plaintiff signed the wavier, then the plaintiff was bound by its terms. Waivers, exculpatory contracts, are valid if they are “knowingly and willingly made and free from fraud.”
Waivers can be voided for three reasons in Hawaii.
“‘exculpatory clauses will be held void if the agreement is
(1) violative of a statute,
(2) contrary to a substantial public interest, or
(3) gained through inequality of bargaining power.'”
The court then looked at what was a public interest and found a public interest had the following characteristics:
[1] It concerns a business of a type generally thought suitable for public regulation.
[2] The party seeking exculpation is engaged in performing a service of great importance to the public, which is often [***30] a matter of practical necessity for some members of the public.
[3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards.
[4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.
[5] In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence.
[6] Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller of the service, subject to the risk of carelessness by the seller or his agents.
Recreational activities are unsuitable for public regulation; therefore, they do not violate the Hawaiian public interest definition that would void a release.
…while such waivers may be contracts of adhesion, in that they are presented on a “take-it-or-leave-it” basis, they are not unconscionable, but “are of a sort commonly used in recreational settings” and “are generally held to be valid.
Contracts of adhesion are ‘unenforceable if two conditions are present: (1) the contract is the result of coercive bargaining between parties of unequal bargaining strength; and (2) the contract unfairly limits the obligations and liabilities of, or otherwise unfairly advantages, the stronger party.
Because the plaintiffs had time to read and review the waiver, there was no coercion.
The court reviewed one final issue, waivers under Hawaiian law, like most other states do not stop claims for gross negligence or willful misconduct.
Consequently, the case was sent back for a jury to determine if the acts of the defendant, by and through its booking agency, acted deceptively or if the acts of the defendant were grossly negligent. If so the plaintiff would win the suit. If the acts of the defendant were not deceptive or the defendant was not grossly negligent the defendant would win at trial.
There was a dissent which found that the acts were not deceptive by law.
So Now What?
It is so easy to avoid most of the issues that were part of this appeal. Once some signs up for a trip or activity, whether through you or a third party, they must be informed that they are going to sign a release.
It is that easy. Put it on the receipt, put it on the website, put it on the paperwork, in the brochure; put it everywhere. If you are in a state where the release is valid you will not go through the time, cost, and expense of this type of litigation.
Every state has a deceptive trade practice statute. The statutes are enacted to protect consumers from dishonest businesses. The court did not examine the facts in light of an intentional act; just the practice alone was deceptive.
Don’t learn the act, just inform your guests.
Plaintiff: Lisa Courbat and Steven Courbat
Defendant: Dahana Ranch, Inc.
Plaintiff Claims: negligence, gross negligence, violation of the Hawaiian Deceptive Trade Practices statute.
Defendant Defenses: assumption of the risk, release, did not violate the deceptive practices act
Holding: reversed and sent back for trial
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 James H. “Jim” Moss |
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of eight books about legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management,
Outdoor Recreation Insurance, Risk Management, and Law
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
If you are interested in having me write your release, download the form and return it to me.
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Courbat v. Dahana Ranch, Inc., 111 Haw. 254; 141 P.3d 427; 2006 Haw. LEXIS 386
Posted: April 1, 2013 Filed under: Assumption of the Risk, Equine Activities (Horses, Donkeys, Mules) & Animals, Hawaii, Legal Case, Release (pre-injury contract not to sue) | Tags: Deceptive Trade Practices, equestrian, Equine, Hawaii, HI, Horse, horseback riding, Release, Releases / Waivers, stable, Waiver Leave a commentTo Read an Analysis of this decision see
Hawaii Supreme Court agrees that finding out a release is required to be signed upon arrival at the activity and after the activity has been paid for may be a deceptive trade practice.
Hawaii’s deceptive trade practices act sends this case and release back to the trial court
Courbat v. Dahana Ranch, Inc., 111 Haw. 254; 141 P.3d 427; 2006 Haw. LEXIS 386
Lisa Courbat and Steven Courbat, Plaintiffs-Appellants, vs. Dahana Ranch, Inc., Defendant-Appellee, and John Does 1-10, Jane Does 1-10, Doe Associations 1-10, Doe Partnerships 1-10, Doe Corporations 1-10, Doe Entities 1-10, and Doe Governmental Units 1-5, Defendants.
NO. 25151
SUPREME COURT OF HAWAI’I
111 Haw. 254; 141 P.3d 427; 2006 Haw. LEXIS 386
July 10, 2006, Decided
SUBSEQUENT HISTORY: Amended by, Reconsideration granted by, in part, Reconsideration denied by, in part Courbat v. Dahana Ranch, 2006 Haw. LEXIS 417 (Haw., Aug. 3, 2006)
PRIOR HISTORY: [***1] APPEAL FROM THE THIRD CIRCUIT COURT. CIV. NO. 01-1-0049.
COUNSEL: On the briefs:
Andrew S. Iwashita, for the plaintiffs-appellants Lisa Courbat and Steven Courbat.
Zale T. Okazaki, of Ayabe, Chong, Nishimoto, Sia and Nakamura, for the defendant-appellee Dahana Ranch, Inc.
JUDGES: MOON, C.J., LEVINSON AND NAKAYAMA, JJ., AND DUFFY, J., DISSENTING, WITH WHOM ACOBA, J. JOINS.
OPINION BY: LEVINSON
OPINION
[**429] [*256] OPINION OF THE COURT BY LEVINSON, J.
The plaintiffs-appellants Lisa Courbat and Steven Courbat [hereinafter, collectively, “the Courbats”] appeal from the May 13, 2002 judgment of the circuit court of the third circuit, the Honorable Riki May Amano presiding, entered pursuant to the circuit [*257] [**430] court’s April 26, 2002 grant of summary judgment in favor of the defendant-appellee Dahana Ranch, Inc. (the Ranch).
On appeal, the Courbats contend that the circuit court erred: (1) in concluding that Hawai’i Revised Statutes (HRS) § 480-2 et seq. (Supp. 1998) 1 do not apply to the Ranch’s business practices of booking prepaid tours and subsequently requiring liability waivers upon check-in; (2) by applying the rebuttable presumption set forth in HRS § 663B-2(a) [***2] (Supp. 1994) 2 in finding that [*258] [**431] Lisa’s injuries were not due to the negligence of the tour operator; (3) in finding that the Courbats sufficiently read over the waiver before signing it; and (4) in concluding that the waiver was valid as to their negligence claims.
1 HRS ch. 480 provided in relevant part:
§ 480-2 . . . . (a) [HN1] Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are unlawful.
(b) In construing this section, the courts and the office of consumer protection shall give due consideration to the rules, regulations, and decisions of the Federal Trade Commission and the federal courts interpreting section 5(a)(1) of the Federal Trade Commission Act (15 U.S.C. 45(a)(1)), as from time to time amended.
. . . .
§ 480-3 . . . . [HN2] This chapter shall be construed in accordance with judicial interpretations of similar federal antitrust statutes . . . .
. . . .
§ 480-12 . . . . [HN3] Any contract or agreement in violation of this chapter is void and is not enforceable at law or in equity.
§ 480-13 . . . . (b) [HN4] Any consumer who is injured by any unfair or deceptive act or practice forbidden or declared unlawful by section 480-2:
(1) May sue for damages sustained by the consumer, and, if the judgment is for the plaintiff, the plaintiff shall be awarded a sum not less than $ 1,000 or threefold damages by the plaintiff sustained, whichever sum is the greater, and reasonable attorneys’ fees together with the costs of suit; . . . and
(2) May bring proceedings to enjoin the unlawful practices, and if the decree is for the plaintiff, the plaintiff shall be awarded reasonable attorneys’ fees together with the cost of suit.
Effective June 28, 2002, HRS § 480-2 was amended in respects immaterial to the present matter. See 2002 Haw. Sess. L. Act 229, §§ 2 and 6 at 916-18. Effective May 2, 2001, June 28, 2002, and June 7, 2005, HRS § 480-13 was amended in respects immaterial to the present matter. See 2005 Haw. Sess. L. Act 108, §§ 3 and 5 at 265-66, 267; 2002 Haw. Sess. L. Act 229, §§ 3 and 6 at 917-18; 2001 Haw. Sess. L. Act 79, §§ 1 and 5 at 127-28.
[***3]
2 HRS ch. 663B, entitled “Equine activities” and enacted in 1994, see 1994 Haw. Sess. L. Act 229, §§ 1 and 2 at 591-92, provides in relevant part:
§ 663B-1 . . . . [HN5] As used in this [chapter], unless the context otherwise requires:
“Engages in an equine activity” means riding . . . or being a passenger upon an equine . . . .
. . . .
“Equine activity” means:
. . . .
(5) Rides, trips, hunts, or other equine activities of any type however informal or impromptu that are sponsored by an equine activity sponsor; and
. . . .
“Equine activity sponsor” means an individual, group, club, partnership, or corporation . . . which sponsors, organizes, or provides the facilities for, an equine activity. . . .
“Equine professional” means a person engaged for compensation in instructing a participant or renting to a participant an equine for the purpose of riding, driving, or being a passenger upon the equine, or in renting equipment or tack to a participant.
“Inherent risks of equine activities” means those dangers or conditions which are an integral part of equine activities, including, but not limited to:
(1) The propensity of an equine to behave in ways that may result in injury, harm, or death to persons on or around them;
(2) The unpredictability of an equine’s reaction to such things as sounds, sudden movement, and unfamiliar objects, persons, or other animals;
(3) Certain hazards such as surface and subsurface conditions;
(4) Collisions with other equines or objects; and
(5) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the animal or not acting within the participant’s ability.
“Participant” means any person, whether amateur or professional, who engages in an equine activity, whether or not a fee is paid to participate in the equine activity.
§ 663B-2 . . . . (a) [HN6] In any civil action for injury, loss, damage, or death of a participant, there shall be a presumption that the injury, loss, damage, or death was not caused by the negligence of an equine activity sponsor, equine professional, or their employees or agents, if the injury, loss, damage, or death was caused solely by the inherent risk and unpredictable nature of the equine. An injured person or their legal representative may rebut the presumption of no negligence by a preponderance of the evidence.
(b) Nothing in this section shall prevent or limit the liability of an equine activity sponsor, an equine professional, or their employees or agents if the equine activity sponsor, equine professional, or person:
. . . .
(2) Provided the equine and . . . failed to reasonably supervise the equine activities and such failure is a proximate cause of the injury
. . . . (Some brackets in original and some omitted.)
[***4] For the reasons discussed infra in section III.A, we vacate the circuit court’s May 13, 2002 judgment and remand for further proceedings consistent with this opinion.
I. BACKGROUND
The present matter arises out of personal injuries sustained by Lisa on February 1, 1999, while she and Steven were on a horseback riding tour on the Dahana Ranch on the Big Island of Hawai’i. The Courbats had booked the tour and prepaid the fee several months earlier through Island Incentives, Inc., an internet-based tour organizer. When they checked in at the Ranch, the Courbats were presented with a document to review and to sign which laid out the rules for the horseback tour and included a waiver “releas[ing] and hold[ing] harmless . . . [the] Ranch . . . from . . . injury to myself . . . resulting from my . . . being a spectator or participant or while engaged in any such activity in the event[-]related facilities” and stating that the undersigned “acknowledge[s] that there are significant elements of risk in any adventure, sport, or activity associated with horses.” 3 According to admissions by the Courbats in subsequent depositions, Lisa read over the waiver and, having [***5] no questions regarding the rules and regulations it contained, signed it before passing it to her husband to sign. Steven evidently did not read it, but recognized that it was “some kind of release of some sort” and signed it. In fact, no guest of the Ranch had ever refused to sign a waiver. Steven was familiar with the concept of such waivers, having participated with his wife in a snorkeling activity earlier during the vacation, at which time they both signed similar forms.
3 The rules and waiver stated in pertinent part:
In order for us to keep our ride from being a “Nose To Tail Trail Ride[,”] there are certain rules which must be followed for your safety and the horses’ mental well being. FAILURE TO FOLLOW THESE RULES WILL RESULT IN FORFEITURE OF YOUR RIDE WITH NO REFUND.
RULES AND REGULATIONS
FOLLOW RIDING INSTRUCTIONS & DIRECTIONS THROUGHOUT THE RIDE
. . . .
. PLEASE DO NOT RIDE AHEAD OF YOUR GUIDE UNLESS TOLD TO DO SO
. . . .
. DO NOT FOLLOW ONE ANOTHER
. . . .
WAIVER
I/We, the undersigned, hereby release and hold harmless the land owners, managers, operators (William P. Kalawaianui, Daniel H. Nakoa, Dahana Ranch and Nakoa Ranch), [t]he State of Hawai[]i and the Department of Hawaiian Home Lands and all other persons directly related to those listed above for the event listed herein[,] their successors, assigns and affiliates from loss or damage to property or injury to myself or any person . . . resulting from my . . . being a spectator or participant or while engaged in any such activity in the event[-] related facilities. I/We acknowledge that there are significant elements of risk in any adventure, sport or activity associated with horses.
I/WE HAVE READ AND UNDERSTOOD THE FOREGOING RULES, REGULATIONS AND WAIVER.
(Emphasis in original.)
[***6] The Ranch’s guide, Daniel Nakoa, briefed the Courbats on how to handle a horse and general rules of the trail, including the importance of not riding single-file or allowing the horses to bunch up end to end. Out on the ride, Lisa was injured when she rode up behind Nakoa’s horse while Nakoa was speaking with another guest who had approached Nakoa with a question. According to later statements by both Nakoa and Lisa, Lisa approached Nakoa’s horse from the rear while the three horses were in motion, and, when her horse neared Nakoa’s horse, Nakoa’s horse struck out at her horse, hitting Lisa in the left shin. Lisa described the incident in a deposition taken on November 3, 2001:
Q: At what point did you believe that you needed to pull the reins back as you were approaching the guide . . . ? . . .
[*259] [**432] [Lisa]: When I felt that the horse[] was getting too close to the horses above me.
Q: So it appeared to you that the nose end of the horse was getting too close to the butt end of the horse in front?
[Lisa]: To the horse in general. We were coming in. I was just trying to keep a certain space between myself and the horse.
Q: [T]hose two horses, the guide’s [***7] horse and the guest’s horse, they were to the left of your horse, is that correct, to the front left of you?
[Lisa]: Yes.
Q: You recall which hind leg of the horse kicked you? Was it the right or the left?
[Lisa]: It would be the right one.
Q: And that was a horse which was ridden by the guide or the guest?
[Lisa]: The guide.
Q: Just before the horse in front of you kicked you, were all of the horses still in motion? When I say “all the horses,” yours, the guide’s, and the guest that was riding parallel to the guide?
[Lisa]: Just before?
Q: Yes.
[Lisa]: Yes.
Q: Was there any conversation between you and the guide or the guest just before this kicking incident occurred?
[Lisa]: No.
Q: At the time this kicking incident occurred, w[ere] the guide and the guest still talking to each other?
[Lisa]: Yes.
Nakoa described the same incident in a January 9, 2002 deposition:
[Nakoa]: . . . Everybody was facing the gate, the second gate. . . . And I was in the back. And because I lots of times don’t want to be a part of the ride, I started riding to the right. And then a man came to talk to me and [***8] ask me about the horse.
. . . .
Q: On which side of your horse was he at the time?
[Nakoa]: He was on the left side of me.
Q: And were you still moving or were you stopped?
[Nakoa]: We were walking.
. . . .
Q: . . .[H]ad you passed Lisa along the way? . . . .
[Nakoa]: Because of the angle, she was off to my left.
Q: Still in front of you?
[Nakoa]: No. About the same.
. . . .
Q: And when is the next time you notice[] Lisa’s horse before the injury takes place?
. . . .
[Nakoa]: She was still on the left side of me.
Q: . . . [A]bout how far away do you estimate she was from your horse?
[Nakoa]: You know, 30 feet maybe. . . .
Q: And from that point on, . . . were you able to continually observe Lisa riding her horse until the time the injury occurred?
[Nakoa]: Yes. The man was on my left and I was talking to him.
. . . .
Q: . . . [W]hile [the guest is] asking you this question and you can see [Lisa], what is her horse doing as it’s approaching your horse?
[Nakoa]: No, I didn’t see her approaching my horse. That’s what I’m trying to tell you. She was on the [***9] left side of this man and me and we’re all going in that direction (indicating). She was trotting, and I was walking with this man. And I saw her. And then this man asked me something. And the next thing I knew, she was right in back of my horse telling me that my horse kicked her.
Nakoa later acknowledged in the deposition that, if he or his horse had been aware that Lisa’s horse was approaching from behind, his horse would not have been surprised and would not have struck out at her horse. As a result of the impact, Lisa suffered severe pain and swelling, but no broken bones, and [*260] [**433] since the incident has complained of ongoing pain and injury to her leg.
The Courbats filed suit on January 31, 2001, asserting claims of negligence and gross negligence that resulted in physical injury to Lisa and loss of consortium injuries to Steven. On November 21, 2001, they filed a first amended complaint, adding a claim of unfair and deceptive trade practices regarding the waiver they had signed the day of the ride.
On January 16, 2002, the Ranch filed a motion for summary judgment on the grounds: (1) that the Courbats had assumed the risk of the activity; (2) that the Courbats [***10] had waived their rights to sue the Ranch for negligence; and (3) that the Ranch had not committed any acts that brought it under the purview of HRS §§ 480-2 and 480-13, see supra note 1.
The Courbats filed a memorandum in opposition to the Ranch’s motion and a motion for partial summary judgment, urging the circuit court to rule, inter alia: (1) that the Ranch owed Lisa a duty to protect her from injury by Nakoa’s horse; and (2) that the rebuttable presumption of no negligence on a defendant’s part set forth in HRS § 663B-2, see supra note 2, was inapplicable.
The circuit court conducted a hearing on both motions on February 13, 2002 and, on April 26, 2002, entered an order granting the Ranch’s motion and denying the Courbats’ motion. On May 13, 2002, the circuit court entered a final judgment in favor of the Ranch and against the Courbats. On August 8, 2002, the Courbats filed a timely notice of appeal. 4
4 On May 10, 2002, the Ranch filed a notice of taxation of costs which, pursuant to Hawai’i Rules of Appellate Procedure (HRAP) Rule 4(a)(3), tolled the time for filing an appeal. An order as to taxation of costs was never entered, and so, pursuant to HRAP Rule 4(a)(3), the request was deemed denied 90 days later, on August 8, 2002. The Courbats’ appeal, filed prematurely on June 7, 2002, was therefore timely filed as of August 8, 2002, pursuant to HRAP Rule 4(a)(2) and (3).
[***11] II. STANDARDS OF REVIEW
A. Summary Judgment
We [HN7] review the circuit court’s grant or denial of summary judgment de novo . . . .
[S]ummary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties. The evidence must be viewed in the light most favorable to the non-moving party. In other words, we must view all of the evidence and the inferences drawn therefrom in the light most favorable to the party opposing the motion.
[Hawai’i Cmty. Fed. Credit Union v. Keka, 94 Hawai’i 213, 221, 11 P.3d 1, 9 (2000)] (citations and internal quotation marks omitted).
Querubin v. Thronas, 107 Hawai’i 48, 56, 109 P.3d 689, 697 (2005) (quoting Durette v. Aloha Plastic Recycling, Inc., 105 Hawai’i 490, 501, 100 P.3d 60, 71 (2004)) [***12] (internal citation omitted) (some brackets in original).
B. Interpretation Of Statutes
[HN8] The interpretation of a statute is a question of law reviewable de novo. State v. Arceo, 84 Hawai’i 1, 10, 928 P.2d 843, 852 (1996).
Furthermore, our statutory construction is guided by established rules:
[HN9] When construing a statute, our foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. And we must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose.
When there is doubt, doubleness of meaning, or indistinctiveness or uncertainty [*261] [**434] of an expression used in a statute, an ambiguity exists. . . .
In construing an ambiguous statute, “[t]he meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning.” HRS § 1-15(1) [(1993)]. Moreover, the courts may resort to extrinsic aids in determining legislative intent. [***13] One avenue is the use of legislative history as an interpretive tool.
Gray [v. Admin. Dir. of the Court], 84 Hawai’i [138,] 148, 931 P.2d [580,] 590 [(1997)] (footnote omitted).
State v. Koch, 107 Hawai’i 215, 220, 112 P.3d 69, 74 (2005) (quoting State v. Kaua, 102 Hawai’i 1, 7-8, 72 P.3d 473, 479-480 (2003)). [HN10] Absent an absurd or unjust result, see State v. Haugen, 104 Hawai’i 71, 77, 85 P.3d 178, 184 (2004), this court is bound to give effect to the plain meaning of unambiguous statutory language; we may only resort to the use of legislative history when interpreting an ambiguous statute. State v. Valdivia, 95 Hawai’i 465, 472, 24 P.3d 661, 668 (2001).
III. DISCUSSION
A. Inasmuch As The Presence Or Absence Of An Unfair Or Deceptive Trade Practice Is For The Trier Of Fact To Determine, The Circuit Court Erroneously Granted Summary Judgment In Favor Of The Ranch And Against The Courbats.
The Courbats do not dispute that they both signed the Ranch’s waiver form, see supra note 3, prior to their ride. Nor do they dispute that waivers are an accepted [***14] method by which businesses may limit their liability. Rather, they assert that the Ranch’s practice of booking ride reservations through an activity company, receiving payment prior to the arrival of the guest, and then, upon the guest’s arrival at the Ranch, requiring the guest to sign a liability waiver as a precondition to horseback riding is an unfair and deceptive business practice to which the remedies of HRS ch. 480 apply. The Courbats maintain that the practice of withholding the waiver had “the capacity or tendency to mislead” customers, thereby satisfying this court’s test for a deceptive trade practice as articulated in State ex rel. Bronster v. United States Steel Corp., 82 Hawai’i 32, 50, 919 P.2d 294, 312 (1996).
The Intermediate Court of Appeals held in Beerman v. Toro, 1 Haw. App. 111, 118, 615 P.2d 749, 754-55 (1980), that [HN11] the remedies afforded by HRS ch. 480 are not available for personal injury claims. See also Blowers v. Eli Lilly & Co., 100 F. Supp. 2d 1265, 1269-70 (D. Haw. 2000). The Courbats, however, assert that they are not invoking HRS ch. 480 for the purpose of establishing personal injury damages, [***15] but rather because the lack of notice as to the waiver requirement injured them economically, by way of the $ 116 cost of the tour, giving rise to a valid claim under HRS § 480-13, see supra note 1. As a deceptive trade practice, the Courbats maintain, the waiver is void under HRS § 480-12, see supra note 1.
1. The elements of a deceptive trade practice claim for recision of a contract
[HN12] To render the waiver void, the Courbats must establish that it is an unseverable part of a “contract or agreement in violation of [HRS ch. 480].” See HRS § 480-12, supra note 1. Furthermore, any “unfair or deceptive act[] or practice[] in the conduct of any trade or commerce” violates HRS § 480-2.
[HN13] “Deceptive” acts or practices violate HRS § 480-2, but HRS ch. 480 contains no statutory definition of “deceptive.” This court has described a deceptive practice as having “the capacity or tendency to mislead or deceive,” United States Steel Corp., 82 Hawaii at 50, 919 P.2d at 312, 313, but, beyond noting that federal [***16] cases have also defined deception “as an act causing, as a natural and probable result, a person to do that which he [or she] would not do otherwise,” Keka, 94 Hawai’i at 228, 11 P.3d at 16 (brackets in original) (quoting United States Steel Corp., 82 Hawaii at 51, 919 P.2d at 313 (citing Bockenstette v. Federal Trade Comm’n, 134 F.2d 369, 36 F.T.C. 1106 (10th Cir. 1943))), we have not articulated a more refined test.
[HN14] HRS § 480-3, see supra note 1, provides that HRS ch. 480 “shall be construed in accordance with judicial interpretations of similar federal antitrust statutes,” [*262] [**435] and HRS § 480-2(b) provides that “[i]n construing this section, the courts . . . shall give due consideration to the . . . decisions of . . . the federal courts interpreting . . . 15 U.S.C. [§ ] 45(a)(1)[(2000)],” 5 in recognition of the fact that HRS § 480-2 is “a virtual counterpart.” 6 Keka, 94 Hawai’i at 228, 11 P.3d at 16. The Federal Trade Commission (FTC), in In re Cliffdale Assocs., Inc., 103 F.T.C. 110, Trade Cas. (CCH) P22137 (1984), developed [***17] a three-part analytical test for “deception,” 7 which the federal courts have thereafter extensively adopted, see FTC v. Verity Int’l, Ltd., 443 F.3d 48, 63 (2d. Cir. 2006); FTC v. Tashman, 318 F.3d 1273, 1277 (11th Cir. 2003); FTC v. Pantron I Corp., 33 F.3d 1088, 1095 (9th Cir. 1994); FTC v. World Travel Vacation Brokers, Inc., 861 F.2d 1020, 1029 (7th Cir. 1988). Under the Cliffdale Assocs. test, a deceptive act or practice is “(1) a representation, omission, or practice[] that (2) is likely to mislead consumers acting reasonably under the circumstances [where] (3)[] the representation, omission, or practice is material.” Verity Int’l, 443 F.3d at 63. A representation, omission, or practice is considered “material” if it involves “‘information that is important to consumers and, hence, likely to affect their choice of, or conduct regarding, a product.'” Novartis Corp. v. FTC, 343 U.S. App. D.C. 111, 223 F.3d 783, 786 (D.C. Cir. 2000) (quoting Cliffdale Assocs., 103 F.T.C. at 165); see also Kraft, Inc. v. FTC, 970 F.2d 311, 322 (7th Cir. 1992); [***18] FTC v. Crescent Publ’g Group, Inc., 129 F. Supp. 2d 311, 321 (S.D.N.Y. 2001); FTC v. Five-Star Auto Club, Inc., 97 F. Supp. 2d 502, 529 (S.D.N.Y. 2000); FTC v. Sabal, 32 F. Supp. 2d 1004, 1007 (N.D. Ill. 1998). Moreover, the Cliffdale Assocs. test is an objective one, turning on whether the act or omission “is likely to mislead consumers,” Verity Int’l, 443 F.3d at 63, as to information “important to consumers,” Novartis Corp., 223 F.3d at 786, in making a decision regarding the product or service. 8
5 15 U.S.C. § 45(a)(1) provides that ” [HN15] [u]nfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful.”
6 Hawai’i courts have long recognized, therefore, that federal interpretations of 15 U.S.C. § 45(a)(1) guide us in construing HRS § 480-2 “in light of conditions in Hawai’i.” Ai v. Frank Huff Agency, 61 Haw. 607, 613 n.11, 607 P.2d 1304, 1309 n.11 (1980); see also Island Tobacco Co. v. R.J. Reynolds Tobacco Co., 63 Haw. 289, 299, 627 P.2d 260, 268 (1981) overruled on other grounds by Robert’s Hawaii School Bus, Inc. v. Laupahoehoe Transp. Co., Inc., 91 Hawai’i 224, 982 P.2d 853 (1999); Rosa v. Johnston, 3 Haw. App. 420, 426, 651 P.2d 1228, 1233-34 (1982).
[***19]
7 See Cliffdale Assocs., 103 F.T.C. at 164-65 (characterizing the new standard as a refinement of the “tendency or capacity to deceive” test used by the FTC to that point and pronouncing the old test “circular and therefore inadequate to provide guidance”).
8 [HN16] While federal courts have not expressly categorized the test as objective, the FTC, in Cliffdale Assocs., commented that “[t]he requirement that an act or practice be considered from the perspective of a consumer acting reasonably in the circumstances is not new. . . . [The FTC] has long recognized that the law should not be applied in such a way as to find that honest representations are deceptive simply because they are misunderstood by a few. . . . [A]n advertisement would not be considered deceptive merely because it could be unreasonably misunderstood by an insignificant and unrepresentative segment of the class of persons [to] whom the representation is addressed.” 103 F.T.C. at 165 (footnotes and internal quotation signals omitted).
[HN17] Given our obligation under HRS §§ 480-3 [***20] and 480-2(b) to apply federal authority as a guide in interpreting HRS ch. 480, we hereby adopt the three-prong Cliffdale Assocs. test in determining when a trade practice is deceptive. 9
9 Other states have already adopted the Cliffdale Assocs. test. See, e.g., Luskin’s, Inc. v. Consumer Prot. Div., 353 Md. 335, 726 A.2d 702, 713 (Md. 1999); Carter v. Gugliuzzi, 168 Vt. 48, 716 A.2d 17, 23 (Vt. 1998). Our adoption of the Cliffdale Assocs. test does not change the existing rule that, in order to establish a violation of HRS § 480-2, the plaintiff need not establish an intent to deceive on the part of the defendant, World Travel Vacation Brokers, 861 F.2d at 1029; Five-Star Auto Club, 97 F. Supp. at 526, nor any actual deceit, United States Steel Corp., 82 Hawai’i at 51, 919 P.2d at 313.
2. Under The Cliffdale Assocs. Objective Consumer Test, The Determination [***21] Of A Deceptive Omission Is One For The Trier Of Fact, Thereby Rendering Summary Judgment Inappropriate.
The Courbats do not allege that the waiver itself is deceptive; rather, they urge [*263] [**436] that the deceptive practice at issue was the booking agent’s failure to inform them of the waiver requirement during the negotiation and execution of the underlying contract. 10 Nevertheless, if any deceptive omission occurred with respect to the negotiation and execution of the original contract, the operation of HRS § 480-12, see supra note 1, would render both the original contract and the waiver, signed afterward, void. 11 Thus, the waiver’s survival depends on the trier of fact’s determination as to whether the omission of the waiver requirement during Island Incentives, Inc.’s booking process was deceptive and therefore in violation of HRS § 480-2.
10 It is undisputed that Island Incentives, Inc. was acting as the Ranch’s agent in this matter, and “we note that [HN18] an owner is responsible for the representations of his agent made within the scope of his agent’s selling authority.” Au v. Au, 63 Haw. 210, 215, 626 P.2d 173, 178 (1981) (citing Negyessy v. Strong, 136 Vt. 193, 388 A.2d 383, 385 (Vt. 1978)).
[***22]
11 If the waiver were severable from the underlying contract, it could survive despite a determination that the original contract was void. See Ai v. Frank Huff Agency, 61 Haw. 607, 619, 607 P.2d 1304, 1312 (1980) [HN19] (“The wording on HRS § 480-12 might . . . appear to suggest that any contract containing an illegal provision . . . should be held unenforceable in its entirety. . . . [U]nder ordinary contract law, however, . . . a partially legal contract may be upheld if the illegal portion is severable from the part which is legal.”). However, “the general rule is that severance of an illegal provision is warranted and the lawful portion . . . enforceable when the illegal provision is not central to the parties’ agreement.” Beneficial Hawaii, Inc. v. Kida, 96 Hawai’i 289, 311, 30 P.3d 895, 917 (2001). The underlying contract at issue is the sum of the parties’ agreement; the waiver would be considered an addendum to it. Therefore, the waiver is not severable and must stand or fall with the underlying contract.
[HN20] The application [***23] of an objective “reasonable person” standard, of which the Cliffdale Assocs. test is an example, is ordinarily for the trier of fact, rendering summary judgment “often inappropriate.” Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 107, 839 P.2d 10, 24 (1992), cited in Casumpang v. ILWU Local 142, 108 Hawai’i 411, 425, 121 P.3d 391, 405 (2005); Arquero v. Hilton Hawaiian Village LLC, 104 Hawai’i 423, 433, 91 P.3d 505, 515 (2004). “Inasmuch as the term ‘reasonableness’ is subject to differing interpretations . . ., it is inherently ambiguous. Where ambiguity exists, summary judgment is usually inappropriate because ‘the determination of someone’s state of mind usually entails the drawing of factual inferences as to which reasonable [minds] might differ.'” Amfac, Inc., 74 Haw. at 107, 839 P.2d at 24 (quoting Bishop Trust Co. v. Cent. Union Church, 3 Haw. App. 624, 628-29, 656 P.2d 1353, 1356 (1983)). Reasonableness can only constitute a question of law suitable for summary judgment “‘when the facts are undisputed and not fairly susceptible of divergent inferences’ because ‘[w]here, upon [***24] all the evidence, but one inference may reasonably be drawn, there is no issue for the jury.'” Id. at 108, 839 P.2d at 24 (quoting Broad & Branford Place Corp. v. J.J. Hockenjos Co., 132 N.J.L. 229, 39 A.2d 80, 82 (N.J. 1944) (brackets in original)). “‘[A] question of interpretation is not left to the trier of fact where evidence is so clear that no reasonable person would determine the issue in any way but one.'” Id. (quoting Restatement (Second) of Contracts § 212 cmt. e (1981) (brackets in original)). See also Restatement (Second) of Contracts § 212(2) (1981 and Supp. 2005) (“A question of interpretation of an integrated agreement is to be determined by the trier of fact if it depends on the credibility of extrinsic evidence or on a choice among reasonable inferences to be drawn from extrinsic evidence .”) (Emphasis added). There is no genuine issue of material fact regarding the failure to disclose the waiver requirement during negotiation of the original tour contract, but we cannot say that, applying the Cliffdale Assocs. test, reasonable minds could draw [***25] only one inference as to the materiality of that omission to reasonable consumers contemplating the transaction. Therefore, the question whether a waiver requirement would be materially important in booking a horseback tour remains one for the trier of fact.
Because a genuine issue of material fact, resolvable only by the trier of fact, remains in dispute, the grant of summary judgment on the HRS ch. 480 claim was erroneous. We therefore vacate the circuit court’s May [*264] [**437] 13, 2002 judgment and remand for further proceedings consistent with this opinion.
B. The Consequences, On Remand, Of The Determination By The Trier Of Fact As To Whether Nondisclosure Of The Waiver Requirement Was A Deceptive Trade Practice
If, on remand, the trier of fact determines that the nondisclosure of the waiver was a deceptive trade practice, rendering the waiver void, then the Courbats’ negligence claims proceed free of the waiver defense. Nevertheless, for the reasons set forth below and for purposes of any subsequent trial on the Courbats’ negligence claims, we hold that HRS ch. 663B, entitled “Equine activities,” see supra note 2, setting forth a rebuttable presumption of non-negligence [***26] on the part of the tour operator, does not apply to the present matter.
Conversely, if, on remand, the trier of fact determines that the nondisclosure of the waiver was not deceptive, then the Courbats validly waived their negligence claims.
1. The Statutory Presumption Of Non-Negligence For Equine-Related Injuries Set Forth In HRS Ch. 663B Does Not Apply To The Courbats’ Claims.
If the trier of fact determines that the failure to inform the Courbats of the waiver requirement was a deceptive trade practice, then the negligence waiver, along with the underlying contract, will be rendered void, and the Courbats’ negligence claims will be revived. In order to provide guidance on remand, therefore, we hold that it was error for the circuit court in the present matter to apply HRS § 663B-2(a), see supra note 2, which establishes a rebuttable presumption in favor of horseback tour operators that any injury “caused solely by the inherent risk and unpredictable nature of the equine” is not due to the negligence of the tour operator.
HRS § 663B-2(b) provides in relevant part that “[n]othing in [***27] this section shall prevent or limit the liability of an equine activity sponsor . . . if the equine activity sponsor, equine professional, or person: . . . (2) [p]rovided the equine and . . . failed to reasonably supervise the equine activities and such failure is a proximate cause of the injury.” The substance of Lisa’s claim revolves around her assertion that Nakoa failed to monitor her approach toward his horse while he was engaged in conversation with another guest; in other words, Lisa claims that Nakoa “failed to reasonably supervise the equine activities” that were the “proximate cause of [her] injury.” Therefore, we hold that, if Lisa is correct, the presumption of non-negligence set forth in HRS § 663B-2(a) would not apply to the Courbats’ claims.
2. If The Trier Of Fact Determines That The Nondisclosure Of The Waiver Was Not A Deceptive Trade Practice, Then The Courbats Validly Waived Their Negligence Claims.
a. The waiver was validly executed.
Citing Krohnert v. Yacht Sys. of Hawai’i, 4 Haw. App. 190, 201, 664 P.2d 738, 745 (1983), the Courbats assert that, because they manifested no clear [***28] and unequivocal acceptance of the terms of the waiver, the waiver cannot be enforced against them. However, pursuant to the following analysis, we hold that, if the trier of fact finds that the failure to inform the Courbats of the waiver requirement was not a deceptive trade practice, then the waiver, in all other respects, was valid.
[HN21] “The general rule of contract law is that one who assents to a contract is bound by it and cannot complain that he has not read it or did not know what it contained.” Leong v. Kaiser Found. Hosp., 71 Haw. 240, 245, 788 P.2d 164, 168 (1990); see also Joaquin v. Joaquin, 5 Haw. App. 435, 443, 698 P.2d 298, 304 (1985); In re Chung, 43 B.R. 368, 369 (Bankr. D. Haw. 1984); In re Kealoha, 2 B.R. 201, 209 (Bankr. D. Haw. 1980). Furthermore, “‘[p]arties are permitted to make exculpatory contracts so long as they are knowingly and willingly made and free from fraud. No public policy exists to prevent such contracts.'” Fujimoto v. Au, 95 Hawai’i 116, 156, 19 P.3d 699, 739 (2001) (some brackets omitted) (quoting Gen. Bargain Ctr. v. Am. Alarm Co., Inc., 430 N.E.2d 407, 411-12 [*265] [**438] (Ind. Ct. App. 1982)). [***29] “[S]uch bargains are not favored, however, and, if possible, bargains are construed not to confer this immunity.” Fujimoto, 95 Hawai’i at 155, 19 P.3d at 738. Therefore, as a general rule, “‘[e]xculpatory clauses will be held void if the agreement is (1) violative of a statute, (2) contrary to a substantial public interest, or (3) gained through inequality of bargaining power.'” 95 Hawaii at 156, 19 P.3d at 739 (quoting Andrews v. Fitzgerald, 823 F. Supp. 356, 378 (M.D.N.C. 1993)).
The Courbats have not alleged that any of the terms of the waiver, or the use of a waiver by the Ranch, violates a statute; on the contrary, the Courbats concede that waivers are an acceptable method by which tour operators may seek to limit their liability in response to rising insurance and litigation costs.
In Krohnert, the ICA defined the public interest
as involving some or all of the following characteristics:
[1] It concerns a business of a type generally thought suitable for public regulation.
[2] The party seeking exculpation is engaged in performing a service of great importance to the public, which is often [***30] a matter of practical necessity for some members of the public.
[3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards.
[4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.
[5] In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence.
[6] Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller of the service, subject to the risk of carelessness by the seller or his agents.
4 Haw. App at 199, 664 P.2d at 744 (finding under this test that the exculpatory clause contained in a contract for marine surveying was permissible) (brackets omitted) (quoting Lynch v. Santa Fe Nat’l Bank, 97 N.M. 554, 627 P.2d 1247, 1251-52 (N.M. Ct. App. 1981) [***31] (holding that services of escrow agents in New Mexico were not in the nature of a public service so as to render an exculpatory clause unenforceable) (quoting Tunkl v. Regents of Univ. of Cal., 60 Cal. 2d 92, 383 P.2d 441, 445-46, 32 Cal. Rptr. 33 (Cal. Ct. App. 1963) (declaring invalid as against the public interest an exculpatory clause for future negligence required for admission to a public research hospital))); see also 15 Corbin on Contracts § 85.18 (2003 & Supp. 2005) (summarizing a similar test commonly used by courts and noting that courts tend to enforce exculpatory clauses for recreational activities under the test). 12 Entities that have been found to fall under the public interest doctrine, rendering exculpatory clauses void, include common carriers, see Adams Express Co. v. Croninger, 226 U.S. 491, 509, 33 S. Ct. 148, 57 L. Ed. 314 (1913); Shippers Nat’l Freight Claim Council, Inc. v. Interstate Commerce Comm’n, 712 F.2d 740, 746 (2d Cir. 1983); Clairol, Inc. v. Moore-McCormack Lines, Inc., 79 A.D.2d 297, 309-10, 436 N.Y.S.2d 279 (N.Y. App. Div. 1981), and hospitals, see Tunkl, 383 P.2d at 447; Smith v. Hosp. Auth. of Walker, Dade & Catoosa Counties, 160 Ga. App. 387, 287 S.E.2d 99, [*266] [**439] 101 (Ga. Ct. App. 1981); [***32] Belshaw v. Feinstein, 258 Cal. App. 2d 711, 65 Cal. Rptr. 788, 798 (Cal. Ct. App. 1968).
12 Courts have upheld exculpatory clauses relating to car racing, see Cadek v. Great Lakes Dragaway, Inc., 843 F. Supp. 420 (N.D. Ill. 1994); Barbazza v. Int’l Motor Sports Ass’n, 245 Ga. App. 790, 538 S.E.2d 859 (Ga. Ct. App. 2000), snow skiing, see Chauvlier v. Booth Creek Ski Holdings, Inc., 109 Wn. App. 334, 35 P.3d 383 (Wash. Ct. App. 2001), skydiving, see Scrivener v. Sky’s The Limit, Inc., 68 F. Supp. 2d 277 (S.D.N.Y. 1999), and horseback riding, see Street v. Darwin Ranch, Inc., 75 F. Supp. 2d 1296, 1299 (D. Wyo. 1999) (finding that “recreational trail rides are neither of great importance to the public, nor a practical necessity to any member of the public”).
Applying these factors to the present matter, we determine that the public interest here is not at stake: recreational activity tours are not generally [***33] suitable to public regulation, in the manner of common carriers, nor of great importance to the public, nor of an essential nature, in the manner of medical care, such that the provider’s bargaining power is greatly enhanced over any member of the public seeking their services.
Finally, as the United States District Court for the District of Hawai’i noted, in considering negligence waivers in the context of recreational activity, while such waivers may be contracts of adhesion, in that they are presented on a “take-it-or-leave-it” basis, they are not unconscionable, but “are of a sort commonly used in recreational settings” and “are generally held to be valid.” Wheelock v. Sport Kites, Inc., 839 F. Supp. 730, 736 (D. Haw. 1993). [HN22] “[C]ontracts [of adhesion] are ‘unenforceable if two conditions are present: (1) the contract is the result of coercive bargaining between parties of unequal bargaining strength; and (2) the contract unfairly limits the obligations and liabilities of, or otherwise unfairly advantages, the stronger party.'” Fujimoto, 95 Hawai’i at 156, 19 P.3d at 739 (quoting Brown v. KFC Nat’l Mgmt. Co., 82 Hawai’i 226, 247, 921 P.2d 146, 167 (1996)); [***34] see also Wheelock, 839 F. Supp. at 735 (“[A]dhesion contracts are fully enforceable provided that they are not unconscionable and do not fall outside the reasonable expectations of the weaker or adhering party.”). Unequal bargaining strength “involves the absence of alternatives; specifically whether the plaintiffs were ‘free to use or not to use’ [the] defendant’s . . . services.” Krohnert, 4 Haw. App at 199, 664 P.2d at 744 (quoting Lynch, 627 P.2d at 1250). These conditions are generally not germane in the recreational waiver context. In the context of a recreational sport or adventure activity, freely undertaken for pleasure, “coercive bargaining” and “an absence of alternatives” are terms that hold little meaning.
In the present matter, Lisa read through and responded to queries contained in the waiver form and had no further questions or concerns regarding the contents before she signed it. Steven conceded that he routinely relied on his wife to review documents before signing them and that he knew he was waiving rights when he signed the form. The record demonstrates that the Courbats were given adequate time and opportunity [***35] to fully review the waiver presented to them before they signed it and that both knew that by signing it they were waiving legal rights in return for being allowed to participate in the ride. In short, there is no evidence of coercion. By signing the waiver form, they demonstrated that they agreed to its terms, and by reading it, or, in Steven’s case, in relying on the advice of his wife, demonstrated knowledge of its contents. Moreover, they had signed similar waivers that week for another activity and were familiar with what they represented. Accordingly, we hold that, if the trier of fact determines that the nondisclosure of the waiver was not a deceptive trade practice, the Courbats’ waiver was valid.
b. The scope of the Courbats’ waiver does not extend beyond negligence claims.
The language of the waiver, see supra note 3, releases the Ranch and its agents and holds it harmless “from loss or damage to property or injury to [the undersigned] . . . resulting from [the undersigned] . . . being a spectator or participant or while engaged in any such activity in the event[-]related facilities.” However, because [HN23] “‘[e]xculpatory provisions are not [***36] favored by the law and are strictly construed against parties relying on them,'” the effect of the broad exculpatory language contained in the Ranch’s waiver should be construed to limit the waiver’s scope to simple negligence claims; it does not protect the Ranch against its own gross negligence or willful misconduct. Fujimoto, 95 Hawai’i at 156, 19 P.3d at 739 (quoting Andrews, 823 F. Supp. at 378); see also Wheelock, 839 F. Supp. at 736 (interpreting the reasoning in Krohnert to conclude that to allow an exculpatory clause to extend to gross negligence would violate [*267] [**440] the public interest, rendering the clause void).
IV. CONCLUSION
In light of the foregoing analysis, we vacate the circuit court’s May 13, 2002 judgment in favor of the Ranch and against the Courbats and remand for further proceedings consistent with this opinion.
DISSENT BY: DUFFY
DISSENT
DISSENTING OPINION BY DUFFY, J., IN WHICH ACOBA, J., JOINS
I respectfully dissent. In my view, no reasonable person would find that the recreational tour operator’s failure to disclose the waiver requirement of Dahana Ranch, Inc. during negotiation of the horseback riding [***37] activity was a deceptive trade practice under HRS § 480-2. The Courbats concede that waivers are an acceptable method by which recreational tour operators and sponsors may seek to limit their liability in response to rising insurance and litigation costs, and admit that they were required to sign such a waiver before participating in a snorkeling activity earlier during the same Hawai’i vacation. Applying the Cliffdale Assoc. test to the undisputed facts in this case involving the inherently dangerous activity of horseback riding, I respectfully submit that the tour operator’s failure to disclose the waiver requirement of Dahana Ranch, Inc. during negotiation of the horseback riding activity with the Courbats was not a material omission implicating a deceptive trade practice under HRS § 480-2. I would thus affirm the circuit court’s grant of summary judgment in favor of Dahana Ranch, Inc.
G-YQ06K3L262
http://www.recreation-law.com
Colleges, Officials, and a Ski Area are all defendants in this case.
Posted: March 25, 2013 Filed under: Massachusetts, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: Colorado, Duty of care, Edward Grees, Federation Internationale de Ski, FIS, Giant Slalom, Inc., Jeffrey Pier, Jiminy Peak, Jimmy Peak, Jimmy Peak Mountain Resort, Kelly Brush, Massachusetts, Massachusetts Ski Safety Act, Middlebury College, MSSA, NCAA, Negligence, Oyestein Bakken, Ski, Ski Resort, St. Lawrence University, United States Ski and Snowboard Association, USSA, Williams College, Williams College Outing Club, Williams Winter Carnival Leave a commentBrush, v. Jiminy Peak Mountain Resort, Inc., Et Al, 626 F. Supp. 2d 139; 2009 U.S. Dist. LEXIS 52204
MA Ski Safety Act and a release prevent the plaintiff’s suit.
As the court said, this is a sad case; the plaintiff was a student ski racer. She hit a lift tower during a race and became a paraplegic. She sued the ski area, Jimmy Peak Mountain Resort, Williams College, its coaches and several other officials of the race.
The race was part of a weekend Williams Winter Carnival. The carnival was at Jimmy Peak and included ski races. The plaintiff examined the Giant Slalom course. She exited the course during a run and struck an unprotected lift tower. The factual issues resolved around whether the tower was supposed to be protected by B-Netting (the red netting you see on the sides of ski races) or padding.
The race was on a homologated hill (a slope that met FIS regulations). The race organizers prepared a plan for the netting on the course which showed the netting in the area where the plaintiff left the course. When the plaintiff left the course, there was no netting to slow her down or stop her.
The plaintiff argued the “plan” was a requirement to run the race as required by FIS. The defendants argued the plan was where safety equipment might need to be necessary. The B-netting was not set up according to the plan.
Summary of the case
The plaintiff claimed the defendant ski area was liable for “…negligent operation of a ski area in violation of the MSSA (Count I); negligent failure to undertake duties assumed under a contract with Williams (Count II); and negligent inspection (Count III).”
The court fist looked at the definition of Negligence and what the plaintiff must prove under Massachusetts law:
To prevail in a negligence action under Massachusetts law, a plaintiff must prove that (1) the defendant owed the plaintiff a duty of reasonable care; (2) the defendant breached this duty; (3) damage to the plaintiff resulted; and (4) the breach of the duty caused this damage.
The court reading the MSSA found the act served two “somewhat contradictory purposes “(1), to limit the liability of ski operators in order to ensure their economic survival and (2) to ensure skier safety.”
Reading the act the court found the duty that caused the plaintiff’s injuries was on the plaintiff, not the ski area. The lift tower was off the ski trail and therefore, under the MSSA the ski area had no duty to set up netting or pad it. If the netting had been set up voluntarily, then the court found there would still be no liability because negligence in a voluntary act does not create liability under the MSSA.
Indeed, this court has previously noted that “imposing liability on ski area operators for duties voluntarily assumed but negligently performed would undercut a key goal of the MSSA,” because it would discourage ski area operators from adding safety features.
The court then looked at the plaintiff’s claims that the agreements of the college to use the ski area which was enveloped in two contracts created contractual duties that the defendant ski area breached. Under Massachusetts law, a tort can be created from a contractual relationship. (This is a minority view in most states.) However, the court could not find language in the contracts that created a duty to undertake steps to keep the competition safe as possible.
The court found that the defendant ski area had not been negligent and had not violated a duty to the plaintiff and dismissed the defendant Jimmy Peak Ski Area.
The court then looked at the remaining defendants, the colleges and the race officials, most of whom were employees of the colleges. These defendants relied upon the release as their defense. The release was required by the USSA (United States Ski and Snowboard Association) to race in USSA events, which this race was. The release had a venue clause that required Colorado law be applied to interpret the release. Choice of law provisions (jurisdiction and venue clauses) absent substantial Massachusetts public policy reasons are upheld in Massachusetts.
The court then examined the release under Colorado law and found the release to be enforceable. The plaintiff argued the release was ambiguous. The waiver was clear to the signor that signing the release waived all claims against the USSA. The USSA waiver listed every possible person to be protected by the release.
United States Ski and Snowboard Association and “its subsidiaries, affiliates, officers, directors, volunteers, employees, coaches, contractors and representatives, local ski clubs, competition organizers and sponsors, and ski and snowboard facility operators.”
Consequently, the waiver protected the remaining defendants. The third party defendants were also released by the waiver because their liability was contingent on the liability of the first party defendants. If the first party defendants were not liable, the third party defendants could not be liable.
The final argument the court reviewed was the claim the actions of the defendants amounted to gross negligence. Under Colorado law a waiver does not protect against gross negligence.
…under Colorado law an exculpatory agreement cannot “provide a shield against a claim for willful and wanton negligence.” In Colorado an individual who “purposefully committed an affirmative act which he knew was dangerous to another’s person and which he performed heedlessly, without regard to the consequences or rights and safety of another’s person” can be found to have acted with willful and wanton negligence.
The court defined gross negligence as “Gross negligence involves “materially more want of care than constitutes simple inadvertence,” though “it is something less than willful, wanton and reckless conduct.”
The court found the defendants had not acted in a way that was gross negligence, and no jury could find gross negligence on the part of any defendants.
There is no evidence in the record, and indeed, no allegation, that any of the Defendants, or anyone at the competition, became aware that there was an area of the trail without netting where netting was normally placed and declined to remedy the situation. At most, there was a collective failure to take a step that might have lessened the injuries suffered by Plaintiff. No reasonable jury could find that this simple inadvertence, no matter how tragic its consequences, constituted gross negligence.
So Now What?
The first issue was what was the plan? Actually, a point that was not addressed in the decision which should be addressed here was why was there a plan?
How can you create a plan, call it a safety plan and not execute it 100%? If it just a draft, or if it is just ideas, you better label it that way. You cannot create documents like that, that are not going to come back and fry you.
Paperwork is the easiest way for a plaintiff to find something to prove you did something wrong. If your paperwork says you will do something that you did not do, or not do something that you did, the plaintiff will work hard to connect it to the injury. You set your own standards, defined your duty to the customers and/or guests (future plaintiffs) and then violated, breached those duties you created.
The choice of laws clause, jurisdiction and venue clause, did not work as it normally would have in this case. The case was brought in federal court because there were parties to the suit from two different states (called diversity jurisdiction cases). No one seemed to want to argue the jurisdiction and venue clause in the release should be enforced. That is difficult to do in some diversity jurisdiction cases in federal court; however, it is not impossible. The case would have had the same outcome under Colorado law, whether or not it would have been filed at all in Colorado after being dismissed in Massachusetts is the question.
Another flaw in how the defendants could have provided more protection is there was not a separate release for the event or the race. Between the Williams College Outing Club, the ski area and the college, someone should have required the participants to sign a release for the event. It could have been based on the course, not all possible courses in the US. It could have named the colleges and their employees to provide better protection. It could have been based on the facts and law of Massachusetts.
It is sad when a young woman has her life upended and changed. However, the law is the law. As the court stated:
It would, however, be false compassion now to ignore the undisputed facts and the unavoidable law. The Massachusetts Ski Safety Act, in the case of Jiminy Peak, and the USSA waiver, in the case of the other Defendants, forecloses any possibility of liability for payment of damages to Plaintiff in these circumstances. To encourage pursuit of a lawsuit lacking a legal basis would only serve to compound the tragedy.
Plaintiff: Kelly Brush
Defendant: Jiminy Peak, Inc., the operator of the ski area where the accident occurred; Williams College and two of its ski coaches, Edward Grees and Oyestein Bakken, who organized the competition; St. Lawrence University and its ski coach, Jeffrey Pier, who was the referee of the race during which Brush was injured; and Barry Bryant, who served as the competition’s Technical Delegate from the Federation Internationale de Ski (“FIS”). Pier and St. Lawrence University have also filed a third-party complaint seeking contribution from Brush’s school, Middlebury College, and its ski coach Forest Carey, who was a race referee for a race
Plaintiff Claims: negligence or gross negligence, negligent operation of a ski area in violation of the MSSA (Count I); negligent failure to undertake duties assumed under a contract with Williams (Count II); and negligent inspection (Count III).
Defendant Defenses: Massachusetts Ski Safety Act and Release
Holding: For all Defendants
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Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management
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Brush, v. Jiminy Peak Mountain Resort, Inc., Et Al, 626 F. Supp. 2d 139; 2009 U.S. Dist. LEXIS 52204
Posted: March 25, 2013 Filed under: Legal Case, Massachusetts, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: Eastern Intercollegiate Ski Association, Edward Grees, Federation Internationale de Ski, FIS, Giant Slalom, Inc., Jeffrey Pier, Jiminy Peak, Jimmy Peak, Jimmy Peak Mountain Resort, Kelly Brush, Massachusetts Ski Safety Act, Middlebury College, MSSA, National Collegiate Athletic Association, NCAA, Oyestein Bakken, St. Lawrence University, United States Ski and Snowboard Association, USSA, Williams College, Williams College Outing Club, Williams Winter Carnival Leave a commentTo Read an Analysis of this decision see Colleges, Officials, and a Ski Area are all defendants in this case.
Brush, v. Jiminy Peak Mountain Resort, Inc., Et Al, 626 F. Supp. 2d 139; 2009 U.S. Dist. LEXIS 52204
Kelly Brush, Plaintiff v. Jiminy Peak Mountain Resort, Inc., Et Al, Defendants and St. Lawrence University, Defendant/Third-Party Plaintiff v. Middlebury College, Et Al, Third-Party Defendants
C.A. No. 07-10244-MAP
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
626 F. Supp. 2d 139; 2009 U.S. Dist. LEXIS 52204
June 11, 2009, Decided
COUNSEL: [**1] For Jeffrey Pier, ThirdParty Plaintiff: Michael H. Burke, LEAD ATTORNEY, George W. Marion, Bulkley, Richardson & Gelinas, Springfield, MA.
For Barry Bryant, Defendant: John B. Connarton, Jr., LEAD ATTORNEY, Luke R. Conrad, Donovan Hatem, LLP, Boston, MA.
For Williams College, Defendant: William J. Dailey, Jr., Brian H. Sullivan, LEAD ATTORNEYS, Sloane & Walsh, LLP, Boston, MA.
For St. Lawrence University, ThirdParty Plaintiff: Thomas E. Day, Edward J. McDonough, Jr., LEAD ATTORNEY, Flanagan & Cohen, PC, Springfield, MA.
For Kelly Brush, Plaintiff: Walter E. Judge, Jr., LEAD ATTORNEY, Downs, Rachlin & Martin, Burlington, VT; Robert B. Luce, LEAD ATTORNEY, Downs, Rachlin & Martin PLLC, Burlington, VT.
For Williams College, Defendant: Lawrence J. Kenney, Jr., Sloane & Walsh, Boston, MA.
For Forest Carey, ThirdParty Defendant: Gerald F. Lucey, Nelson, Kinder, Mosseau & Saturley, P.C., Boston, MA.
For Jiminy Peak Mountain Resort, Inc., Defendant: David B. Mongue, LEAD ATTORNEY, Donovan & O’Connor, LLP, North Adams, MA.
For Middlebury College Middlebury, VT 05753, ThirdParty Defendant: Robert B. Smith, Nelson, Kinder, Mosseau & Saturley, P.C., Boston, MA.
JUDGES: MICHAEL A. PONSOR, United States District [**2] Judge.
OPINION BY: MICHAEL A. PONSOR
OPINION
[*143] MEMORANDUM AND ORDER REGARDING CROSS MOTIONS FOR SUMMARY JUDGMENT
(Dkt. Nos. 135, 137, 138, 139, 140, 143, 157)
PONSOR, D.J.
I. INTRODUCTION
This case stems from a tragic skiing accident that left the plaintiff, Kelly Brush, permanently disabled. The accident occurred during a collegiate ski race on February 18, 2006 when Brush lost control and crashed into a ski lift stanchion just off the trail. In her six-count amended complaint Brush alleges that the severity of her injuries was the result of negligence or gross negligence on the part of the following defendants: Jiminy Peak, Inc., the operator of the ski area where the accident occurred; Williams College and two of its ski coaches, Edward Grees and Oyestein Bakken, who organized the competition; St. Lawrence University and its ski coach, Jeffrey Pier, who was the referee of the race during which Brush was injured; and Barry Bryant, who served as the competition’s Technical Delegate from the Federation Internationale de Ski (“FIS”). Pier and St. Lawrence University have also filed a third-party complaint seeking contribution from Brush’s school, Middlebury College, and its ski coach Forest Carey, who was a race [**3] referee for a race on the same trail the day before Brush’s accident. Before the court are motions for summary judgment from all of the parties.
Jiminy Peak argues that pursuant to the Massachusetts Ski Safety Act (“MSSA”) it, as the ski area operator, has no liability because Plaintiff’s injuries were caused by her collision with an object off the trail. The other Defendants assert that Plaintiff cannot recover from them because she executed a liability waiver that covered Defendants and their alleged negligence when she registered with the United States Ski and Snowboard Association (“USSA”). The Third-Party Defendants argue that as a matter of law they have no obligation to contribute even if Third-Party Plaintiffs Pier and St. Lawrence are liable to Plaintiff. Plaintiff asks the court to rule that the MSSA does not bar her claims against Jiminy Peak and the USSA liability waiver is not applicable to bar the claims of the other Defendants. Finally she asserts that the facts are sufficient to permit this case to go to trial on a theory of gross negligence, even if the USSA waiver is valid.
For the reasons set forth below, the court will allow all Defendants’ motions for [*144] summary judgment, [**4] deny Plaintiff’s motion, and order entry of judgment for Defendants.
II. BACKGROUND
The facts are largely undisputed. Where disputes exist, the court has viewed the facts in the light most favorable to Plaintiff.
A. The Accident.
Brush was injured while competing in the Williams Winter Carnival, a two-day event at the Jiminy Peak ski area in Hancock, Massachusetts hosted by the Williams College Outing Club in association with the Williams College ski team. The Winter Carnival is part of the regular season of the Eastern Intercollegiate Ski Association (EISA), one conference within the ski program of the National Collegiate Athletic Association (NCAA). The competition was also held under the auspices of the USSA and the FIS, which in the United States operates through the USSA. As a result of the USSA/FIS affiliation, all competitors in the Winter Carnival had to be USSA members, though not all had to be NCAA athletes. The USSA/FIS designation meant that skiers could earn “points” to improve their international, individual standing by competing in the Winter Carnival events.
The particular event during which Plaintiff was injured was the Giant Slalom, which took place on the second day of [**5] the Winter Carnival. This event requires skiers to pass through “gates” set along the trail as they descend the slope as quickly as possible. Skiers are ranked based on their best time through the course and are not penalized for any runs they fail to finish, due for example to a fall. Technological changes in the past decade have increased the sport’s risks. New ski designs allow skiers to reach speeds of forty miles per hour. At the same time it has become harder to predict how skiers will fall if they lose control. Some courses now are set with gates at the edges of the trail to maximize the distance skiers must travel from one side of the trail to another in order to slow skiers down. Persons involved with competitive skiing are aware that technical changes have increased the importance of proper placement of safety equipment during competitions.
Under NCAA and USSA rules, members of the “competition jury” have a responsibility to inspect the layout of a trail prior to its use during a competition. The competition jury for the race during which Brush was injured included the “Chief of the Race,” Defendant Edward Grees, the head ski coach at Williams; the “Chief of the Course,” Defendant [**6] Oyestein Bakken, an assistant ski coach at Williams; the “Race Referee,” Jeffrey Pier, a ski coach at St. Lawrence University; and the “Technical Delegate,” Defendant Barry Bryant. Third-party Defendant Forest Carey, the Middlebury coach, was the “Race Referee” for a race that used the same trail the previous day.
The USSA requires that trails used in competitions be “homologated,” which means that the trail has been confirmed to meet the relevant FIS regulations. The USSA also mandates that trails be prepared in keeping with homologation requirements. The parties disagree about whether all members of the jury were responsible for confirming that the trail was set consistent with the homologation report, but for purposes of this memorandum the court will assume they were. Additionally, there is a dispute as to whether the trail was, in fact, prepared as set out in a homologation report drafted in keeping with FIS requirements. Again, for purposes of its rulings here, the court will [*145] assume that the trail was not prepared as the homologation report contemplated.
Plaintiff asserts that the relevant homologation report required that “B-netting,” a type of netting used to slow errant skiers [**7] before they collide with objects, be placed along the edge of the trail starting uphill from any lift tower and continuing downhill some distance past the lift tower. The homologation report, completed in 2002 by Defendant Grees and an FIS representative for the area where Plaintiff was hurt, included a diagram showing such B-netting. While at least some of the defendants assert the report merely displays safety equipment that might be necessary, rather than the minimal required safety equipment, the court will, again, assume for the current purposes that the report indicated that B-netting should have been installed above and below lift towers. The parties do agree that B-netting was not set up according to the diagram on the day Plaintiff was hurt.
At the time of Plaintiff’s accident there was B-netting along the left edge of the trail, stopping at a point approximately even with the gate where Brush lost control and somewhat uphill from a lift tower. No other netting was placed between the trail and the tower, so that the area directly in front of the tower lacked any protection. In prior years B-netting was placed in accordance with a diagram in the homologation report, extending [**8] past the lift tower above and below.
Not only was there less B-netting on February 18, 2006 than there was in the past, there were no triangular nets set around the lift tower itself. Triangular nets are another available type of safety netting used to deflect a skier from a particular hazard. Additionally, neither the tower nor its support stanchion was equipped with a type of padding known as Willy Bags, though such padding is regularly used in speed events.
After the Giant Slalom course was set, Plaintiff had an opportunity to ski down the slope to assess the course, and she did so. Later, during one of her timed runs, Plaintiff caught an edge of one of her skis and lost control. As a result she left the trail and struck the unprotected lift tower support stanchion. The collision caused life-altering injuries to Plaintiff, including paraplegia.
B. Relevant Agreements.
1. USSA Waiver.
At the time of her accident Plaintiff was a member of the USSA and the FIS. During the summer of 2005 registration forms for both organizations were completed on her behalf. 1 The FIS waiver included language acknowledging the risks of skiing competitively. Additionally, it stated that national or club organizations [**9] in the United States may require a skier to waive any liability claims in order to participate in their activities.
1 The parties agree that Plaintiff’s mother signed the relevant USSA Release and FIS Registration with Plaintiff’s full consent and authorization. They further agree that the weight given to those documents should be the same as it would be if Plaintiff had signed them herself. (Dkt. No. 162, Pl.’s Resp. to Defs.’ Joint Statement of Undisputed Material Facts at 18.)
Those completing the USSA registration form had to sign a clearly-labeled liability release. (Dkt. No. 142, Ex. 9.) Pursuant to that release a USSA member
unconditionally WAIVES AND RELEASES ANY AND ALL CLAIMS, AND AGREES TO HOLD HARMLESS, DEFEND AND INDEMNIFY USSA FROM ANY CLAIMS, present or future, to Member or his/her property, [*146] or to any other person or property, for any loss, damage, expense, or injury (including DEATH), suffered by any person from or in connection with Member’s participation in any Activities in which USSA is involved in any way, due to any cause whatsoever INCLUDING NEGLIGENCE and/or breach of express or implied warranty on the part of USSA.
Id.
As used in the release “USSA” referred to the [**10] United States Ski and Snowboard Association and “its subsidiaries, affiliates, officers, directors, volunteers, employees, coaches, contractors and representatives, local ski clubs, competition organizers and sponsors, and ski and snowboard facility operators.” Id. The term “Activities” included “skiing and snowboarding in their various forms, as well as preparation for participation in, coaching, volunteering, officiating and related activities in alpine, nordic, freestyle, disabled, and snowboarding competitions and clinics.” Id.
2. Agreements Between Defendants.
The Williams College ski team utilized the Jiminy Peak ski area for its Winter Carnival and for practice sessions pursuant to a written agreement between the parties. (Dkt. No. 158, Tab 18, Jiminy Peak/Williams College Contract.) That five-paragraph agreement gave Williams and members of its community various types of access to the ski area in exchange for a single annual payment. Jiminy Peak agreed to have its mountain manager work with the Williams alpine coach to determine safe conditions for ski team training and to make and groom snow for the trails that were used during the annual winter carnival.
Jiminy Peak and Williams [**11] College were also parties to an Alpine Schedule Agreement with the USSA. Pursuant to that agreement the competition was listed on the USSA’s official schedule; all competitors had to be members of the USSA; competitors, as noted, were able to earn “points;” competition organizers had to agree to allow some non-collegiate USSA members to compete; and members of the competition jury had to be members of USSA. Additionally, the agreement required that facilities “to be used in the actual competition events . . . conform with applicable rules and with requirements of the [Technical Delegate] and competition jury.” (Dkt. No. 158, Tab 8, Alpine Schedule Agreement 2, P 8.) The competition organizer, the Williams College Outing Club, was responsible for “working with” Jiminy Peak, the USSA, and the competition jury to select facilities and ensure that they were prepared in accordance with “such rules or requirements, and homologation or facility approval requirements according to discipline and type of competition.” Id.
III. DISCUSSION
“Summary judgment is appropriate where ‘there is no genuine issue as to any material fact and [] the moving party is entitled to judgment as a matter of law.'” [**12] Coffin v. Bowater, Inc., 501 F.3d 80, 85 (1st Cir. 2007) (citing Fed. R. Civ. P. 56(c)). “[C]ourts are required to view the facts and draw reasonable inferences ‘in the light most favorable to the party opposing the [summary judgment] motion.'” Scott v. Harris, 550 U.S. 372, 378, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962)). “Cross-motions for summary judgment do not alter the basic Rule 56 standard, but rather simply require us to determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed.” Adria Int’l Group, Inc. [*147] v. Ferre Dev., Inc., 241 F.3d 103, 107 (1st Cir. 2001).
A. Claims Against Jiminy Peak.
Plaintiff asserts three claims against Jiminy Peak: negligent operation of a ski area in violation of the MSSA (Count I); negligent failure to undertake duties assumed under a contract with Williams (Count II); and negligent inspection (Count III). [HN1] “To prevail in a negligence action under Massachusetts law, a plaintiff must prove that (1) the defendant owed the plaintiff a duty of reasonable care; (2) the defendant breached this duty; (3) damage to the plaintiff resulted; and (4) the breach of the duty caused this [**13] damage.” Brown v. United States, 557 F.3fd 1, 3 (1st Cir. 2009) (quoting Jupin v. Kask, 447 Mass. 141, 849 N.E.2d 829, 835 (Mass. 2006)). Jiminy Peak asserts that under the MSSA it did not owe Plaintiff any duty to use reasonable care to prevent her collision with an object off the ski trail. Plaintiff argues that Jiminy Peak had a duty to her pursuant to the MSSA and its agreements with Williams College and the USSA.
1. Statutory Duty.
[HN2] The MSSA serves two somewhat contradictory purposes, (1) to limit the liability of ski operators in order to ensure their economic survival and (2) to ensure skier safety. McHerron v. Jiminy Peak, Inc., 422 Mass. 678, 665 N.E.2d 26, 27 (Mass. 1996). Pursuant to the MSSA a ski area operator has a general duty to operate the “ski areas under its control in a reasonably safe manner.” Mass. Gen. Laws ch. 143, § 71N(6) (2008).
However, this duty is sharply limited by other provisions of the act. Of particular relevance in this case is that the MSSA places “the duty to avoid any collision with any . . . object on the hill below” solely on the skier, so long as the object was not improperly marked. Id. at § 71O. The MSSA does shift the duty to avoid collisions back to the ski area operator [**14] when the ski operator has not marked the obstruction “pursuant to the regulations promulgated by the [recreational tramway] board” or “as otherwise provided” in the statute. Id.; see also Eipp v. Jiminy Peak, Inc., 154 F. Supp. 2d 110, 116 (D. Mass. 2001) (declining to enter summary judgment for the ski area operator where skier was injured after striking “a snowgun in the middle of a ski trail”). At the time of Plaintiff’s accident the only active regulations, at 526 C.M.R. § 10, did not address signage requirements.
The other requirements established by the MSSA require ski area operators to (1) mark maintenance and snow-making equipment that is in use (Id. at § 71N(1)), (2) mark with flashing lights trail maintenance and emergency vehicles in use in a ski area (Id. at § 71N(2)), and (3) mark the location of snow-making hydrants “within or upon a slope or trail” § 71N(4)).
[HN3] Under the MSSA, skiers are also solely responsible for any injuries resulting from skiing anywhere other than on an open slope or trail. 2 Id. at § 71O; Spinale v. Pam F., Inc., 1995 Mass. App. Div. 140, 142 (Mass. App. Div. 1995) (“[Section] 71O expressly imposes responsibility for injuries sustained while ‘skiing [**15] on other than an open slope or trail within the ski area’ on the skier, and thereby exempts the ski area operator from liability for the [*148] same.”). The ski area operator has no duty to provide netting or padding around obstacles off the trail. Walsh v. Jiminy Peak, Inc., No. 02-11890-MAP, 2005 U.S. Dist. LEXIS 18463 at *12-13 (D. Mass. Aug. 29, 2005). Nor does it assume such a duty by padding some obstacles. Id. Indeed, this court has previously noted that “imposing liability on ski area operators for duties voluntarily assumed but negligently performed would undercut a key goal of the MSSA,” because it would discourage ski area operators from adding safety features. 2005 U.S. Dist. LEXIS 18463 at *16.
2 [HN4] A “[s]ki slope or trail” is limited to the “area designed by the person or organization having operational responsibility for the ski area as herein defined, including a cross-country ski area, for use by the public in furtherance of the sport of skiing . . . .” Mass. Gen. Laws ch. 143, § 71I.
The parties agree that the lift tower stanchion 3 Plaintiff struck was “off the course and off the trail.” (Dkt. No. 162 at 23.) Given these facts, the MSSA placed the duty to avoid collisions on Plaintiff alone. 4
3 Plaintiff [**16] separately argues that Jiminy Peak had a specific duty to protect skiers from collisions with ski lift stanchions pursuant to 526 C.M.R. 10.09(4)(b). That regulation specifies that ski area operators are to fence or barricade any area of the tramway that could cause injury to a person. However, that requirement appears within a section entitled “Protection Against moving parts or Other Hazards and Clearance Envelopes.” Id. at 10.09(4). Given that context, it is clear that this fencing requirement is only intended to keep members of the public from getting too close to moving parts of a tramway system which might cause injury and does not apply to nonmoving elements like stanchions and support towers.
4 Ski area operators’ liability is also limited such that they “shall not be liable for damages to persons or property, while skiing, which arise out of the risks inherent in the sport of skiing.” Mass. Gen. Laws ch. 143, § 71N(6). The parties disagree about the applicability of this limitation to this case. Jiminy Peak argues that collisions with off-trail objects, regardless of their cause, are a risk inherent in the sport of skiing. Plaintiff notes that the “inherent risks” enumerated [**17] in the statute are natural conditions that can cause a skier to lose control, not dangers that result from such a loss of control. Id. at § 71O (enumerating the “risks inherent in the sport of skiing” as including “variations in terrain, surface or subsurface snow, ice conditions or bare spots”). Plaintiff appears to have the stronger argument that off-trail collisions, though not unexpected, are in a different category than the inherent risks identified in § 71O. As neither party suggests that Plaintiff’s crash resulted from an encounter with a natural condition like those listed in the statute, the limitation on ski area operator liability related to inherent risks of skiing is irrelevant. The determinative fact in this case, undisputed on the record, is that Plaintiff lost control and struck a stationary object, the stanchion, off the trail. The MSSA shields Jiminy Peak from liability in this situation. There is no need for an “inherent risk” analysis.
Plaintiff argues that Jiminy Peak’s duty to her was not fully circumscribed by the MSSA because her injury occurred during the course of a race. Ski racing is certainly dangerous, perhaps more dangerous than ordinary recreational skiing [**18] because speed is pursued sometimes to the limit of a skier’s competence, and beyond. Jiminy Peak undoubtedly was aware of the dangers associated with ski racing and took some steps, together with the race organizers, to try to reduce those dangers. However, no authority suggests that Jiminy Peak or any other ski operator in Massachusetts owes a greater duty to racing skiers than to other, perhaps less experienced, recreational skiers.
Plaintiff asserts that Jiminy Peak assumed a greater duty to racing skiers, similar to the heightened duty one Massachusetts trial court determined ski area operators owed to a minor child enrolled in an instructional program. Sanchez-Souquet v. Jiminy Peak, Inc., 1997 MBAR-094, 1997 Mass. Super. LEXIS 198 (Mass. Super. Ct. 1997). In Sanchez-Souquet, the state court concluded that it was unfair to require “a ski student to ‘assume the risk’ for his injury” [*149] because ski area operators knew that such skiers lacked experience and judgment and were relying on their instructors to keep them safe. 1997 Mass. Super. LEXIS 198 at *9. Plaintiff urges this court to conclude that racing skiers also should be held to a lower standard than regular recreational skiers because, like students [**19] learning to ski, competitive skiers ski at the edge of their ability. Even if the court was persuaded that the court reached the correct outcome in Sanchez-Souquet (a decision the court need not, and does not, reach) it would not be inclined to carve out a further exception for competitive skiers. While it may be unreasonable to presume that a child learning to ski “know[s] the range of his own ability to ski on any slope, trail or area,” a similar presumption cannot be applied to collegiate competitive skiers. Mass. Gen Laws ch. 143, § 71O.
More importantly, [HN5] the MSSA applies to all skiers, a group which includes “any person utilizing the ski area under control of a ski area operator for the purpose of skiing . . . .” Id. at § 71I; Fetzner v. Jiminy Peak, The Mountain Resort, 1995 Mass. App. Div. 55, 56 (Mass. App. Div. 1995) (“The definition of skier in G.L.c. 143 includes any person utilizing the ski area.”). Competitive skiers thus have the same responsibility to avoid collisions with objects off the trail as other skiers. Ski area operators simply have no duty under the statute to prevent the injuries suffered by a skier who collides with an off-course obstacle. Without such a duty, [**20] Jiminy Peak’s alleged negligence cannot give rise to liability. McHerron v. Jiminy Peak, Inc., 422 Mass. 678, 665 N.E.2d 26, 28 (Mass. 1996) (“As the defendant had no duty to remedy a statutorily defined unavoidable risk inherent in the sport of skiing, the defendant’s alleged negligence in failing to eliminate the [risk] does not create liability.”).
2. Contractual Duty.
Plaintiff asserts that even if Jiminy Peak did not have a duty to her pursuant to the MSSA or through its voluntary safety efforts, it did have a contractual duty to undertake specific steps to ensure the competition would be as safe as possible. Failing to take those steps, Plaintiff asserts, constituted a breach of a separate, non-statutory duty. Massachusetts recognizes that “a claim in tort may arise from a contractual relationship . . . and may be available to persons who are not parties to the contract.” Parent v. Stone & Webster Engineering Corp., 408 Mass. 108, 556 N.E.2d 1009, 1012 (Mass. 1990). However, Jiminy Peak did not obligate itself to provide particular safety measures, such as netting or padding, in either of the two contracts relied on by Plaintiff. Pursuant to its agreement with Williams College, Jiminy Peak agreed to consult [**21] about safe training conditions for Williams skiers and to permit use of several trails for the Winter Carnival competition. Under the Alpine Schedule Agreement, the competition organizers are responsible for “working with” the ski area operator to ensure that ski facilities were prepared in accordance with all USSA rules, regulations, and applicable homologation requirements. The ski area operator, Jiminy Peak, did not itself undertake that responsibility and therefore any failure to ensure that applicable safety requirements were met did not give rise to tort liability.
B. Claims Against Competition Organizers and Officials.
1. The USSA Waiver.
Defendants collectively argue that Plaintiff’s various negligence claims are precluded by the liability waiver executed when her USSA membership was renewed the summer before her accident. Plaintiff [*150] asserts that the waiver does not bar her claims because its language was ambiguous as to the persons and entities it covered. In resolving this question the court applies Colorado law, as urged by Plaintiff and agreed to by Defendants. The waiver includes a choice of law provision selecting Colorado law and [HN6] in the absence of a “substantial Massachusetts [**22] public policy reason,” Massachusetts law honors choice of law provisions in contracts. Jacobson v. Mailboxes Etc. U.S.A., 419 Mass. 572, 646 N.E.2d 741, 744 (Mass. 1995).
[HN7] Under Colorado law “[e]xculpatory agreements are disfavored and, therefore, they are strictly construed against the party seeking to limit its liability.” Del Bosco v. United States Ski Ass’n, 839 F. Supp. 1470, 1473 (D. Colo. 1993). Under Colorado law the applicability of a liability waiver is a legal question to be resolved by the court after consideration of four factors: “(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 is expressed in clear and unambiguous language.” Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981) (citations omitted). Plaintiffs urge the court to rule that the waiver invoked by Defendants is inapplicable under the third and fourth factors.
As to the third factor, Plaintiff argues that the USSA waiver was a contract of adhesion because the USSA’s dominance over amateur ski racing in this country prevented her from being able to negotiate less onerous contract terms with the USSA. [HN8] “Colorado [**23] defines an adhesion contract as ‘generally not bargained for, but imposed on the public for a necessary service on a take it or leave it basis.'” Bauer v. Aspen Highlands Skiing Corp., 788 F. Supp. 472, 474 (D. Colo. 1992) (citing Jones v. Dressel, 623 P.2d 370, 374 (Colo. 1981)).
On the undisputed facts of this case, Plaintiff’s “adhesion” argument must fail, because under Colorado law recreational activities and services are not essential. Rowan v. Vail Holdings, Inc., 31 F. Supp. 2d 889, 898 (D. Colo. 1998) (holding that waiver was not fairly entered because skier was skiing “as a part of work, not as a part of recreation”); Bauer, 788 F. Supp. at 475 (enforcing waiver executed as part of ski rental, even though all ski rental outlets used similar waivers, because such services were recreational, not essential). Plaintiff completed the USSA waiver in order to engage in a recreational activity. The nature of the activity is not changed by its competitive nature, its subjective importance in Plaintiff’s life, or the fact that a single entity controlled virtually all opportunities to engage in the recreational activity. But see O’Connor v. United States Fencing Ass’n, 260 F. Supp. 2d 545, 552 (E.D.N.Y. 2003) [**24] (concluding that a liability waiver was not binding under Colorado law because the waiver’s author so controlled the sport of fencing that an athlete wishing to compete had no choice but to agree to the terms in the waiver).
Finally, Plaintiff argues that the waiver did not express the parties’ intentions in clear and unambiguous language. Having reviewed the waiver, the court concludes that the language of the waiver was clear and unambiguous. Clear language indicates that the signer is waiving all claims against the USSA including those based on negligence, as indicated in bold, italic, capital letters. See Jones, 623 P.2d at 378. The waiver defined USSA quite expansively to encompass a host of individuals and groups including all affiliates, volunteers, competition organizers, sponsors, coaches, and representatives. It is clear that the list was meant to encompass any [*151] one involved in running a competition sanctioned by the USSA. Finally, it is undisputed that skiers, including Plaintiff, participating in the Williams Winter Carnival knew the event was sanctioned by the FIS through the USSA because they knew they were competing, in part, for FIS points.
2. Gross Negligence.
Plaintiff [**25] asserts that even if the USSA waiver is valid, she should be able to proceed against these Defendants on a theory of gross negligence. The argument is colorable but ultimately unpersuasive.
It is true that [HN9] under Colorado law an exculpatory agreement cannot “provide a shield against a claim for willful and wanton negligence.” Id. at 376. In Colorado an individual who “purposefully committed an affirmative act which he knew was dangerous to another’s person and which he performed heedlessly, without regard to the consequences or rights and safety of another’s person” can be found to have acted with willful and wanton negligence. Barker v. Colorado Region–Sports Car Club, Inc., 35 Colo. App. 73, 532 P.2d 372, 379 (Colo. Ct. App. 1974). In Massachusetts, waivers may only release a defendant from ordinary negligence. Zavras v. Capeway Rovers Motorcycle Club, Inc., 44 Mass. App. Ct. 17, 687 N.E.2d 1263, 1265 (Mass. App. Ct. 1997).
Plaintiff has alleged in her complaint that Defendants were grossly negligent. [HN10] Gross negligence involves “materially more want of care than constitutes simple inadvertence,” though “it is something less than [] willful, wanton and reckless conduct.” Altman v. Aronson, 231 Mass. 588, 121 N.E. 505, 506 (Mass. 1919). Despite [**26] the severity of Plaintiff’s injuries, the conduct alleged by Plaintiff is simple inadvertence. There is no evidence in the record, and indeed no allegation, that any of the Defendants, or anyone at the competition, became aware that there was an area of the trail without netting where netting was normally placed and declined to remedy the situation. At most there was a collective failure to take a step that might have lessened the injuries suffered by Plaintiff. No reasonable jury could find that this simple inadvertence, no matter how tragic its consequences, constituted gross negligence.
C. Third-Party Claims.
Having concluded that all Defendants, including the Third-Party Plaintiffs, are entitled to summary judgment, the court necessarily grants Third-Party Defendants’ motion for summary judgment on the third-party contribution claims asserted against them. Any negligence on the part of Forest Carey, whether in his capacity as a race official or as Plaintiff’s coach is expressly covered by the USSA waiver. Even if the court had concluded that the waiver was inapplicable, Third-Party Defendants would be entitled to summary judgment because Carey simply did not breach any duty he owed [**27] to Plaintiff. His role as a race official concluded the day before Plaintiff’s accident. As a competitor on the following day, Plaintiff was outside the group of people likely to be injured by his acts or omissions as a referee. Therefore he had no duty with respect to her safety. See Matteo v. Livingstone, 40 Mass. App. Ct. 658, 666 N.E.2d 1309, 1312 (Mass. App. Ct. 1996) (citing Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99 (N.Y. 1928)). The risk which caused Plaintiff harm, improper safety fencing, was similarly not reasonably foreseeable to Carey in his capacity as her coach. See Moose v. Mass. Inst. of Tech., 43 Mass. App. Ct. 420, 683 N.E.2d 706, 710 (Mass. App. Ct. 1997) (upholding a jury’s finding that a coach was negligent where the risk which caused a student-athlete’s [*152] injury was reasonably foreseeable). Third-party Defendants would thus be entitled to summary judgment even absent the USSA waiver.
IV. CONCLUSION
This is a terribly sad case. A young woman has been tragically, permanently injured. Putting aside considerations of legal liability, somebody connected with the 2006 Winter Carnival should, as a matter of conscience and professionalism, have noticed the unprotected ski tower and made sure that appropriate netting [**28] was installed to provide a greater degree of protection to the competitors.
It would, however, be false compassion now to ignore the undisputed facts and the unavoidable law. The Massachusetts Ski Safety Act, in the case of Jiminy Peak, and the USSA waiver, in the case of the other Defendants, forecloses any possibility of liability for payment of damages to Plaintiff in these circumstances. To encourage pursuit of a lawsuit lacking a legal basis would only serve to compound the tragedy.
For the reasons set forth above, Defendants’ Motions for Summary Judgment (Dkt. Nos. 135, 137, 138, 139, 140) are hereby ALLOWED, Third-Party Defendants’ Motion for Summary Judgment (Dkt. No. 143) is hereby ALLOWED, and Plaintiff’s Motion for Partial Summary Judgment (Dkt. No. 157) is hereby DENIED. The trial scheduled for September 28, 2009 will obviously not go forward.
The Clerk is ordered to enter judgment for Defendants; the case may now be closed.
It is So Ordered.
/s/ Michael A. Ponsor
MICHAEL A. PONSOR
U. S. District Judge
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Misleading article from the Denver Post about CO Ski areas; but also just plain wrong
Posted: March 19, 2013 Filed under: Colorado, Ski Area, Skiing / Snow Boarding | Tags: Alpine skiing, Colorado, Colorado Ski Country, Colorado Ski Country USA, Denver Post, Law, Law Enforcement, National Ski Area Association, National Ski Patrol, NSAA, NSP, Organizations, Resort, ski area, Ski Patrol, Ski Resort 1 CommentI lost a lot of respect for the Denver Post today.
This is my review of an article titled Colorado system for investigating ski accidents raises concerns in the Denver Post Sunday March 17, 2013.
First of all, let’s correct the article from a legal and factual standpoint!
When someone dies or is seriously injured on a Colorado ski slope, it is ski patrollers — not trained police officers, sheriff’s deputies or forest rangers — who document and determine what happened.
This statement is false if you believe it says no one else can investigate. The statement is misleading in that it makes you think no one else investigates major accidents.
Law Enforcement Investigates Possible Crimes.
It is patrollers that investigate on behalf of the ski area. No patroller investigates on behalf of anyone else, nor can they. They have not been licensed, trained nor are they allowed to. If someone else wants to investigate, they can use the powers given to them by contract (US Forest Service) or jurisdiction (Sheriff) and investigate.
Ski Patrollers don’t determine who is at fault; they try to determine what happened. That is all they are trained to do and that is all you want them to do. Volunteers and poorly-paid hard-working men and women are ski patrollers. The have been trained to get injured people off the mountain as best they can.
Any law enforcement agency with jurisdiction could investigate if they wanted to. They do not need permission; they just access the land and go investigate.
The reason why most law enforcement agencies do not investigate was set out in the article, just not recognized as the answer to their own question the article asked.
Many times, those agencies — responsible for investigating potential criminal activity, not skiing accidents — aren’t called at all.
Unless there has been a crime, law enforcement has no duty to investigate. If they investigated every crash, they would still be working on my mountain-bike crashes from last summer on US Forest Service and BLM (Bureau of Land Management) land.
Information
As a result, family members may have to accept the word of a resort employee about the circumstances that led to their relative’s death or serious injury — and typically; they need a subpoena to get even that, attorneys say.
Getting information from the resorts is difficult. Normally, the resort requires that you prove a legal need; you must be a relative or the injured person. Resorts have reasons for this. You do not want this information to go to anyone but the family because of privacy issues.
What if your relative died or was hurt at a resort? Would you be interested in having any of the following in the public domain?
· The injured skier smelled like alcohol. His blood-alcohol level was 2.8.
· The witness, girlfriend of the injured said…… (Spouse was home with the kids.)
· The injured commented that’s the last time he calls in sick to work and goes skiing.
I’ve read reports with 2 of the above on the reports, and I’ve heard about the third. Is that information you want to be public about someone you love?
What about hearing about the fatality of a family member from the authorities before you read about it online? This article ignores those issues, but ski resorts try to respect the wishes of family members.
Is your need to know greater than their right to a little kindness and privacy?
What information can you get from AT&T, Exxon, or GE about their latest accidents? Unless a business is required to report certain kinds of accidents, No Business gives out its accident reports.
If you ask an attorney to get you a report, the ski area is going to respond as if the ski area is going to be sued. Consequently, when facing a lawsuit, you shut the doors. If you want a copy of the report from your or a close family member’s accident, send a letter. You won’t get names or contact information of the patrollers. It is not their job to deal with you.
Of the state’s 25 ski areas, only one — Wolf Creek Ski Area — would discuss ski-patrol training and accident investigations.
Most resorts, nationwide follow the procedures of the National Ski Patrol (NSP). Every resort differs from other ski areas, but in general, you can research how something is investigated by reviewing the NSP website and several other websites. How do you know how law enforcement investigates accidents?
The other 24 resorts either refused to answer questions regarding ski patrol or did not respond to repeated calls and e-mails from The Post.
If someone from the press, including me, is calling to ask questions, you get a little nervous. You should be nervous when I call, and I get nervous when the press calls.
While working at a resort, I received a phone call from a member of the press who said they were writing a follow-up article to one I had written for a magazine several years before. That person lied to me. They were writing an article about ski resorts and quoted me as an employee of the resort. Lesson learned.
Police jurisdiction rare
That is a very misleading heading, sorry, this is a lie. Not rare, it exists at every resort. It is just not exercised. The sole power to exercise the jurisdiction is the law enforcement agency or the district attorney. Just because they do not, does not mean jurisdiction does not exist. There is no place in the US where at least one law enforcement agency has jurisdiction. The hard thing is finding places in the US were only one law enforcement agency has jurisdiction.
The nice thing about the above heading is just the start of an entire misleading paragraph.
Jennifer Rudolph, spokeswoman for Colorado Ski Country USA, the trade group representing all of the ski areas except the four owned by Vail Resorts, said in an e-mail….
Colorado Ski County USA is a marketing group. Its job and why it is paid by the Colorado Ski resorts is to get skiers to ski in Colorado. If you don’t believe me, go to the website and read why it exists: http://rec-law.us/ZoYVRs
Only a few local police departments have any jurisdiction over ski areas, and sheriff’s offices in Summit, San Miguel, Pitkin, Garfield, Routt and Eagle counties said their role is primarily to determine whether an incident involves a crime — such as theft, public intoxication or disruption — or a collision between slope users.
See the above statement about jurisdiction. The statement in the article is absolutely wrong and very misleading. It implies that the ski resorts operate without any law enforcement agency watching what they do. That is not true. If you could find a place where no law enforcement had jurisdiction in the US it would be crowded, full of pot plants and a lot of illegal guns. There would also be hundreds of cops waiting for someone to leave.
Summit County sheriff’s deputies don’t “respond to the majority of skier accidents. If it’s a death, the coroner would respond,” said spokeswoman Tracy LeClair. “Ski patrol usually handles the majority of noncriminalaccidents.”
Let’s look at this article this way. Who investigates accidents in your house? At least at ski areas, someone does. If there is a fatality at your house, then the same person investigates the fatality in your house as at the slopes: A coroner, unless the accident or fatality is a criminal act.
A coroner’s job is to declare people dead (C.R.S. § 30-10-601) and to determine the cause of death if it is not known or suspicious or from specific causes. (C.R.S. § 30-10-606)
“Ski patrol is there before us. Sometimes, the injured person has been evacuated before we arrive,” he said. “We have to rely on ski patrol and their analysis quite often.”
Thank Heavens! Seriously do you want to wait on the slope with a broken leg or a torn ligament until law enforcement drives from the sheriff’s office puts on skis or unloads a snow machine and comes up the slopes to you?
That is why we have the ski patrol; to get injured people to medical care. Can you see the lawsuit if this occurred? “Sorry mam, I can’t move you with that broken leg until the sheriff investigates.”
If you fall down in your house, do you call the police or the ambulance? If you fall down on the ski slopes do you call the sheriff or the ski patrol?
Sometimes, ski areas don’t give law enforcement information needed for an investigation. In 2004, a Colorado State Patrol sergeant was called to Vail to look into a fatal collision between a 13-year-old skier and an employee-driven snowmobile. He had never investigated a ski injury or fatality.
Sgt. S.J. Olmstead was assigned to the case because county law enforcement “didn’t want to deal with it,” he said in a 2006 deposition. “So somebody had to go take care of it.”
First: The story itself says there have been 47 deaths within five years (from my count of the red dots on the map.) How many police officers would have experience in investigating fatalities that occur on ski resorts?
Second: Vail is the largest employer in Eagle County. Probably, the Eagle County Sheriff’s department saw the fatality the article speaks to as a conflict of interest. Maybe the sheriff’s department knew the snowmobile driver’ or the snowmobile driver’s family. Or members of the sheriff’s department witnessed the accident. There could be dozens of things that triggered a conflict of interest issue in the mind of the Eagle county Sheriff’s department.
And thank heavens it did. Would you buy 100% any report when the Eagle County Sheriff’s department investigates a crime in the ski area of the county’s largest employer who had obvious conflicts of interest?
If you want ski accidents investigated by trained personnel, then contact your representative and have them create a law that says the sheriff’s office shall investigate all ski accidents. (Have fun paying for that one also.)
Third: If you have ever watched TV and watched a cop show, when an arrest is made the bad guy is given their Miranda Warnings, their legal rights. They have the right to remain silent. Vail, could have been held liable for the death, criminally; consequently, during a criminal investigation, the possible criminal should keep their mouth shut!
Ski areas consider ski-patrol and employee reports to be proprietary information. Therefore, victims or their families or law enforcement agencies cannot obtain them without the resorts’ permission — or a court order.
That information is not considered proprietary information, that information is proprietary information. My notes are proprietary information. The recipe you wrote down on a 3 x 5 card is proprietary or confidential information. Work you produce for work is proprietary information.
And again, do you really want your great Aunt Sally learning that her niece died in a ski accident because she was drunk?
I won’t give up my documents to anyone.
What about the rights of the deceased or the deceased family. Information in that report could be embarrassing. Deceased had a blood alcohol level of XX.X. Deceased was skiing with his girlfriend, while his wife was working. Deceased was supposed to be at work. Do you want that information floating around to members of the media or just nosey people?
The press has this idea that they should be entitled to anything they want to report a story. They don’t. There are laws that say what the media, the police and/or any other group can get from a private party or a business.
Then the article starts to complain because the ski patrol investigates an accident, and the cops don’t. The cops plead that they have a hard time getting reports from the ski patrol.
Have you tried getting a police report about an accident from a law enforcement agency? If the police want a report, they should go do it. It takes them a while to get to the far ends of the county, and it takes them a while to hike into the back country or get up the hill at a ski resort. It is a fact of life of a state with lots of wilderness and open space.
Despite the power that ski patrols have,…
What power? The power of the ski patrol is solely the power to transport an injured person down the hill and yank lift tickets of reckless skiers. They are not vested with power or given power by anyone to do anything.
The ski patrol does not have the power to detain someone who is involved in a skier v. skier collision, let alone any other power.
Accident Investigations?
This big issue with accident investigations is confusing. I’ve never had anyone investigate my mountain-bike crashes on US Forest Service land. I’ve never had someone investigate my back-country ski injuries. I’ve never had someone investigate my injuries from rock climbing. Yet there seems to be a big push in the article that 1) accident investigations are not being done and 2) if they are being done they are not being done right.
Automobile accidents are investigated because state statutes require law enforcement to investigate accidents, the damage done and the accidents occur on state land.
Automobile accidents have skid marks, car crumple zones, little black boxes, and tests that show when you hit a guard rail this way at this speed it looks like this. It snows; the wind blows and ski tracks look like every other ski track and are usually wiped out by snowboard tracks. Unless you hit a tree AND leave a mark on the tree or your body it is difficult to determine what happens.
One time in the past, I reviewed an investigation, and then did my own investigation into an accident. I talked to the injured skier and his spouse about what happened. The injured skier did not remember, and we never did figure out how the skier got hurt.
If there is a statute for someone, law enforcement to investigate accidents, then I’m sure their investigations will be better and professionally done. Right now, Ski Patrol accident investigations are done to help the ski area protect itself. The ski patrol is not tasked with any other duty by anyone.
A ski patroller’s job is to determine facts, not guess at what happened.
There is no law, no duty, and no requirement that any accident be investigated.
Accident Investigation Training
The article hits the accident investigation hard by comparing the training to that of National Park Rangers. Rangers are the law enforcement arm of the National Park Service. The job of a Ranger is basically to write tickets and arrest people for major crimes. They are law enforcement. There are statutes and regulations that empower them, command them and require them to investigation accidents and make arrests.
The article also tackles the contractual relationship between the US Forest Service and Vail, quoting from the contract. I would like to see the Denver Post contract with its writers and suppliers. I suspect that if you slam the Denver Post in an article, your career at the post is short lived.
The Bad
The ski industry is paranoid. I’ve been saying it for years. Too paranoid. However, I understand how that paranoia develops. When articles like misstate the facts and make things up, it would make you paranoid also.
As much as ski areas are paranoid the attorneys representing ski areas and the companies insuring ski areas are even more paranoid. They believe it is better not to say anything.
After this article, I understand why.
The Really Bad
The really bad is how misleading this article is. It is a veiled attempt to accomplish some goals, which are unknown at this time.
This article wasted a lot of paper and electrons attempting to make ski areas in Colorado look bad. Ski Areas in Colorado are the finest in the US. Ski Areas in Colorado are no different from any other business. The business has a duty to make a profit, and protect itself from bad publicity and lawsuits. Nothing in this article proved ski resorts did anything wrong or that any other corporation in the US does.
Read the article, the scary part is people out there believe the writer knows what they are talking about.
Disclaimer
No one paid me to write this, no one told me how to write this, no one asked me to write this. However we all have to learn that when we see or smell crap we should clean it up.
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Georgia does not have a lot of skiing, but you can rent skis there.
Posted: March 18, 2013 Filed under: Georgia, Release (pre-injury contract not to sue), Skiing / Snow Boarding | Tags: Defendant, GA, Georgia, Inc., Lawsuit, Negligence, Plaintiff, RDL, Rocky Mountain Ski Shop, Ski Rental, skiing, Summary judgment Leave a commentRelease for renting skis stops litigation over failing of the binding to release.
In this case, the plaintiff rented skis from the defendant in Georgia. The plaintiff completed the rental agreement which included a fairly well-written release. The rental company from the decision, asked the proper questions to calculate the DIN setting which in this case was 5 ½.
The plaintiff took the rented equipment on a ski trip. He made several runs, falling “uneventfully” the first day. None of those falls released the plaintiff from the bindings. On the last run while attempting to stop he fell releasing one binding but not the other. The leg in binding that failed to release suffered the classic skiing injury, torn ligaments in the plaintiff’s knee.
After the injury, the ski rental shop tested the binding which the test showed the binding passed.
The plaintiff sued for “breach of warranty, breach of contract, and negligence” and the plaintiff’s spouse sued for loss of a consortium. The defendant used the defense of release, and the trial court granted the defense motion for summary judgment.
Summary of the case
The first area of the law the court spoke to was the fact the relationship between the plaintiff and the defendant were bailor-bailee. Normally, this term is applied to someone in possession of another’s property. A valet is the bailee of your car when you hand over the keys. You are the bailor, the legal owner who has given temporary possession to another.
Once the court determined the relationship between the parties, then the court could conclude that the relationship was governed by the rental agreement.
The court then found that the plaintiff had failed to produce any evidence of negligence upon the part of the defendant. Then in a footnote, the court found that if the plaintiff had found evidence of negligence, the plaintiff still would have been bound by assumption of the risk. The court then went back to release and stated that even if negligence had been shown, the release would have prevented the suit.
“…in Georgia, the general rule is that a party may exempt himself by contract from liability to the other party for injuries caused by his negligence, and the agreement is not void for contravening public policy.”
The court then concluded the release did just that.
The remaining claims of the plaintiff were dismissed based on the analysis or the release.
The court finished with this line.
It is difficult to envision how the waiver language here could have been any clearer.
So Now What?
Get a good release written. Have your clients sign the release. Make sure your equipment meets the standards of the industry and maybe if you are faced with this issue, you will see this short and sweat answer to any litigation.
Plaintiff: Mr. and Mrs. Benford, no first name was ever given
Defendant: RDL, Inc. d/b/a Rocky Mountain Ski Shop
Plaintiff Claims: breach of warranty, breach of contract, and negligence and Mrs. Benford’s claim of loss of consortium
Defendant Defenses: Release
Holding: For the defendant on the release
|
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
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Benford et al. v. RDL, Inc., 223 Ga. App. 800; 479 S.E.2d 110; 1996 Ga. App. LEXIS 1284; 96 Fulton County D. Rep. 4312
Posted: March 18, 2013 Filed under: Georgia, Legal Case, Release (pre-injury contract not to sue), Skiing / Snow Boarding | Tags: Benford, GA, Georgia, Inc., RDL, Recreation, Rocky Mountain Ski Shop, Ski Rental, skiing, Summary judgment Leave a commentTo Read an Analysis of this decision see: Georgia does not have a lot of skiing, but you can rent skis there.
Benford et al. v. RDL, Inc., 223 Ga. App. 800; 479 S.E.2d 110; 1996 Ga. App. LEXIS 1284; 96 Fulton County D. Rep. 4312
Benford et al. v. RDL, Inc.
A96A1458.
223 Ga. App. 800; 479 S.E.2d 110; 1996 Ga. App. LEXIS 1284; 96 Fulton County D. Rep. 4312
December 4, 1996, Decided
SUBSEQUENT HISTORY: [***1] Certiorari Applied For.
PRIOR HISTORY: Bailment; release. Fulton Superior Court. Before Judge Cook.
DISPOSITION: Judgment affirmed.
COUNSEL: James B. Gurley, for appellants.
Long, Weinberg, Ansley & Wheeler, Kenneth M. Barre, for appellee.
JUDGES: ANDREWS, Judge. Pope, P. J., and Smith, J., concur.
OPINION BY: ANDREWS
OPINION
[**111] [*800] ANDREWS, Judge.
Mr. Benford and his wife appeal from the trial court’s grant of summary judgment to RDL, Inc. d/b/a Rocky Mountain Ski Shop in Mr. Benford’s suit alleging breach of warranty, breach of contract, and negligence and Mrs. Benford’s claim of loss of consortium.
1. Viewed under the standard of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 S.E.2d 474) (1991), the evidence on summary judgment was that Mr. Benford went to the ski shop on December 12, 1992 to rent skis and boots for an upcoming ski trip. He was assisted by Cooper, [*801] who asked Benford to pick out a pair of boots and to complete and sign a Rental Agreement and Release of Liability. Benford acknowledged reading, initialling, and signing the document which states that:
“I accept for use as is the equipment listed on this form and accept full responsibility for the care of this equipment. I have made no misrepresentations to this [***2] ski shop regarding my height, weight, age or skiing ability.
“I understand and am aware that skiing is a HAZARDOUS activity. I understand that the sport of skiing and the use of this ski equipment involve a risk of injury to any and all parts of my body. I hereby agree to freely and expressly assume and accept any and all risks of injury or death to the user of this equipment while skiing.
“I understand that the ski equipment being furnished forms a part or all of a ski-boot-binding system which will NOT RELEASE at all times or under all circumstances, and that it is not possible to predict every situation in which it will or will not release, and that its use cannot guarantee my safety or freedom from injury while skiing. I further agree and understand that this ski-boot- binding system may reduce but NOT eliminate the risk of injuries to the lower portion of my leg. However, I agree and understand that this ski-boot-binding system does NOT reduce the risk of injuries to my knees or any other parts of my body.
“I agree that I will release this ski shop from any and all responsibility or liability for injuries or damages to the user of the equipment listed on this form, or to any [***3] other person. I agree NOT to make a claim against or sue this ski shop for injuries or damages relating to skiing and/or the use of this equipment. (Please initial ) [Benford’s initials].
“In consideration for being able to rent this ski equipment, I hereby agree to accept the terms and conditions of this contract. This document constitutes the final and entire agreement between this ski shop and the undersigned. There are NO WARRANTIES, express or implied, which extend beyond the description of the ski equipment listed on this form.
“I have carefully read this agreement and release of liability and fully understand its contents. I am aware that this is a release of liability and a contract between myself and this ski shop and I sign it of my own free will.”
Pursuant to the height, weight, and skill level information provided by Benford, Cooper set the bindings of the skis at 5 1/2. This setting was based on a chart used in the business which the person doing the settings consults and then makes adjustments to the bindings, toes and heels of the boots.
[**112] Benford picked the skis up on December 26 and left with his wife [*802] and some friends on a ski trip. On the first day of the [***4] trip, Benford had made six or seven ski runs and had fallen uneventfully a couple of times. These falls did not cause the bindings to release. On his last run, Benford was in the process of coming to a stop to assist his wife who had fallen. Because of a change in the slope where he stopped, his center of gravity got out over his skis and he fell. While the right ski did release, the left one did not and he tore ligaments in his left knee. When he returned the skis to the shop, he was given a free week ski rental, good any time.
Because Benford was injured and contended the skis did not release, Jackson, the store manager, had the bindings tested with the Vermont Calibrator, a device used to measure the torque it takes to remove a boot from its binding, and the skis rented by Benford passed the test. All skis rented by the ski shop were tested on this device once a year, and randomly selected sets were tested periodically.
2. Benford acknowledges that these facts establish the relationship of bailor-bailee, pursuant to O.C.G.A. § 44-12-60. Therefore, the relationship between them is governed by the terms of the Rental Agreement and the statutory obligations of a bailor under O.C.G.A. § [***5] 44-12-63. Mark Singleton Buick v. Taylor, 194 Ga. App. 630, 632 (1) (391 S.E.2d 435) (1990); Hall v. Skate Escape, Ltd., 171 Ga. App. 178 (319 S.E.2d 67) (1984).
3. Benford has failed totally to come forward with evidence concerning negligence by the ski shop. Lau’s Corp., supra; Prince v. Atlanta Coca-Cola Bottling Co., 210 Ga. App. 108, 109 (1) (435 S.E.2d 482) (1993). 1
1 Even had he been able to do so, this is one of those rare cases where, as a matter of law, it can be said that Benford assumed the risk of exactly what happened to him. Beringause v. Fogleman Truck Lines, 200 Ga. App. 822, 823 (409 S.E.2d 524) (1991).
Also, even assuming some negligence had been shown, [HN1] “in Georgia, the general rule is that a party may exempt himself by contract from liability to the other party for injuries caused by his negligence, and the agreement is not void for contravening public policy. [Cits.]” Hall, supra at 179. Here, the agreement clearly and prominently did just that. Mercedes-Benz [***6] Credit Corp. v. Shields, 199 Ga. App. 89, 91 (403 S.E.2d 891) (1991).
4. Benford’s claims of breach of warranty and contract suffer the same fate. There is no showing by Benford of any latent defect in the skis or bindings, such as that in Hall, supra. Therefore, the covenant not to sue is not in contravention of O.C.G.A. § 44-12-63 (3). Mercedes-Benz, supra; Citicorp Indus. Credit v. Rountree, 185 Ga. App. 417, 422 (2) (364 S.E.2d 65) (1987). It is difficult to envision how the waiver language here could have been any clearer.
[*803] Judgment affirmed. Pope, P. J., and Smith, J., concur.
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Louisiana Sales Representative
Posted: March 17, 2013 Filed under: Louisiana | Tags: Contract, IC, Independent Sales Rep, Louisiana, Rep, STATUTES Leave a commentLOUISIANA STATUTES ANNOTATED
LOUISIANA REVISED STATUTES
TITLE 51. TRADE AND COMMERCE
CHAPTER 1. IN GENERAL
PART 8. UNFAIR TRADE
SUBPART F. SALES REPRESENTATIVES
GO TO LOUISIANA STATUTES ARCHIVE DIRECTORY
La. R.S. 51:441 (2012)
§ 51:441. Definitions
(1) “Commission” means compensation paid a sales representative by a principal in an amount based on a percentage of the dollar amount of certain orders for or sales of the principal’s product.
(2) “Principal” means a person who:
(a) Repealed by Acts 1995, No. 487, § 2.
(b) Manufactures, produces, imports, or distributes a product for sale to customers who purchase the product for resale;
(c) Uses a sales representative to solicit orders for the product; and
(d) Compensates the sales representative in whole or in part by commission.
(3) “Sales representative” means a person who solicits, on behalf of a principal, orders for the purchase at wholesale of the principal’s product.
(4) “Termination” means the end of services performed by a sales representative for a principal whether by discharge, resignation, or expiration of a contract.
HISTORY: Acts 1988, No. 774, § 1, eff. July 18, 1988; Acts 1995, No. 487, §§ 1, 2.
§ 51:442. Contract
If there is a written contract between a principal and a sales representative under which the sales representative solicits wholesale orders within this state, it shall set forth the method by which the sales representative’s commission shall be computed and paid. The principal shall provide the sales representative with a copy of the contract.
§ 51:443. Payment of commissions; timely payment
Upon termination of any written or oral compensation agreement between a sales representative and a principal, the principal shall pay all commissions due the sales representative as specified in the agreement or, if not specified, no later than the thirtieth working day after the date of termination.
§ 51:444. Attorney fees and damages
A judgment or decree issued in any action brought by a sales representative for the payment of commissions by a principal may include payment by the principal of attorney fees and treble damages incurred by the sales representative.
§ 51:445. Certain venue provisions invalid
A. Any provision in a written or oral contract or agreement providing for the payment of commissions by a principal to a sales representative which purports to establish exclusive venue in a state other than Louisiana is hereby declared to be null and void and against the public policy of this state and such provision shall be void and unenforceable.
B. Any provision in a written or oral contract or agreement which requires waiver of this Section or which would frustrate or circumvent the provisions of this Section shall be null and void and of no force and effect.
C. A principal who is not a resident of this state and who enters into a contract subject to the provisions of this Subpart is considered to be doing business in this state for purposes of the exercise of personal jurisdiction over the principal.
D. The provisions of this Subpart do not invalidate or restrict any other right or remedy available to a sales representative or preclude a sales representative from seeking to recover in one action on all claims against a principal.
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Maine Sales Representative
Posted: March 17, 2013 Filed under: Maine | Tags: Commission (remuneration), Contract, IC, Independent Sales Rep, Manufacture, Rep, STATUTES Leave a commentMaine Revised Statutes Annotated by LexisNexis(R)
TITLE 10. COMMERCE AND TRADE
PART 3. REGULATION OF TRADE
CHAPTER 210-A. SALES REPRESENTATIVE COMMISSION CONTRACTS
GO TO MAINE REVISED STATUTES ARCHIVE DIRECTORY
10 M.R.S. § 1341 (2012)
§ 1341. Definitions
As used in this chapter, unless the context otherwise indicates, the following terms have the following meanings.
1. COMMISSIONS. “Commissions” means compensation accruing to a sales representative for payment by a principal, the rate of which is expressed as a percentage of the amount of orders or sales.
2. PRINCIPAL. “Principal” means a person, partnership, corporation or other business entity that does not have a permanent or fixed place of business in this State and that:
A. Manufactures, produces, imports or distributes a product for wholesale;
B. Contracts with sales representatives to solicit orders for the product; and
C. Compensates the sales representative, in whole or in part, by commission.
3. SALES REPRESENTATIVE. “Sales representative” means a person who:
A. Contracts with a principal to solicit orders for the purchase at wholesale of the principal’s product;
B. Is compensated, in whole or in part, by commission; and
C. Does not place orders or purchase for that person’s own account or for resale.
§ 1342. Notice of termination
Unless a contract between a sales representative and a principal provides otherwise, a party terminating the contract must give the other party 14 days’ written notice of the termination.
§ 1343. Contract
If a contract between a sales representative and a principal is terminated, the principal shall pay to the sales representative all commissions accrued under the contract within 30 days after the effective date of that termination. Any provision of any contract between a sales representative and a principal that purports to waive any provision of this chapter is void.
§ 1344. Civil liability
1. PRINCIPAL LIABILITY. A principal who fails to comply with the provisions of section 1343 is liable to the sales representative in a civil action for exemplary damages in an amount that does not exceed 3 times the amount of commissions due the sales representative, plus reasonable attorney’s fees and costs.
2. FRIVOLOUS ACTION. When the court determines that an action brought by a sales representative against a principal under this chapter is frivolous, the sales representative is liable to the principal for attorney’s fees actually and reasonably incurred by the principal in defending the action and court costs.
3. OTHER REMEDIES. Nothing in this chapter invalidates or restricts any other right or remedy available to a sales representative, or precludes a sales representative from seeking to recover in one action on all claims against a principal.
4. JURISDICTION. A principal who is not a resident of this State that contracts with a sales representative to solicit orders in this State is declared to be transacting business in this State for purposes of the exercise of personal jurisdiction over nonresidents under Title 14, section 704-A.
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Maryland Sales Representative
Posted: March 17, 2013 Filed under: Maryland | Tags: Commission (remuneration), IC, Independent Sales Rep, MARYLAND, Rep, Sales, statute Leave a commentMaryland Sales Representative
LABOR AND EMPLOYMENT
TITLE 3. EMPLOYMENT STANDARDS AND CONDITIONS
SUBTITLE 6. WHOLESALE SALES REPRESENTATIVES
GO TO MARYLAND STATUTES ARCHIVE DIRECTORY
Md. LABOR AND EMPLOYMENT Code Ann. § 3-601 (2012)
§ 3-601. Definitions
(a) In general. — In this subtitle the following words have the meanings indicated.
(b) Commission. — “Commission” means compensation that:
(1) is due to a sales representative from a principal; and
(2) accrues at:
(i) a specified amount for each order or sale; or
(ii) a rate expressed as a percentage of the dollar amount that a sales representative:
1. takes in orders for the principal;
2. makes in sales for the principal; or
3. earns in profits for the principal.
(c) Principal. — “Principal” means a sales corporation, partnership, proprietorship, or other business entity that:
(1) distributes, imports, manufactures, or produces a product for wholesale;
(2) enters into a contract with a sales representative to solicit a wholesale order for the product; and
(3) pays the sales representative wholly or partly by commission.
(d) Sales representative. —
(1) “Sales representative” means a person who:
(i) enters into a contract with a principal to solicit in the State a wholesale order; and
(ii) is paid wholly or partly by commission.
(2) “Sales representative” does not include a person who:
(i) buys a product or places an order for a product for resale by that person; or
(ii) sells or takes an order for the sale of a product to an ultimate buyer.
§ 3-602. Scope of subtitle
This subtitle does not apply to an individual who is considered under the Maryland Wage Payment and Collection Law to be employed by a principal.
§ 3-603. Void waivers
A provision of a contract that is made between a sales representative and a principal is void if the provision purports to waive any provision of this subtitle by:
(1) an express waiver; or
(2) a contract subject to the laws of another state.
§ 3-604. Payment of commission on termination of contract
Each principal shall pay to a sales representative all commissions that are due under a contract that is terminated, within 45 days after payment would have been due if the contract had not terminated.
§ 3-605. Action by sales representative
(a) Treble damages. —
(1) Subject to the requirement of paragraph (2) of this subsection, if a principal violates § 3-604 of this subtitle, a sales representative whom the violation affects is entitled to bring an action against the principal to recover up to 3 times the amount of all commissions that the principal owes to the sales representative.
(2) At least 10 days before an action is brought under this subsection, the sales representative shall give the principal written notice of intent to bring the action.
(b) Costs. — If a court determines that a sales representative is entitled to judgment in an action under this section, the court shall allow against the principal reasonable counsel fees and court costs.
§ 3-606. Personal jurisdiction
For purposes of personal jurisdiction under § 6-103 of the Courts Article, a principal who contracts with a sales representative to solicit wholesale orders for a product in the State is considered to be transacting business in the State.
§ 3-607. Revocable offer of commission
(a) Entitlement to commission. — If a principal makes a revocable offer of a commission to a sales representative who is not an employee of the principal, the sales representative is entitled to the commission agreed on if:
(1) the principal revokes the offer of commission and the sales representative establishes that the revocation was for the purpose of avoiding payment of the commission; or
(2) (i) the revocation occurs after the sales representative has obtained a written order for the principal’s product because of the efforts of the sales representative; and
(ii) the principal’s product that is the subject of the order is shipped to and paid for by a customer.
(b) Construction of section. — This section may not be construed to:
(1) impair the application of § 2-201 or § 2-209 of the Commercial Law Article;
(2) abrogate any rule of agency law; or
(3) unconstitutionally impair the obligations of contracts.
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Massachusetts Sales Representatives
Posted: March 17, 2013 Filed under: Massachusetts | Tags: Contract, IC, Independent Sales Rep, Law, Massachusetts, Rep Leave a commentANNOTATED LAWS OF MASSACHUSETTS
PART I ADMINISTRATION OF THE GOVERNMENT
TITLE XV REGULATION OF TRADE
Chapter 104 Agents, Consignees and Factors
GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY
ALM GL ch. 104, § 7 (2012)
§ 7. Sales Representatives — Definitions.
The following terms as used in sections eight and nine, unless the context otherwise requires, shall have the following meanings:
“Commission”, compensation accruing to a sales representative for payment by a principal, earned through the last day on which services were performed by the sales representative, the rate of which is expressed as a percentage of the dollar amount of orders or sales.
“Principal”, a person who manufactures, produces, imports or distributes a product for wholesale; contracts to solicit orders for such product, and compensates individuals who solicit wholesale orders in whole or in part, by commission.
“Sales representative”, a person other than an employee, who contracts with a principal to solicit wholesale orders in the commonwealth and who is compensated, in whole or in part, by commission but shall not include one who places orders or purchases exclusively for his own account for resale.
“Day”, any calendar day, including Saturdays, Sundays and legal holidays.
“Termination”, the end of services performed by the sales representative for the principal whether by expiration of a contract, discharge or resignation.
§ 8. Sales Representatives — Commissions.
The terms of the contract between a principal and a sales representative shall determine when a commission shall be due. If the time when such commission shall be due is not specified in a contract, the past practices between the parties shall control or, if there are no such past practices, the custom and usage prevalent in the commonwealth for the business that is the subject of the relationship between the parties shall control. All commissions that are due at the time of termination of a contract between a sales representative and principal shall be paid within fourteen days after the date of termination. Commissions that become due after the termination date shall be paid within fourteen days after the date on which the commissions became due.
§ 9. Sales Representatives — Commissions — Failure to Pay.
A principal who wilfully or knowingly fails to comply with provisions relating to the prompt payment of commissions set forth in section eight shall be liable to the sales representative in a civil action for the principal amount of the com-missions owed and for an additional sum up to three times the amount of commissions and for reasonable attorney’s fees and court costs. A principal who is not a resident of the commonwealth and who enters into a contract subject to the provisions of sections seven to nine shall be deemed to be doing business in the commonwealth for purposes of the exercise of personal jurisdiction over such principal. No provision of sections seven to nine may be waived, whether by express waiver or by an attempt to make a contract or agreement subject to the laws of another jurisdiction. A waiver of any provision of sections seven to nine shall be void.
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Minnesota Sales Representative
Posted: March 17, 2013 Filed under: Minnesota | Tags: Commission (remuneration), IC, Independent Sales Rep, Minnesota, Payment, Rep, Sales, Wage Leave a commentLABOR, INDUSTRY
CHAPTER 181. EMPLOYMENT
PAYMENT OF WAGES
GO TO MINNESOTA STATUTES ARCHIVE DIRECTORY
Minn. Stat. § 181.13 (2012)
181.13 PENALTY FOR FAILURE TO PAY WAGES PROMPTLY
(a) When any employer employing labor within this state discharges an employee, the wages or commissions actually earned and unpaid at the time of the discharge are immediately due and payable upon demand of the employee. If the employee’s earned wages and commissions are not paid within 24 hours after demand, whether the employment was by the day, hour, week, month, or piece or by commissions, the employer is in default. The discharged employee may charge and collect the amount of the employee’s average daily earnings at the rate agreed upon in the contract of employment, for each day up to 15 days, that the employer is in default, until full payment or other settlement, satisfactory to the discharged employee, is made. In the case of a public employer where approval of expenditures by a governing board is required, the 24-hour period for payment does not commence until the date of the first regular or special meeting of the governing board following discharge of the employee.
(b) The wages and commissions must be paid at the usual place of payment unless the employee requests that the wages and commissions be sent through the mails. If, in accordance with a request by the employee, the employee’s wages and commissions are sent to the employee through the mail, the wages and commissions are paid as of the date of their postmark.
181.14 PAYMENT TO EMPLOYEES WHO QUIT OR RESIGN; SETTLEMENT OF DISPUTES
Subdivision 1. Prompt payment required.
(a) When any such employee quits or resigns employment, the wages or commissions earned and unpaid at the time the employee quits or resigns shall be paid in full not later than the first regularly scheduled payday following the employee’s final day of employment, unless an employee is subject to a collective bargaining agreement with a different provision. If the first regularly scheduled payday is less than five calendar days following the employee’s final day of employment, full payment may be delayed until the second regularly scheduled payday but shall not exceed a total of 20 calendar days following the employee’s final day of employment.
(b) Notwithstanding the provisions of paragraph (a), in the case of migrant workers, as defined in section 181.85, the wages or commissions earned and unpaid at the time the employee quits or resigns shall become due and payable within five days thereafter.
Subd. 2. Nonprompt payment. –Wages or commissions not paid within the required time period shall become immediately payable upon the demand of the employee. If the employee’s earned wages or commissions are not paid within 24 hours after the demand, the employer shall be liable to the employee for an additional sum equal to the amount of the employee’s average daily earnings provided in the contract of employment, for every day, not exceeding 15 days in all, until such payment or other settlement satisfactory to the employee is made.
Subd. 3. Settlement of disputes. –If the employer disputes the amount of wages or commissions claimed by the employee under the provisions of this section or section 181.13, and the employer makes a legal tender of the amount which the employer in good faith claims to be due, the employer shall not be liable for any sum greater than the amount so tendered and interest thereon at the legal rate, unless, in an action brought in a court having jurisdiction, the employee recovers a greater sum than the amount so tendered with interest thereon; and if, in the suit, the employee fails to recover a greater sum than that so tendered, with interest, the employee shall pay the cost of the suit, otherwise the cost shall be paid by the employer.
Subd. 4. Employees entrusted with money or property. –In cases where the discharged or quitting employee was, during employment, entrusted with the collection, disbursement, or handling of money or property, the employer shall have ten calendar days after the termination of the employment to audit and adjust the accounts of the employee before the employee’s wages or commissions shall be paid as provided in this section, and the penalty herein provided shall apply in such case only from the date of demand made after the expiration of the period allowed for payment of the employee’s wages or commissions. If, upon such audit and adjustment of the accounts of the employee, it is found that any money or property entrusted to the employee by the employer has not been properly accounted for or paid over to the employer, as provided by the terms of the contract of employment, the employee shall not be entitled to the benefit of sections 181.13 to 181.171, but the claim for unpaid wages or commissions of such employee, if any, shall be disposed of as provided by existing law.
Subd. 5. Place of payment. –Wages and commissions paid under this section shall be paid at the usual place of payment unless the employee requests that the wages and commissions be sent to the employee through the mails. If, in accordance with a request by the employee, the employee’s wages and commissions are sent to the employee through the mail, the wages and commissions shall be deemed to have been paid as of the date of their postmark for the purposes of this section.
181.145 PROMPT PAYMENT OF COMMISSIONS TO COMMISSION SALESPEOPLE
Subdivision 1. Definitions. –For the purposes of this section, “commission salesperson” means a person who is paid on the basis of commissions for sales and who is not covered by sections 181.13 and 181.14 because the person is an independent contractor. For the purposes of this section, the phrase “commissions earned through the last day of employment” means commissions due for services or merchandise which have actually been delivered to and accepted by the customer by the final day of the salesperson’s employment.
Subd. 2. Prompt payment required.
(a) When any person, firm, company, association, or corporation employing a commission salesperson in this state terminates the salesperson, or when the salesperson resigns that position, the employer shall promptly pay the salesperson, at the usual place of payment, commissions earned through the last day of employment or be liable to the salesperson for the penalty provided under subdivision 3 in addition to any earned commissions unless the employee requests that the commissions be sent to the employee through the mails. If, in accordance with a request by the employee, the employee’s commissions are sent to the employee through the mail, the commissions shall be deemed to have been paid as of the date of their postmark for the purposes of this section.
(b) If the employer terminates the salesperson or if the salesperson resigns giving at least five days’ written notice, the employer shall pay the salesperson’s commissions earned through the last day of employment on demand no later than three working days after the salesperson’s last day of work.
(c) If the salesperson resigns without giving at least five days’ written notice, the employer shall pay the sales-person’s commissions earned through the last day of employment on demand no later than six working days after the salesperson’s last day of work.
(d) Notwithstanding the provisions of paragraphs (b) and (c), if the terminated or resigning salesperson was, during employment, entrusted with the collection, disbursement, or handling of money or property, the employer has ten working days after the termination of employment to audit and adjust the accounts of the salesperson before the salesperson can demand commissions earned through the last day of employment. In such cases, the penalty provided in subdivision 3 shall apply only from the date of demand made after the expiration of the ten working day audit period.
Subd. 3. Penalty for nonprompt payment. –If the employer fails to pay the salesperson commissions earned through the last day of employment on demand within the applicable period as provided under subdivision 2, the employer shall be liable to the salesperson, in addition to earned commissions, for a penalty for each day, not exceeding 15 days, which the employer is late in making full payment or satisfactory settlement to the salesperson for the commissions earned through the last day of employment. The daily penalty shall be in an amount equal to 1/15 of the salesperson’s commissions earned through the last day of employment which are still unpaid at the time that the penalty will be assessed.
Subd. 4. Amount of commission disputed.
(a) When there is a dispute concerning the amount of the salesperson’s commissions earned through the last day of employment or whether the employer has properly audited and adjusted the salesperson’s account, the penalty provided in subdivision 3 shall not apply if the employer pays the amount it in good faith believes is owed the salesperson for commissions earned through the last day of employment within the applicable period as provided under subdivision 2; except that, if the dispute is later adjudicated and it is determined that the salesperson’s commissions earned through the last day of employment were greater than the amount paid by the employer, the penalty provided in subdivision 3 shall apply.
(b) If a dispute under this subdivision is later adjudicated and it is determined that the salesperson was not promptly paid commissions earned through the last day of employment as provided under subdivision 2, the employer shall pay reasonable attorney’s fees incurred by the salesperson.
Subd. 5. Commissions earned after last day of employment. –Nothing in this section shall be construed to impair a commission salesperson from collecting commissions on merchandise ordered prior to the last day of employment but delivered and accepted after termination of employment. However, the penalties prescribed in subdivision 3 apply only with respect to the payment of commissions earned through the last day of employment.
181.171 COURT ACTIONS; PRIVATE PARTY CIVIL ACTIONS
Subdivision 1. Civil action; damages. –A person may bring a civil action seeking redress for violations of sections 181.02, 181.03, 181.031, 181.032, 181.08, 181.09, 181.10, 181.101, 181.11, 181.12, 181.13, 181.14, 181.145, and 181.15 directly to district court. An employer who is found to have violated the above sections is liable to the aggrieved party for the civil penalties or damages provided for in the section violated. An employer who is found to have violated the above sections shall also be liable for compensatory damages and other appropriate relief including but not limited to injunctive relief.
Subd. 2. District court jurisdiction. –An action brought under subdivision 1 may be filed in the district court of the county wherein a violation is alleged to have been committed, where the respondent resides or has a principal place of business, or any other court of competent jurisdiction.
Subd. 3. Attorney fees and costs. –In an action brought under subdivision 1, the court shall order an employer who is found to have committed a violation to pay to the aggrieved party reasonable costs, disbursements, witness fees, and attorney fees.
Subd. 4. Employer; definition. –“Employer” means any person having one or more employees in Minnesota and includes the state and any political subdivision of the state. This definition applies to this section and sections 181.02, 181.03, 181.031, 181.032, 181.06, 181.063, 181.10, 181.101, 181.13, 181.14, and 181.16.
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Michigan Sales Representative
Posted: March 17, 2013 Filed under: Michigan | Tags: Commission (remuneration), Contract, IC, Independent Sales Rep, Manufacture, Michigan, Rep, Sales Leave a commentMICHIGAN COMPILED LAWS SERVICE
CHAPTER 600 REVISED JUDICATURE ACT OF 1961
REVISED JUDICATURE ACT OF 1961
CHAPTER 29. PROVISIONS CONCERNING SPECIFIC ACTIONS
Go to the Michigan Code Archive Directory
MCLS § 600.2961 (2012)
MCL § 600.2961
§ 600.2961. Definitions; determining when commission due; payment of commissions; liability; attorney fees and costs; jurisdiction; contract waiver void; applicability of section.
Sec. 2961. (1) As used in this section:
(a) “Commission” means compensation accruing to a sales representative for payment by a principal, the rate of which is expressed as a percentage of the amount of orders or sales or as a percentage of the dollar amount of profits.
(b) “Person” means an individual, corporation, partnership, association, governmental entity, or any other legal entity.
(c) “Prevailing party” means a party who wins on all the allegations of the complaint or on all of the responses to the complaint.
(d) “Principal” means a person that does either of the following:
(i) Manufactures, produces, imports, sells, or distributes a product in this state.
(ii) Contracts with a sales representative to solicit orders for or sell a product in this state.
(e) “Sales representative” means a person who contracts with or is employed by a principal for the solicitation of orders or sale of goods and is paid, in whole or in part, by commission. Sales representative does not include a person who places an order or sale for a product on his or her own account for resale by that sales representative.
(2) The terms of the contract between the principal and sales representative shall determine when a commission becomes due.
(3) If the time when the commission is due cannot be determined by a contract between the principal and sales representative, the past practices between the parties shall control or, if there are no past practices, the custom and usage prevalent in this state for the business that is the subject of the relationship between the parties.
(4) All commissions that are due at the time of termination of a contract between a sales representative and principal shall be paid within 45 days after the date of termination. Commissions that become due after the termination date shall be paid within 45 days after the date on which the commission became due.
(5) A principal who fails to comply with this section is liable to the sales representative for both of the following:
(a) Actual damages caused by the failure to pay the commissions when due.
(b) If the principal is found to have intentionally failed to pay the commission when due, an amount equal to 2 times the amount of commissions due but not paid as required by this section or $100,000.00, whichever is less.
(6) If a sales representative brings a cause of action pursuant to this section, the court shall award to the prevailing party reasonable attorney fees and court costs.
(7) In an action brought under this section, jurisdiction shall be determined in accordance with chapter 7.
(8) A provision in a contract between a principal and a sales representative purporting to waive any right under this section is void.
(9) This section does not affect the rights of a principal or sales representative that are otherwise provided by law.
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Missouri Sales Representative
Posted: March 17, 2013 Filed under: Missouri | Tags: Contract, IC, Independent Sales Rep, Manufacture, Missouri, Rep, Sales Leave a commentTITLE 26. TRADE AND COMMERCE (Chs. 400-421)
CHAPTER 407. MERCHANDISING PRACTICES
SALES COMMISSION
GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION
§ 407.911 R.S.Mo. (2013)
§ 407.911. Definitions
As used in sections 407.911 to 407.915, the following terms mean:
(1) “Commission”, compensation accruing to a sales representative for payment by a principal, the rate of which is expressed as a percentage of the dollar amount of orders or sales, or as a specified amount per order or per sale;
(2) “Principal”, a person, firm, corporation, partnership or other business entity, whether or not it has a permanent or fixed place of business in this state, and who:
(a) Manufactures, produces, imports, provides, or distributes a product or service for sale;
(b) Contracts with a sales representative to solicit orders for the product or service; and
(c) Compensates the sales representative, in whole or in part, by commission;
(3) “Sales representative”, a person, firm, corporation, partnership, or other business entity who contracts with a principal to solicit orders and who is compensated, in whole or in part, by commission, but shall not include a person, firm, corporation, partnership, or other business entity who places orders or purchases for its own account for resale.
§ 407.912. Commission to become due, when — termination of employment, all commissions due, when
1. When a commission becomes due shall be determined in the following manner:
(1) The written terms of the contract between the principal and sales representative shall control;
(2) If there is no written contract, or if the terms of the written contract do not provide when the commission becomes due, or the terms are ambiguous or unclear, the commission shall be paid when the product or service is delivered and accepted by the purchaser or the principal receives satisfaction in full;
(3) If neither subdivision (1) nor (2) of this subsection can be used to clearly ascertain when the commission becomes due, then the commission shall be due on the date the principal accepts the order and receives satisfaction in full, unless the custom and usage prevalent in this state for the parties’ particular industry is different, in which event such custom and usage shall prevail.
2. Nothing in sections 407.911 to 407.915 shall be construed to impair a sales representative from collecting commissions on products or services ordered prior to the termination of the contract between the principal and the sales representative but delivered and accepted by the purchaser after such termination.
3. When the contract between a sales representative and a principal is terminated, all commissions then due shall be paid within thirty days of such termination. Any and all commissions which become due after the date of such termination shall be paid within thirty days of becoming due.
§ 407.913. Failure to pay sales representative commission, liability in civil action for actual damages — additional damages allowed — attorney fees and costs
Any principal who fails to timely pay the sales representative commissions earned by such sales representative shall be liable to the sales representative in a civil action for the actual damages sustained by the sales representative and an additional amount as if the sales representative were still earning commissions calculated on an annualized pro rata basis from the date of termination to the date of payment. In addition the court may award reasonable attorney’s fees and costs to the prevailing party.
§ 407.914. Out-of-state principal with sales representative soliciting in this state, Missouri courts to have jurisdiction
A principal who is not a resident or citizen of this state who contracts with a sales representative to solicit orders in this state is declared to be transacting business in this state for purposes of the exercise of jurisdiction of the courts of this state under section 506.500.
§ 407.915. Civil action for all claims against principal may be joined–express or contract waivers of commission laws, invalid
1. Nothing in sections 407.911 to 407.915 shall invalidate or restrict any other or additional right or remedy available to a sales representative from seeking to recover in one action on all claims against a principal.
2. A provision in any contract between a sales representative and a principal purporting to waive any provision of sections 407.911 to 407.915, whether by expressed waiver or by a contract subject to the laws of another state, shall be void.
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Nebraska Sales Representative
Posted: March 17, 2013 Filed under: Nebraska | Tags: Attorney's fee, Employee benefit, Nebraska, Wage Leave a commentNEBRASKA REVISED STATUTES ANNOTATED
CHAPTER 48. LABOR
ARTICLE 12. WAGES
(c) WAGE PAYMENT AND COLLECTION
Go to the Nebraska Code Archive Directory
R.R.S. Neb. § 48-1229 (2012)
§ 48-1229. Terms, defined.
For purposes of the Nebraska Wage Payment and Collection Act, unless the context otherwise requires:
(1) Employer means the state or any individual, partnership, limited liability company, association, joint-stock company, trust, corporation, political subdivision, or personal representative of the estate of a deceased individual, or the receiver, trustee, or successor thereof, within or without the state, employing any person within the state as an employee;
(2) Employee means any individual permitted to work by an employer pursuant to an employment relationship or who has contracted to sell the goods or services of an employer and to be compensated by commission. Services performed by an individual for an employer shall be deemed to be employment, unless it is shown that (a) such individual has been and will continue to be free from control or direction over the performance of such services, both under his or her contract of service and in fact, (b) such service is either outside the usual course of business for which such service is performed or such service is performed outside of all the places of business of the enterprise for which such service is performed, and (c) such individual is customarily engaged in an independently established trade, occupation, profession, or business. This subdivision is not intended to be a codification of the common law and shall be considered complete as written;
(3) Fringe benefits includes sick and vacation leave plans, disability income protection plans, retirement, pension, or profit-sharing plans, health and accident benefit plans, and any other employee benefit plans or benefit programs regardless of whether the employee participates in such plans or programs; and
(4) Wages means compensation for labor or services rendered by an employee, including fringe benefits, when previously agreed to and conditions stipulated have been met by the employee, whether the amount is determined on a time, task, fee, commission, or other basis. Paid leave, other than earned but unused vacation leave, provided as a fringe benefit by the employer shall not be included in the wages due and payable at the time of separation, unless the employer and the employee or the employer and the collective-bargaining representative have specifically agreed otherwise. Unless the employer and employee have specifically agreed otherwise through a contract effective at the commencement of employment or at least ninety days prior to separation, whichever is later, wages includes commissions on all orders delivered and all orders on file with the employer at the time of separation of employment less any orders returned or canceled at the time suit is filed.
§ 48-1230. Employer; regular paydays; altered; notice; deduct, withhold, or divert portion of wages; when; itemized statement; duty of employer to furnish; unpaid wages; when due.
(1) Except as otherwise provided in this section, each employer shall pay all wages due its employees on regular days designated by the employer or agreed upon by the employer and employee. Thirty days’ written notice shall be given to an employee before regular paydays are altered by an employer. An employer may deduct, withhold, or divert a portion of an employee’s wages only when the employer is required to or may do so by state or federal law or by order of a court of competent jurisdiction or the employer has written agreement with the employee to deduct, withhold, or divert.
(2) Within ten working days after a written request is made by an employee, an employer shall furnish such employee with an itemized statement listing the wages earned and the deductions made from the employee’s wages under subsection (1) of this section for each pay period that earnings and deductions were made. The statement may be in print or electronic format.
(3) Except as otherwise provided in section 48-1230.01:
(a) Whenever an employer, other than a political subdivision, separates an employee from the payroll, the unpaid wages shall become due on the next regular payday or within two weeks of the date of termination, whichever is sooner; and
(b) Whenever a political subdivision separates an employee from the payroll, the unpaid wages shall become due within two weeks of the next regularly scheduled meeting of the governing body of the political subdivision if such employee is separated from the payroll at least one week prior to such meeting, or if an employee of a political subdivision is separated from the payroll less than one week prior to the next regularly scheduled meeting of the governing body of the political subdivision, the unpaid wages shall be due within two weeks of the following regularly scheduled meeting of the governing body of the political subdivision.
§ 48-1231. Employee; claim for wages; suit; judgment; costs and attorney’s fees; failure to furnish itemized statement; penalty.
(1) An employee having a claim for wages which are not paid within thirty days of the regular payday designated or agreed upon may institute suit for such unpaid wages in the proper court. If an employee establishes a claim and secures judgment on the claim, such employee shall be entitled to recover (a) the full amount of the judgment and all costs of such suit and (b) if such employee has employed an attorney in the case, an amount for attorney’s fees assessed by the court, which fees shall not be less than twenty-five percent of the unpaid wages. If the cause is taken to an appellate court and the plaintiff recovers a judgment, the appellate court shall tax as costs in the action, to be paid to the plaintiff, an additional amount for attorney’s fees in such appellate court, which fees shall not be less than twenty-five percent of the unpaid wages. If the employee fails to recover a judgment in excess of the amount that may have been tendered within thirty days of the regular payday by an employer, such employee shall not recover the attorney’s fees provided by this section. If the court finds that no reasonable dispute existed as to the fact that wages were owed or as to the amount of such wages, the court may order the employee to pay the employer’s attorney’s fees and costs of the action as assessed by the court.
(2) An employer who fails to furnish an itemized statement requested by an employee under subsection (2) of sec-tion 48-1230 shall be guilty of an infraction as defined in section 29-431 and shall be subject to a fine pursuant to sec-tion 29-436.
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New Hampshire Sales Representative
Posted: March 17, 2013 Filed under: New Hampshire | Tags: Commission (remuneration), Contract, IC, Independent Sales Rep, Rep, Sales, STATUTES Leave a commentNEW HAMPSHIRE REVISED STATUTES ANNOTATED
TITLE XXXI Trade And Commerce
CHAPTER 339-E Sales Representatives and Post-Termination Commissions
GO TO NEW HAMPSHIRE STATUTES ARCHIVE DIRECTORY
RSA 339-E:1 (2012)
339-E:1 Definitions.
In this chapter:
1. “Commission” means compensation paid a sales representative by a principal, the rate of which is expressed as a percentage of the dollar amount of orders or sales of the principal’s product.
2. “Principal” means a person who manufactures, produces, imports or distributes a product for sale to customers who purchase the product for resale; uses a sales representative to solicit orders for such product; and compensates individuals who solicit orders, in whole or in part, by commission.
3. “Sales representative” means an individual other than an employee, who contracts with a principal to solicit orders and who is compensated, in whole or in part, by commission but shall not include one who places orders or pur-chases exclusively for his own account for resale.
4. “Termination” means the end of services performed by the sales representative for the principal by discharge, resignation, or death.
339-E:2 Contract.
A sales representative and a principal shall enter into a written contract for services to be performed within this state by a sales representative. The written contract entered into pursuant to this section shall contain provisions which establish:
The form of payment and the method by which such payment is to be computed and paid;
Reasonable length of notice which either party must provide to the other for termination of the contract;
The number of calendar days, up to a maximum of 45 days, after the date of termination or notification of death when all commissions due shall be paid; and
Any other terms and conditions which the parties agree to include in such contract.
The principal shall provide the sales representative a signed copy of a written contract entered into pursuant to this section.
A provision in the contract establishing venue for an action arising under the contract in a state other than this state is void.
339-E:3 Damages.
The party who fails to comply with a provision of a contract entered into under RSA 339-E:2 relating to payment of a commission is liable in a civil action for damages, plus reasonable attorney’s fees and costs. The court may award exemplary damages of up to 3 times the commission owed in an action brought under this chapter.
339-E:4 Jurisdiction.
A principal who is not a resident of this state who enters into a contract with a sales representative subject to this chapter shall be considered to be doing business in this state for purposes of the exercise of personal jurisdiction over the principal.
339-E:5 Other Remedies; Combination of Claims.
Nothing in this chapter shall invalidate or restrict any other or additional right or remedy available to a sales representative, or preclude a sales representative from seeking to recover in one action on all claims against a principal.
339-E:6 No Waivers by Contract.
A provision in any contract between a sales representative and a principal purporting to waive any provision of this chapter, whether by expressed waiver or by a contract subject to the laws of another state, shall be void.
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New Jersey Sales Representative
Posted: March 17, 2013 Filed under: New York | Tags: IC, Independent Sales Rep, JERSEY, Rep Leave a commentTITLE 2A. ADMINISTRATION OF CIVIL AND CRIMINAL JUSTICE
SUBTITLE 6. SPECIFIC CIVIL ACTIONS
CHAPTER 61A. SALES REPRESENTATIVES; SALES ON COMMISSION
GO TO THE NEW JERSEY ANNOTATED STATUTES ARCHIVE DIRECTORY
N.J. Stat. § 2A:61A-1 (2013)
§ 2A:61A-1. Definitions
As used in this act:
a. “Commission” means compensation accruing to a sales representative for payment by a principal, earned through the last day on which services were performed by the sales representative, the rate of which is expressed as a percentage of the dollar amount of orders or sales or as a specified amount per order or per sale.
b. “Principal” means a person, including a person who does not have a permanent or fixed place of business in this State, who manufactures, produces, imports or distributes a product or offers a service; contracts with an independent sales company or other person to solicit orders for the product or service; and compensates those companies or other persons who solicit orders, in whole or in part, by commission.
c. “Sales representative” means an independent sales company or other person, other than an employee, who contracts with a principal to solicit orders and who is compensated, in whole or in part, by commission but shall not include one who places orders or purchases exclusively for his own account for resale.
d. “Day” means a calendar day including Saturdays, Sundays and legal holidays.
e. “Termination” means the end of services performed by the sales representative for the principal by any means.
f. (Deleted by amendment, P.L.2007, c.289.)
§ 2A:61A-2. Payment to sales representative after termination of contract
When a contract between a principal and a sales representative to solicit orders is terminated, the commissions and other compensation earned as a result of the representative relationship and unpaid shall become due and payable within 30 days of the date the contract is terminated or within 30 days of the date commissions are due, whichever is later.
A sales representative shall receive commissions on goods ordered up to and including the last day of the contract even if accepted by the principal, delivered, and paid for after the end of the agreement. The commissions shall become due and payable within 30 days after payment would have been due under the contract if the contract had not been terminated.
§ 2A:61A-3. Liability to sales representative for violation; liability for frivolous court action
a. A principal who violates or fails to comply with the provisions of section 2 [C.2A:61A-2] of this act shall be liable to the sales representative for all amounts due the sales representative, exemplary damages in an amount of three times the amount of commissions owed to the sales representative and all attorney’s fees actually and reasonably incurred by the sales representative in the action and court costs.
b. Where the court determines that an action brought by a sales representative against a principal pursuant to this section is frivolous, pursuant to P.L.1988, c.46 (C.2A:15-59.1), the sales representative shall be liable to the principal for attorney’s fees actually and reasonably incurred by the principal in defending the action and court costs.
§ 2A:61A-4. Payment as of postmark date
The commissions and other compensation shall be paid at the usual place of payment unless the sales representative requests that the commissions and other compensation be sent through first class mail. If, in accordance with a request by the sales representative, the sales representative’s commissions and other compensation are sent through the mail, the commissions and compensation shall be deemed to have been paid as of the date of their registered postmark.
§ 2A:61A-5. Jurisdiction over nonresident principals
A principal who is not a resident of this State who contracts with a sales representative to solicit orders in this State is declared to be doing business in this State for purposes of the exercise of personal jurisdiction.
§ 2A:61A-6. Waiving provisions of this act prohibited
A provision in any contract between a sales representative and a principal purporting to waive any provision of this act, whether by express waiver or by a provision stipulating that the contract is subject to the laws of another state, shall be void.
§ 2A:61A-7. Construction
Nothing in this act shall invalidate or restrict any other or additional right or remedy available to a sales representative or principal, or preclude a sales representative from seeking to recover in one action on all claims against a principal, or preclude a principal from seeking to recover in one action on all claims against a sales representative.
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New York Sales Representative
Posted: March 17, 2013 Filed under: New York | Tags: Employment, IC, Independent Sales Rep, Labour law, New York, New York City, Rep, Wage Leave a commentNEW YORK CONSOLIDATED LAW SERVICE
All rights reserved
LABOR LAW
ARTICLE 6. PAYMENT OF WAGES
Go to the New York Code Archive Directory
NY CLS Labor § 190 (2013)
§ 190. [n1] [n1]Definitions
As used in this article:
1. “Wages” means the earnings of an employee for labor or services rendered, regardless of whether the amount of earnings is determined on a time, piece, commission or other basis. The term “wages” also includes benefits or wage supplements as defined in section one hundred ninety-eight-c of this article, except for the purposes of sections one hundred ninety-one and one hundred ninety-two of this article.
2. “Employee” means any person employed for hire by an employer in any employment.
3. “Employer” includes any person, corporation, limited liability company, or association employing any individual in any occupation, industry, trade, business or service. The term “employer” shall not include a governmental agency.
4. “Manual worker” means a mechanic, workingman or laborer.
5. “Railroad worker” means any person employed by an employer who operates a steam, electric or diesel surface railroad or is engaged in the sleeping car business. The term “railroad worker” shall not include a person employed in an executive capacity.
6. “Commission salesman” means any employee whose principal activity is the selling of any goods, wares, merchandise, services, real estate, securities, insurance or any article or thing and whose earnings are based in whole or in part on commissions. The term “commission salesman” does not include an employee whose principal activity is of a supervisory, managerial, executive or administrative nature.
7. “Clerical and other worker” includes all employees not included in subdivisions four, five and six of this section, except any person employed in a bona fide executive, administrative or professional capacity whose earnings are in excess of [fig 1] nine hundred dollars a week.
8. “Week” means a calendar week or a regularly established payroll week. “Month” means a calendar month or a regularly established fiscal month.
9. “Non-profitmaking organization” means a corporation, unincorporated association, community chest, fund or foundation organized and operated exclusively for religious, charitable or educational purposes, no part of the net earnings of which inure to the benefit of any private shareholder or individual.
§ 191. Frequency of payments
1. Every employer shall pay wages in accordance with the following provisions:
a. Manual worker.–
(i) A manual worker shall be paid weekly and not later than seven calendar days after the end of the week in which the wages are earned; provided however that a manual worker employed by an employer authorized by the commissioner pursuant to subparagraph (ii) of this paragraph or by a non-profitmaking organization shall be paid in accordance with the agreed terms of employment, but not less frequently than semi-monthly.
(ii) The commissioner may authorize an employer which has in the three years preceding the application em-ployed an average of one thousand or more persons in this state or has for one year preceding the application employed an average of one thousand or more persons in this state and has for three years preceding the application employed an average of three thousand or more persons outside the state to pay less frequently than weekly but not less frequently than semi-monthly if the employer furnishes satisfactory proof to the commissioner of its continuing ability to meet its payroll responsibilities. In making this determination the commissioner shall consider the following: (A) the employer’s history meeting its payroll responsibilities in New York state or if no such history in New York state is available, other financial information, as requested by the commissioner, which will assist the commissioner in determining the likelihood of the employer’s continuing ability to meet payroll responsibilities; (B) proof of the employer’s coverage for workers’ compensation and disability; (C) proof that there are no outstanding warrants of the department of taxation and finance or the department of labor against the employer for failure to remit state personal income tax withholdings or unemployment insurance contributions; and (D) proof that the employer has a computerized record keeping system for payroll which, at a minimum, specifies hours worked, rate of pay, gross wages, deductions and date of pay for each employee. If the employers’ manual workers are represented by a labor organization, the commissioner shall not grant an employer’s application for authorization under this subparagraph unless that labor organization consents thereto.
Upon notice to the employer and an opportunity to be heard, the commissioner may rescind such authorization whenever the commissioner has determined, based upon the factors enumerated above, that the employer is no longer able to meet its payroll responsibilities as previously authorized.
b. Railroad worker.-A railroad worker shall be paid on or before Thursday of each week the wages earned during the seven-day period ending on Tuesday of the preceding week; and provided further that at the written request and notification of address by any employee, every railroad corporation, with the exception of those commuter railroads under the jurisdiction of the metropolitan transportation authority, shall mail every check for wages of such employee via the United States postal service, first class mail.
c. Commission [fig 1] salespersons.–A commission [fig 2] salesperson shall be paid the wages, salary, drawing account, commissions and all other monies earned or payable in accordance with the agreed terms of employment, but not less frequently than once in each month and not later than the last day of the month following the month in which they are earned; provided, however, that if monthly or more frequent payment of wages, salary, drawing accounts or commissions are substantial, then additional compensation earned, including but not limited to extra or incentive earnings, bonuses and special payments, may be paid less frequently than once in each month, but in no event later than the time provided in the employment agreement or compensation plan. The employer shall furnish a commission [fig 3] salesperson, upon written request, a statement of earnings paid or due and unpaid. The agreed terms of employment shall be reduced to writing, signed by both the employer and the commission salesperson, kept on file by the employer for a period not less than three years and made available to the commissioner upon request. Such writing shall include a description of how wages, salary, drawing account, commissions and all other monies earned and payable shall be calculated. Where the writing provides for a recoverable draw, the frequency of reconciliation shall be included. Such writing shall also provide details pertinent to payment of wages, salary, drawing account, commissions and all other monies earned and payable in the case of termination of employment by either party. The failure of an employer to produce such written terms of employment, upon request of the commissioner, shall give rise to a presumption that the terms of employment that the commissioned salesperson has presented are the agreed terms of employment.
d. Clerical and other worker.–A clerical and other worker shall be paid the wages earned in accordance with the agreed terms of employment, but not less frequently than semi-monthly, on regular pay days designated in advance by the employer.
2. No employee shall be required as a condition of employment to accept wages at periods other than as provided in this section.
3. If employment is terminated, the employer shall pay the wages not later than the regular pay day for the pay period during which the termination occurred, as established in accordance with the provisions of this section. If requested by the employee, such wages shall be paid by mail.
§ 191-a. Definitions
For purposes of this article the term:
(a) “Commission” means compensation accruing to a sales representative for payment by a principal, the rate of which is expressed as a percentage of the dollar amount of wholesale orders or sales.
(b) “Earned commission” means a commission due for services or merchandise which is due according to the terms of an applicable contract or, when there is no applicable contractual provision, a commission due for merchandise which has actually been delivered to, accepted by, and paid for by the customer, notwithstanding that the sales representative’s services may have terminated.
(c) “Principal” means a person or company engaged in the business of manufacturing, and who:
(1) Manufactures, produces, imports, or distributes a product for wholesale;
(2) Contracts with a sales representative to solicit orders for the product; and
(3) Compensates the sales representative in whole or in part by commissions.
(d) “Sales representative” means a person or entity who solicits orders in New York state and is not covered by subdivision six of section one hundred ninety and paragraph (c) of subdivision one of section one hundred ninety-one of this article because he or she is an independent contractor, but does not include one who places orders for his own account for resale.
§ 191-b. Contracts with sales representatives
1. When a principal contracts with a sales representative to solicit wholesale orders within this state, the contract shall be in writing and shall set forth the method by which the commission is to be computed and paid.
2. The principal shall provide each sales representative with a signed copy of the contract. The principal shall obtain a signed receipt for the contract from each sales representative.
3. A sales representative during the course of the contract, shall be paid the earned commission and all other monies earned or payable in accordance with the agreed terms of the contract, but not later than five business days after the commission has become earned.
§ 191-c. Payment of sales commission
1. When a contract between a principal and a sales representative is terminated, all earned commissions shall be paid within five business days after termination or within five business days after they become due in the case of earned commissions not due when the contract is terminated.
2. The earned commission shall be paid to the sales representative at the usual place of payment unless the sales representative requests that the commission be sent to him or her through the mails. If the commissions are sent to the sales representative by mail, the earned commissions shall be deemed to have been paid as of the date of their postmark for purposes of this section.
3. A principal who fails to comply with the provisions of this section concerning timely payment of all earned commissions shall be liable to the sales representative in a civil action for double damages. The prevailing party in any such action shall be entitled to an award of reasonable attorney’s fees, court costs, and disbursements.
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North Carolina Sales Representative
Posted: March 17, 2013 Filed under: North Carolina | Tags: Commission (remuneration), IC, Independent Sales Rep, North Carolina, Rep, STATUTES Leave a commentGeneral Statutes of North Carolina
CHAPTER 66. COMMERCE AND BUSINESS
ARTICLE 27. SALES REPRESENTATIVE COMMISSIONS
Go to the North Carolina Code Archive Directory
§ 66-190. Definitions
The following definitions apply in this Article:
(1) “Commission” means compensation accruing to a sales representative for payment by a principal, the rate of which is expressed as a percentage of the amount of orders, sales, or profits or as a specified amount per order or per sale.
(2) “Person” means an individual, corporation, limited liability company, partnership, unincorporated association, estate, trust, or other entity.
(3) “Principal” means a person who:
a. Manufactures, produces, imports, or distributes a product or service;
b. Contracts with a sales representative to solicit orders for the product or service; and
c. Compensates the sales representative, in whole or in part, by commission.
(4) “Sales representative” means a person who:
a. Contracts with a principal to solicit orders for products or services;
b. Is compensated, in whole or in part, by commission;
c. Is not a seller who complies with:
1. G.S. 25A-39 and G.S. 25A-40; or
2. Part 429 of 16 Code of Federal Regulations (January 1, 2003);
d. Repealed by Session Laws 2003-331, s. 1, effective October 1, 2003.
e. Is not an employee of the principal;
f. Does not sell or take orders for the sale of advertising services; and
g. Is not a person requiring a real estate broker’s or sales agent’s license under Chapter 93A of the General Statutes.
(5) “Terminate” and “termination” mean the end of the business relationship between the sales representative and the principal, whether by agreement, by expiration of time, or by exercise of a right of termination of either party.
§ 66-191. Payment of commissions; termination.
When a contract between a sales representative and a principal is terminated for any reason other than malfeasance on the part of the sales representative, the principal shall pay the sales representative all commissions due under the contract within 30 days after the effective date of the termination and all commissions that become due after the effective date of termination within 15 days after they become due. If the principal does not make payment as required by this section, the sales representative shall make a written demand upon the principal, sent by certified mail, for the commissions then due. The principal shall respond in writing to the demand within 15 days after the principal receives the written demand.
§ 66-192.1. Revocable offers of commission; entitlement
If a principal makes a revocable offer of a commission to a sales representative, the sales representative is entitled to the commission agreed upon if:
(1) The principal revokes the offer of commission;
(2) The sales representative establishes that the revocation was for the purpose of avoiding payment of the commission;
(3) The revocation occurs after the principal has obtained a written order for the principal’s product or service because of the efforts of the sales representative; and
(4) The principal’s product or service that is the subject of the order is provided to and paid for by a customer.
§ 66-190.1. Written contracts
The agreement or contract between a sales representative and a principal shall be in writing. The absence of a written agreement or contract shall not bar a cause of action by, or any remedy available to, a party.
§ 66-192. Civil liability
(a) A principal who fails to comply with the provisions of G.S. 66-191 or is shown to have wrongfully revoked an offer of commission under G.S. 66-192.1 is liable to the sales representative in a civil action for (i) all amounts due the sales representative plus exemplary damages in an amount not to exceed two times the amount of commissions due the sales representative, (ii) attorney’s fees actually and reasonably incurred by the sales representative in the action, and (iii) court costs.
(b) Where the court determines that an action brought by a sales representative against a principal under this Article is frivolous, the sales representative is liable to the principal for court costs and for attorney’s fees actually and reasonably incurred by the principal in defending the action.
(c) A principal who is not a resident of this State who contracts with a sales representative to solicit orders in this State shall be subject to personal jurisdiction as provided in G.S. 1-75.4.
(d) Nothing in this Article shall invalidate or restrict any other or additional right or remedy available to a sales representative or preclude a sales representative from seeking to recover in one action on all claims against a principal.
§ 66-193. Contracts void
A provision in any contract between a sales representative and a principal purporting to waive any provision of this Article, whether by expressed waiver or by a contract subject to the laws of another state, is void.
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Recreation Law 