Skier claims resort liable for boundary rope, in place to prevent collisions, which she collided with…..
Posted: January 23, 2012 Filed under: New Mexico, Ski Area | Tags: New Mexico, Ski Patrol, Ski Safety Act, Summary judgment, Taos Ski Valley, Taos Ski Valley New Mexico, United States, United States Forest Service 1 CommentKidd v. Taos Ski Valley, Inc., 88 F.3d 848; 1996 U.S. App. LEXIS 16060; 34 Fed. R. Serv. 3d (Callaghan) 1440
Black and Yellow line (bumblebee) held up with bamboo poles with orange fluorescent flagging is hard to see
The plaintiff in this case suffered a broken back, ribs, hip and pelvis after hitting a rope used to direct traffic at Taos Ski Valley, Inc (referred to as TSV by the court). The plaintiff was an experienced skier, and the rope had been in place for twelve years.
The plaintiff sued for:
…failing to properly mark, warn and/or correct a dangerous hazard created by the suspension of the rope between two poles; TSV had acted with wanton or gross negligence in maintaining the unmarked rope and she was, accordingly, entitled to punitive damages; TSV breached it contractual obligations under a special use permit with the United States under which she was a third party beneficiary; and TSV’s installation of the rope created an inherently dangerous condition, thereby imposing the duty of highest care on TSV….
Taos moved to dismiss three of the claims with a motion based on a failure to state a claim. That is a motion that argues based on the allegations of the plaintiff’s complaint, there is no legal liability on the part of the defendants. The plaintiff has failed to state a legal claim that the defendant can be held liable for. Two of those claims were dismissed.
The ski area then filed a motion for summary judgment, which dismissed the remaining claims of the plaintiff based on the New Mexico Ski Safety Act, N.M. Stat. Ann. §§ 24-15-1, et seq.
So?
The plaintiff appealed the dismissal of her case. The first basis of her appeal was based on the NM Ski Safety Act. The act provides that:
…every ski area operator shall have the following duties with respect to the operation of a skiing area: . . . to warn of or correct particular hazards or dangers known to the operator where feasible to do so….
She argued that the installation of the rope created a hazard which the ski area did not warn her about.
The court agreed with the ski area and held that even if the rope was a hazard, it was not feasible to correct the hazard and thus, under the statute, not a hazard the ski area needed to warn the plaintiff about.
The plaintiff then argued the ski area breached its duty because it did not mark its trails with the appropriate signage.
Section 24-15-7(C) provides:
Every ski operator shall have the following duties with respect to the operation of a skiing area:
* * *
to mark conspicuously the top or entrance to each slope, trail or area with the appropriate symbol for its relative degree of difficulty; and those slopes, trails or areas marked at the top or entrance with the appropriate symbols as established or approved by the national ski area association . . . .
The plaintiff’s expert witness opined that three ropes would be better and easier to see. However, the court found the expert’s opinion to be speculation and not persuasive. (Personally, three ropes create a real barrier. Think skiing into a fence rather than one line.)
The plaintiff’s next argument procedural in nature. Normally, I leave procedural issues out of this reviews, however this one might be good to know. The plaintiff wanted to depose the resort’s Chief Groomer and the Assistant head of the Ski Patrol. The resort filed a motion for a protective order which prevented the plaintiff from deposing these employees.
The appellate court held that since one of the senior employees of the resort was the responsible person, to who both subordinate employees ultimately reported, there was no need to depose the two employees. The Ski Area General Manager testified that he had the ultimate responsibility for marking the resort, which was enough for the court to prevent additional discovery.
The final issue not covered by the New Mexico Ski Safety Act is the plaintiff’s claim that based on the Special Use Permit issued by the US Forest Service to the ski area, she was a third party beneficiary, and permit/contract was breached.
This argument was rejected because the language of the New Mexico Ski Safety Act language indicated that the provisions within the act were to be the only remedy available to injured skiers.
The language of the statute indicates that the legislature intended the Act as the sole remedy for skiers. The Act states that ‘unless a ski operator is in violation of the Ski Safety Act, with respect to the skiing area . . ., and the violation is a proximate cause of the injury complained of, no action shall lie against such ski area, operator by any skier [or his representative].
As the sole remedy, the arguments of the plaintiff did not give rise to a claim.
So Now What?
This is a classic “damned if you do and damned if you don’t” situation for a defendant. If you don’t put up the rope, skiers are going to collide, causing injuries. If you do put up the rope, a skier may hit the rope. This is the balance test that a business must do in the US. To quote a sixties TV show turned into a 1980’s movie “In any case, were I to invoke logic, logic clearly dictates that the needs of the many outweigh the needs of the few.”
What do you think? Leave a comment.
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New Mexico Skier Safety Act
Posted: January 23, 2012 Filed under: New Mexico, Ski Area | Tags: Chairlift, New Mexico, Ski lift, Ski Resort, skiing Leave a commentNew Mexico Skier Safety Act
Chapter 24. Health and Safety
Article 15. Ski Safety
Go to the New Mexico Code Archive Directory
Contents
§ 24-15-6. Provisions in lieu of others
§ 24-15-7. Duties of ski area operators with respect to skiing areas
§ 24-15-8. Duties of ski area operators with respect to ski lifts
§ 24-15-9. Duties of passengers
§ 24-15-10. Duties of the skiers
§ 24-15-11. Liability of ski area operators
§ 24-15-12. Liability of passengers
§ 24-15-13. Liability of skiers
§ 24-15-14. Limitation of actions; notice of claim
§ 24-15-1. Short title
Chapter 24, Article 15 NMSA 1978 may be cited as the “Ski Safety Act”.
§ 24-15-2. Purpose of act
A. In order to safeguard life, health, property and the welfare of this state, it is the policy of New Mexico to protect its citizens and visitors from unnecessary hazards in the operation of ski lifts and passenger aerial tramways and to require liability insurance to be carried by operators of ski lifts and tramways. The primary responsibility for the safety of operation, maintenance, repair and inspection of ski lifts and tramways rests with the operators of such devices. The primary responsibility for the safety of the individual skier while engaging in the sport of skiing rests with the skier himself. The state, through the Ski Safety Act [24-15-1 NMSA 1978], recognizes these responsibilities and duties on the part of the ski area operator and the skier.
B. It is recognized that there are inherent risks in the sport of skiing, which should be understood by each skier and which are essentially impossible to eliminate by the ski area operator. It is the purpose of the Ski Safety Act [24-15-1 NMSA 1978] to define those areas of responsibility and affirmative acts for which ski area operators shall be liable for loss, damage or injury and those risks which the skier or passenger expressly assumes and for which there can be no recovery.
§ 24-15-3. Definitions
As used in the Ski Safety Act [24-15-1 NMSA 1978]:
A. “ski lift” means any device operated by a ski area operator used to transport passengers by single or double reversible tramway, chair lift or gondola lift, T-bar lift, J-bar lift, platter lift or similar device or a fiber rope tow;
B. “passenger” means any person, at any time in the year, who is lawfully using a ski lift or is waiting to embark or has recently disembarked from a ski lift and is in its immediate vicinity;
C. “ski area” means the property owned, permitted, leased or under the control of the ski area operator and administered as a single enterprise within the state;
D. “ski area operator” means any person, partnership, corporation or other commercial entity and its agents, officers, employees or representatives who has operational responsibility for any ski area or ski lift;
E. “skiing” means participating in the sport in which a person slides on snow, ice or a combination of snow and ice while using skis;
F. “skiing area” means all slopes, trails, terrain parks and competition areas, not including any ski lift;
G. “skier” means any person, including a person enrolled in ski school or other class for instruction, who is on skis and present at a skiing area under the control of a ski area operator for the purpose of engaging in the sport of skiing by utilizing the ski slopes and trails and does not include a passenger;
H. “ski slopes and trails” means those areas designated by the ski area operator to be used by skiers for the purpose of participating in the sport of skiing;
I. “ski retention device” means a device designed to help prevent runaway skis; and
J. “skis” means any device used for skiing, including alpine skis, telemark skis, cross-country skis, mono-skis, snowboards, bladerunners, adaptive devices used by disabled skiers, or tubes, sleds or any other device used to accomplish the same or a similar purpose to participate in the sport of skiing.
§ 24-15-4. Insurance
A. Every operator shall file with the state corporation commission [public regulation commission] and keep on file therewith proof of financial responsibility in the form of a current insurance policy in a form approved by the commission, issued by an insurance company authorized to do business in the state, conditioned to pay, within the limits of liability herein prescribed, all final judgments for personal injury or property damage proximately caused or resulting from negligence of the operator covered thereby, as such negligence is defined and limited by the Ski Safety Act [24-15-1 NMSA 1978]. The minimum limits of liability insurance to be provided by operators shall be as follows:
SKI SAFETY ACT
Liability insurance
Limits of Liability
Required Minimum Coverage’s
For Injuries, Death or Damages
|
Kind and Number of Lifts Operated |
Limits for Bodily Injury to or Death of Property One Person Damage |
Limits for Bodily Injury to or Death of All Persons Injured or Killed in Any One Accident |
Property Damage |
|
Not more than three surface lifts |
$ 100,000 |
$ 300,000 |
$ 5,000 |
|
Not more than three ski lifts, including one or more chair lifts |
250,000 |
500,000 |
25,000 |
|
More than three ski lifts or one or more tramways |
500,000 |
1,000,000 |
50,000. |
B. No ski lift or tramway shall be operated in this state after the effective date of the Ski Safety Act [24-15-1 NMSA 1978] unless a current insurance policy as required herein is in effect and properly filed with the state corporation commission [public regulation commission]. Each policy shall contain a provision that it cannot be canceled prior to its expiration date without thirty days’ written notice of intent to cancel served by registered mail on the insured and on the commission.
§ 24-15-5. Penalty
Any operator convicted of operating a ski lift or aerial passenger tramway without having obtained and kept in force an insurance policy as required by the Ski Safety Act [24-15-1 NMSA 1978] is guilty of a misdemeanor punishable by a fine of not more than five hundred dollars ($ 500) for each day of illegal operation. The attorney general or the district attorney of the county where the ski area is located has the power to bring proceedings in the district court of the county in which the ski area is located to enjoin the operation of any ski lift or tramway being operated without a current insurance policy, in the amounts prescribed herein, being obtained and kept in force and covering the operator concerned.
§ 24-15-6. Provisions in lieu of others
Provisions of the Ski Safety Act [24-15-1 NMSA 1978] are in lieu of all other regulations, registration or licensing requirements for ski areas, ski lifts and tramways. Ski lifts and tramways shall not be construed to be common carriers within the meaning of the laws of New Mexico.
§ 24-15-7. Duties of ski area operators with respect to skiing areas
Every ski area operator shall have the following duties with respect to the operation of a skiing area:
A. to mark all snow-maintenance vehicles and to furnish such vehicles with flashing or rotating lights, which shall be in operation whenever the vehicles are working or are in movement in the skiing area;
B. to mark with a visible sign or other warning implement the location of any hydrant or similar equipment used in snow-making operations and located on ski slopes and trails;
C. to mark in a plainly visible manner the top or entrance to each slope, trail or area with the appropriate symbol for its relative degree of difficulty, using the symbols established or approved by the national ski areas association; and those slopes, trails or areas which are closed, or portions of which present an unusual obstacle or hazard, shall be marked at the top or entrance or at the point of the obstacle or hazard with the appropriate symbols as are established or approved by the national ski areas association or by the New Mexico ski area operators association;
D. to maintain one or more trail boards at prominent locations at each ski area displaying that area’s network of ski trails and slopes with each trail and slope rated in accordance with the symbols and containing a key to the symbols;
E. to designate by trail board or otherwise at the top of or entrance to the subject trail or slope which trails or slopes are open or closed;
F. to place or cause to be placed, whenever snow-maintenance vehicles or snow-making operations are being undertaken upon any trail or slope while such trail or slope is open to the public, a conspicuous notice to that effect at or near the top or entrance of such trail or slope;
G. to provide ski patrol personnel trained in first aid, which training meets at least the requirements of the national ski patrol outdoor emergency care course, and also trained in winter rescue and toboggan handling to serve the anticipated number of injured skiers and to provide personnel trained for the evacuation of passengers from stalled aerial ski lifts. A first aid room or building shall be provided with adequate first aid supplies, and properly equipped rescue toboggans shall be made available at all reasonable times at the top of ski slopes and trails to transport injured skiers from the ski slopes and trails to the first aid room;
H. to post notice of the requirements of the Ski Safety Act [24-15-1 NMSA 1978] concerning the use of ski retention devices;
I. to warn of or correct particular hazards or dangers known to the operator where feasible to do so; and
J. to warn of snowmobiles or all-terrain vehicles (ATV’s) operated on the ski slopes or trails with at least one lighted headlamp, one lighted red tail lamp, a brake system and a fluorescent flag that is at least forty square inches and is mounted at least six feet above the bottom of the tracks or tires.
§ 24-15-8. Duties of ski area operators with respect to ski lifts
Every ski area operator shall have the duty to operate, repair and maintain all ski lifts in safe condition. The ski area operator, prior to December 1 of each year, shall certify to the state corporation commission [public regulation commission] the policy number and name of the company providing liability insurance for the ski area and the date of the ski lift inspections and the name of the person making such inspections.
§ 24-15-9. Duties of passengers
Every passenger shall have the duty to conduct himself carefully and not to:
A. board or embark upon or disembark from a ski lift except at an area designated for such purpose;
B. drop, throw or expel any object from a ski lift;
C. do any act which shall interfere with the running or operation of a ski lift;
D. use any ski lift unless the passenger has the ability to use it safely without any instruction on its use by the ski area operator or requests and receives instruction before boarding the ski lift;
E. willfully or negligently engage in any type of conduct which contributes to or causes injury to any person;
F. embark on a ski lift without the authority of the ski area operator;
G. use any ski lift without engaging such safety or restraining devices as may be provided; or
H. wear skis without properly securing ski retention devices; or
I. use a ski lift while intoxicated or under the influence of any controlled substance.
§ 24-15-10. Duties of the skiers
A. It is recognized that skiing as a recreational sport is inherently hazardous to skiers, and it is the duty of each skier to conduct himself carefully.
B. A person who takes part in the sport of skiing accepts as a matter of law the dangers inherent in that sport insofar as they are obvious and necessary. Each skier expressly assumes the risk of and legal responsibility for any injury to person or property which results from participation in the sport of skiing, in the skiing area, including any injury caused by the following: variations in terrain; surface or subsurface snow or ice conditions; bare spots; rocks, trees or other forms of forest growth or debris; lift towers and components thereof, pole lines and snow-making equipment which are plainly visible or are plainly marked in accordance with the provisions of Section 24-15-7 NMSA 1978; except for any injuries to persons or property resulting from any breach of duty imposed upon ski area operators under the provisions of Sections 24-15-7 and 24-15-8 NMSA 1978. Therefore, each skier shall have the sole individual responsibility for knowing the range of his own ability to negotiate any slope or trail, and it shall be the duty of each skier to ski within the limits of the skier’s own ability, to maintain reasonable control of speed and course at all times while skiing, to heed all posted warnings, to ski only on a skiing area designated by the ski area operator and to refrain from acting in a manner which may cause or contribute to the injury of anyone.
C. Responsibility for collisions by any skier while actually skiing, with any person or object, shall be solely that of each individual involved in the collision, except where an employee, agent or officer of the ski area operator is personally involved in a collision while in the course and scope of his employment or where a collision resulted from any breach of duty imposed upon a ski area operator under the provisions of Sections 24-15-7 or 24-15-8 NMSA 1978. Each skier has the duty to stay clear of and avoid collisions with snow-maintenance equipment, all-terrain vehicles and snowmobiles marked in compliance with the provisions of Subsections A and J of Section 24-15-7 NMSA 1978, all other vehicles, lift towers, signs and any other structures, amenities or equipment on the ski slopes and trails or in the skiing area.
D. No person shall:
(1)place any object in the skiing area or on the uphill track of any ski lift which may cause a passenger or skier to fall;
(2)cross the track of any T-bar lift, J-bar lift, platter lift or similar device or a fiber rope tow, except at a designated location;
(3)when injured while skiing or using a ski lift or, while skiing, when involved in a collision with any skier or object in which an injury results, leave the ski area before giving his name and current address to the ski area operator, or representative or employee of the ski area operator, and the location where the injury or collision occurred and the circumstances thereof; provided, however, in the event a skier fails to give the notice required by this paragraph, a court, in determining whether or not such failure constitutes a violation of the Ski Safety Act [24-15-1 NMSA 1978], may consider the reasonableness or feasibility of giving such notice; or
(4)use a ski lift, skiing area, slopes or trails while intoxicated or under the influence of any controlled substance.
E. No skier shall fail to wear retention straps or other ski retention devices to help prevent runaway skis.
F. Any skier upon being injured shall indicate, to the ski patrol personnel offering first aid treatment or emergency removal to a first aid room, his acceptance or rejection of such services as provided by the ski area operator. If such service is not refused or if the skier is unable to indicate his acceptance or rejection of such service, the acceptance of the service is presumed to have been accepted by the skier. Such acceptance shall not constitute a waiver of any action for negligent provision of the service by the ski patrol personnel.
§ 24-15-11. Liability of ski area operators
Any ski area operator shall be liable for loss or damages caused by the failure to follow the duties set forth in Sections 24-15-7 and 24-15-8 NMSA 1978 where the violation of duty is causally related to the loss or damage suffered, and shall continue to be subject to liability in accordance with common-law principles of vicarious liability for the willful or negligent actions of its principals, agents or employees which cause injury to a passenger, skier or other person. The ski area operator shall not be liable to any passenger or skier acting in violation of his duties as set forth in Sections 24-15-9 and 24-15-10 NMSA 1978 where the violation of duty is causally related to the loss or damage suffered.
§ 24-15-12. Liability of passengers
Any passenger shall be liable for loss or damages resulting from violations of the duties set forth in Section 24-15-9 NMSA 1978, and shall not be able to recover from the ski area operator for any losses or damages where the violation of duty is causally related to the loss or damage suffered.
§ 24-15-13. Liability of skiers
Any skier shall be liable for loss or damages resulting from violations of the duties set forth in Section 24-15-10 NMSA 1978, and shall not be able to recover from the ski area operator for any losses or damages where the violation of duty is causally related to the loss or damage suffered.
§ 24-15-14. Limitation of actions; notice of claim
A. Unless a ski area operator is in violation of the Ski Safety Act [24-15-1 NMSA 1978], with respect to the skiing area and ski lifts, and the violation is a proximate cause of the injury complained of, no action shall lie against such ski area operator by any skier or passenger or any representative of a skier or passenger. This prohibition shall not prevent the bringing of an action against a ski area operator for damages arising from injuries caused by negligent operation, maintenance or repair of the ski lift.
B. No suit or action shall be maintained against any ski area operator for injuries incurred as a result of the use of a ski lift or ski area unless the same is commenced within three years of the time of the occurrence of the injuries complained of.
Created January 9, 2012
Artists Sought for Waterfowl Competition
Posted: January 20, 2012 Filed under: Colorado | Tags: Artists, Colorado, Competition, Stamp, Waterfowl Leave a comment
2010 CO Waterfowl Stamp
[Colorado Parks and Wildlife looking for Artists for its Waterfowl Competition]
ARTISTS SOUGHT FOR WATERFOWL COMPETITION
DENVER – Colorado Parks and Wildlife is soliciting original artwork entries for the 2012 Colorado Waterfowl Stamp Art Contest. This year’s species of focus is the Ross’s goose, a small white goose that is often confused with the snow goose. The deadline for artists to submit entries is 4 p.m., Friday, March 2.
“We have a relatively large format entry for waterfowl stamps art and that really lets artists be creative with their depiction of the birds we choose each year,” said Brian Sullivan, who coordinates the waterfowl stamp program for Colorado Parks and Wildlife.
The Colorado Waterfowl Stamp program was implemented in 1990 and provides funding to conserve wetlands for waterfowl and other wetland-dependent wildlife. Waterfowl hunters 16 years of age and older are required by state law to purchase a waterfowl stamp validation annually before hunting. In addition to hunters, many collectors aid in wetland conservation by purchasing collector stamps and prints that are created from the winning entry.
All revenue generated from the sale of the hunter version of the Waterfowl Stamp – more than $6.7 million to date – is used to fund wetlands projects throughout the state. Almost 20,000 acres of wetlands have been protected with Waterfowl Stamp funds so far. In 2011, waterfowl stamp funds were used to help improve water management at the Andrick Ponds State Wildlife Area in Morgan County, which is managed as a quality waterfowl-hunting property.
This year’s featured species, the Ross’s goose, is a white goose with black wingtips that looks like a miniature version of the larger and more abundant snow goose. Distinguishing between Ross’s goose and snow goose is typically easiest in flight, where the Ross’s shorter neck and smaller head is more apparent. Ross’s geese have been noted in many parts of Colorado but they are generally spotted over the plains or in western Colorado during migrations between their Canadian tundra breeding grounds and their warmer southern wintering areas.
Artists who wish to enter the competition must submit a 13-inch high by-18 inch wide, full-color original artwork. There is a $50 fee for each entry. The winning entry will receive $3,500 with smaller cash prizes for second and third place as well. Complete requirements are explained in the application packet, which is available at http://wildlife.state.co.us/Hunting/Waterfowl/WaterfowlStampProgram/. Hunters can purchase the required $5 waterfowl stamp validation where hunting licenses are sold. The gum-backed stamp is available for a small additional fee.
Collector gum-backed stamps and art prints of the 2012 waterfowl stamp will be available for purchase in late July. Collector stamps and prints are sold through the Colorado Wildlife Heritage Foundation. The Colorado Wildlife Heritage Foundation also has past stamp winner prints available.
The Colorado Wildlife Heritage Foundation was created in 1989 as a result of Governor Roy Romer’s Wildlife 21 Task Force report, which recognized that Colorado’s abundant and diverse wildlife makes an immense contribution to the state’s economy and the quality of life in the state. It also found that declining hunting and fishing revenues were insufficient to protect wildlife habitat from the threats posed by development.
The Foundation was formed to raise money to help fill the gap between available hunting and fishing funds and wildlife needs. The Foundation focuses its efforts on habitat preservation, wildlife research, species recovery, responding to wildlife emergencies and educating people about wildlife.
For more information on the Colorado Wildlife Heritage Foundation, go to: http://www.cwhf.info/.
For more information about Division of Wildlife go to: http://wildlife.state.co.us.
WMS Trailblazer – January 2012
Posted: January 17, 2012 Filed under: First Aid, Utah | Tags: Conference, first aid, Medical, Physcian, Recreation, Wilderness Medical Society (WMS), WMS Leave a comment[Wilderness Medical Society (WMS) Updates]
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Leading the worldwide community of Wilderness Medicine
February 4-8, 2012
Will the ski industry ignore itself into litigation nightmares or will it decided to make skiers assume the risk
Posted: January 16, 2012 Filed under: Legal Case, New Jersey, Skier v. Skier | Tags: Collision, Death, Mountain Creek, New Jersey, NSAA, NSP, Ski, Skier Responsibility Code, Skier v. Skier Collision, Snowboard, Sports Leave a commentAngland v. Mountain Creek Resort, Inc., 2011 N.J. Super. Unpub. LEXIS 2542
The issue as identified in this case is ongoing throughout the US, is the standard of care reckless skiing, the standard of care in most of life or just failing to ski perfectly.
This is another case that cannot be relied upon for any major legal principle because it is still facing months or years of litigation. However, it identifies an issue in the ski industry, and probably other industries in the future on the standard of care a skier owes another skier. (In this case I use the term skier to mean anyone on the mountain, skier, boarder, telemark skier, snow bike, etc.)
Is the standard of care that of someone acting recklessly or is the standard of care violating the “skier’s responsibility code?”
This case
The case is simple with drastic consequences. A snowboarder and a skier were on the same slope. Allegedly, another person cut the snowboarder off, and he quickly turned to his left colliding with Angland, the deceased. Angland fell and slid a distance into a wall where he died. Here is the court’s interpretation of what happened.
In order to avoid the unidentified skier, Brownlee turned quickly to his left. In doing so, Brownlee’s snowboard and the decedent’s skis became entangled. The two men collided, fell, and slid downhill. Decedent ultimately impacted a concrete bridge headfirst. He died as a result. Brownlee stopped sliding. He stood up and went to Angland’s assistance.
The family/estate of the deceased sued the ski area, Mountain Creek and the snowboarder. Mountain Creek and the snowboarder filed motions for summary judgment. Mountain Creek was dismissed from the suit based on the New Jersey Ski Statute. The court held that there was enough factual issue in the arguments of the parties that had to be decided by a jury so therefore the snowboarder was not dismissed from the case.
The main issue appears to be did the snowboarder violate the standard of care as set forth in the New Jersey Ski Statute. The relevant part of the statute is:
N.J.S.A. § 5:13-4. Duties of skiers
(4) Knowingly engage in any act or activity by his skiing or frolicking, which injures other skiers while such other skiers are either descending any trail, or standing or congregating in a reasonable manner, and due diligence shall be exercised in order to avoid hitting, colliding with or injuring any other skier or invitee.
The expert witness for the plaintiff testified that the snowboarder did violate the statute and consequently, the standard of care when he deviated “… from the statutory standard occurred when Brownlee failed to keep a proper lookout, made a panic stop, and turned to his left in front of decedent.”
If you are turning to avoid a collision, you are maintaining a proper lookout. If you are a goofy footed snowboarder you have limited vision to your left. Again, if you are avoiding a collision or a problem, you turn in skiing and boarding.
The court did not dismiss the complaint of the snowboarder because the court believed the snowboarder may have violated the statute. The statute is not aligned with the other states in how it describes the standard of care leaving a large whole in understanding what level of care is owed by one skier to another.
Do any of those issues rise to the level that they are reckless?
In the past, the standard to determine if a skier was skiing in a negligent manner was whether the skier was skiing recklessly. Reckless skiing is defined as:
….intentionally injure or engage in conduct that is so reckless as to be totally outside the range of ordinary activity involved in the sport. Mastro v. Petrick, 93 Cal. App. 4th 83; 112 Cal. Rptr. 2d 185; 2001 Cal. App. LEXIS 2725; 2001 Cal. Daily Op. Service 9124 (California)
Carelessness and recklessness,’ though more than ordinary negligence, is less than willfulness or wantonness.” Strawbridge vs. Sugar Mountain Resort, 320 F. Supp. 2d 425; 2004 U.S. Dist. LEXIS 14561 (North Carolina)
A defendant, however, may not be held liable for negligent, or even reckless or intentional injurious conduct that is not outside the range of ordinary activity involved in the sport. Fontaine v. Boyd, 2011 R.I. Super. LEXIS 27 (Rhode Island)
…done heedlessly and recklessly, without regard to consequences, or of the rights and safety of others, particularly the plaintiff. Stamp, v. The Vail Corporation, 172 P.3d 437; 2007 Colo. LEXIS 1082 (Colorado)
…recklessness is “a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater . . . than that which is necessary to make his conduct negligent, Hanks v. Powder Ridge Restaurant Corporation et al., 276 Conn. 314; 2005 Conn. LEXIS 500
Recklessness is not intentional acts; it is just short of that. The expert in this case looked at the issues and identified three things that the defendant snowboarder did that violated the New Jersey Ski Statute:
· failed to keep a proper lookout
· made a panic stop
· turned to his left in front of decedent
In my opinion, none of the actions of the defendant in this case violated the standard of care. Looking at this from the standard of care of all other states with ski areas the defendant snowboarder was not reckless. However, if the plaintiff’s bar has its way, the actions of the defendant snowboarder may have violated the skier responsibility code.
The heart of the argument is the plaintiffs are attempting to change the standard of care from reckless to a much lower level. Usually, that level is aligned with the public-safety program developed by the National Ski Patrol called the Skier Responsibility Code. A few caveats about the code.
1. It is not set in stone; in fact, an internet search for the code will identify dozens of different codes. The version on the National Ski Patrol website and the National Ski Area Association website are even different.
2. It was created as a guideline, not a standard of care.
3. Only Montana has incorporated the code in its statute.
So Now What?
My issue with the entire issue is no one seems to want to take a stand and say this is going to be a disaster if we don’t do something about it. Allowing the definition of a breach of the standard of care between skiers/boarders on the slope is going to cost ski areas a lot of money, more so if they are not named in the suit.
Every lawsuit based ski area land; the ski area is going to have to do things that cost money.
1. Copies of reports, maps, and ski patrol information must be identified and provided to opposing parties.
2. Employees will be deposed and attend trial; the resort is going to have to pay them to attend.
3. When employees are being deposed, and possibly attend trial, attorneys are going to have to be hired to represent the employees.
These are just three quick instances. This does not include such things as closing the slope for a site inspection. If only two employees are subpoenaed think of the cost of preparing for deposition, being deposed, preparing for trial and attending a trial to a ski area.
This is very expensive and if the ski area is not named in the suit, there is no insurance to cover these costs.
From the perspective of this case, there is a lot left to argue. We can only wait and see what the outcome is, if we ever learn.
From the perspective of the ski industry, the industry needs to realize that this is only going to get worse.
The industry needs to:
· Inform people that collisions, unless reckless or intentional are assumed and part of the risk of skiing. California has done this.
· Change statutes to say that collisions in skiing, like in football, basketball, soccer, baseball are part of the risk of skiing, and a participant assumes the risk.
· Define the Skier Responsibility Code as help, not the standard of care.
What do you think? Leave a comment.
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ShmoozaPalooza Job Fair – At Outdoor Retailer trade show, Saturday, January 21, 2012
Posted: January 12, 2012 Filed under: Utah | Tags: Employment, INSIDEOUTDOOR Magazine, Job Fair, Job Search, Outdoor recreation, Salt Lake City, Trade fair, Tradeshow, Utah Leave a comment |
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Jurisdiction in Massachusetts allows a plaintiff to bring in Salomon France to the local court.
Posted: January 9, 2012 Filed under: Jurisdiction and Venue (Forum Selection), Massachusetts, Skiing / Snow Boarding | Tags: Due Process, Lawsuit, Litigation, Long-Arm Jurisdiction, Massachusetts, Motion (legal), Plaintiff, Product liability, Salomon North America, Ski binding, Summary judgment Leave a commentLafond v. Salomon North America Inc. et al, Superior Court County of Suffolk, Commonwealth of Massachusetts.
Although not a Precedent setting decision, it is indicative of where the courts are going.
This is a decision in the trial court of Massachusetts over ski bindings. The bindings broke injuring the plaintiff while he was skiing in Utah. He sued Salomon in the US and Salomon SAS, the French parent company based on Annecy France. The retailer, Bob Smith’s Wilderness House was brought in as a third party defendant.
The defendants filed a Motion to Dismiss, or what is referred to as a Rule 12(b)(2) motion. A Motion to Dismiss is granted only if the pleadings of the plaintiff do not state a legal claim or the defendant can’t be sued in this case. No evidence is reviewed by the court; it is purely a simple legal argument based on the laws of procedure.
Salomon SAS argued that it had no business in France, did no business in any country other than with Salomon North America based in Ogden Utah. Therefore, because it did no business in Massachusetts, it should not be brought into the litigation in Massachusetts.
So?
Image via Wikipedia
The plaintiff claimed it went to the Salomon SAS website to research different bindings. The Salomon SAS website directed the plaintiff to the third party defendant Bob Smith’s Wilderness House as a retailer the plaintiff could from whom he could purchase the bindings.
The broken bindings were replaced by Salomon, although it is not known in the motion if it was Salmon SAS or Salomon North America.
The issue is whether court has the legal right to require a defendant to submit to its jurisdiction. The limits or requirements the court must follow are set usually set out in a long-arm statute. That is the name given to the statute that controls whether the long arm of the law can extend outside of the state.
To exercise out of state jurisdiction over a defendant located in another state or country the defendant must have engaged in “purposeful and successful solicitation of business from Massachusetts residents.”
A website alone is not enough to bring a foreign or out of court defendant into the jurisdiction of a Massachusetts court. However, because the plaintiff identified the store where he purchased the bindings based on his actions on the Salomon SAS website that was enough to subject the foreign defendant to the jurisdiction of the Massachusetts court.
There are numerous other tests the court must review to subject a foreign business the jurisdiction of the court. However, this one act of directing the plaintiff to a local retailer was enough to subject the defendant to the jurisdiction of the Massachusetts court.
So Now What?
This is a crap decision. When a website brings you into court, a website alone, the purpose of long arm statutes has faded considerably.
However, this is just the first step in a long line of steps before the case is decided. Rarely is a Rule 12(b)(2) motion granted. Motions for Summary Judgment, other defense motions and a trial are all next, then appeals. Hopefully, an appellate court will look at this say the original decision must be overturned.
What can you do? In this case, maybe not a lot can be done, but there are something’s that might assist in some circumstances.
In every sale or contract, put into the agreement a jurisdiction and indemnification clause. You can use them in retail sales agreements with consumers, to some extent.
You also might consider an indemnification agreement between your US based distributor and yourself if you are a foreign, non US based, manufacture. The agreement would say that you would be 100% indemnified for any US based lawsuits, other than product recalls. This might encourage US plaintiff’s not to drag you into a US court.
Make sure your agreement with your US based distributor is not a big target for lawsuits. Identify when the inventory transfers to the US subsidiary and when payment is owed for the inventory.
Set up a defense program with your US Distributor, Reps and all retailers. The program should incorporate the use of a release. The program should make sure three things happen to help eliminate several of the issues in this case.
1. It requires the use of a release by all parties at all times. You can even put one on your website. Releases are not 100% effective in product liability cases, but their jurisdiction and venue clauses may at least get the suit back to your home state.
2. The agreement identifies who shall be protected who and for what reasons. The manufacture of a product in a product liability claim is going to be holding the bag in most cases so this is not a big deal. More importantly it keeps the retailer in your camp in litigation and prevents the embarrassment of brining in the retailer as a third party defendant, making them mad and making you look bad, that occurred in this case.
3. It requires the retailer to notify you immediately of any problems so you can get ahead of the curve.
4. It puts you in control of your litigation destiny and makes you look like the good guy when you are sued to all distributors and retailers in the industry.
For more cases on Jurisdiction and Venue see:
The legal relationship created between manufactures and US consumers
Four releases signed and all of them thrown out because they lacked one simple sentence!
What do you think? Leave a comment.
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Tell Maui and HI that you’re not coming until they prove the place is safe.
Posted: January 5, 2012 Filed under: Criminal Liability, Cycling, Hawaii | Tags: assault, Bike Hugger, Cycling, Hawaii, Maui Leave a commentCyclists assaulted by driver and cops do nothing in Maui.
A friend of mine was almost killed by a truck while riding his bike in Maui. To read his article see Maui Road Rage: A Local Tried to Kill Us. It is amazing that he did not suffer greater injuries or be killed.
Simply put while riding his bike a truck driver cuts him off knocking him to the ground with his truck door. While on the ground the truck driver gets out of this truck and starts to threaten the cyclists. DL, the cyclists responded with a well place kick to the thinking part of the truck driver.
What is a greater in amazement is the fact that locals stopped to help him after the truck driver tried to kill him and got the driver’s license number and the police of Maui did nothing.
DL’s injuries were a skinned knee. He got lucky. However, we have to put a stop to this. This is assault, plain and simple. The act was a felonious assault because of the deadly weapon, the truck.
Do Something
Contact the Maui Tourists bureau and let them know about the article. Email address is: info@hvcb.org. Website contact address.
Have you read this article Maui Road Rage: A Local Tried to Kill Us? Is it a common practice for the Maui police to ignore assaults on tourists by locals? The police had everything they needed to prosecute the idiot: Witness statements and the vehicle license plate number and they did nothing.
Why would I come to Maui when it is a dangerous place?
Contact the Maui Tourists bureau and tell them you are not coming to Maui until it is a safe place to ride.
Contact the Hawaiian tourist bureau and tell them you want a response and want to know if Hawaii is a safe place to ride a bike. Email address is: info@hvcb.org
Have you read this article Maui Road Rage: A Local Tried to Kill Us? Is it a common practice for the Maui or other Hawaiian police to ignore assaults on tourists by locals? The police had everything they needed to prosecute the idiot. Witness statements and the vehicle license plate number and they did nothing.
Why would I come to Hawaii when it is a dangerous place?
Contact the Maui police department and tell them their actions were disgusting, and you are not coming to Maui until they have gotten rid of the corruption in their department. The Police Chief’s contact information is: Gary Yabuta crs@mpd.net
Contact the Maui prosecutor’s office and ask them if they are going to allow assaults like this to go unprosecuted. John D. Kim, Prosecuting Attorney, Prosecuting.Attorney@co.maui.hi.us
Repost D.L. article on Twitter, Facebook and your own blog. Let the world know that cyclists are not going to stand up for this and tourism includes cyclists.
To read more about how to protect yourself and push prosecution in these case read How do you prove to a cop that you were not at fault in an accident with a car when you were on a bike?
What do you think? Leave a comment.
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New Holiday in Colorado and I am taking it off!!
Posted: January 3, 2012 Filed under: Colorado, Cycling | Tags: Breckenridge Colorado, Colorado, Crested Butte, Denver, Facebook, Govenor, Hickenlooper, Holiday, John Hickenlooper, Twitter, United States Leave a comment
Image via Wikipedia
Governor Hickenlooper make the third week of August 2012 Colorado Cycling Holiday!
Way to Go Governor!!
Colorado Cycling holiday will coincide with the USA Pro Cycling Challenge.
The Governor stated the USA Pro Challenge “was an event that shined an international spotlight on Colorado. Any expectations we had for success were surpassed ten-fold. We want race week each August to be known as Colorado Cycling Holiday to attract visitors from all over the world and to celebrate Colorado, good health and cycling.”
The race had more than 1 million fans and producing $83.5 million of economic activity in the inaugural year for Colorado.
The host cities for the 2012 USA Pro Challenge include:
· Monday, Aug. 20: Stage 1, Durango – Telluride
· Tuesday, Aug. 21: Stage 2, Montrose – Crested Butte/Mt. Crested Butte
· Wednesday, Aug. 22: Stage 3, Gunnison – Aspen
· Thursday, Aug. 23: Stage 4, Aspen – Beaver Creek/Vail Valley
· Friday, Aug. 24: Stage 5, Breckenridge – Colorado Springs
· Saturday, Aug. 25: Stage 6, Golden – Boulder
· Sunday, Aug. 26: Stage 7/ITT, Denver
I can’t wait to start the celebration!
What do you think? Leave a comment.
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Illinois lawsuit filed over drowning death of a man at a summer camp.
Posted: December 20, 2011 Filed under: Michigan, Summer Camp, Swimming, Youth Camps | Tags: Adventure travel, Law, Outdoor recreation, Recreation, summer camp 1 CommentClaims seem to be based on whether or not there was lighting to swim at night.
The deceased was a fifteen year-old person who drowned while attending a summer camp. Supposedly, he was swimming after dark, after 9:00 PM. The allegations claim that there must be adequate lighting to swim after dark.
What lighting has to do with finding someone after dark in a lake is a little confusing. However, it does not matter if the rule or law makes no sense, you must abide by it.
Most of the information for the article seems to come from the attorney for the plaintiffs. Obviously, the information is slightly slanted……
But?
What can you as the defendant do then? If you respond to the allegations, you can harm a defense, and for sure you will just start a PR war with the plaintiff’s.
Worse you will be caught off guard because the plaintiff will spend days preparing their press release to be given at a press conference, and you will be contacted on the phone by a reporter and given 15 seconds to respond.
Don’t.
Tell the reporter you will look at the press release and review the press conference, and you will have a response. Whatever else the reporter may say, do not worry about it. They’ll argue deadlines; you need to respond, and you can have them read the press release to you. It is all a setup, don’t take the bait.
The only people you really have to make sure understand the truth is the jury from a liability perspective.
However, you also have a business to run, and you need to make sure the plaintiff’s allegations don’t sink your business. Hire an attorney and a PR team and respond. Have your attorney set up a press conference and refute the plaintiff’s allegations.
You have to take a beating, and maybe you’ll have nothing to say at a press conference. If that is the case, you’ll suffer through the slings and arrows of the plaintiff and the press.
However, you do not have the skills, education, training or temperament to deal with a response or the press.
Don’t.
To read the article see Buffalo Grove family sues campground for son’s drowning death.
What do you think? Leave a comment.
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Galvan, et al., v. The Salvation Army, 2011 U.S. Dist. LEXIS 47257
Posted: December 19, 2011 Filed under: Legal Case, Minors, Youth, Children, Release (pre-injury contract not to sue), Summer Camp, Texas, Youth Camps, Zip Line | Tags: Charitable Immunity Act, Charity, Release, Salvation Army 2 CommentsGalvan, et al., v. The Salvation Army, 2011 U.S. Dist. LEXIS 47257
Bruce Galvan, et al., Plaintiffs, v. The Salvation Army, Defendant.
CIVIL ACTION NO. H-10-3365
United States District Court For The Southern District Of Texas, Houston Division
2011 U.S. Dist. LEXIS 47257
May 3, 2011, Decided
May 3, 2011, Filed
CORE TERMS: Charitable Immunity Act, summary judgment, Charitable, amount of damages, conspicuousness, premature, matter of law, own negligence, settlement, affirmative defense, font, charitable organization, liability insurance coverage, per person, per occurrence, notice requirements, bodily injury, jury verdict, conscious indifference, reckless disregard, self-insurance, conspicuous, discovery, retention, qualify, cap, insurance coverage, enforceable, undisputed, attended
COUNSEL: [*1] For Bruce Galvan, Individually and as Next Friend, Cynthia Perez, Individually And as Next Friend, Plaintiffs: John Paul Venzke, LEAD ATTORNEY, The Venzke Law Firm LLP, Houston, TX; Michael Andrew Fisher, Dyment & Fisher, Houston, TX.
For Salvation Army, Defendant: Teresa Jones Del Valle, LEAD ATTORNEY, Del Valle Law Firm, P.C., Houston, TX.
JUDGES: Nancy F. Atlas, United States District Judge.
OPINION BY: Nancy F. Atlas
OPINION
MEMORANDUM AND ORDER
This personal injury case is before the Court on the Motion for Partial Summary Judgment Regarding Defendant’s Affirmative Defense of Release (“Release Motion”) [Doc. # 23] filed by Plaintiffs Bruce Galvan and Cynthia Perez. Defendant filed an Opposition [Doc. # 27], and Plaintiffs filed a Reply [Doc. # 28]. Also pending is Plaintiffs’ Motion for Partial Summary Judgment Regarding Defendant’s Defense of The Charitable Immunity and Liability Act of 1987 (“Charitable Immunity Motion”), to which Defendant filed an Opposition [Doc. # 29], and Plaintiffs filed a Reply [Doc. # 34]. Having reviewed the full record and having considered relevant legal authorities, the Court grants the Release Motion and denies without prejudice the Charitable Immunity Motion.
I.FACTUAL BACKGROUND
Plaintiffs [*2] Bruce Galvan and Cynthia Perez are parents of Plaintiff Christopher Galvan. Christopher was eleven years old when he attended Camp Hoblitzelle, a facility owned and operated by Defendant The Salvation Army. In June 2010, while at Camp Hoblitzelle, Christopher Galvan fell 40-50 feet from a zip-line and was seriously injured. Before Christopher attended Camp Hoblitzelle, Cynthia Perez signed a “Permission/Waiver Form for Residential Camps.” See Exh. A to Release Motion.
Plaintiffs filed this lawsuit seeking to recover from The Salvation Army for the injury to Christopher Galvan. Defendant has asserted the existence of the Release as an affirmative defense. Defendant has asserted also that The Charitable Immunity and Liability Act of 1987 (“Charitable Immunity Act”) limits its liability in this case to $500,000.00 per person and $1,000,000.00 per occurrence. Plaintiffs have moved for summary judgment on each of these arguments. The motions have been fully briefed.
II.STANDARD FOR SUMMARY JUDGMENT
Rule 56 of the Federal Rules of Civil Procedure provides for the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a sufficient showing [*3] of the existence of an element essential to the party’s case for which that party will bear the burden at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); see also Baton Rouge Oil and Chem. Workers Union v. ExxonMobil Corp., 289 F.3d 373, 375 (5th Cir. 2002). In deciding a motion for summary judgment, the Court must determine whether the “pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp., 477 U.S. at 322-23; Weaver v. CCA Indus., Inc., 529 F.3d 335, 339 (5th Cir. 2008). Summary judgment is an appropriate mechanism for resolving issues of law arising from a materially complete factual record. See Trevino v. Yamaha Motor Corp., 882 F.2d 182, 184 (5th Cir. 1989).
III.RELEASE MOTION
Defendant has asserted the existence of the Release signed by Cynthia Perez as an affirmative defense. Plaintiffs argue that they are entitled to summary judgment on the release defense because the Release in this case fails to satisfy the [*4] requirements for it to be enforceable.
Under Texas law, there are two fair notice requirements for release agreements: (1) the express negligence doctrine and (2) the conspicuousness requirement. See Storage & Processors, Inc. v. Reyes, 134 S.W.3d 190, 192 (Tex. 2004); Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 509 (Tex. 1993). The express negligence doctrine requires that a party’s intent to be released from the consequences of that party’s own negligence must be expressed in specific terms within the four corners of the release document. See Fisk Elec. Co. v. Constructors & Assocs., Inc., 888 S.W.2d 813, 814 (Tex. 1994); Ethyl Corp. v. Daniel Constr. Co., 725 S.W.2d 705, 708 (Tex. 1987). The conspicuousness requirement provides that the releasing language must be conspicuously written, such that a reasonable person would have noticed it. See Dresser, 853 S.W.2d at 511. Examples of conspicuous language include language that appears in contrasting type or color, in all capital letters, or otherwise calls attention to itself. See Reyes, 134 S.W.3d at 192 (citing Littlefield v. Schaefer, 955 S.W.2d 272, 274-75 (Tex. 1997)); Dresser, 853 S.W.2d at 511.
Compliance with [*5] the fair notice requirements is a question of law for the Court. Dresser, 853 S.W.2d at 509. A release that fails to satisfy both of the two requirements is unenforceable as a matter of law. Storage & Processors, 134 S.W.3d at 192. In this case, the Court concludes that the Release asserted by Defendant does not satisfy either requirement.
The Release provides that the signer “hereby voluntarily releases The Salvation Army from any and all liability resulting from or arising in any manner whatsoever out of any participation in any Activity.” See Release, Exh. 1 to Release Motion. As an initial matter, the Release purports to release Defendant from liability for injury suffered while participating in any “Activity.” The “Activity” is to be identified by filling in a blank line on the Release form. On the Release at issue in this case, the “Activity” line contains no identified activity but, instead, has “Cynthia Perez” written in as the “Activity.”
More importantly, the Release language does not specifically state that Defendant is being released from liability for its own future negligence. Indeed, there is no express mention of negligence at all. Although there is no requirement that [*6] the release contain the specific word “negligence,” the intent to release a party from liability for its own negligence must be clearly expressed. See Atlantic Richfield Co. v. Petroleum Personnel, Inc., 768 S.W.2d 724, 726 (Tex. 1989); Silsbee Hosp., Inc. v. George, 163 S.W.3d 284, 290 (Tex. App. — Beaumont 2005, review denied). In the Release at issue in this case, there is no clear expression of an intent to release Defendant from its own negligence in connection with Christopher Galvan’s participation in zip-lining.
The Release fails also to satisfy the conspicuousness requirement. The release language is in the same font and font size as the remainder of the document. There is no bolding, underlining, or other mechanism to make the release language conspicuous. Instead, the release language is buried in a full page of single-spaced, small font size text.
The Court concludes that the Release in this case does not satisfy the express negligence or conspicuousness requirements and, as a result, the Release is not enforceable as a matter of law.
IV.CHARITABLE IMMUNITY MOTION
The Charitable Immunity Act limits liability of a qualified charitable organization to $500,000.00 per person and [*7] $1,000,000.00 per occurrence. See Tex. Civ. Prac. & Rem. Code § 84.006. To qualify for the limitation, the charitable organization must have liability insurance coverage “in the amount of at least $500,000 for each person and $1,000,000 for each single occurrence for death or bodily injury . . ..” See Tex. Civ. Prac. & Rem. Code § 84.007(g). The Charitable Immunity Act provides that the liability insurance coverage “may be provided under a contract of insurance or other plan of insurance authorized by statute and may be satisfied by the purchase of a $1,000,000 bodily injury and property damage combined single limit policy.” See id.
Defendant asserts that it is entitled to the damages limitation of the Charitable Immunity Act. It is undisputed that Defendant has over $35,000,000.00 of insurance coverage. It is also undisputed, however, that the first $500,000.00 is in the form of a self-insurance retention and the next $4,500,000.00 is in the form of The Salvation Army’s Risk Trust. Plaintiffs argue that Defendant is not entitled to the damages limitation because Defendant is self-insured and self insurance does not meet the statutory requirement of the Charitable Immunity Act. 1
1 Plaintiffs [*8] also argue that Defendant is judicially estopped to assert the Charitable Immunity Act’s limitation because a different Salvation Army entity in Maine asserted in a lawsuit in 1997 that the Salvation Army entity in Maine did not have insurance coverage. The Court concludes on this limited record that Plaintiffs have not established an adequate factual basis for judicial estoppel to apply.
Plaintiffs in this case have not alleged an amount of damages. They allege that the amount in controversy is in excess of $75,000.00. See Amended Complaint [Doc. # 16], ¶ 1. Plaintiffs allege also that Christopher Galvan’s medical bills exceed $200,000.00. See id., ¶ 5. Thus, on this record, the specific amounts alleged by Plaintiffs do not exceed the Charitable Immunity Act’s limitation. Moreover, the amount of damages has not been established by either settlement or a jury award to be in excess of the Charitable Immunity Act’s limitation. As a result, the Court concludes that a decision on whether the limitation applies to a fully-funded self insurance retention is premature at this stage of the proceedings. See, e.g., Morgan v. Fellini’s Pizza, Inc., 64 F. Supp. 2d 1304, 1316, n.6 (N.D. Ga. 1999) [*9] (noting that a request for summary judgment as to whether a damages cap applies was premature); Rafferty v. Howard, 2010 U.S. Dist. LEXIS 98423, 2010 WL 3768142, *1 (S.D. Miss. Sept. 20, 2010) (holding that preliminary ruling on whether statutory cap applies was premature). If there is a settlement or jury verdict for more than $1,000,000.00 in this case, the Court will at that time decide whether Defendant qualifies for the Charitable Immunity Act’s limitation.
Additionally, the Charitable Immunity Act provides that its limitations do not apply “to an act or omission that is intentional, wilfully negligent, or done with conscious indifference or reckless disregard for the safety of others.” See Tex. Civ. Prac. & Rem. Code § 84.007(a). Plaintiffs specifically allege that Defendant’s actions in this case were “intentional, willfully negligent, or done with conscious indifference or reckless disregard for the safety of Christopher Galvan and others.” See Amended Complaint [Doc. # 16], ¶ 12. Should the jury find that Defendant’s actions were as alleged by Plaintiffs in paragraph 12 of the Amended Complaint, the issue regarding whether self-insurance satisfies the insurance requirement of the Charitable Immunity Act [*10] would become moot.
V.CONCLUSION AND ORDER
The release relied upon by Defendant satisfies neither the express negligence doctrine nor the conspicuousness requirement. As a result, there has been no effective release of Defendant for its alleged negligence in this case. Plaintiffs have not alleged an amount of damages and no amount of damages has been determined either through settlement or by jury verdict. As a result, it is premature to decide whether the Act limits the amount of damages recoverable in this case. It is, therefore,
ORDERED that Plaintiffs’ Release Motion [Doc. # 23] is GRANTED and Plaintiffs’ Charitable Immunity Motion [Doc. # 26] is DENIED WITHOUT PREJUDICE as premature.
SIGNED at Houston, Texas this 3rd day of May, 2011.
/s/ Nancy F. Atlas
Nancy F. Atlas
United States District Judge
Texas makes it easier to write a release because the law is clear.
Posted: December 19, 2011 Filed under: Assumption of the Risk, Minors, Youth, Children, Summer Camp, Texas, Youth Camps, Zip Line | Tags: charitable immunity, Charitable Immunity Act, Charity, Negligence, Salvation Army, Summary judgment, Summer Camp, Texas, United States district court, zip line 1 CommentGalvan, et al., v. The Salvation Army, 2011 U.S. Dist. LEXIS 47257
Too bad no one read the law to the Salvation Army in this case.
This case was filed in the Federal District Court of the Southern District of Texas. The decision was based on a Motion for Summary Judgment filed by the plaintiff to throw out the defendant’s defense of release. Normally, these types of motions are filed by the defendants to end the litigation not by the plaintiff. There was also an issue of whether the charitable immunity statute applied to limit the damages in the case.
The facts which gave rise to the case are the defendants were parents of an eleven year-old boy who attended Camp Hoblitzelle which was owned and operated by the Salvation Army of Texas. While attending the camp the minor was riding a zip line when he fell 40-50’ suffering unnamed injuries.
There was a blank in the release where the activity the parties were releasing was to be filled in. The blank line in this case was filled in with the plaintiff’s name Cynthia Perez written in as the activity. The court took delight in pointing this out.
Summary of the case
The plaintiff filed their motion for summary judgment to eliminate the defense of release. The minor’s mother signed the Permission/Waiver Form for Residential Camps prior to the minor attending camp.
Under Texas law, there are two tests to determine if a release is valid; (1) the express negligence doctrine and (2) the conspicuousness requirement test.
“A release that fails to satisfy both of the two requirements is unenforceable as a matter of law.”
The Express Negligence Doctrine is:
The express negligence doctrine requires that a party’s intent to be released from the consequences of that party’s own negligence must be expressed in specific terms within the four corners of the release document.
The release in this case used the language “…hereby voluntarily releases The Salvation Army from any and all liability resulting from or arising in any manner whatsoever out of any participation in any Activity.” This language was not strict enough to place the signor on notice that they were giving up their legal rights according to the court.
The release was not clear. It did not state that the defendant was being released for its future negligence. Although there is no requirement that the word negligence be in the release and referenced, it is clear the release would be difficult to write without the word negligence. The court held the release at issue had no clear expression or language showing intent to release the defendant from its own negligence.
Consequently, the release failed the Express Negligence Doctrine.
The Conspicuousness requirement test requires.
… the releasing language must be conspicuously written, such that a reasonable person would have noticed it. Examples of conspicuous language include language that appears in contrasting type or color, in all capital letters, or otherwise calls attention to itself.
With regard to the conspicuousness, requirement test the court stated.
The release language is in the same font and font size as the remainder of the document. There is no bolding, underlining, or other mechanism to make the release language conspicuous. Instead, the release language is buried in a full page of single-spaced, small font size text.
Here is a great example that your release cannot hide the important legal language from anyone signing it.
The court also looked into the Charitable Immunity Act and held the issue was not ripe because whether or not the defendant was subject to the limitation of damages would not be an issue unless the plaintiff was able to recover an amount greater than the limitation of $500,000 per person and $1,000,000 per occurrence.
The court also stated the Charitable Immunity Act did not apply to defendants whose “act or omission that is intentional, wilfully negligent, or done with conscious indifference or reckless disregard for the safety of others.” The plaintiff had plead actions of the defendant in almost identical language which was another issue making the issue not ripe for decision.
So Now What?
This decision is a road map on what not to do with a release in Texas.
1. Make sure your release states that it is a release and the person signing it is giving up their legal rights.
2. Make sure the language in the release is clear. The plaintiff is releasing you from liability for your negligence in advance of any injury. You are going to have to use the word negligence in your release.
3. The release language cannot be hidden. It must be set out in such a way that it is identifiable as something important that the signor needs to know about.
4. All blanks in the document need to be located in one place so it only takes a quick scan to make sure everything is completed properly.
5. Anything that can be completed by the defendant or filled in must be completed by the defendant.
6. Have an attorney that knows and understands your operation and the law affecting your business write your release.
Writing a release is not like cooking. When you cook you have to really screw up to make something that is not edible. (I’ve been single my entire life so my definition of edible may be different from yours……) Writing a release is a much more precise endeavor.
What do you think? Leave a comment.
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North Carolina may allow a parent to sign away a minor’s right to sue for injuries when the minor is engaged in non-profit activities sponsored by schools, volunteers, or community organizations
Posted: November 23, 2011 Filed under: North Carolina, Youth Camps | Tags: Adventure travel, Camp Lejeune, JimMoss, Marines, Minor, NC, North Carolina, North Carolina Supreme Court, Ropes course Leave a commentKelly v. United States of America, 2011 U.S. Dist. LEXIS 89741
However, the decision was not made by the North Carolina Supreme Court and not a ruling by the court and the actual legal issue.
In this case the plaintiff, a fifteen year old minor went on an orientation visit to Camp Lejeune as part of her Navy Junior Reserve Officer Training Corps program at her high school. While participating in the confidence course (or what used to be called the obstacle course) she was injured. Her injuries were not identified in the lawsuit; however, she was suing for $10,000,000.00.
The minor could not attend the camp unless she and her mother signed the release.
The reason for the decision was based on the plaintiff’s motion to strike the defendants’ answers. This is a preliminary motion that attempts to knock out the specific defenses of the defendant. One of the defenses the plaintiff attempted to eliminate was the defense of release.
This order and decision from the court are not a final decision on the merits of the case. This is only a preliminary motion; however, it is interesting in how the court ruled on the issue of the mother signing the release.
So?
Image via Wikipedia
The court reviewed release law in general and found that in North Carolina, releases are generally enforceable. Releases are strictly construed against the party attempting to enforce them (the defendants). To be valid in North Carolina a release cannot be enforced if it:
(1) is violative of a statute;
(2) is gained through inequality of bargaining power; or
(3) is contrary to a substantial public interest.
The release in this case did not violate any of the above three prohibitions.
The court then looked at whether the release signed by the minor plaintiff was valid. Under North Carolina law, like all other states, a release signed by a minor is voidable by the minor unless it meets rare exceptions. The exception to the contract prohibition is contracts for necessities or when a statute allows a minor to sign a contract. Here, neither of these issues was the reason the release was signed. So the release signed by the minor has no value and is void.
The court then looked at the release signed by the mother. The court found that a minority of states that had looked at the issue, had found releases for minors signed by parents so the minor could engage in “non-profit activities sponsored by schools, volunteers, or community organizations.”
The analysis then looked at whether the North Carolina Supreme Court would hold the same way. The activity the minor engaged in was extracurricular and voluntary and done for the benefit of the child. As such the court held the North Carolina Supreme Court would hold the release valid.
So Now What?
Before a rule, law can be cast in wet concrete (nothing is ever cast in stone) it must be decided by the highest court in the state. Here, the federal court looking at the issue made the decision. The North Carolina Supreme Court at some later time could decide that this is not the way it wants to rule.
Furthermore, the ruling is not that the release signed by the mother is valid. The ruling is the defense of release being argued by the defendant is not thrown out by the court. The legal issue of whether or not the release is a valid release under North Carolina law is still at issue.
The decision is important and will probably be followed later in the case, but there is no guaranty. However, it is a positive step to stop lawsuits.
What do you think? Leave a comment.
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Galvan, et al., v. The Salvation Army, 2011 U.S. Dist. LEXIS 47257
Posted: November 21, 2011 Filed under: Legal Case, Minors, Youth, Children, Summer Camp, Texas, Youth Camps | Tags: Minor, Releases / Waivers, Summer Camp 2 CommentsGalvan, et al., v. The Salvation Army, 2011 U.S. Dist. LEXIS 47257
To read the analysis of this case see: Texas makes it easier to write a release because the law is clear.
Bruce Galvan, et al., Plaintiffs, v. The Salvation Army, Defendant.
CIVIL ACTION NO. H-10-3365
United States District Court For The Southern District Of Texas, Houston Division
2011 U.S. Dist. LEXIS 47257
May 3, 2011, Decided
May 3, 2011, Filed
CORE TERMS: Charitable Immunity Act, summary judgment, Charitable, amount of damages, conspicuousness, premature, matter of law, own negligence, settlement, affirmative defense, font, charitable organization, liability insurance coverage, per person, per occurrence, notice requirements, bodily injury, jury verdict, conscious indifference, reckless disregard, self-insurance, conspicuous, discovery, retention, qualify, cap, insurance coverage, enforceable, undisputed, attended
COUNSEL: [*1] For Bruce Galvan, Individually and as Next Friend, Cynthia Perez, Individually And as Next Friend, Plaintiffs: John Paul Venzke, LEAD ATTORNEY, The Venzke Law Firm LLP, Houston, TX; Michael Andrew Fisher, Dyment & Fisher, Houston, TX.
For Salvation Army, Defendant: Teresa Jones Del Valle, LEAD ATTORNEY, Del Valle Law Firm, P.C., Houston, TX.
JUDGES: Nancy F. Atlas, United States District Judge.
OPINION BY: Nancy F. Atlas
OPINION
MEMORANDUM AND ORDER
This personal injury case is before the Court on the Motion for Partial Summary Judgment Regarding Defendant’s Affirmative Defense of Release (“Release Motion”) [Doc. # 23] filed by Plaintiffs Bruce Galvan and Cynthia Perez. Defendant filed an Opposition [Doc. # 27], and Plaintiffs filed a Reply [Doc. # 28]. Also pending is Plaintiffs’ Motion for Partial Summary Judgment Regarding Defendant’s Defense of The Charitable Immunity and Liability Act of 1987 (“Charitable Immunity Motion”), to which Defendant filed an Opposition [Doc. # 29], and Plaintiffs filed a Reply [Doc. # 34]. Having reviewed the full record and having considered relevant legal authorities, the Court grants the Release Motion and denies without prejudice the Charitable Immunity Motion.
I.FACTUAL BACKGROUND
Plaintiffs [*2] Bruce Galvan and Cynthia Perez are parents of Plaintiff Christopher Galvan. Christopher was eleven years old when he attended Camp Hoblitzelle, a facility owned and operated by Defendant The Salvation Army. In June 2010, while at Camp Hoblitzelle, Christopher Galvan fell 40-50 feet from a zip-line and was seriously injured. Before Christopher attended Camp Hoblitzelle, Cynthia Perez signed a “Permission/Waiver Form for Residential Camps.” See Exh. A to Release Motion.
Plaintiffs filed this lawsuit seeking to recover from The Salvation Army for the injury to Christopher Galvan. Defendant has asserted the existence of the Release as an affirmative defense. Defendant has asserted also that The Charitable Immunity and Liability Act of 1987 (“Charitable Immunity Act”) limits its liability in this case to $500,000.00 per person and $1,000,000.00 per occurrence. Plaintiffs have moved for summary judgment on each of these arguments. The motions have been fully briefed.
II.STANDARD FOR SUMMARY JUDGMENT
Rule 56 of the Federal Rules of Civil Procedure provides for the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a sufficient showing [*3] of the existence of an element essential to the party’s case for which that party will bear the burden at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); see also Baton Rouge Oil and Chem. Workers Union v. ExxonMobil Corp., 289 F.3d 373, 375 (5th Cir. 2002). In deciding a motion for summary judgment, the Court must determine whether the “pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp., 477 U.S. at 322-23; Weaver v. CCA Indus., Inc., 529 F.3d 335, 339 (5th Cir. 2008). Summary judgment is an appropriate mechanism for resolving issues of law arising from a materially complete factual record. See Trevino v. Yamaha Motor Corp., 882 F.2d 182, 184 (5th Cir. 1989).
III.RELEASE MOTION
Defendant has asserted the existence of the Release signed by Cynthia Perez as an affirmative defense. Plaintiffs argue that they are entitled to summary judgment on the release defense because the Release in this case fails to satisfy the [*4] requirements for it to be enforceable.
Under Texas law, there are two fair notice requirements for release agreements: (1) the express negligence doctrine and (2) the conspicuousness requirement. See Storage & Processors, Inc. v. Reyes, 134 S.W.3d 190, 192 (Tex. 2004); Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 509 (Tex. 1993). The express negligence doctrine requires that a party’s intent to be released from the consequences of that party’s own negligence must be expressed in specific terms within the four corners of the release document. See Fisk Elec. Co. v. Constructors & Assocs., Inc., 888 S.W.2d 813, 814 (Tex. 1994); Ethyl Corp. v. Daniel Constr. Co., 725 S.W.2d 705, 708 (Tex. 1987). The conspicuousness requirement provides that the releasing language must be conspicuously written, such that a reasonable person would have noticed it. See Dresser, 853 S.W.2d at 511. Examples of conspicuous language include language that appears in contrasting type or color, in all capital letters, or otherwise calls attention to itself. See Reyes, 134 S.W.3d at 192 (citing Littlefield v. Schaefer, 955 S.W.2d 272, 274-75 (Tex. 1997)); Dresser, 853 S.W.2d at 511.
Compliance with [*5] the fair notice requirements is a question of law for the Court. Dresser, 853 S.W.2d at 509. A release that fails to satisfy both of the two requirements is unenforceable as a matter of law. Storage & Processors, 134 S.W.3d at 192. In this case, the Court concludes that the Release asserted by Defendant does not satisfy either requirement.
The Release provides that the signer “hereby voluntarily releases The Salvation Army from any and all liability resulting from or arising in any manner whatsoever out of any participation in any Activity.” See Release, Exh. 1 to Release Motion. As an initial matter, the Release purports to release Defendant from liability for injury suffered while participating in any “Activity.” The “Activity” is to be identified by filling in a blank line on the Release form. On the Release at issue in this case, the “Activity” line contains no identified activity but, instead, has “Cynthia Perez” written in as the “Activity.”
More importantly, the Release language does not specifically state that Defendant is being released from liability for its own future negligence. Indeed, there is no express mention of negligence at all. Although there is no requirement that [*6] the release contain the specific word “negligence,” the intent to release a party from liability for its own negligence must be clearly expressed. See Atlantic Richfield Co. v. Petroleum Personnel, Inc., 768 S.W.2d 724, 726 (Tex. 1989); Silsbee Hosp., Inc. v. George, 163 S.W.3d 284, 290 (Tex. App. — Beaumont 2005, review denied). In the Release at issue in this case, there is no clear expression of an intent to release Defendant from its own negligence in connection with Christopher Galvan’s participation in zip-lining.
The Release fails also to satisfy the conspicuousness requirement. The release language is in the same font and font size as the remainder of the document. There is no bolding, underlining, or other mechanism to make the release language conspicuous. Instead, the release language is buried in a full page of single-spaced, small font size text.
The Court concludes that the Release in this case does not satisfy the express negligence or conspicuousness requirements and, as a result, the Release is not enforceable as a matter of law.
IV.CHARITABLE IMMUNITY MOTION
The Charitable Immunity Act limits liability of a qualified charitable organization to $500,000.00 per person and [*7] $1,000,000.00 per occurrence. See Tex. Civ. Prac. & Rem. Code § 84.006. To qualify for the limitation, the charitable organization must have liability insurance coverage “in the amount of at least $500,000 for each person and $1,000,000 for each single occurrence for death or bodily injury . . ..” See Tex. Civ. Prac. & Rem. Code § 84.007(g). The Charitable Immunity Act provides that the liability insurance coverage “may be provided under a contract of insurance or other plan of insurance authorized by statute and may be satisfied by the purchase of a $1,000,000 bodily injury and property damage combined single limit policy.” See id.
Defendant asserts that it is entitled to the damages limitation of the Charitable Immunity Act. It is undisputed that Defendant has over $35,000,000.00 of insurance coverage. It is also undisputed, however, that the first $500,000.00 is in the form of a self-insurance retention and the next $4,500,000.00 is in the form of The Salvation Army’s Risk Trust. Plaintiffs argue that Defendant is not entitled to the damages limitation because Defendant is self-insured and self insurance does not meet the statutory requirement of the Charitable Immunity Act. 1
1 Plaintiffs [*8] also argue that Defendant is judicially estopped to assert the Charitable Immunity Act’s limitation because a different Salvation Army entity in Maine asserted in a lawsuit in 1997 that the Salvation Army entity in Maine did not have insurance coverage. The Court concludes on this limited record that Plaintiffs have not established an adequate factual basis for judicial estoppel to apply.
Plaintiffs in this case have not alleged an amount of damages. They allege that the amount in controversy is in excess of $75,000.00. See Amended Complaint [Doc. # 16], ¶ 1. Plaintiffs allege also that Christopher Galvan’s medical bills exceed $200,000.00. See id., ¶ 5. Thus, on this record, the specific amounts alleged by Plaintiffs do not exceed the Charitable Immunity Act’s limitation. Moreover, the amount of damages has not been established by either settlement or a jury award to be in excess of the Charitable Immunity Act’s limitation. As a result, the Court concludes that a decision on whether the limitation applies to a fully-funded self insurance retention is premature at this stage of the proceedings. See, e.g., Morgan v. Fellini’s Pizza, Inc., 64 F. Supp. 2d 1304, 1316, n.6 (N.D. Ga. 1999) [*9] (noting that a request for summary judgment as to whether a damages cap applies was premature); Rafferty v. Howard, 2010 U.S. Dist. LEXIS 98423, 2010 WL 3768142, *1 (S.D. Miss. Sept. 20, 2010) (holding that preliminary ruling on whether statutory cap applies was premature). If there is a settlement or jury verdict for more than $1,000,000.00 in this case, the Court will at that time decide whether Defendant qualifies for the Charitable Immunity Act’s limitation.
Additionally, the Charitable Immunity Act provides that its limitations do not apply “to an act or omission that is intentional, wilfully negligent, or done with conscious indifference or reckless disregard for the safety of others.” See Tex. Civ. Prac. & Rem. Code § 84.007(a). Plaintiffs specifically allege that Defendant’s actions in this case were “intentional, willfully negligent, or done with conscious indifference or reckless disregard for the safety of Christopher Galvan and others.” See Amended Complaint [Doc. # 16], ¶ 12. Should the jury find that Defendant’s actions were as alleged by Plaintiffs in paragraph 12 of the Amended Complaint, the issue regarding whether self-insurance satisfies the insurance requirement of the Charitable Immunity Act [*10] would become moot.
V.CONCLUSION AND ORDER
The release relied upon by Defendant satisfies neither the express negligence doctrine nor the conspicuousness requirement. As a result, there has been no effective release of Defendant for its alleged negligence in this case. Plaintiffs have not alleged an amount of damages and no amount of damages has been determined either through settlement or by jury verdict. As a result, it is premature to decide whether the Act limits the amount of damages recoverable in this case. It is, therefore,
ORDERED that Plaintiffs’ Release Motion [Doc. # 23] is GRANTED and Plaintiffs’ Charitable Immunity Motion [Doc. # 26] is DENIED WITHOUT PREJUDICE as premature.
SIGNED at Houston, Texas this 3rd day of May, 2011.
/s/ Nancy F. Atlas
Nancy F. Atlas
United States District Judge
Poorly written release gave the plaintiffs the only chance they had to win
Posted: November 14, 2011 Filed under: Climbing Wall, Michigan | Tags: Climbing, Climbing Wall, Gross negligence, Lawsuit, Michigan, Negligence, Release, Summary judgment Leave a commentLucas v Norton Pines Athletic Club, Inc., 2010 Mich. App. LEXIS 1066
A release should be written to stop litigation, not encourage it.
Wood climbing wall at a camp in Wisconsin,USA (Photo credit: Wikipedia)
In Lucas v. Norton Pines Athletic Club, Inc. the lawsuit stems from the plaintiff falling from the climbing wall in the club. The club was using auto-belay systems, which worked. However, the plaintiff failed to clip into the carabiner on the auto-belay.
When the plaintiff joined the athletic club, he signed a release titled Participant Release of Liability and Assumption of Risk Agreement. To climb on the climbing wall, he had to sign a second release titled Climbing Wall Release of Liability.
The first release, the general club release had a clause that stated release specifically did not cover claims “arising from the willful or wanton negligence of Norton Pines Athletic Club or its officers, agents, or employees.”
The defendant filed a motion for summary judgment based on the releases. The court granted the motion for summary judgment. The plaintiff appealed. The only issue was whether the actions of the defendant were willful or wanton negligence.
The factual issue giving rise to the willful and wanton claim was the club had rules on how to use the climbing wall. The rules required that a member of the club had to have an employee of the club clip them and out of the carabiner before and after climbing.
The plaintiff was an accomplished climber and had developed a routine where he would look at the employee on duty who would visually inspect the carabiner connection to his harness and not physical inspect it.
The plaintiff on this climb did not check with the employee and climbed. Approximately, 20’ up the wall he fell to the ground.
So?
Under Michigan’s law, a release stops claims for ordinary negligence but not for gross negligence. Willful and wanton negligence is the same as gross negligence under Michigan’s law. See Utah’s decision upholds a release for simple negligence but not gross negligence in a ski accident, Good Release stops lawsuit against Michigan bicycle renter based on marginal acts of bicycle renter and Gross Negligence beats a release…but after the trial.
Willful or wanton negligence under Michigan’s law is “if the conduct alleged shows an intent to harm or if not that, such indifference to whether harm will result as to be the equivalent of a willingness that it does.”
One who is properly charged with recklessness or wantonness is not simply more careless than one who is only guilty of negligence. His conduct must be such as to put him in the class with the willful doer of wrong. The only respect in which his attitude is less blameworthy than that of the intentional wrongdoer is that, instead of affirmatively wishing to injure another, he is merely willing to do so. The difference is that between him who casts a missile intending that it shall strike another and him who casts it where he has reason to believe it will strike another, being indifferent whether it does so or not.”
Because the plaintiff’s only pleaded general negligence and reckless misconduct, the release stopped the claims. On top of that, there was no evidence that the club employee acted intentional or affirmatively, only negligently.
So Now What?
There were two major mistakes in this case that in another state or even another judge could have gone the wrong way.
First never tell the person signing your release how to sue you. You want the release to say to everyone who signs it, that you cannot be sued. If you tell them in the release, the release is not good against X, Y and Z, the claims of the plaintiff will be pled to show you did X, Y and Z. Why not, the plaintiff has nothing to lose. But, for the education you provided in the release, you would not have been sued.
Second if you make rules, they cannot be ignored. More so, when the rules you make are tied to your release. Here, the rule was that employees have to clip people in. If you make a rule, and you do not follow it, you set yourself up for a lawsuit.
Releases work if you do not do something that voids them. Always make sure when you have your release written that everything makes sense and does not create a situation where you can void your own release.
What do you think? Leave a comment.
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Lucas v Norton Pines Athletic Club, Inc., 2010 Mich. App. LEXIS 1066
Posted: November 14, 2011 Filed under: Climbing Wall, Legal Case, Michigan | Tags: Climbing Wall, Litigation, Release Leave a commentLucas v Norton Pines Athletic Club, Inc., 2010 Mich. App. LEXIS 1066
Clinton Lucas and Robyn Lucas, Plaintiffs-Appellants, v Norton Pines Athletic Club, Inc., and David Swinburne, Defendants-Appellees.
No. 289685
Court of Appeals of Michigan
2010 Mich. App. LEXIS 1066
June 10, 2010, Decided
NOTICE: THIS IS AN UNPUBLISHED OPINION. IN ACCORDANCE WITH MICHIGAN COURT OF APPEALS RULES, UNPUBLISHED OPINIONS ARE NOT PRECEDENTIALLY BINDING UNDER THE RULES OF STARE DECISIS.
PRIOR HISTORY: [*1]
Muskegon Circuit Court. LC No. 08-45745-NO.
CORE TERMS: misconduct, reckless, climbing, eye contact, recreational activity, climber, ordinary negligence, climb, auto-belay, protocol, harness, general negligence, wilful, posted, rock, assumption of risk, wanton negligence, negligence claims, citation omitted, co-participant, coparticipant, indifference, recklessness, casts, Climbing Wall Rules, acknowledgement, initiating, routine, tether, staff
JUDGES: Before: OWENS, P.J., and O’CONNELL and TALBOT, JJ.
OPINION
PER CURIAM.
Plaintiffs appeal as of right from the grant of summary disposition in favor of defendants pursuant to MCR 2.116(C)(7). We affirm.
This appeal arises from an accident that occurred at defendant Norton Pines Athletic Club (hereinafter “the Club”). Plaintiff Clinton Lucas (hereinafter “plaintiff”) suffered injuries after falling approximately 20 feet from the Club’s indoor rock climbing wall. At the time of the accident David Swinburne, an employee of the club, was monitoring the climbing wall.
When initiating their membership with the Club, plaintiffs executed a Participant Release of Liability and Assumption of Risk Agreement that provided, in relevant part, for a “release and . . . discharge” of the Club and its employees from any claims of injury “which may occur from any cause during such participation and/or use of the facilities.” The Release also included a specific acknowledgement that the member assumed the risk of participation in activities at the Club. However, the Release specifically did not cover claims “arising from the willful or wanton negligence of Norton Pines Athletic [*2] Club or its officers, agents, or employees.” In addition before engaging in climbing of the rock wall, each member of the Club was required to execute a Climbing Wall Release of Liability, which also included an acknowledgement regarding the assumption of risk of the member in participating in this activity and discharged the Club and its employees “from any and all claims, demands, actions, or causes of action on account of injury or death to myself . . . which may occur from any cause during such participation and/or use of the facilities.” The Club also posted Climbing Wall Rules and Regulations, which required each member climbing the rock wall to wear a harness that must be attached with metal carabiners to tethers that descend from an auto-belay, or safety mechanism, which are secured to the wall. A climber’s release of his or her grip from the climbing wall engages the auto-belay mechanism, which serves to lower the climber in a slow and safe manner to the ground. The Club’s posted Climbing Wall Rules require that “[o]nly a Norton Pines staff member is allowed to hook and unhook climber to and from the belay,” and “[o]nly a Norton Pines staff is allowed to check the safety of [*3] equipment after it is put on.”
Plaintiff was an experienced climber and had developed a routine or practice with Swinburne that would permit plaintiff to secure his own clip onto the harness and ascend the wall after making eye contact with Swinburne to visually verify that plaintiff’s harness was properly attached to the auto-belay system. On the day of plaintiff’s fall, he and Swinburne had followed this routine a number of times. However, on his last climb, plaintiff ascended the wall without clipping the harness to the auto-belay system or making eye contact with Swinburne to indicate that he was initiating his climb. Swinburne was in the vicinity, but reading a magazine when plaintiff commenced his climb. Plaintiff lost his grip on the wall and, without attachment to the safety mechanism, fell approximately 20 feet to the ground, incurring injuries.
Plaintiffs filed suit against both Swinburne and the Club alleging several counts of general negligence and reckless misconduct. Defendants sought summary disposition, pursuant to MCR 2.116(C)(7) and (C)(8), arguing there was no genuine issue of material fact based on plaintiff’s assumption of risk and the execution of valid releases [*4] and waivers. The trial court initially granted summary disposition only on plaintiffs’ general negligence claims and denied defendants’ request for the dismissal of plaintiffs’ reckless misconduct claim. On reconsideration the trial court subsequently dismissed plaintiffs’ reckless misconduct claim and this appeal ensued.
Initially, we note that the various waivers and releases signed by plaintiffs precluded his claims of ordinary negligence. Specifically, “A contractual waiver of liability also serves to insulate against ordinary negligence, but not gross negligence.” Xu v Gay, 257 Mich App 263, 269; 668 NW2d 166 (2003), citing Lamp v Reynolds, 249 Mich App 591, 594; 645 NW2d 311 (2002). Notably, the various releases signed by plaintiffs indicate a waiver of liability for general negligence but not “willful or wanton negligence” or misconduct, which is defined in case law as being established “if the conduct alleged shows an intent to harm or, if not that, such indifference to whether harm will result as to be the equivalent of a willingness that it does.” Xu, 257 Mich App at 269 n 3 (citation omitted).
Plaintiffs have pleaded only general negligence and reckless misconduct. On appeal, [*5] plaintiffs do not challenge the dismissal of their general negligence claims but assert error in the trial court’s grant of summary disposition on their claim of reckless misconduct. Plaintiffs contend that the trial court erred in limiting their claim of reckless misconduct only to injuries caused by a “co-participant” in a recreational activity rather than applying this standard to encompass all recreational activities as implied in Ritchie-Gamester v City of Berkley, 461 Mich 73, 89 n 9; 597 NW2d 517 (1999), which provided:
We recognize that we have stated this standard broadly as applying to all “recreational activities.” However, the precise scope of this rule is best established by allowing it to emerge on a case-by-case basis, so that we might carefully consider the application of the recklessness standard in various factual contexts.
Contrary to plaintiffs’ position, the Court’s ruling in Ritchie-Gamester was very specific, stating in relevant part:
[W]e conclude that coparticipants in a recreational activity owe each other a duty not to act recklessly. Because the trial court properly concluded that plaintiff could not show that defendant violated this standard, summary disposition [*6] was proper. [Id. at 95 (emphasis added).]
Based on the factual circumstances of this case, there is no basis to assert reckless misconduct as a basis for imposition of liability as Swinburne is merely the employee of a venue housing a recreational activity and not a coparticipant. Accordingly, the trial court correctly found that the case at hand is not analogous to Ritchie-Gamester and properly dismissed plaintiffs’ claim of reckless misconduct.
Further, even if Swinburne could be construed as a co-participant, his failure to act does not rise to the level of reckless misconduct, which is defined as:
“One who is properly charged with recklessness or wantonness is not simply more careless than one who is only guilty of negligence. His conduct must be such as to put him in the class with the wilful doer of wrong. The only respect in which his attitude is less blameworthy than that of the intentional wrongdoer is that, instead of affirmatively wishing to injure another, he is merely willing to do so. The difference is that between him who casts a missile intending that it shall strike another and him who casts it where he has reason to believe it will strike another, being indifferent whether [*7] it does so or not.” [Behar v Fox, 249 Mich App 314, 319; 642 NW2d 426 (2002) (citations omitted).]
There was no evidence presented of any affirmative or assertive behaviors by Swinburne to support an assertion of reckless conduct. At most, Swinburne was negligent because he was inattentive to plaintiff’s activity at the initiation of his climb. Swinburne’s complicit participation with plaintiff in ignoring the rules and regulations for the rock-climbing wall could only be construed as ordinary negligence based on their having established a mechanism or procedure to assure plaintiff’s safety while climbing. While the procedure followed deviated from the Club’s policy it does not evidence a level of willfulness or indifference necessary to establish reckless misconduct.
Plaintiffs also contend that the trial court erred by making findings of fact and failing to construe the evidence most favorably to the party opposing summary disposition. A trial court may not make findings of fact or weigh credibility in deciding a motion for summary disposition, and all reasonable inferences must be drawn in favor of the nonmovant. Amerisure Ins Co v Plumb, 282 Mich App 417, 431; 766 NW2d 878 (2009). [*8] Defendants sought summary disposition in accordance with MCR 2.116(C)(7). In deciding a motion based on that sub-rule, a trial court may consider “affidavits, depositions, admissions, or other documentary evidence” that would be admissible at trial. MCR 2.116(G)(2); Odom v Wayne Co, 482 Mich 459, 466; 760 NW2d 217 (2008).
Specifically, plaintiffs argue that the trial court erroneously found, as an undisputed fact, that plaintiff and Swinburne had adopted an “eye contact protocol” and that reasonable minds could not conclude that Swinburne’s behavior had exceeded ordinary negligence. According to plaintiffs, acceptance of the use of an “eye contact protocol” is contrary to the facts established by the record based on the Club having established and posted a formal procedure for securing climbers in its “Climbing Wall Rules & Regulations” coupled with Swinburne’s acknowledgment that this policy was mandatory and that he lacked the authority to override or ignore that policy.
Swinburne and plaintiff both admitted that the procedure they had adopted using eye contact was a deviation from the Club’s written rules. However, Swinburne and plaintiff also testified that they believed the “eye [*9] contact protocol” was appropriate due to plaintiff’s climbing experience and because it achieved the intended goal of verifying that plaintiff was properly attached to the tether. The trial court properly considered this evidence and construed it in a light most favorable to plaintiff. The only reasonable construction of the evidence was that Swinburne and plaintiff had developed their own protocol to insure that plaintiff was securely attached to the safety mechanism, albeit contrary to the Club’s rules and regulations. This did not comprise improper fact-finding by the trial court.
Affirmed.
/s/ Donald S. Owens
/s/ Peter D. O’Connell
/s/ Michael J. Talbot
Four releases signed and all of them thrown out because they lacked one simple sentence!
Posted: November 7, 2011 Filed under: Indiana, Jurisdiction and Venue (Forum Selection), Ohio, Tennessee | Tags: Gymnastics, Kentucky, Ohio, Tennessee, Trampoline, United States district court 4 CommentsThis is a sad case stemming from the death of young man who had traveled from Ohio
Photograph of girls performing synchronized trampoline at WAGC in Quebec November 2007. Trampqueen 21:52, 15 November 2007 (UTC) (Photo credit: Wikipedia)
to Tennessee to participate in a gymnastic event, the John Macready Flip Fest Invitational in Knoxville. The deceased was an experienced participant on the trampoline. During the event, he fell off the trampoline hitting the concrete floor with his head.
Summary of the case
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Bonne, et al., v. Premier Athletics, LLC, et al., 2006 U.S. Dist. LEXIS 77802
Posted: November 7, 2011 Filed under: Jurisdiction and Venue (Forum Selection), Legal Case, Sports, Tennessee | Tags: Gymnastics, Jurisdiction, Minor, Release, Top Flight T&T Boosters, Trampline, USA Gymnastics, Venue Leave a commentBonne, et al., v. Premier Athletics, LLC, et al., 2006 U.S. Dist. LEXIS 77802
Matthew R. Bonne, et al., Plaintiffs, v. Premier Athletics, LLC, et al., Defendants.
No. 3:04-CV-440
United States District Court for the Eastern District of Tennessee
2006 U.S. Dist. LEXIS 77802
October 23, 2006, Filed
SUBSEQUENT HISTORY: Motion granted by, in part, Motion denied by, in part Bonne v. Premier Ath., 2007 U.S. Dist. LEXIS 79956 (E.D. Tenn., Oct. 29, 2007)
CORE TERMS: gymnastic, summary judgment, sanctioned, wrongful death, membership, athlete, guardian, trampoline, booster, choice of law, significant relationship, decedent’s, sibling, place of business, moving party, non-moving, competed, death action, reckless conduct, exculpatory clause, gross negligence, surviving spouse, superior right, deceased, spotters, matting, registration form, paralysis, sponsor, host
COUNSEL: [*1] For Matthew R Bonne, Individually next friend Jordan T Bonne, Shirley K Bonne, Individually, next friend, Jordan T Bonne, next friend, Aaron Bonne, next friend, Brooke Bonne, next friend Trey Bonne, next friend, Andrew Bonne, Plaintiff: Stephen E Yeager, Lowe & Yeager, Knoxville, TN.
For Premier Athletics, LLC, doing business as, Premier Gymnastics and Tumbling Center, Defendant: John W Baker, Jr, Baker, O’Kane, Atkins & Thompson, Knoxville, TN.
For USA Gymnastics, United States Gymnastics Federation, Defendant: Samuel W Rutherford, Stokes & Rutherford, Knoxville, TN.
JUDGES: Thomas W. Phillips, United States District Judge.
OPINION BY: Thomas W. Phillips
OPINION
MEMORANDUM AND ORDER
This a wrongful death case involving parties with diversity under 28 U.S.C. § 1332. Defendants, Premier Athletics, LLC, USA Gymnastics and United States Gymnastics Federation, have moved for summary judgment as to plaintiffs’ claims. The parties have filed extensive briefs pertaining to the motion for summary judgment in which they have fully briefed all of the issues and submitted record evidence in support of the parties’ positions. The court has reviewed the briefs and [*2] evidence submitted, and does not feel that oral argument is necessary. For the reasons which follow, the motion will be granted as to the claims of Aaron Bonne, Brooke Bonne, Trey Bonne, and Andrew Bonne. In all other respects, the motion will be denied.
Background
This case involves a tragic accident that occurred on January 17, 2004, during the John Macready Flip Fest Invitational in Knoxville, Tennessee. The plaintiffs’ son, Jordan Bonne, was competing in a trampoline event when he fell off the trampoline, hitting his head on the concrete floor. Jordan died from his injuries two days later.
Defendant, Premier Athletics, was the host organization, sponsor and facilitator of the event, which was sanctioned by USA Gymnastics (USAG). Defendants USAG and the United States Gymnastics Federation (USGF) are the national governing bodies for the sport of gymnastics in the United States. Their principal place of business is in Indiana but they sanction gymnastic events all over the United States. At the time of the accident, Jordan was classified as a junior elite trampolinist according to USAG. Junior elite is the second highest classification in USAG sanctioned competition. [*3] Jordan had competed in numerous local, state and national competitions, and had recently competed internationally in his age group. Jordan competed in both the synchronized and individual trampoline events. The day before the accident, Jordan had competed in synchronized trampoline competition at Flip Fest.
Jordan was a member of the Top Flight Gymnastics Team. Jordan was also a member of USAG. In order for a gymnast to compete in a USAG sanctioned event, USAG requires all participants to be a member of USAG. For membership, USAG requires athletes to complete an “Athlete Member Application” every year. Membership is required to compete in USAG sanctioned events. Section Five of the membership application directs parents to read the reverse side of the application. Paragraph 3 of Section 5 includes the following language:
WAIVER AND RELEASE. I am fully aware of and appreciate the risks, including the risk of catastrophic injury, paralysis, and even death, as well as other damages and losses associated with participation in a gymnastics event. I further agree that USA Gymnastics, the host organization, and sponsor(s) of any USA Gymnastics sanctioned event, along with the [*4] employees, agents, officers and directors of the organization, shall not be liable for any losses or damages occurred as a result of my participation in the event, except for such loss or damage as the result of the intentional or reckless conduct of one of the organizations or individuals identified above.
Section 6 of the Athlete Member Application provides as follows:
All signatures required for acceptance of membership . . .
Required for any athlete who is not yet eighteen years old: As legal parent or guardian of this athlete, I hereby verify by my signature below, that I fully understand and accept each of the conditions listed in the Athlete Membership Agreement as described in Section Five for permitting my child to participate in any USA Gymnastics sanctioned event.
This 2004 membership application was signed by Jordan’s mother, Shirley Bonne in December 2003. Mrs. Bonne stated that she most likely signed the document in Kentucky as it was her habit to do so. In previous years, Shirley Bonne had signed similar forms containing the same waiver and release language. Jordan had also signed forms with identical waiver and release language in the past.
[*5] Top Flight Gymnastics had a similar waiver and release in its registration form. The Top Flight Gymnastics registration form provided:
As legal guardian of Jordan Bonne, I hereby consent to the above person’s participation in Top Flight Gymnastics’ programs, I recognize that potentially severe injuries, including permanent paralysis or death can occur in any activity involving height or motion, including gymnastics and related activities, including tumbling and trampoline.
I understand that it is the express intent of Top Flight Gymnastics to provide for the safety and protection of my child, and, in consideration for allowing my child to use these facilities, I hereby forever release Top Flight Gymnastics, its officers, employees, teachers, and coaches, from all liability for any and all damages and injuries suffered by my child while under the instruction, supervision, or control of Top Flight Gymnastics or its employees.
. . .
This acknowledgment of risk and waiver of liability, having been read thoroughly and understood completely, is signed voluntarily as to its content and intent.
This waiver and release was signed by Shirley Bonne on January 7, 1999.
[*6] Top Flight T&T, a booster club that supported Top Flight Gymnastics required a similar waiver and release for athletes who participated in its programs. This waiver and release stated:
As legal guardian of Jordan Bonne, I hereby consent to the above person’s participation in Top Flight’s T&T Boosters programs. I recognize that potentially severe injuries, including permanent paralysis or death can occur in any activity involving height or motion, including tumbling and trampoline.
I understand that it is the express intent of Top Flight T&T Boosters to provide for the safety and protection of my child, and, in consideration for allowing my child to use these facilities, I hereby forever release the Top Flight T&T Boosters, its officers, employees, teachers and coaches from all liability for any and all damages and injuries sustained by my child while under the instruction, supervision, or control of Top Flight T&T Boosters or its employees.
. . .
This acknowledgment of risk and waiver of liability, having been read thoroughly and understood completely, is signed voluntarily as to its content and intent.
Matthew Bonne, Jordan’s father, had also signed similar [*7] waiver and release forms for Jordan. He testified via deposition that he “probably” signed the Top Flight Registration Form. He acknowledged that he signed the booster club form. In the case of both these forms, he stated that he did not recall whether he read them before signing. Matthew Bonne traveled with his son on several occasions to different gymnastics events, including one that was held in Russia. He also attended several of Jordan’s practices.
As a result of the accident at Flip Fest on January 19, 2004, plaintiffs filed the instant action for the wrongful death of Jordan. The plaintiffs are residents of Ohio. In their complaint, Matthew and Shirley Bonne, individually and as next friends, parents and natural guardians of Jordan, sued Premier, USAG and USGF. Further, the Bonnes, as next friends, parents and guardians of Aaron Bonne, Brooke Bonne, Trey Bonne and Andrew Bonne (Jordan’s siblings) sued defendants contending that USAG and USGF were negligent in that they sanctioned an event which failed to provide a safe environment, utilized untrained spotters, failed to ensure sufficient floor matting, failed to require experienced and trained spotters, and failed to require [*8] sufficient safety matting. As a result of defendants’ alleged negligence, plaintiffs seek damages including parental and sibling consortium, expenses, and the pecuniary value of Jordan’s life.
Defendants USAG and USGF have moved for summary judgment asserting that the releases signed by Shirley and Matthew Bonne bar all claims against defendants. The releases exclude USAG and USGF from any liability resulting from injuries occurring in sanctioned events. As the host organization, sponsor and facilitator of the Flip Fest event, Premier is also expressly excluded from liability.
Analysis
Rule 56(c), Federal Rules of Civil Procedure, provides that summary judgment will be granted by the court only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The burden is on the moving party to conclusively show that no genuine issue of material fact exists. The court must view the facts and all inferences to be drawn therefrom in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Morris to Crete Carrier Corp., 105 F.3d 279, 280-81 (6th Cir. 1987); [*9] White v. Turfway Park Racing Ass’n, Inc., 909 F.2d 941, 943 (6th Cir. 1990); 60 lvy Street Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987). Once the moving party presents evidence sufficient to support a motion under Rule 56, Federal Rules of Civil Procedure, the non-moving party is not entitled to a trial simply on the basis of allegations. The non-moving party is required to come forward with some significant probative evidence which makes it necessary to resolve the factual dispute at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); White, 909 F.2d at 943-44. The moving party is entitled to summary judgment if the non-moving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof. Celotex, 477 U.S. at 323; Collyer v. Darling, 98 F.3d 211, 220 (6th Cir. 1996).
Choice of Law
Defendants argue that Ohio law should apply to the interpretation of the USAG membership application which contains an exculpatory clause. Plaintiffs, on the other hand, argue that Tennessee [*10] law is the correct choice of law to apply to determine the rights and liabilities of the parties. Plaintiffs further argue that Tennessee public policy prohibits the enforcement of exculpatory clauses by parents on behalf of their minor children and thus, the USAG waiver is void in this case.
The plaintiffs reside in Ohio. Defendants’ motion for summary judgment states that Mrs. Bonne completed and signed Jordan’s USAG member application in Ohio. However, Mrs. Bonne stated in her affidavit, that she most likely signed the application in Kentucky, where the Top Flight gym is located. The application was sent to and received by USAG in Indiana.
A federal court in a diversity case applies the law of the state in which the court sits, including the state’s choice of law rules. Davis v. Sears, Roebuck and Co., 873 F.2d 888, 892 (6th cir. 1989)(citing Erie R.R.Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). It is not clear from the defendants’ motion whether they dispute that plaintiffs’ tort claims are to be analyzed under applicable Tennessee law. However, they do dispute whether Indiana, Kentucky, Ohio, or Tennessee law governs the analysis of the release and [*11] waiver provisions at issue. Defendants assert in their motion that this is a contract dispute which should be analyzed under Tennessee’s choice of law rules related to contract claims. The court disagrees. This is a wrongful death action based upon tort, not contract. As regards the effect of the waiver and release between the parties, it will be determined by the law that governs the substantive tort rights of the parties.
The Tennessee Supreme Court in Hataway v. McKinley, 830 S.W.2d 53 (Tenn. 1992), adopted the “most significant relationship” approach of the Restatement (Second) of Conflict of Laws, § 175, to determine the rights and liabilities of the parties in a wrongful death case. Section 175 provides:
In an action for wrongful death, the local law of the state where the injury occurred determines the rights and liabilities of the parties unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, to which event the local law of the other state will be applied.
The accident causing Jordan’s [*12] death occurred at the Flip Fest in Knoxville, Tennessee. Thus, under the “most significant relationship” test, Tennessee law applies unless another state has a more significant relationship. To determine if another state has a more significant relationship, § 145 of the Restatement provides factors to be weighed and balanced. Those factors are (1) the place where the injury occurred, (2) the place where the conduct causing the injury occurred, (3) the domicile, residence, nationality, place of incorporation and place of business of the parties, and (4) the place where the relationship, if any, between the parties is centered.
Applying this test to the instant case, as stated above, Tennessee is where the injury and death occurred. Second, Tennessee is the place where the conduct causing the injury occurred. Third, the plaintiffs are residents of Ohio, USAG and USGF have their principal place of business in Indiana, but they sanction gymnastic events all over the United States. Premier is a Tennessee limited liability company with its principal place of business in Knoxville, Tennessee. Last, the relationship between the parties was centered in Tennessee because Jordan’s death occurred [*13] while he was participating in Flip Fest in Knoxville. The Flip Fest competition in Knoxville was the only mutual and central contact these parties had with one another. Therefore, it is clear that Tennessee is the state that has the “most significant relationship” with the parties in this case. Thus, Tennessee choice of law rules dictate that Tennessee tort law applies.
In a tort action, the effect of a release between the parties is determined by the law that governs the substantive tort rights of the parties. Mackey v. Judy’s Foods, Inc., 867 F.2d 325, 328 (6th Cir. 1989)(citing to Restatement (Second) of Conflicts of Laws, § 170, Comment b). As Tennessee law governs the rights and liabilities of the parties in the tort action, Tennessee law will also be applied to interpret the effect of the release and waiver provisions in the USAG application.
Effect of Waiver & Release
In Childress v. Madison County, 777 S.W.2d 1 (Tenn.App. 1989), the Tennessee Court of Appeals noted that “[t]he general rule is that a guardian may not waive the rights of an infant or an incompetent.” Id. at 6 [*14] (citing 39 Am.Jur.2d Guardian & Ward, § 102 (1968); 42 Am.Jur.2d Infants § 152 (1969)). As in Childress, Jordan’s rights could not be contracted away by his mother in the State of Tennessee. It is Tennessee’s stated public policy to protect minors and prohibit exculpatory releases for them. Mrs. Bonne could not execute a valid release or exculpatory clause as to the rights of her son against USAG, or anyone else, and to the extent the parties to the release attempted and intended to so do, the release is void.
Moreover, exculpatory clauses purporting to contract against liability for intentional conduct, recklessness or gross negligence are unenforceable. See Childress, 777 S.W.2d at 5; Adams v. Roark, 686 S.W.2d 73 (Tenn. 1985). Plaintiffs’ complaint alleges defendants’ failure to provide a safe environment, failure to utilize trained spotters, and failure to ensure sufficient safety matting, all constitute gross negligence and reckless conduct. Defendants have not challenged these allegations in their motion for summary judgment. Thus, accepting plaintiffs’ allegations [*15] as true, the release at issue here would not shield defendants for liability for their gross negligence and reckless conduct. Accordingly, defendants’ motion for summary judgment based on the waiver and release will be denied.
Claims of Jordan’s Siblings
Defendants assert that since both Jordan’s parents are living and are named , as plaintiffs in this actions, no right to sue on Jordan’s behalf has passed to his siblings. Thus, the claims of Aaron Bonne, Brooke Bonne, Trey Bonne and Andrew Bonne, should be dismissed as a matter of law.
The statutes permitting an action for the wrongful death of another create “no right of action existing independently of that which the deceased would have had, had he survived.” Rogers v. Donelson Hermitage Chamber of Commerce, 807 S.W.2d 242, 245 (Tenn.App. 1990); Memphis St. Ry. Co., v. Cooper, 313 S.W.2d 444, 447, 203 Tenn. 425 (1958). Although living beneficiaries of the deceased may seek a limited recovery for their own losses in addition to those of the decedent, see Hill v. City of Germantown, 31 S.W.3d 234, 239 (Tenn. 2000); Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 598 (Tenn. 1999), [*16] the right of action itself remains one that is “single, entire and indivisible.” See Wheeler v. Burley, 1997 Tenn. App. LEXIS 578, No. 01A01-9701-CV-00006 (Tenn.App. Aug. 27, 1997). Therefore, “there can be but one cause of action for the wrongful death of another.” Matthews v. Mitchell, 705 S.W.2d 657, 660 (Tenn.App. 1985).
Because multiple actions may not be brought to resolve a single wrongful death claim, the statutes carefully prescribe the priority of those who may assert the action on behalf of the decedent and any other beneficiaries. In a dispute between the surviving spouse and the children of the decedent as to who may maintain the action, the surviving spouse clearly has “the prior and superior right above all others.” Foster v. Jeffers, 813 S.W.2d 449, 451 (Tenn.App. 1991); see also Tenn. Code Ann. § 20-5-107. In fact, the children of a deceased may maintain an action only if the decedent is not survived by a spouse or if the surviving spouse has waived his or her right of priority. Id. Applying Tennessee law to the instant case, the court finds that Jordan’s parents have a superior right, as opposed to Jordan’s siblings, [*17] to maintain this cause of action against defendants for the wrongful death of Jordan.
Recognizing that a claim for loss of consortium does not represent a claim for damages separate from the wrongful death action itself, but rather embodies one component of the decedent’s pecuniary value of life, the Tennessee Supreme Court has held that a trial court should dismiss any other pending wrongful death actions upon proper filing of an action by party holding a superior right. See Kline v. Eyrich, 69 S.W.3d 197, 208 (Tenn. 2002). Accordingly, because Jordan’s parents have the superior right to maintain this action, the court will dismiss the claims of Aaron Bonne, Brooke Bonne, Trey Bonne, and Andrew Bonne.
Conclusion
For the reasons stated above, defendants’ joint motion for summary judgment [Doc. 16] is GRANTED IN PART AND DENIED IN PART. The motion is GRANTED as to the claims of Aaron Bonne, Brooke Bonne, Trey Bonne, and Andrew Bonne. In all other respects, the motion is DENIED. The parties will prepare the case for trial.
The parties motions for oral argument on the summary judgment motion [Docs. 28, 33] are DENIED.
ENTER:
[*18] s/ Thomas W. Phillips
United States District Judge
Wright et al. v. Mt. Mansfield Lift, Inc., et al. 96 F. Supp. 786; 1951 U.S. Dist. LEXIS 2524
Posted: October 24, 2011 Filed under: Legal Case, Ski Area, Vermont | Tags: Federal Supplement, Mansfield, Mount Mansfield, ski area, skiing, Skiing / Snow Boarding, United States, Vermont, Wright Leave a commentWright et al. v. Mt. Mansfield Lift, Inc., et al. 96 F. Supp. 786; 1951 U.S. Dist. LEXIS 2524
Civ. A. No. 1101
United States District Court for the District of Vermont
96 F. Supp. 786; 1951 U.S. Dist. LEXIS 2524
April 16, 1951
Counsel: [**1]
Justin G. Cavanaugh and William H. Cooney, Springfield, Mass., for plaintiffs Florine Wright and Robert B. Wright, Jr.
McNamara & Larrow, Burlington, Vt., Frank G. Sterritte, New York City, for defendants Mt. Mansfield Lift, Inc. and Mt. Mansfield Hotel, Inc.
Clifton G. Parker, Morrisville, Vt., for defendant Stowe-Mansfield Ass’n, Inc.
OPINION BY:
GIBSON
OPINION:
This is an action for damages resulting from a skiing accident brought by Florine and Robert B. Wright, Jr., husband and wife, of Springfield, Mass., against the Mt. Mansfield Lift, Inc., Mt. Mansfield Association, Inc. The case was heard on its merits at the February term, 1951, U.S. District Court, District of Vermont. At the conclusion of the plaintiff’s case, each of the three defendants filed a motion for a directed verdict. The motion, in each instance, is hereby granted.
The plaintiff, Mrs. Florine Wright, in her complaint, alleged that on January 23, 1949, she was skiing at the Mt. Mansfield ski area in Stowe, Vermont; that she had paid the required fee to one of the defendants, Mt. Mansfield Lift, Inc., hereinafter called Lift; had been transported to the top of Mt. Mansfield by this chair lift and [**2] having reached the top, started to ski down a marked trail; that on her way down the mountain, at a certain point on a ski trail, she ran against or collided with a snow-covered stump of a tree and thereby caused a serious fracture of her left leg.
The evidence viewed in the light most favorable to the plaintiff revealed the following situation. Stowe, Vermont, has become one of the largest winter sports areas of the eastern United States. The area of [*788] Mt. Mansfield is a snow bowl. In fact, the slogan of the area is ‘There is always snow in Stowe, you know’. Lift, Inc. was a Vermont corporation which owned or controlled land running up Mt. Mansfield on which it had erected a modern chair lift for skiers, the lift itself being better than a mile long.
In January, 1949, those who desired to ski down the trails of Mt. Mansfield in this area purchased a ticket at the bottom of the mountain where the lift commenced, the ticket costing 75 cents for a single ride up the mountain. After purchasing the ticket, the prospective skier stood in line and as the skier’s turn came, sat in the ski chair, generally with skis on. The skier was then hoisted better than 2,000 feet above the [**3] elevation of the bottom of the ski lift and deposited at the top of the ski lift at the top of Mt. Mansfield.
At the top of the ski lift, there was what is known as the Octogon House, made of stone, in which was served refreshments and also in which was a blackboard or chart on which were listed the particular trails which were open for skiing.
There were also located in this general area at the top of the lift signs pointing to the starting points of various trails down the mountain, each trail bearing a different name, such as Nosedive, Skimeister, Toll Road, etc. Most of these trails started on land that was owned or controlled by Lift, Inc. As these trails wended their way down Mt. Mansfield, they twisted their way, on occasion, onto lands owned or controlled by others. Defendant Mt. Mansfield Hotel, Inc., hereinafter called Hotel, Inc., at the time of the accident, owned and operated a hotel which at that time cared for approximately 20 guests. Most of these guests were ski enthusiasts. The Skimeister trail, as it came down Mt. Mansfield, came onto land of the Hotel, Inc. The Skimeister trail had been in operation for many years before this accident with the full knowledge and [**4] approval of Hotel, Inc. The trails were areas cleared down the rough mountain side of Mt. Mansfield by cutting trees, by bulldozing and by other methods. The trails are of varying width, some of trails being much more crooked than others.
The maintenance of the trails in the summertime consisted of mowing and cutting the brush and trees and of widening existing trails. Various residents, interested innkeepers in and about Stowe, men from the Forestry Department of the State of Vermont and workers provided by Lift, Inc., Hotel, Inc., and other organizations interested in skiing, did the summer maintenance work on these trails.
Generally speaking, there were three classes of trails on Mt. Mansfield which those who used the ski lift might choose. There was one class of trails known as expert trails. To maneuver these trails required a high degree of skiing ability. The second class of trails were known as the intermediate trails. These trails were less hazardous and less difficult than the expert trails, but one to negotiate them safely needed to be a fairly good skier. The third class of trails were known as the novice trails. These trails were for those who had skied but little. [**5]
During the winter of 1948-1949, the policing of the trails was done by an association known as the Mt. Mansfield Ski Patrol. This ski patrol consisted of five or six good skiers who were paid by the Mt. Mansfield Ski Club. This club, in turn, raised its funds by contributions from individuals, corporations, innkeepers and the like. Its total budget for the winter season of 1948-1949 was in the vicinity of $ 3,000. Of this, about $ 1,000 was contributed by the Hotel, Inc. and another substantial sum by the Lift, Inc.
The duties of this Ski Patrol were many. It was the Patrol’s duty each day to inspect each trail to determine which trails were suitable for skiing and which were not. Having done this, the patrol would see to it that the blackboard in the Octagon House which listed the trails open for skiing would properly list those that were open for skiing on this particular day. The patrol would also see to it that such trails as were adjudged by it as unsafe for skiing were closed off by chain or rope and that warning signs were put up at the start of the trail and at other places warning that this particular trail was not open.
In addition, members of the patrol skied down the [**6] trails [*789] and kept their eyes open for any unsafe conditions that appeared on open trails. If there were any, patrol members took steps to put up proper warning flags or proper safeguards or notified officials of the lift that there was a dangerous spot at a certain place on a certain trail so that steps would be taken immediately either to erect proper warning notices or to close off the trail.
The main purpose of the members of the ski patrol was to be available in case of any injury to any skier. Ski patrol members were trained in first aid and had equipment staged at various places on Mt. Mansfield for the purpose of removing injured skiers safely and expeditiously to the bottom of the mountain and if necessary to a hospital.
On January 23, 1949, Mr. and Mrs. Wright, accompanied by Mr. Abrams, went from Fayston, Vermont, where the Wrights were both working at this time, to Stowe, Vermont, for skiing purposes. Mr. Wright was an expert skier, having been certified as such, and was engaged as a ski instructor at the Mad River Valley ski project. Mrs. Wright had been skiing for 2-3 years and had taken lessons from her husband and others. She was not what is known as an expert [**7] skier, but was in what is generally termed as the intermediate ski class. Mr. Abrams was not as good a skier as Mr. and Mrs. Wright, but was generally able to negotiate intermediate trails.
On the day in question, this party arrived at the foot of Mt. Mansfield around noon. Mrs. Wright and Mr. Abrams purchased a ticket for 75 cents apiece to ride to the top of Mt. Mansfield on the ski lift. Mr. Wright being a professional was not required to buy a ticket. This was a courtesy extended by the lift to professional skiers. In due time, the party arrived at the top of Mt. Mansfield via the lift. Mr. Wright checked to see what trails were open and the group then went to the start of the Toll Road trail. The Toll Road trail down Mt. Mansfield is a gravelled road used by automobiles during the summertime. It is about four miles in length and one who goes down the Toll Road all the way, comes out at a point about two miles from the bottom of the lift and to get back to the lift, has to either walk or go by taxi. This Toll Road is classified as a novice trail. The party skied down the Toll Road until they came to a cut-off from the Toll Road, known as the 5th Avenue Cut-off. The party then [**8] turned onto this cut-off and skied down the cut-off until they arrived at the Skimeister trail. They then swung down the Skimeister trail until they came to the head of an open slope known as the T-bar slope, thence down that slope to the foot of the mountain. In coming down the mountain, Mr. Wright would lead the way, followed by Mrs. Wright and then followed in turn by Mr. Abrams. They would ski a distance of 200-300 feet, more or less, then stop and visit and then after resting a little, Mr. Wright would start off again followed in due time by Mrs. Wright and Mr. Abrams. Mr. Wright would ski as far as he thought wise on a given lap, stop and Mrs. Wright would come up behind him, stop, and Mr. Abrams the same. The first trip down these trails on Mr. Mansfield was uneventful. The party then got back onto the lift, again Mrs. Wright and Mr. Abrams purchasing tickets for 75 cents and were conveyed to the top of Mr. Mansfield once more.
The three of them started once again down the identical route they had taken on the first descent; down the Toll Raod to the 5th Avenue Cut-off, down the 5th Avenue Cut-off to the Skimeister trail, down the Skimeister trail to the top of the T-bar and [**9] the open slopes. The 5th Avenue Cut-off is just what the name implies, a cut-off from the Toll Road trail to another trail. It was an easy trail, a novice trail. The Skimeister trail, on the other hand, was an intermediate trail. The second trip down the mountain by this party was uneventful until the party came onto the Skimeister trail. There, a couple of hundred feet from where the Skimeister trail ran into the open slope and the T-bar lift, the party stopped for a rest and visit. Then Mr. Wright, as was the procedure on this particular day, skied down about 120 [*790] feet or so to within sight of the head of the T-bar lift, and also within sight of the hut called the Christienda hut, which is located near the top of the T-bar lift. He stopped and turned around and watched his wife come along. As Mrs. Wright began to approach him, she went into what is known as a snow-plow. This is a procedure used by skiers for stopping. It consists of turning the toes in to about an angle of 30 degrees each and putting more pressure on the inside runner of each ski. As she was snow-plowing to a stop, she suddenly fell and began to cry out in pain for help. Mr. Abrams, in the meantime, was [**10] standing at the spot they had last stopped. He then skied to the spot where Mrs. Wright had fallen.
Mr. Wright rushed up from a spot 15-20 feet away. Shortly a member of the ski patrol arrived with a toboggan. Mrs. Wright was in pain and was loaded onto the toboggan, tied onto the toboggan and thus taken down to the foot of the mountain and thence by automobile to the Morrisville Hospital.
The trail at the point of the accident was of good width and was more or less level land. It wasn’t hazardous or steep in any way at this spot. No stump showed above the snow. There was a smooth snow surface. Indeed the Skimeister trail had ample snow. The witness Abrams testified that at the point of the plaintiff’s fall, he got down and brushed the snow aside with his hand. He then found a stump 4-5 inches high from the ground- definitely a cut tree- no jagged edges. From the evidence one could infer that it was this obstacle that caused Mrs. Wright to fall and break her left leg.
From this recitation of the facts, as viewed in the light most favorable to the plaintiffs, it is apparent that there is no evidence of any nature that connects the defendant, Stowe-mansfield Association, Inc., with [**11] this case. Stowe-Mansfield Association, Inc. neither owned or controlled any of the land on which this accident happened. It was merely a promotional enterprise for the Stowe-Mansfield area. Indeed, the plaintiffs make no claim, that as the evidence stands, there is liability upon Stowe-Mansfield Association, Inc.
Therefore, a directed verdict on this defendant’s part is granted.
The situation is different, however, in regard to the Lift Company and the Hotel Company.
In the eyes of the law, the plaintiffs were invitees of the Lift and Hotel Companies. Whenever one makes such use of another’s premises as the owner intends he shall, or such as he is reasonably justified in understanding that the owner intended, this is an implied invitation to enter onto the land of anther. Wool v. Larner, 112 Vt. 431, 436, 26 A.2d 89.
The Lift Company invited the plaintiffs to the top of the lift. It maintained on its premises a record as to which trails were open and had signs on its property for the purpose of leading the plaintiffs to their choice of trail, in this case the Toll Road Trail. Once on the trail and heading down onto the Skimeister Trail, part of which was on land of the Hotel Company. [**12] This trail the Hotel Company had sanctioned for years. Indeed, the reason for each of the trails mentioned being open was to financially benefit both the Lift Company and the Hotel Company.
The duty owed the plaintiffs, invitees, by each of these two defendants was to advise them of any dangers which reasonable prudence would have foreseen and corrected. Slattery v. Marra Bros., 2 Cir., 186 F.2d 134, 136.
Skiing is a sport; a sport that entices thousands of people; a sport that requires an ability on the part of the skier to handle himself or herself under various circumstances of grade, boundary, mid-trail obstructions, corners and varied conditions of the snow. Secondly, it requires good judgment on the part of the skier and recognition of the existing circumstances and conditions. Only the skier knows his own ability to cope with a certain piece of trail. Snow, ranging from powder to ice, can be of infinite kinds. Breakable crust may be encountered where soft snow is expected. Roots and rocks may be hidden [*791] under a thin cover. A single thin stubble of cut brush can trip a skier in the middle of a turn. Sticky snow may follow a fast running surface without warning.
[**13] Skiing conditions may change quickly. What was, a short time before, a perfect surface with a soft cover on all bumps may fairly rapidly become filled with ruts, worn spots and other manner of skier created hazards.
The doctrine of volenti non fit injuria applies. One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary. Thus one who goes ice skating on a rink assumes the ordinary risks of the sport which includes inequalities of surface. Oberheim v. Pennsylvania Sports and Enterprises. 358 Pa. 62, 55 A.2d 766, 769; Shields v. Van-Kelton Amusement Corp., 228 N.Y. 396, 127 N.E. 261; McCullough v. Omaha Coliseum Corp., 144 Neb. 92, 12 N.W.2d 639, 643. One who goes to a swimming beach as an invitee accepts the dangers that inhere in it so far as they are obvious and necessary. McGraw v. District of Columbia, 3 App.D.C. 405, 25 L.R.A. 691, 692-693. A passenger who rides on a scenic railway and falls off, through no unusual action of the railway, may not recover. The passenger has placed himself in a position of obvious danger for the purpose of receiving the sensation caused by the sudden and violent motion of the car. He assumed [**14] the risk. Lumsden v. L. A. Thompson Scenic Railway Company, 130 App.Div. 209, 114 N.Y.S. 421, 423.
One who had participated in bobsledding and had followed that sport for some years assumes the risk attendant upon participation of that sport. The bobsled enthusiast knew that bobsled racing was a dangerous sport and could not recover for such injuries received. Clark v. State, 195 Misc. 581, 89 N.Y.S.2d 132, 139.
In this skiing case, there is no evidence of any dangers existing which reasonable prudence on the parts of the defendants would have foreseen and corrected. It isn’t as though a tractor was parked on a ski trail around a corner or bend without warning to skiers coming down. It isn’t as though on a trail that was open work was in progress of which the skier was unwarned. It isn‘t as though a telephone wire had fallen across the ski trail of which the defendant knew or ought to have known and the plaintiff did not know.
The trail at the point of the accident was smooth and covered with snow. There were no unexpected obstructions showing. The plaintiff, in hitting the snow-covered stump as she claims to have hit, was merely accepting a danger that inheres in the sport of skiing. [**15] To hold that the terrain of a ski trail down a mighty mountain, with fluctuation in weather and snow conditions that constantly change its appearance and slipperiness, should be kept level and smooth, free from holes or depressions, equally safe for the adult or the child, would be to demand the impossible. It cannot be that there is any duty imposed on the owner and operator of a ski slope that charges it with the knowledge of these mutations of nature and requires it to warn the public against such. Chief Justice Cardozo in the case of Murphy v. Steeplechase Amusement Co., Inc., 250 N.Y. 479, 166 N.E. 173, 174, discusses the law, which I hold to be applicable to ski accident cases and I quote:
‘Volenti non fit injuria. One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contract with the ball. * * * The antics of the clown are not the paces of the cloistered cleric. The rough and boisterous joke, the horseplay of the crowd, evokes its own guffaws, but they are not the pleasures of tranquillity. The plaintiff was [**16] not seeking a retreat for meditation.
Visitors were tumbling about the belt to the merriment of onlookers when he made his choice to join them. He took the chance of a like fate, with whatever damage to his body might ensue from such a fall. The timorous may stay at home.
‘A different case would be here if the dangers inherent in the sport were obscure or unobserved. * * * Nothing happened to the plaintiff except what common [*792] experience tells us may happen at any time as the consequence of a sudden fall. Many a skater or a horseman can rehearse a tale of equal woe.’
The verdict is therefore directed for each defendant.
NJ court holds ski statute stops suit by snowboarding expert for hitting a post
Posted: October 16, 2011 Filed under: New Jersey, Ski Area | Tags: Adventure travel, New Jersey, Outdoor recreation, Rock climbing, Ropes course, Ski Resort, summer camp Leave a commentNeustadter v. Mountain Creek Resort, Inc., 2008 N.J. Super. Unpub. LEXIS 1584
You hit a post as an expert and expect the resort to be at fault
In this New Jersey decision, the plaintiff sued Mountain Creek Resort for the injuries he sustained when he snowboarded into a piece of PVC pipe holding orange netting. The netting was used to separate two runs, one for experts and one for beginners.
The plaintiff stated he swerved to avoid a cluster of skiers hitting the post. Under New Jersey law a manmade object should be removed as soon as possible, unless necessary for the normal operation of the resort. N.J.S.A. 5:13-3(a)(3)
The plaintiff claimed the defendant “plaintiff claimed defendant “negligently, carelessly, and/or recklessly designed, constructed, supervised, operated and/or maintained the premises so as to create and/or allow a dangerous and hazardous condition to exist.” The judge at the trial court level dismissed the plaintiff’s case in the middle of the trial because the plaintiff had failed to prove his case.
The judge had also limited the testimony of the plaintiff’s expert witness because the expert witness had only visited the site once and his opinion included information and photographs that were not relevant to the facts of the case. The plaintiff’s expert did not have experience in running a ski operation so a large part of his opinion on the operation of the resort was also excluded.
After the dismissal the plaintiff appealed where the NJ Appellate court reached this decision finding for the defendant.
Analysis
The analysis of this case is very different. Normally you look at what the defendant did wrong, but what the plaintiff failed to do.
First the plaintiff hired an expert who either was asked or on his own went beyond the parameters of his area of expertise. An expert witness can only testify about what they have expertise either through experience, education or skill has specialized knowledge or expertise in an area. However that area is strictly defined. When an expert offers opinions beyond the area of expertise the court is required to eliminate or restrict the testimony.
Second, to go forward with a case and to ultimately win a decision at the trial court level the plaintiff has to prove all of the points necessary to prove negligence or to prove the statute was violated. Here, when the plaintiff lost the expert witnesses testimony he did not have enough proof to sustain his case.
What do you think? Leave a comment.
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Neustadter v. Mountain Creek Resort, Inc., 2008 N.J. Super. Unpub. LEXIS 1584
Posted: October 16, 2011 Filed under: Assumption of the Risk, Legal Case, New Jersey, Ski Area, Skiing / Snow Boarding | Tags: additionally, Assumption of risk, case-in-chief, correctly, essential element, expert testimony, failed to present, fence post, fencing, Hazard, hazardous, inflexible, involuntary dismissal, legitimate inferences, man-made, photographs, pole, practicable, reasonable time, reconstructed, Ski, ski area, Ski Resort, Skier, skiing, Slope, Snow, Snowboarders, sufficient evidence, Trail Leave a commentNeustadter v. Mountain Creek Resort, Inc., 2008 N.J. Super. Unpub. LEXIS 1584
Mark Neustadter and Katherine Neustadter, Plaintiffs-Appellants, v. Mountain Creek Resort, Inc., Defendant-Respondent.
DOCKET NO. A-5671-05T5
Superior Court of New Jersey, Appellate Division
2008 N.J. Super. Unpub. LEXIS 1584
September 11, 2007, Argued
February 15, 2008, Decided
NOTICE: NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION.
PLEASE CONSULT NEW JERSEY RULE 1:36-3 FOR CITATION OF UNPUBLISHED OPINIONS.
SUBSEQUENT HISTORY: Certification denied by Neustadter v. Mountain Creek Resort, 195 N.J. 521, 950 A.2d 907, 2008 N.J. LEXIS 721 (2008)
PRIOR HISTORY: [*1]
On appeal from the Superior Court of New Jersey, Law Division, Sussex County, L-670-03.
CORE TERMS: pole, man-made, hazard, ski, skier, trail, sufficient evidence, involuntary dismissal, expert testimony, failed to present, fence post, fencing, slope, ski resort, assumption of risk, photographs, correctly, hazardous, skiing, snow, reconstructed, snowboarders, ski area, reasonable time, legitimate inferences, essential element, case-in-chief, additionally, practicable, inflexible
COUNSEL: John R. Lanza argued the cause for the appellants (Lanza & Lanza, LLP, attorneys; John R. Lanza, of counsel; Mr. Lanza and Kenneth W. Thomas, on the brief).
Samuel J. McNulty argued the cause for the respondent (Hueston McNulty, attorneys; Mr. McNulty, of counsel and on the brief).
JUDGES: Before Judges Skillman, Yannotti and LeWinn.
OPINION
PER CURIAM
Plaintiffs, husband and wife, appeal from the trial court’s grant of an involuntary dismissal at the end of their case seeking damages for injuries allegedly sustained by plaintiff-husband, Mark Neustadter (hereinafter “plaintiff”), in an accident on defendant’s premises, a ski resort.
On January 7, 2002, plaintiff, an acknowledged snowboarding expert, was injured while snowboarding at defendant’s resort when he collided with a post supporting orange netting on the slope. The gravamen of his negligence claim was that the post was so deeply embedded in snow, and of such an inflexible material, that it was immovable and took the full force of his body, resulting in a shattered knee.
At the conclusion of plaintiff’s case, the trial judge determined that plaintiff had not presented [*2] sufficient evidence to allow the jury reasonably to find liability on defendant’s part. The judge also concluded that plaintiff had failed to adduce any evidence to show the injury in question was caused by the collision with the identified fence post. Accordingly, the judge dismissed the complaint.
Plaintiff raises the following points on appeal:
POINT I: THE TRIAL COURT ERRED IN GRANTING DEFENDANTS’ [SIC] MOTION FOR AN INVOLUNTARY DISMISSAL PURSUANT TO R. 4:37-2(b)
A. AS TO THE MEDICAL EXPERT, DR. WEISS
B. AS TO THE LIABILITY EXPERT, MR. HANST
1. THE PHOTOGRAPHS
2. THE ALLEGED NET OPINION
POINT II: THE TRIAL COURT IMPROPERLY LIMITED THE EXPERT TESTIMONY OF DR. WEISS AND MR. HANST
POINT III: THE TRIAL COURT ERRED BY PERMITTING DEFENDANT TO CROSS-EXAMINE PLAINTIFF’S EXPERT WITH A DOCUMENT IT FAILED TO PRODUCE IN DISCOVERY
POINT IV: THE TRIAL COURT IMPROPERLY EXCLUDED THE INTRODUCTION OF PLAINTIFF’S MEDICAL BILLS INTO EVIDENCE
POINT V: THE TRIAL COURT SHOULD NOT HAVE PERMITTED DEFENDANT TO NAME A MEDICAL EXPERT AFTER THE CONCLUSION OF THE ARBITRATION
Having thoroughly reviewed the trial record, we are convinced the judge properly limited the testimony of plaintiff’s liability expert and correctly [*3] concluded that plaintiff had not presented sufficient evidence to allow the jury reasonably to find liability on defendant’s part. This conclusion makes it unnecessary to reach the other issues raised on appeal.
In his complaint, plaintiff claimed defendant “negligently, carelessly, and/or recklessly designed, constructed, supervised, operated and/or maintained the premises so as to create and/or allow a dangerous and hazardous condition to exist.” He set forth the “particulars” of defendant’s negligence as follows:
a) Defendant knew, or in the exercise of reasonable care should have known, that the unprotected pole was dangerous, and Defendant failed to warn Plaintiff of that condition;
b) Defendant failed to cover the pole with a material in order to protect Plaintiff from being injured should Plaintiff come into contact with the pole;
c) Defendant knew, or should have known, that the pole, if left open and exposed was likely to be dangerous to ski[ers] and snowboarders, and with such knowledge Defendant failed to cover the pole or use any other means to keep it safe for its business invitees;
d) Defendant failed to cover the pole with a protective covering for the protection of skiers [*4] and snowboarders; and
e) Defendant permitted the pole to be left unprotected and defective and dangerous knowing that the pole would necessarily pose a risk of harm to Plaintiff and other business invitees, skiers, and snowboarders.
Plaintiff proffered John H. Hanst as his liability expert. Hanst rendered a report on May 21, 2005. Other than his review of documents, Hanst’s opinions were based solely upon his one and only site visit to the ski resort on March 24, 2005, more than three years after plaintiff’s accident.
During that site visit Hanst “reconstructed” the accident with plaintiff and described the reconstruction in his report as follows: “We walked up the trail to the area where the incident occurred. The area was modestly changed. . . . A few of the fence posts have been covered with padding although the majority of them were not padded.” (Emphasis added). Hanst included photographs of the reconstructed accident scene in his report.
Defendant challenged Hanst’s report and testimony in an in limine motion. Defendant contended that Hanst described “conditions that were not those described by the Plaintiff. . . . H[is report] talk[ed] about a condition that did not exist and [wa]s [*5] not relevant or material to the case that w[ould] be before th[e] Court.”
In ruling on that motion, the trial judge found that Hanst’s report described conditions that were not in existence “on the date of [plaintiff’s] . . . accident. . . . They were at a [much later] time . . . when the conditions on the slope were not the same. Nobody can say they were the same.” (Emphasis added).
The judge limited Hanst’s testimony to “what conditions should exist on a ski slope and how the conditions on the day in question deviated, based upon the testimony of Mr. Neustadter.” The judge also ruled Hanst’s photographs of the reconstructed accident scene inadmissible because they “specifically show poles that are different from those that are described by Mr. Neustadter as existing in the area where he was injured on the day in question.” In the course of his ruling, the judge noted that Hanst’s report did not address plaintiff’s claim that “the poles had been in the snow too long and ice had formed around them and possibly they didn’t flex the way they should.”
At trial, plaintiff testified that he swerved to avoid a cluster of skiers ahead of him. This caused him to collide with a PVC pole, one to [*6] two inches in diameter, that was supporting orange mesh fencing erected to distinguish the expert trail from the novice trail.
At the conclusion of Hanst’s voir dire, the judge limited his qualification as an expert to the area of alpine skiing, and excluded him from giving expert testimony on the subject of “mountain management” since he had no experience in that field. The sum total of Hanst’s liability testimony was that a rigid pole was a “man-made hazard,” and the ski operator had an obligation to reduce or eliminate that hazard.
After plaintiff had completed presentation of his case-in-chief, defendant moved for involuntary dismissal of the complaint pursuant to Rule 4:37-2(b). The judge granted the motion finding that plaintiff failed to present sufficient evidence to establish liability under the Ski Statute, N.J.S.A. 5:13-1 to -11. The judge additionally found that plaintiff failed to present sufficient evidence to show that any negligence on the part of defendant was a proximate cause of his injury. On June 23, 2006, the judge entered an order memorializing his findings. This appeal followed.
Plaintiff argues that the judge erred by granting defendant’s motion for involuntary [*7] dismissal of their complaint. He maintains that defendant had a duty under the Ski Statute to remove any “obvious man-made hazard” from the premises. Plaintiff contends that he presented evidence showing that he struck a man-made fence pole. He contends further that, because his evidence showed that the post was rigid, thereby constituting a “hazard,” the jury should have been permitted to determine whether defendant failed to discharge its duty to remove the pole. We disagree.
Rule 4:37-2(b) provides that, upon completion of a plaintiff’s case-in-chief,
the defendant . . . may move for dismissal of the action or of any claim on the ground that upon the facts and upon the law the plaintiff has shown no right to relief. . . . [S]uch motion shall be denied if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff’s favor.
In other words, dismissal is appropriate where the court determines that no rational jury could conclude from the evidence that an essential element of plaintiff’s case is present. “The trial court is not concerned with the worth, nature or extent . . . of the evidence, but only with its existence, viewed most favorably to [*8] the party opposing the motion.” Dolson v. Anastasia, 55 N.J. 2, 5-6, 258 A.2d 706 (1969). Where, as here, plaintiff failed to adduce expert testimony on the essential element of liability, such failure will warrant dismissal of his personal injury action.
The Ski Statute clearly defines the respective liabilities of skiers and ski operators, and sets forth the duties of both and the assumption of risk borne by skiers. N.J.S.A. 5:13-1 to -5. The statute states that a skier’s assumption of risk under N.J.S.A. 5:13-5 bars recovery for injuries sustained due to “the inherent risks of skiing . . . created by weather conditions, conditions of snow, trails, slopes, other skiers, and all other inherent conditions.” N.J.S.A. 5:13-6 states that a skier’s assumption of risk:
shall be a complete bar of suit and shall serve as a complete defense to a suit against an operator by a skier for injuries resulting from the assumed risks, . . . unless an operator has violated his duties or responsibilities under this act, in which case the provisions of [comparative negligence] shall apply.
The Ski Statute imposes upon the ski operator a duty to “[r]emove as soon as practicable obvious, man-made hazards.” N.J.S.A. 5:13-3(a)(3). [*9] However, the statute expressly exempts a ski operator from liability for its failure to remove man-made hazards such as fencing or poles which are necessary for the normal operation of a ski resort, as follows:
No operator shall be responsible to any skier or other person because of its failure to [remove obvious man-made hazards] if such failure was caused by . . . the location of man-made facilities and equipment necessary for the ordinary operation of the ski area, such as . . . fencing of any type, racing poles, or any other object or piece of equipment utilized in connection with the maintenance of trails . . . used in connection with skiing.
[N.J.S.A. 5:13-3(b)(3) (emphasis added).]
In addition, a ski operator shall not be held liable for failure to remove obvious, man-made hazards unless the operator “has knowledge of the failure to [remove man-made hazards]” or “should have reasonably known of such condition and having such knowledge has had a reasonable time in which to correct [the] condition.” N.J.S.A. 5:13-3(d).
Plaintiff failed to present any evidence to support his allegations that the fence post was an obvious, man-made hazard; or that defendant had actual or constructive [*10] knowledge of an obvious, man-made hazard relating to plaintiff’s injuries; or that defendant failed to remove such a hazard within a reasonable time. Therefore, the trial judge correctly found that plaintiff failed to present sufficient evidence from which a jury could reasonably find that defendant failed to meet its duty under N.J.S.A. 5:13-3(a)(3) to “[r]emove as soon as practicable obvious, man-made hazards.” As the trial judge recognized, liability may not be imposed under the Ski Statute if a ski operator’s failure to comply with N.J.S.A. 5:13-3(a)(3) was caused by the “location of man-made facilities” that are “necessary for the ordinary operation of the ski area[.]”
In his decision on the record, the judge aptly observed that there was nothing inappropriate about the placement of the fence posts delineating the expert trail and the novice trail; and it was plaintiff’s burden to show, through expert testimony, that something had happened to the poles after their installation which rendered them hazardous and not “necessary for the ordinary operation” of the facility. The judge properly determined that plaintiff had not met his burden in this regard. Moreover, the judge rightly [*11] found that plaintiff had not presented any evidence to show that defendant was aware, or reasonably should have been aware, that the poles had become hazardous for a reasonable period of time in which to address that condition. Therefore, the judge correctly determined that the evidence presented by plaintiff, and the “legitimate inferences” that could be drawn from that evidence, were insufficient to “sustain a judgment in plaintiff’s favor.” R. 4:37-2(b).
Plaintiff additionally argues that the judge erred by limiting Hanst’s testimony at trial. Again, we disagree. A trial judge has the discretion to determine whether an expert is competent to testify. Carey v. Lovett, 132 N.J. 44, 64, 622 A.2d 1279 (1993). As we stated previously, the judge barred Hanst from testifying concerning the fencing on defendant’s premises because Hanst’s opinions were not based on the conditions that existed at the time plaintiff was injured. At trial, the judge also precluded Hanst from testifying that defendant should have had special “break away poles” and refused to permit Hanst to speculate as to whether weather conditions that might have existed at the time of the accident caused the PVC poles to become inflexible. [*12] None of those issues had been addressed in Hanst’s report. We are convinced that the judge did not abuse his discretion by limiting Hanst’s testimony.
Affirmed.
Whitman et al., v. Zeidman, 16 A.D.3d 197; 791 N.Y.S.2d 54; 2005 N.Y. App. Div. LEXIS 2505
Posted: October 10, 2011 Filed under: Assumption of the Risk, Legal Case, New York, Skier v. Skier, Skiing / Snow Boarding | Tags: arranging, assumption of the risk, bunny, canceled, causal, Downhill, essons, failed to raise, instructing, interrupted, issue of fact, Negligence, novices, reasonable care, Reckless, risk of injury, risk-enhancing, ski area, Skier, skiing, Slope, snowboarding, sponsored, Sport, Summary judgment, supervising, trip Leave a commentWhitman et al., v. Zeidman, 16 A.D.3d 197; 791 N.Y.S.2d 54; 2005 N.Y. App. Div. LEXIS 2505
Harrison Whitman et al., Appellants, v. Michael Zeidman, an Infant, by Sarit Zeidman, His Parent and Legal Guardian, et al., Respondents.
5616
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
16 A.D.3d 197; 791 N.Y.S.2d 54; 2005 N.Y. App. Div. LEXIS 2505
March 15, 2005, Decided
March 15, 2005, Entered
CORE TERMS: lessons, snowboarding, risk of injury, summary judgment, failed to raise, issue of fact, reasonable care, risk-enhancing, supervising, instructing, interrupted, sponsored, arranging, downhill, reckless, canceled, skiing, novices, causal, skier, bunny, slope, sport, trip
COUNSEL: Law Offices of Renee Simon Lesser, P.C., New York (W. Matthew Sakkas of counsel), for appellants.
Acito, Klein & Candiloros, New York (Francesca A. Sabbatino of counsel), for Zeidman respondents.
Carol R. Finocchio, New York (Mary Ellen O’Brien of counsel), for National Council of Young Israel, respondent.
JUDGES: Concur–Buckley, P.J., Andrias, Friedman, Gonzalez, Sweeny, JJ.
OPINION
[*197] [**55] Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered January 9, 2004, which granted defendants’ motion and cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Plaintiff Harrison Whitman was injured in a collision with defendant Michael Zeidman while snowboarding. By “engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” ( [***2] Morgan v State of New York, 90 NY2d 471, 484, 685 NE2d 202, 662 NYS.2d 421 [1997]). The risk of injury caused by another skier is inherent in downhill skiing (General Obligations Law § 18-101). Defendant submitted proof that he did not engage in instances of reckless, intentional or other risk-enhancing conduct not inherent in snowboarding that might have caused the accident, and plaintiff failed to raise an issue of fact (see Kaufman v Hunter Mtn. Ski Bowl, 240 AD2d 371, 657 NYS2d 773 [1997], lv denied 91 NY2d 805, 668 NYS2d 560, 691 NE2d 632 [1998]).
Although defendant National Council of Young Israel sponsored the trip, it exercised reasonable care in supervising the participants by arranging for lessons to be provided, and once the lessons were canceled, instructing those who were novices to stay on the “bunny” slope (see generally Fintzi v New Jersey YMHA-YWHA Camps, 97 NY2d 669, 765 NE2d 288, 739 NYS2d 85 [2001]). Furthermore, the actions of the participants interrupted the causal link between National Council’s alleged negligence and plaintiff’s injury (see [***3] Boltax v Joy Day Camp, 67 NY2d 617, 490 NE2d 527, 499 NYS2d 660 [1986]). Concur–Buckley, P.J., Andrias, Friedman, Gonzalez and Sweeny, JJ.
Lloyd v. Bourassa, 2002 Me. Super. LEXIS 132
Posted: September 26, 2011 Filed under: Cycling, Legal Case, Maine, Release (pre-injury contract not to sue) | Tags: assigns, bicycle, collectively, Collision, counterclaims, Cycling, entities, genuine, heirs, indirectly, Issue of Material Fact, law enforcement agencies, legal representatives, mandatory, matter of law, Membership, Mountain, Off Road, own negligence, promoter, property owners, sponsor, Sport, successors, successors in interest, Summary judgment, Travel, waive, wanton negligence, willful Leave a commentLloyd v. Bourassa, 2002 Me. Super. LEXIS 132
C. Gary Lloyd, Plaintiff v. Tom Bourassa, Sugarloaf Mountain Corp., and United States Cycling, Inc. d/b/a National Off-Road Bicycle Association, Defendants
Civil Action Docket No. 01-CV-039
Superior Court of Maine, Hancock County
2002 Me. Super. LEXIS 132
August 20, 2002, Decided
August 21, 2002, Filed and Entered
SUBSEQUENT HISTORY: Affirmed by, Remanded by, Sub nomine at Lloyd v. Sugarloaf Mt. Corp., 2003 ME 117, 2003 Me. LEXIS 131 (Sept. 25, 2003)
DISPOSITION: [*1] Plaintiff’s motion for judgment on pleadings denied. Motions for summary judgment filed by defendants U.S.A. Cycling and Sugarloaf granted. Judgment granted to defendants on Counts II and III of plaintiff’s amended complaint.
CORE TERMS: cycling, membership, summary judgment, sponsor, bicycle, successors, mandatory, off-road, counterclaims, collision, promoter, mountain, collectively, indirectly, genuine, assigns, travel, entities, sport, waive, heirs, wanton negligence, willful, law enforcement agencies, matter of law, own negligence, issue of material fact, legal representatives, successors in interest, property owners
JUDGES: Ellen A. Gorman.
OPINION BY: Gorman
OPINION
ORDER
PROCEDURAL HISTORY
On June 22, 1995, C. Gary Lloyd applied for membership in “USCF . NORBA . NCCA.” After filling in some identifying information on the first page of the application form, Lloyd placed his signature on the second page, under a section entitled “Acknowledgment of Risk and Release of Liability.” That section contained the following language:
Please accept this as my application for membership and a USCF, NORBA and/or NCCA license.
I acknowledge that cycling is an inherently dangerous sport in which I participate at my own risk and that the United States Cycling Federation, Inc. is a non-profit corporation formed to advance the sport of cycling, the efforts of which directly benefit me. In consideration of the agreement of the USCF to issue a license to me, hereby on behalf of myself, my heirs, assigns and personal representatives, I release and forever discharge the USCF, its employees, agents, members, [*2] sponsors, promoters and affiliates from any and all liability, claim, loss, cost or expense, and waive and promise not to sue on any such claims against any such person or organization, arising directly or indirectly from or attributable in any legal way to any negligence, action or omission to act of any such person or organization in connection with sponsorship, organization or execution of any bicycle racing or sporting event, including travel to and from such event, in which I may participate as a rider, team member or spectator.
On August 11, 1995, with his NORBA membership in hand, Lloyd traveled to Kingfield, Maine to participate in a mountain biking event sponsored by the Sugarloaf Mountain Corporation known as the Widowmaker Challenge. At Kingfield, Lloyd signed the Official Entry Form, which included the following language under the heading of “Athlete’s Entry & Release Form 1“:
I fully realize the dangers of participating in a bicycle race and fully assume the risks associated with such participation including, by way of example, and not limitations, the following: the dangers of collision with pedestrians, vehicles, other racers and fixed or moving objects; the [*3] dangers arising from surface hazards, equipment failure, inadequate safety equipment and weather conditions; and the possibility of serious physical and/or mental trauma or injury associated with athletic cycling competition.
I hereby waive, release and discharge for myself, my heirs, executors, administrators, legal representatives, assigns, and successors in interest (hereinafter collectively “successors”) any and all rights and claims which I have or which may hereafter occur to me against the sponsors of this event, the National Off-Road Bicycle Association, the promoter and any promoting organization(s), property owners, law enforcement agencies, all public entities, and special districts and…. through or by which the events will be held for any and all damages which may be sustained by me directly or indirectly in connection with, or arising out of, my participation in or association with the event, or travel to or return from the event . . . .
I agree, for myself and successors, that the above representations are contractually binding, and are not mere recitals, and that should I or my successors assert my claim in contravention of this agreement, I or my successors shall [*4] be liable for the expenses incurred (including legal fees) incurred by the other party or parties in defending, unless the other parties are financially adjudged liable on such claim for willful and wanton negligence.
1 To avoid confusion, the “release” signed in June shall be referred to as the “Membership Release,” and the release signed in August shall be referred to as the “Event Release.”
Lloyd registered to participate in both the cross-country race and the downhill challenge. While completing a mandatory practice run on August 11, 1995, Lloyd was involved in a collision with another participant, Tom Bourassa.
On August 10, 2001, Lloyd filed suit against Bourassa, Sugarloaf Mountain Corporation, and United States Cycling Federation d/b/a National Off-Road Bicycle Association, asserting negligence claims against all three. Soon thereafter, Lloyd learned that he had failed to name the appropriate corporate defendant, and filed a motion to amend the complaint. Over objection, that motion was granted, [*5] and U.S.A. Cycling, Inc. replaced United States Cycling Federation d/b/a National Off-Road Bicycle Association.
In their Answers, both Sugarloaf and U.S.A. Cycling responded that Lloyd’s claims were barred by the releases quoted above. In addition, both asserted Counterclaims against Lloyd for breaching the terms of the releases. Both demanded Lloyd be held liable for any expenses they incurred in defending his suit.
On January 25, 2002, Lloyd filed a Motion for Judgment on the Pleadings with respect to Defendants’ Counterclaims and Affirmative Defenses of Release and Waiver. Sugarloaf Mountain Corporation opposed that motion and filed its own Motion for Summary Judgment on March 11, 2002. U.S.A. Cycling also opposed the plaintiff’s motion, and filed its Motion for Summary Judgment on April 11, 2002. All of the motions requested that the court review the language of the releases and determine whether and how it affected the outcome of this suit. A hearing on all three motions was held on July 3, 2002. Any findings included below are based upon the properly submitted affidavits and statements of material fact. Specifically excluded from that category is the affidavit form Attorney [*6] Greif.
DISCUSSION
1. Plaintiff’s Motion for Judgment on the Pleadings
The plaintiff argues that he is entitled to judgment on the defendants’ counterclaims and on their affirmative defenses of release and waiver because “the release, 2” by its terms, does not apply to U.S.A. Cycling, does not apply to the facts of this case, does not protect the defendants from their own negligence, and is unenforceable as contrary to public policy.
2 Plaintiff did not address the language of the Membership Release in his motion.
In considering a motion for judgment on the pleadings, the court is required to accept all of the responding party’s pleadings as true, and draw all reasonable inferences in its favor. Judgment is only appropriate if the responding party can prove no set of facts that would entitle it to relief. The plaintiff has failed to meet that burden.
Applicability to U.S.A. Cycling
In support of his first assertion, Lloyd argued that, because the Event Release does not mention U.S.A. Cycling, [*7] that defendant is not within the category of potentially released entities. With its response to this motion, U.S.A. Cycling filed an affidavit by Barton Enoch to establish that NORBA, a named sponsor of the Widowmaker, was the off-road division of U.S.A. Cycling, Inc. The clear language of the Entry Release covers sponsors, including U.S.A. Cycling d/b/a NORBA.
As mentioned above, Lloyd applied for membership in the United States Cycling Federation (USCF) and NORBA in June 1995. Soon thereafter, USCF merged into a new corporation, U.S.A. Cycling, Inc, that assumed all of its rights and responsibilities. By signing the Membership Release, Lloyd released U.S.A. Cycling, Inc. from responsibility for any accidents that might occur during his participation in any race events it sponsored.
Definition of Event
Lloyd has argued that the strictly construed language of the Event Release does not cover accidents that occur during the training run. In support of this argument, he has cited Doyle v. Bowdoin College, 403 A.2d 1206 (Me. 1979.) In that case, the Law Court said “releases absolving a defendant of liability for his own negligence must expressly spell out [*8] ‘with the greatest particularity’ the intention of the parties contractually to extinguish negligence liability.” Doyle, at 1208. Contrary to the plaintiff’s assertions, the language of the Event Release does precisely that:
I hereby waive, release and discharge for myself, my heirs, executors, administrators, legal representatives, assigns, and successors in interest (hereinafter collectively “successors”) any and all rights and claims which I have or which may hereafter occur to me against the sponsors of this event, the National Off-Road Bicycle Association, the promoter and any promoting organization(s), property owners, law enforcement agencies, all public entities, and special districts and properties . . . . through or by which the events will be held for any and all damages which may be sustained by me directly or indirectly in connection with, or arising out of, my participation in or association with the event, or travel to or return from the event . . . . (emphasis added)
All parties have agreed that the training run was a mandatory part of the event. To interpret the Event Release in such a convoluted fashion that it excludes a mandatory part of the [*9] event from the term “event” defies logic and is contrary to the intent of the parties as demonstrated by the plain language of the release. Hardy v. St. Clair, 1999 ME 142, 739 A.2d 368.
Public Policy
Although releases of liability are “traditionally disfavored,” in Maine that disfavor has resulted in strict interpretation rather than prohibition. Doyle v. Bowdoin College, Id. The cases cited by plaintiff in support of his contrary argument are from other jurisdictions and do not accurately describe the law in Maine. When asked to consider the issue raised here, both Maine state courts and the First Circuit have consistently enforced the language of releases. See, e.g., Hardy v. St. Clair, 1999 ME 142, 739 A.2d 368; McGuire v. Sunday River Skiway Corp., 1994 WL 505035 (D.Me.)(Hornby, J.), aff’d 47 F.3d 1156 (1st Cir. 1995). Despite his reference to a “contract of adhesion,” Lloyd was not compelled to sign either release. He chose to sign both because he wanted to participate in an inherently risky sport. He is free to make such choices, but must also accept responsibility for what happens as a result [*10] of that choice.
For the reasons stated above, plaintiff’s motion for judgment on the pleadings is denied.
2. Defendants’ Motions for Summary Judgment
The Law Court has addressed motions for summary judgment on many occasions:
In reviewing a summary judgment, we examine the evidence in the light most favorable to the nonprevailing party to determine whether the record supports the conclusion that there is no genuine issue of material fact and that the prevailing party is entitled to a judgment as a matter of law. (citation omitted) In testing the propriety of a summary judgment, we accept as true the uncontroverted facts properly appearing in the record. (citation omitted)
Champagne v. Mid-Maine Med. Ctr., 1998 ME 87, P5, 711 A.2d 842, 844. The issue is not whether there are any disputes of fact, but whether any of the disputes involve a “genuine” issue of “material” fact. See Rule 56(c). After reviewing the record provided with these standards in mind, the court must conclude that there are no genuine issues of disputed fact.
Both Lloyd and the defendants agree that Lloyd was required to complete a practice run in order to participate [*11] in the Widowmaker Challenge. All of them agree that Lloyd signed both releases before he took that mandatory run, and all agree that he was involved in a collision with another bicyclist during that run. As was discussed above, the practice run and any problems encountered during it are covered by the terms of the releases Lloyd signed. The Membership Release contains express language releasing claims arising from negligence. The Entry Release contains express language describing the types of accidents or dangers covered by the release, including “the dangers of collision with … other racers.” The collision between Lloyd and Bourassa was precisely the type of accident contemplated by the parties and waived by Lloyd in both releases.
Lloyd has failed to refer to any evidence in the record that might support his theory that that the Event Release should be seen as a substitution or novation of the Membership Release. Without such evidence, the court may not presume that the parties intended that one contract be substituted for the other.
Lloyd has asserted that the reference in the Event Release to an exception for “willful and wanton negligence” precludes summary judgment. However, [*12] no such tort has yet been recognized in Maine, so no jury could be asked to determine whether the defendants had acted with willful or wanton negligence. That exception is inapplicable in this jurisdiction. In addition, that language refers only to the portion of the Release that discusses the defendants’ right to recover expenses, including legal fees. On the record presented, there are no material issues of disputed fact concerning the language of the releases.
U.S.A. Cycling was a sponsor and Sugarloaf was a promoter of the race. As a matter of law, the court finds that the mandatory practice run was included within the language of the Releases, that the releases are clear and unambiguous, and that the accident Lloyd claims falls entirely within the types of harms contemplated by the parties at the time the releases were signed. There is nothing left to be litigated on either plaintiff’s Complaint against defendants U.S.A. Cycling and Sugarloaf, or on their Counterclaims against him.
For the reasons stated above, the court finds that the releases signed by Lloyd individually and collectively bar any civil action against either U.S.A. Cycling, d/b/a NORBA or against Sugarloaf for [*13] the injuries Lloyd allegedly sustained on August 11, 1995. Summary judgment on plaintiff’s Complaint is granted to U.S.A. Cycling, d/b/a NORBA and to Sugarloaf. In addition, summary judgment against Lloyd on their Counterclaims is granted to both U.S.A. Cycling, d/b/a NORBA and. Within thirty (30) days, counsel for these defendants shall submit proof of expenses, including attorney fees, incurred in defense of this action.
ORDER
Plaintiff’s motion for judgment on the pleadings is denied. The motions for summary judgment filed by defendants U.S.A. Cycling and Sugarloaf are granted. Judgment is granted to those defendants on Counts II and III of plaintiff’s amended complaint.
DOCKET ENTRY
The Clerk is directed to incorporate this Order in the docket by reference, in accordance with M.R.Civ.P. 79(a).
DATED: 20 August 2002
Ellen A. Gorman
Conning v. Dietrich, 2011 NY Slip Op 51340U; 32 Misc. 3d 1215A; 2011 N.Y. Misc. LEXIS 3481
Posted: September 19, 2011 Filed under: Assumption of the Risk, Cycling, Legal Case, New York, Racing, Triathlon | Tags: #Cyclist, amusement, Assumption of risk, assumption of the risk, bicycle, bicyclist, cross-claims, Cycling, experienced, Hazard, issues of fact, mile, Paceline, participated, participating, Recreation, recreational, ride, riding, risk of injuries, roadway, route, shoulder, speed, Sport, Summary judgment, training, triable, Triathlon, verified, weekend Leave a commentConning v. Dietrich, 2011 NY Slip Op 51340U; 32 Misc. 3d 1215A; 2011 N.Y. Misc. LEXIS 3481
Suzanne M. Conning, Plaintiff, against Robert J. Dietrich, BROOKLYN TRIATHLON CLUB and JOHN STEWART, Defendants.
32474/08
SUPREME COURT OF NEW YORK, KINGS COUNTY
2011 NY Slip Op 51340U; 32 Misc. 3d 1215A; 2011 N.Y. Misc. LEXIS 3481
July 15, 2011, Decided
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
CORE TERMS: bicycle, training, triathlon, route, summary judgment, shoulder, weekend, roadway, ride, cyclist, riding, participating, cycling, recreational, risk of injuries, issues of fact, participated, cross-claims, bicyclist, verified, hazard, sport, assumption of risk, experienced, recreation, amusement, triable, speed, mile, paceline
HEADNOTES
[**1215A] Negligence–Assumption of Risk–Injury during Cycling Event. Release–Scope of Release.
COUNSEL: [***1] For CONNING, Plaintiff: Alan T. Rothbard, Esq., Harrison & Rothbard, P.C., forest Hills, NY.
For DIETRICH, Defendant: Michael J. Caulfield, Esq., Connors & Connors, PC, Staten Island NY.
For STEWART & BTC, Defendant: French & Casey LLP, NY NY.
JUDGES: HON. ARTHUR M. SCHACK, J. S. C.
OPINION BY: ARTHUR M. SCHACK
OPINION
Arthur M. Schack, J. [*2]
Plaintiff SUZANNE M. CONNING (CONNING), a resident of Brooklyn (Kings County), fell off a bicycle while participating in an August 2, 2008 triathlon training ride on New York State Route 28, a designated state bicycle route, in Ulster County. After her fall she was struck by an automobile owned and operated by defendant ROBERT J. DIETRICH (DIETRICH). Plaintiff had been training intensively for two upcoming triathlons she planned to enter. Defendant BROOKLYN TRIATHLON CLUB (BTC) organized weekend trips to allow triathletes, such as plaintiff CONNING, to train for upcoming events. Defendant BTC designated defendant JOHN STEWART (STEWART) to lead its cycling training the weekend of plaintiff CONNING’s accident.
Defendants BTC and STEWART move for summary judgment and dismissal of plaintiff’s verified complaint and all cross-claims against them, pursuant to CPLR Rule 3212, alleging, among [***2] other things, that: plaintiff CONNING assumed the risk of injuries she sustained by voluntarily participating in defendant BTC’s triathlon training weekend; and, plaintiff CONNING signed a valid waiver of liability releasing defendants BTC and STEWART from any liability that they may sustain in a BTC event. Defendant DIETRICH moves for summary judgment and dismissal of plaintiff’s verified complaint and all cross-claims against him, pursuant to CPLR Rule 3212, alleging that: plaintiff CONNING caused her own accident by following the cyclist in front of her too closely; and, there is no evidence that defendant DIETRICH failed to use reasonable care in the operation of his motor vehicle. Plaintiff opposes both motions. For the reasons to follow, the Court grants summary judgment to defendants BTC and STEWART and denies summary judgment to defendant DIETRICH.
Background
Plaintiff CONNING had experience as a “triathalete” before the subject accident, having participated in three prior triathlons and other organized bicycling events, including a thirty-five (35) mile bike tour in September or October 2006. When plaintiff lived in Arizona, from 2001-2005, she participated several times per [***3] month in organized and informal cycling rides and mountain biked several times per year. Subsequently, plaintiff moved to New York and joined BTC in November 2007. In 2008, plaintiff began participating in instructional cycling rides with BTC members. Plaintiff Conning testified in her examination before trial (EBT) that: she gradually increased the frequency of her rides and the distance covered to develop endurance and strength; her training rides included bike paths in Brooklyn with pedestrians and highways with motor vehicles; and, she was aware of the potential hazards a cyclist encounters on roads, including small stones, ruts and cracks.
Defendant BTC organized a triathlon training weekend for the first weekend of August 2008, based in Phoenicia, New York, to train its members in the skills necessary for triathlon events. Plaintiff signed BTC’s waiver of liability, on July 29, 2008, before commencing training with BTC. Then, plaintiff CONNING voluntarily took part in BTC’s three (3) day training camp in preparation for her planned participation in upcoming triathlons. Plaintiff testified, in her [*3] EBT, that on Friday, August 1, 2008, she participated in a twenty (20) mile bicycle [***4] ride and then chose to take a thirty-five (35) mile ride the next day, led by defendant STEWART. In the August 2, 2008-ride, the six riders stayed in a paceline if the road was straight and level. In a paceline, bicycle riders, to reduce wind resistance, ride in a line with each bicycle approximately twelve to eighteen inches behind each other.
After the group traveled about twenty-five (25) miles, while on Route 28, plaintiff CONNING was last in the paceline, to keep weaker cyclists in front of her. The paceline was on the shoulder of Route 28, separated from vehicular traffic by a white line. Plaintiff CONNING testified, in her EBT, that while she was following a fellow cyclist, Cindy Kaplan, she observed the shoulder narrowing and a difference in elevation between the shoulder and the gravel area to the right of the shoulder. When plaintiff observed Ms. Kaplan leave the shoulder and swerve right onto the gravel surface, plaintiff voluntarily followed. Plaintiff testified, in her EBT, that she then attempted to get her bicycle back onto the shoulder, at which point the front wheel of her bicycle caught the slight rise in the shoulder’s elevation. This caused her wheels to stop and [***5] plaintiff CONNING was propelled over her bicycle’s handlebars onto Route 28’s roadway. Then, plaintiff CONNING was struck by defendant DIETRICH’s vehicle, which was traveling on Route 28. Further, plaintiff admitted that prior to the accident she never complained about roadway conditions to STEWART.
Summary Judgment Standard
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. (See Alvarez v Prospect Hospital, 68 NY2d 320, 324, 501 N.E.2d 572, 508 N.Y.S.2d 923 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562, 404 N.E.2d 718, 427 N.Y.S.2d 595 [1980]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404, 144 N.E.2d 387, 165 N.Y.S.2d 498 [1957]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. (Winegrad v New York University Medical Center, 64 NY2d 851, 476 N.E.2d 642, 487 N.Y.S.2d 316 [1985]; Qlisanr, LLC v Hollis Park Manor Nursing Home, Inc., 51 AD3d 651, 652, 857 N.Y.S.2d 234 [2d Dept 2008]; Greenberg v Manlon Realty, 43 AD2d 968, 969, 352 N.Y.S.2d 494 [2nd Dept 1974]).
CPLR Rule 3212 (b) requires that for a court to grant summary judgment the court must determine if the movant’s papers justify holding as a matter of law [***6] “that there is no defense to the cause of action or that the cause of action or defense has no merit.” The evidence submitted in support of the movant must be viewed in the light most favorable to the non-movant. (Boyd v Rome Realty Leasing Ltd. Partnership, 21 AD3d 920, 921, 801 N.Y.S.2d 340 [2d Dept 2005]; Marine Midland Bank, N.A. v Dino & Artie’s Automatic Transmission Co., 168 AD2d 610, 563 N.Y.S.2d 449 [2d Dept 1990]). Summary judgment shall be granted only when there are no issues of material fact and the evidence requires the court to direct judgment in favor of the movant as a matter of law. (Friends of Animals, Inc., v Associated Fur Mfrs., 46 NY2d 1065, 390 N.E.2d 298, 416 N.Y.S.2d 790 [1979]; Fotiatis v Cambridge Hall Tenants Corp., 70 AD3d 631, 632, 895 N.Y.S.2d 456 [2d Dept 2010]).
Plaintiff’s assumption of risk
Defendants BTC and STEWART make a prima facie entitlement to summary judgment and dismissal of the verified complaint and cross-claims against them because plaintiff CONNING assumed any risks involved with bicycle riding and she executed defendant BTC’s valid waiver of liability. The Court of Appeals, in Turcotte v Fell (68 NY2d 432, 502 N.E.2d 964, 510 N.Y.S.2d 49 [1986]), held, at 437: [*4]
It is fundamental that to recover in a negligence action a plaintiff must establish that the defendant [***7] owed him a duty to use reasonable care, and that it breached that duty . . . The statement that there is or is not a duty, however, begs the essential question — whether the plaintiff’s interests are entitled to legal protection against the defendant’s conduct. Thus, while the determination of the existence of a duty and the concomitant scope of that duty involve a consideration not only of the wrongfulness of the defendant’s action or inaction, they also necessitate an examination of plaintiff’s reasonable expectations of the care owed to him by others.
Further, in Turcotte at 438-439, the Court instructed that risks involved with sporting events:
are incidental to a relationship of free association between the defendant and the plaintiff in the sense that either party is perfectly free to engage in the activity or not as he wishes. Defendant’s duty under such circumstances is a duty to exercise care to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty.
The doctrine of assumption of risk is “intended to facilitate free and vigorous participation [***8] in athletic activities.” (Benitez v New York City Bd. of Educ., 73 NY2d 650, 657, 541 N.E.2d 29, 543 N.Y.S.2d 29 (1989). However, “[a]s a general rule, [sporting event] participants may be held to have consented, by their participation, to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation (see Maddox v City of New York, 66 NY2d 270, 277-278, 487 N.E.2d 553, 496 N.Y.S.2d 726 [1985]).” (Turcotte at 439). (See Benitez at 657; Murphy v Steeplechase Amusement Co., 250 NY 479, 482, 166 N.E. 173 [1929]). To establish plaintiff’s assumption of risk, “it is not necessary . . . that the injured plaintiff have foreseen the exact manner in which the injury occurred, so long as he or she is aware of the potential for injury from the mechanism from which the injury results.” (Maddox at 278). “If a participant makes an informed estimate of the risks involved in the activity and willingly undertakes them, then there can be no liability if he is injured as a result of those risks.” (Turcotte at 437). Further, the Turcotte Court, at 438, in defining the risk assumed, instructed that:
in its most basic sense it “means that the plaintiff, in advance, has given his * * * consent to relieve the defendant of an obligation [***9] of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone. The situation is then the same as where the plaintiff consents to the infliction of what would otherwise be an intentional tort, except that the consent is to run the risk of unintended injury * * * The result is that the defendant is relieved of legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence” (Prosser and Keeton, Torts § 68, at 480-481 [5th ed]; 4 Harper, James & Gray, [*5] Torts § 21.0 et seq. [2d ed]; Restatement [Second] of Torts § 496A comments b, c; see also, Bohlen, Voluntary Assumption of Risk, 20 Harv. L Rev 14 [assumption of risk is another way of finding no duty of care]; Comment, Assumption of Risk and Vicarious Liability in Personal Injury Actions Brought by Professional Athletes, 1980 Duke LJ 742).
Assumption of risk is frequently invoked in connection with voluntary participation in sports and recreational activities. “By engaging in a sport or recreational activity, a participant consents to those commonly-appreciated risks which are inherent in and arise out of the nature of the sport generally and [***10] flow from such participation.” (Rivera v Glen Oaks Village Owners, Inc., 41 AD3d 817, 820, 839 N.Y.S.2d 183 [2d Dept 2007]). In Sanchez v City of New York (25 AD3d 776, 808 N.Y.S.2d 422 [2d Dept 2006]), the Court dismissed plaintiff’s complaint because “the injured plaintiff assumed the risks inherent in playing baseball in the gymnasium where she sustained her injuries, including those risks associated with any readily observable defect or obstacle in the place where the sport was played.” In Cuesta v Immaculate Conception Roman Catholic Church (168 AD2d 411, 562 N.Y.S.2d 537 [2d Dept 1990]) the Court granted summary judgment to defendant. Plaintiff, voluntarily acted as an umpire in his son’s Little League game. While standing behind the pitcher, he was struck in the eye by a ball thrown by the catcher. The Court held, at 411, that “[t]he injury is one common to the sport of baseball, and was foreseeable by the plaintiff prior to accepting the job as umpire.” In an assumption of risk case, “[p]laintiff can avoid summary judgment only by demonstrating that the risk of injury was somehow unreasonably increased or concealed in the instant circumstances.” (Mondelice v Valley Stream Cent. High School Dist., 2002 N.Y. Misc. LEXIS 1292, 2002 NY Slip Op 50403 [U], *3 [***11] [Sup Ct, Nassau County 2002, Winslow, J.]).
Plaintiff CONNING, in the instant action, was aware of the inherent risks involved in triathlon participation. She was an experienced cyclist and prior to her accident previously participated in triathlons and cycling events. In addition, she participated in weekly training for triathlon events. At the time of her accident no risks inherent in bicycling were veiled or concealed from her. “[B]y engaging in a sport or recreation activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.” (Morgan v State, 90 NY2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421 [1997]). (See Marino v Bingler, 60 AD3d 645, 874 N.Y.S.2d 542 [2d Dept 2009]; Lumley v Motts, 1 AD3d 573, 768 N.Y.S.2d 24 [2d Dept 2003]; Cook v Komorowski, 300 AD2d 1040, 752 N.Y.S.2d 475 [4th Dept 2002]). “A reasonable person of participatory age or experience must be expected to know” that there are risks inherent with cycling. (Morgan at 488) A known, apparent or reasonably foreseeable consequence of participating in a sporting activity will be considered an inherent risk. (See Turcotte at 439; Tilson v Russo, 30 AD3d 856, 857, 818 N.Y.S.2d 311 [3d Dept. 2006]; Rubenstein v Woodstock Riding Club, 208 AD2d 1160, 617 N.Y.S.2d 603 [3d Dept. 1994]). [***12] Plaintiff, an experienced bicyclist, was aware of risks, in cycling on Route 28, when she left the shoulder where her training group was riding and went onto adjacent gravel. She should have been aware that road bikes of the type she was riding are designed to be ridden on pavement and their handling is greatly compromised on gravel.
Moreover, whether the risk of injury is open and obvious is a determinative factor in assessing plaintiff’s comparative fault. (See Palladino v Lindenhurst Union Free School Dist., 84 AD3d 1194, 924 N.Y.S.2d 474 [2d Dept 2011]; Krebs v Town of Wallkill, 84 AD3d 742, 922 N.Y.S.2d 516 [2d Dept 2011]; Bendig v [*6] Bethpage Union Free School Dist., 74 AD3d 1263, 1264, 904 N.Y.S.2d 731 [2d Dept 2010]; Mondelli v County of Nassau, 49 A.D.3d 826, 827, 854 N.Y.S.2d 224 [2d Dept 2008]; Mendoza v Village of Greenport, 52 AD3d 788, 861 N.Y.S.2d 738[2d Dept 2008]). Plaintiff CONNING, in the instant matter, alleges that defendants BTC and STEWART were negligent in allowing her to ride on “a decrepit and narrow path.” However, plaintiff rode her bicycle on the shoulder of Route 28 for one-tenth of a mile (about two city blocks) before her accident. She was able to observe the roadway as she was riding on the shoulder. Also, despite observing the narrowing of the [***13] shoulder, she continued to ride. Plaintiff, did not, as she knew she could have, slowed down or stopped.
Moreover, even for experienced cyclists “[t]he risk of striking a hole and falling is an inherent risk of riding a bicycle on most outdoor surfaces.” (Goldberg v Town of Hempstead, 289 AD2d 198, 733 N.Y.S.2d 691 [2d Dept. 2001]). Similarly, “the risk of encountering ruts and bumps while riding a bicycle over a rough roadway . . . is so obvious . . . or should be to an experienced bicyclist . . . that, as a matter of law, plaintiff assumed any risk inherent in the activity.” (Furgang v Club Med, 299 AD2d 162, 753 N.Y.S.2d 359 [1d Dept 2002]). Plaintiff, in the instant action, was participating in a guided bicycle tour conducted by defendants BTC and STEWART when she hit a rut, an inherent risk, and fell off her bicycle. (See Rivera v Glen Oaks Village Owners, Inc. at 820-821; Reistano v Yonkers Bd. of Educ., 13 AD3d 432, 785 N.Y.S.2d 711 [2d Dept 2004]). In Werbelow v State of New York (7 Misc 3d 1011[A], 801 N.Y.S.2d 244, 2005 NY Slip Op 50549[U] [Ct Cl, 2005]), a self-proclaimed “rather competent rollerblader” was injured after she fell over a “crack” on a New York State bicycle path and the Court found that plaintiff assumed the risk of injury. The Werbelow Court held, at *3, [***14] that “there is no indication that there were unreasonably increased risks’ in this case, or that defendant acted recklessly, intentionally, or concealed the risks, such that the doctrine of assumption of risk would not apply.” “Since the risk of striking a hole and falling is an inherent risk in riding a bicycle on most outdoor surfaces and the defective condition in this case was open and obvious, the infant plaintiff assumed the risk of riding her bicycle on the ballfield.” (Goldberg at 692). (See Rivera v Glen Oaks Village Owners, Inc. at 820). In the instant action, a rut in the road surface or a change in elevation between the shoulder and gravel area or a “decrepit and narrow” shoulder were not unique conditions created by either STEWART or BTC.
It is clear that defendants BTC and STEWART did not take plaintiff on an unreasonably dangerous roadway surface. The EBT testimony demonstrates that the cyclists did not anticipate that every patch of the roadway would be smooth. Cindy Kaplan, one of the cyclists in plaintiff’s training group, testified that “[i]n general the entire route was appropriate, the entire weekend was appropriate because that’s how the roads are Upstate . . . [***15] I guess you can’t expect it to be perfectly paved the whole time.” Plaintiff CONNING came into contact with a ledge or lip in the roadway while trying to get back on the path she diverged from. Unable to navigate the ledge or lip, she fell and was then struck by defendant DIETRICH’s passing car. Prior to plaintiff’s accident, defendant STEWART was diligent in pointing any roadway hazards to the bicycle riders in his group. The shoulder narrowing cannot be considered a roadway hazard because it was open, obvious and not something for cyclists to avoid. Thus, it is manifest that CONNING understood and assumed the risks of the activities she partook in based upon her prior participation in triathlons and cycling events before the date of her accident. Plaintiff CONNING assumed the risk in choosing to participate in the August 2, 2008 cycling event on Route 28 conducted by defendant BTC and led by defendant STEWART, with its known and obvious [*7] risks.
Plaintiff’s waiver of liability
Plaintiff CONNING, on July 29, 2008, signed defendant BTC’s waiver of liability making her aware of the risk of injury prior to her participation in BTC’s triathlon training weekend. This waiver states, in pertinent [***16] part:
I ACKNOWLEDGE that there may be traffic or persons ON THE course route, and I ASSUME THE RISK OF RUNNING, BIKING, SWIMMING OR PARTICIPATING IN ANY OTHER BTC EVENT. I also ASSUME ANY AND ALL OTHER RISKS associated with participating in BTC events including but not limited to falls, contact and/or effects with other participants, effects of weather including heat and/or humidity, defective equipment, the condition of the roads, water hazards, contact with other swimmers or boats, and any hazard that may be posed by spectators or volunteers. All such risks being known and appreciated by me, I further acknowledge that these risks include risks that may be the result of the negligence of the persons or entities mentioned above . . . or of other persons [or] entities. I AGREE NOT TO SUE any of the person or entities mentioned above . . . for any of the claims, losses or liabilities that I have waived, released or discharged herein. [Emphasis added]
It is undisputed that plaintiff CONNING, prior to and as a condition of participating in BTC’s training weekend, read and executed BTC’s waiver of liability. Therefore, she was aware of the risks explicitly stated in the waiver. Once “risks [***17] of the activity are fully comprehended or perfectly obvious” to plaintiff, plaintiff is deemed to have accepted the risks by taking part in the activity. (Turcotte at 439).
It is firmly established that a valid release which is clear and unambiguous on its face and which is knowingly and voluntarily entered into will be enforced as a private agreement between parties.” (Appel v Ford Motor Co., 111 AD2d 731, 732, 490 N.Y.S.2d 228 [2d Dept 1985]). Absent fraud, duress or undue influence, a party who signs a waiver will be bound by its terms. (Skluth v United Merchants & Mfrs., Inc., 163 AD2d 104, 106, 559 N.Y.S.2d 280 [1d Dept. 1990]). Plaintiff CONNING does not claim that she was fraudulently induced or unduly influenced or forced to sign BTC’s waiver of liability. She participated in BTC’s training weekend of her own free will and signed BTC’s waiver of liability as a condition of her participation in BTC’s events. A plain reading of the waiver of liability demonstrates that it relieves BTC and STEWART from liability for any injuries sustained by plaintiff CONNING, whether or not caused by defendants’ negligence.
In Castellanos v Nassau/Suffolk Dek Hockey, Inc. (232 AD2d 354, 648 N.Y.S.2d 143 [2d Dept 1996]), the Court found that the [***18] injury waiver form executed by plaintiff, an experienced deck hockey player, who participated in a deck hockey game at premises owned by one defendant and maintained or controlled by another defendant, was enforceable. The Court held, at 355, that:
The language of the agreement clearly expresses the intention of the parties to relieve the “organizers, sponsors, supervisors, participants, owners of the business and owners of the premises” of liability (see Lago v Krollage, 78 NY2d 95, 99-100, 575 N.E.2d 107, 571 N.Y.S.2d 689 [1991]). Moreover, the [*8] agreement is similarly clear in reciting that the plaintiff was aware of and assumed the risks associated with participating in the game of deck hockey (see Chieco v Paramarketing, Inc., 228 AD2d 462, 643 N.Y.S.2d 668 [2d Dept 1996]).
“In the absence of a contravening public policy, exculpatory provisions in a contract, purporting to insulate one of the parties from liability resulting from that party’s own negligence, although disfavored by the courts, generally are enforced, subject to various qualifications.” (Lago v Krollage at 99). However, an exculpatory agreement, as a matter of public policy, is void, “where it purports to grant exemption from liability for willful or grossly negligent [***19] acts or where a special relationship exists between the parties such that an overriding public interest demands that such a contract provision be rendered ineffectual.” (Lago v Krollage at 100). Thus, “it is clear . . . that the law looks with disfavor upon agreements intended to absolve an individual from the consequences of his negligence . . . and although they are, with certain exceptions, enforceable like any other contract . . . such agreements are always subjected to the closest of judicial scrutiny and will be strictly construed against their drawer.” (Abramowitz v New York University Dental Center, College of Dentistry, 110 AD2d 343, 345, 494 N.Y.S.2d 721 [2d Dept 1985]). (See Lago v Krollage at 100; Gross v Sweet, 49 NY2d 102, 106-107, 400 N.E.2d 306, 424 N.Y.S.2d 365 [1979]; Sterling Investors Services, Inc. v 1155 Nobo Associates, LLC, 30 AD3d 579, 581, 818 N.Y.S.2d 513 [2d Dept 2006]; Dubovsky & Sons, Inc. v Honeywell, Inc., 89 AD2d 993, 994, 454 N.Y.S.2d 329 [2d Dept 1982]).
In 1996, the New York Legislature, as a matter of public policy, enacted General Obligations Law (GOL) § 5-326, which states:
“[e]very covenant, agreement or understanding in or in connection with . . . any contract . . . entered into between the owner or operator of any . . . place of [***20] amusement or recreation . . . and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.
Despite plaintiff CONNING’s contention that GOL § 5-326 applies to the instant action, it does not. Plaintiff CONNING did not sign BTC’s waiver of liability to participate in a “place of amusement or recreation” owned or operated by defendant BTC. Clearly, BTC does not own or operate Route 28 and plaintiff paid a fee to defendant BTC for training weekend expenses, not for her use of Route 28. Moreover, GOL § 5-326 does not apply to participants engaged in training events, because they are not recreational. The primary purpose of plaintiff CONNING’s August 2, 2008-ride was triathlon training.
Plaintiff, in Tedesco v Triborough Bridge & Tunnel Auth. (250 AD2d 758, 673 N.Y.S.2d 181 [2d Dept. 1998]), was injured on the Verrazano Narrows Bridge during [***21] a “five borough bicycle tour.” The Court held, at 758, that the release plaintiff signed was enforceable “since the Verrazano Narrows Bridge, where the plaintiff Tedesco was injured, is not a place of amusement or recreation.'” Similarly, in Brookner v New York Roadrunners Club, Inc. (51 AD3d 841, 858 N.Y.S.2d 348 [2d Dept 2008]), [*9] plaintiff sustained injuries in the 2004 New York Marathon, while running on a Brooklyn street. Plaintiff, prior to the race, signed defendant’s waiver of liability. The Court held GOL § 5-326 inapplicable to plaintiff because he paid an entry fee to participate in the Marathon, not an admission fee for use of a city-owned street. Further, the Court held, at 842, that “the public roadway in Brooklyn where the plaintiff alleges that he was injured is not a place of amusement or recreation.'” Similarly, in Bufano v. National Inline Roller Hockey Ass’n. (272 A.D.2d 359, 707 N.Y.S.2d 223 [2d Dept 2000]), the Court held that a member of an inline roller hockey league assumed the risk of injuries sustained from a fight with another player during a game. The Court held, at 359, that GOL § 5-326 did not “void the release Bufano signed, since the $25 he paid was not paid to the owner or operator of a recreational [***22] facility.” Further, the Court instructed, at 359-360, that “the liability release he signed expressed in clear and unequivocal language the intent to relieve the defendants of all liability for personal injuries to Bufano caused by defendants’ negligence. Thus, the release is enforceable.”
Plaintiff CONNING, in the instant action, paid $40 annual membership dues to BTC and paid BTC a registration fee for the August 2008 triathlon training weekend. She signed BTC’s waiver of liability to train on a “course route,” and did not pay a fee to use a “place of amusement or recreation.” Thus, GOL § 5-326 does not void the BTC waiver of liability signed by CONNING. (See Lago v Krollage at 101; Schwartz v Martin, 82 AD3d 1201, 1203, 919 N.Y.S.2d 217 [2d Dept 2011]; Fazzinga v Westchester Track Club, 48 AD3d 410, 411-412, 851 N.Y.S.2d 278 [2d Dept 2008]; Millan v Brown, 295 AD2d 409, 411, 743 N.Y.S.2d 539 [2d Dept 2002]). Further, the waiver of liability signed by plaintiff CONNING expressly relieves defendant BTC and its “employees, representatives, and any agents,” such as defendant STEWART from liability for injuries she sustained during the triathlon training weekend.
New York State Courts have uniformly found that when a sporting activity is [***23] “instructional” rather than “recreational” a waiver of liability will not be deemed void under GOL § 5-326. The Court in Boateng v Motorcycle Safety School, Inc. (51 AD3d 702, 703, 858 N.Y.S.2d 312 [2d Dept. 2008]), held that the release signed by a student motorcyclist, who fell from a motorcycle during a training session, was enforceable and not voided by GOL § 5-326 because “the defendants submitted evidence that the raceway premises, which the defendant leased to conduct its classes, were used for instructional, not recreational or amusement purposes.” (See Thiele v Oakland Valley, Inc., 72 AD3d 803, 898 N.Y.S.2d 481 [2d Dept 2010]; Baschuk v Diver’s Way Scuba, Inc. 209 AD2d 369, 370, 618 N.Y.S.2d 428 [2d Dept 1994]). Plaintiff CONNING, at the time of her accident was not taking a recreational bicycle ride but engaged in triathlon training supervised by defendant STEWART, an agent of defendant BTC. Plaintiff registered with BTC to participate in a triathlon training weekend to train for upcoming triathlons in which she planned to participate. Defendant BTC advertised the August 2008 training weekend as instructional, for participants to develop triathlon skills. Plaintiff confirmed this in her EBT testimony.
Defendants BTC and STEWART [***24] demonstrated that plaintiff CONNING knowingly and voluntarily executed a valid waiver of liability and assumed the risk of injury by riding her bicycle on a public roadway. Plaintiff CONNING’s arguments, in opposition to the instant motion of defendants BTC and STEWART, that her August 2, 2008-ride was “recreational” are mistaken. Moreover, the risks inherent in plaintiff CONNING’s August 2, 2008-instructional [*10] bicycle ride, that she consented to, were fully comprehended by plaintiff and obvious to her as an experienced cyclist. Therefore, without material issues of fact, the motion of defendants BTC and STEWART for summary judgment and dismissal of the verified complaint against them and all cross-claims against them is granted.
Defendant DIETRICH’s motion for summary judgment
Defendant DIETRICH’S summary judgment motion on liability is denied because of the existence of triable issues of fact. “It is well established that on a motion for summary judgment the court is not to engage in the weighing of evidence. Rather, the court’s function is to determine whether by no rational process could the trier of facts find for the nonmoving party’ (Jastrzebski v North Shore School Dist., 223 AD2d 677, 637 N.Y.S.2d 439 [2d Dept 1996]).” [***25] (Scott v Long Island Power Authority, 294 AD2d 348, 741 N.Y.S.2d 708 [2d Dept 2002]). Moreover, “[s]ummary judgment is a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues.” (Stukas v Streiter, 83 AD3d 18, 23, 918 N.Y.S.2d 176 [2d Dept 2011]). As will be explained, there is no doubt that in the instant action, there are triable issues of fact that must be resolved at trial by the finder of fact. (Sillman v Twentieth Century-Fox Film Corp. at 404).
Defendant DIETRICH, the owner and operator of the motor vehicle that collided with plaintiff CONNING, admitted in his deposition that he was aware of the presence of plaintiff CONNING and other bicycle riders about 200 feet before the accident occurred [EBT – p. 19]. He also acknowledged that in the seconds before the accident, his wife, the front seat passenger “said I see a line of bikers up there. Slow down. Be careful.’ Then she said one of them might hit a stone or something in the road and fall into the road. [EBT – p. 17, lines 10-14].'” Further, defendant DIETRICH testified [EBT – p. 18] that he clearly saw the bicycle riders that his wife had spoken about and that the section of Route 28 where the subject accident [***26] occurred was straight [EBT – p. 20]. Moreover, defendant DIETRICH lived near the scene of the accident [EBT – p.10], on many prior occasions had observed bicycle riders on Route 28 [EBT – p. 22] and knew that Route 28 was a designated state bike route [EBT – p. 26]. Defendant DIETRICH stated that the speed limit on Route 28 was 55 miles per hour [EDT – p.23] and prior to the accident he was driving at that rate of speed [EBT – p. 24] until he saw the bikers and reduced his speed [EBT – pp. 39-40].
Defendant DIETRICH’s counsel, in P 22 of his affirmation in support of the motion, offers conjecture, without expert opinion, that “the plaintiff was following the bicyclist in front of her too closely which prevented her from properly using her senses to see what was before her. This caused her to lose control of the bicycle and to fall into the side of the defendant’s vehicle.” Plaintiff CONNING and the other cyclists were traveling in a paceline. If counsel for defendant DIETRICH believes that the paceline or the spacing of the bicycles was improper, counsel for defendant DIETRICH was obligated to present expert opinion in evidentiary form. However, counsel for defendant DIETRICH failed [***27] to do so.
Both plaintiff CONNING and defendant DIETRICH were under the same duty to operate their respective bicycle and motor vehicle in a safe manner, keep a safe lookout and avoid collisions. “A person riding a bicycle on a roadway is subject to all of the duties applicable to the driver of a vehicle (see Vehicle and Traffic Law [VTL] § 1231). (Thoresz v Vallone, 70 AD3d 1031, 894 N.Y.S.2d 769 [2d Dept 2010]). The Court, in Palma v Sherman (55 AD3d 891, 867 N.Y.S.2d 111 [2d Dept 2009], instructed: [*11]
In general, a motorist is required to keep a reasonably vigilant lookout for bicyclists, to sound the vehicle’s horn when a reasonably prudent person would do so in order to warn a bicyclist of danger, and to operate the vehicle with reasonable care to avoid colliding with anyone on the road. A bicyclist is required to use reasonable care for his or her own safety, to keep a reasonably vigilant lookout for vehicles, and to avoid placing himself or herself in a dangerous position (see Vehicle and Traffic Law § 1146; Rosenberg v Kotsek, 41 AD3d 573, 837 N.Y.S.2d 343 [2d Dept 2007]; Trzepacz v Jara, 11 AD3d 531, 782 N.Y.S.2d 852 [2d Dept 2004]; Redcross v State of New York, 241 AD2d 787, 660 N.Y.S.2d 211 [3d Dept 1997]; PJI 2:76A). Each is required to obey the statutes governing [***28] traffic and is entitled to assume that the other also will do so (see Rosenberg v Kotsek, 41 AD3d 573, 837 N.Y.S.2d 343 [2d Dept 2007]; Trzepacz v Jara, 11 AD3d 531, 782 N.Y.S.2d 852 [2d Dept 2004]; Redcross v State of New York, 241 AD2d 787, 660 N.Y.S.2d 211 [3d Dept 1997]; PJI 2:76A).
In the instant action there are material issues of fact whether defendant DIETRICH used that level of ordinary care that a reasonably prudent person would have used under the same circumstances and if not, whether the subject accident was foreseeable. (See PJI 2:10; PJI 2:12). “Whether a breach of duty has occurred, of course, depends upon whether the resulting injury was a reasonably foreseeable consequence of the defendants’ conduct.” (Danielenko v Kinney Rent A Car, Inc., 57 NY2d 198, 204, 441 N.E.2d 1073, 455 N.Y.S.2d 555 [1982]). Defendant DIETRICH had a duty of care to keep his vehicle under control and to reduce his speed to a safe level, which is clear from his acknowledgment that he took his foot off the gas pedal prior to the accident. VTL § 1180 (a) states that “[n]o person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing [Emphasis added].” Thus, there is a triable issue [***29] of fact whether defendant DIETRICH’s rate of speed was “reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing.” Also, VTL § 1146 requires a driver to “exercise due care to avoid colliding with any bicyclist.” It is a triable issue whether defendant DIETRICH could have avoided his collision with plaintiff CONNING.
The Court, by determining that triable issues of fact exist, denies defendant DIETRICH’s motion for summary judgment and dismissal of plaintiff’s verified complaint and all cross-claims against him.
Conclusion
Accordingly, it is
ORDERED, that the motion of defendants BROOKLYN TRIATHLON CLUB and JOHN STEWART for summary judgment and dismissal of the verified complaint and all cross-claims against them, pursuant to CPLR Rule 3212, is granted; and it is further;
ORDERED, that the motion of defendant ROBERT J. DIETRICH for summary judgment [*12] and dismissal of the verified complaint and all cross-claims against him, pursuant to CPLR Rule 3212, is denied.
This constitutes the Decision and Order of the Court.
ENTER
HON. ARTHUR M. SCHACK
J. S. C.
Derienzo v. Trek Bicycle Corporation, 376 F. Supp. 2d 537; 2005 U.S. Dist. LEXIS 14402; 57 U.C.C. Rep. Serv. 2d (Callaghan) 863
Posted: September 12, 2011 Filed under: Cycling, Legal Case, New York | Tags: bicycle, Breach of Warranty, Cycling, Mountain biking, Neglignece, Product liability, Strict Products Liability, Trek, Trek Bicycle Corporation Leave a commentDerienzo v. Trek Bicycle Corporation, 376 F. Supp. 2d 537; 2005 U.S. Dist. LEXIS 14402; 57 U.C.C. Rep. Serv. 2d (Callaghan) 863
David Derienzo, Plaintiff, – against – Trek Bicycle Corporation, Defendant.
02 CIV 6763 (CM) (GAY)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
376 F. Supp. 2d 537; 2005 U.S. Dist. LEXIS 14402; 57 U.C.C. Rep. Serv. 2d (Callaghan) 863
July 14, 2005, Decided
DISPOSITION: [**1] Defendant’s motion for summary denied in full. Plaintiff’s design defect claim withdrawn.
COUNSEL: For David Derienzo, Plaintiff: James Alexander Burke, Larkin, Axelrod, Trachte & Tetenbaum, Newburgh, NY.
For Trek Bicycle Corporation, Defendant: Christopher G. Campbell, Piper, Rudnick, LLP, New York, NY; Loren H. Brown, DLA Piper Rudnick Gray Cary US LLP, New York, NY.
JUDGES: Colleen McMahon, U.S.D.J.
OPINION BY: Colleen McMahon
OPINION
[*541] MEMORANDUM DECISION DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND RULING ON THE ADMISSIBILITY OF PLAINTIFF’S EXPERTS’ OPINIONS
McMahon, J.:
This is an action to recover damages for personal injuries sustained by Plaintiff David DeRienzo when his bicycle frame failed on July 4, 2001, in Newburgh, New York. 1 Plaintiff, a New York resident, commenced this action against Defendant Trek Bicycle Corporation (“Trek”), a Wisconsin corporation 2 and the manufacturer of the bicycle at issue, asserting claims of negligence, breach of warranty, and strict products liability (including claims of manufacturing defect and failure to warn). Plaintiff has withdrawn a design defect claim. (See Plaintiff’s Memorandum of Law in Opposition to the Motion of Defendant [**2] Trek Bicycle Corporation for Summary [*542] Judgment, dated Feb. 2, 2004, at 1, n. 1.)
1 The action was originally filed in New York State Supreme Court, Orange County; Defendant filed a Notice of Removal in this Court on August 23, 2002.
2 The Plaintiff does not contest diversity jurisdiction. However it is unclear from the papers where Defendant is incorporated. Defendant stated in its Answer, dated September 24, 2002, that it is a Wisconsin corporation with its principal place of business in Waterloo, Wisconsin (par. 2). However, in its Notice of Removal, Defendant stated that it is a Michigan corporation with its headquarters in Waterloo, Wisconsin. For purposes of diversity, it is irrelevant whether Defendant is a Wisconsin or Michigan corporation, as long as it is one of the two and not New York. Referring to the Answer, the more authoritative and more recent document, I will assume for purposes of this motion that Defendant is a Wisconsin corporation.
Defendant requests a hearing under Federal Rules of Evidence 702 [**3] and 104(a) — a Daubert hearing — to evaluate Plaintiff’s experts, and moves for summary judgment on the strict products liability manufacturing defect, failure to warn and breach of warranty claims. 3
3 Defendant did not move for summary judgment on the negligence claim.
I. Facts
Except where noted, the following facts are undisputed:
Plaintiff was the rider of a used, modified 1998 Trek Y5 mountain bike (the “Bike”) that crashed on July 4, 2001 in Newburgh, New York. Defendant Trek designed and manufactured the aluminum frame on the Bike. As evidenced by the description “used” and “modified,” Plaintiff was not the original purchaser of the Bike, and, at the time of the accident, the Bike had been modified and did not consist of all original Trek components.
The accident did not occur while Plaintiff was simply riding the Bike. Rather, Plaintiff was landing after jumping or dropping the Bike five to eight feet off a ledge created by a rock sticking out of [**4] the side of a hill.
It is not disputed that Plaintiff was seriously injured in the accident, although he does not elaborate on the nature or extent of his injuries. (See Complaint, dated July 31, 2002, at par. 22.)
A. Plaintiff’s Mountain Biking Background
Plaintiff has an extensive background in mountain biking, and has ridden mountain bikes since age 12. He has mountain biked over various terrain, including the Catskill Mountains and the Swiss Alps. Plaintiff claims to have gone over hundreds of jumps and drop-offs (sometimes referred to as “drops”), and has been taken to the hospital on at least two occasions for treatment after mountain biking incidents.
Around the time of the accident, Plaintiff regularly biked with four friends: Anthony Carubia, C.J. Bivona, Thomas Mueller and Anthony Coneski (collectively, the “Group”). Of the Group, Coneski and Bivona worked in bicycle shops. Plaintiff considers Coneski a mountain bike expert.
During the summer of 2001, before the accident, Plaintiff stated that, on an “average” ride, he and the Group would videotape themselves riding mountain bikes and watch each other “hit jumps.” (DeRienzo Dep. at 118:12-119:2.)
In addition to [**5] mountain biking, the Group also engaged in other outdoor sports together, such as surfing, skateboarding and skiing. Plaintiff apparently had a discussion about ski-jumping over a roadway with Mueller, 4 which inspired Plaintiff’s use of the name “roadgap” for a website he maintained, http://www.roadgap.com. which describes the Group’s sports adventures.
4 Plaintiff clarifies that this stunt was never actually attempted, only discussed. (Pl. 56.1 at par. 50.)
Plaintiff participated in (and was apparently the first of the Group to try) “lake jumping,” in which the goal is to ride one’s bike off a jump into a lake. Mueller claims to have witnessed Plaintiff jumping a bike — not necessarily the Bike — into a lake at least 25-30 times.
B. The History of the Bike
The 1998 Trek Y5 model is a “full-suspension” mountain bike. Defendant claims the Y5 is also a “cross-country” mountain bike, (Def. 56.1 at par. 5), but Plaintiff [*543] claims it is not, (Pl. 56.1 at par. 5). Trek engineer Clint Kolda testified at his deposition [**6] that the Y5 was designed as a full-suspension bike that could be used for “hard” off-trail riding, but that taking a Y5 over a 5-foot drop would likely be considered a crash. 5 (Kolda Dep. at 11:12-15.)
5 This seemingly important fact — and the related testimony of Mr. Kolda — was not referenced in Plaintiff’s 56.1 Statement; rather Plaintiff only mentioned it on page 4 of his brief. With respect to jumping, Mr. Kolda stated that the Y5, “Reasonably . . . could probably take a small dropoff.” (Id. at 12:8-18.) When asked how he arrived at that conclusion, Mr. Kolda stated, “There’s always going to be uneven portions of the road. Like a kid rides his bike off a curb. It’s a dropoff.” (Id. at 12:20-25 (emphasis added).) When asked if he meant, “A small dropoff, you mean several inches, several feet?” Mr. Kolda replied, “I can’t answer that. I don’t know.” (Id. at 13:2-6.) However, when asked whether he could “foresee that the consumer would utilize the Trek Y5 while off-trail, to jump heights of 4 or 5 feet,” Mr. Kolda answered, “It was assumed that the bike would be ridden off-road. It was assumed that the bike would be ridden hard off-road. I don’t know that anybody would anticipate somebody would take it off of a 5-foot jump and not consider that to be a crash type situation.” (Id. at 44:16-45:1.) If Plaintiff establishes that Mr. Kolda was indeed employed as a design engineer by Trek during the period when the Y5 model bike was being manufactured, then Mr. Kolda would be testifying as a fact witness, not as an expert.
[**7] One Jeremy Ball of Spokane, Washington was the original purchaser of the Bike and the person who sold the Bike to Plaintiff over the internet sometime in the fall of 1999. 6 Ball told Plaintiff the Bike was “a great bike,” but he said that there were “cosmetic blemishes” on the frame.
6 Ball does not remember when he purchased the Bike. (Ball Dep. at 10:5-7.)
Plaintiff purchased the Bike sight unseen. When the Bike was delivered to Plaintiff, it was disassembled and wrapped in bath towels. Plaintiff reassembled the Bike himself. Plaintiff noticed some marks on the down tube, “Just like normal, like wear, like scuffs, maybe like some ping marks from maybe rocks or something like that.” (DeRienzo Dep. at 122:19-123:4.)
Prior to Plaintiff’s purchase, Ball had modified the Bike, though to what extent is not clear. At some time prior to the accident, Ball replaced (or had someone replace for him 7) the original front fork with a used “Rock Shox Triple Clamp” fork. 8 The parties agree that the Rock Shox fork [**8] is designed to handle a heavier load from the rider, including loads created by jumps and drop-offs. In fact, a Trek catalog (Pl. Exh. 18) includes a section entitled, “Off Road,” listing the different Y model bikes (the Y5 among them) and their features, showing that the Rock Shox fork is available on certain models (but not the Y5). 9
7 Ball cannot remember whether he replaced the fork himself or had someone do it for him, but that is irrelevant to this decision.
8 The Rock Shox fork is sometimes referred to by the parties as a “Rock Shox Judy” fork. According to a 1998 Trek catalog, attached as Exh. 18 to the Affidavit of James Alexander Burke in Opposition to Motion to Dismiss, dated Jan. 21, 2004, there do appear to be several versions of Rock Shox forks, of which the Rock Shox Judy is one.
9 Specifically, beside the picture of each model of bike, there is a list of the features that have been upgraded from one model to the next. The Y5, for example, includes a “Manitou Stylet 8 suspension fork” on its list of features upgraded from the Y3 model. The Y Glide model, in turn, lists the Rock Shox fork as one of the upgrades from the Y5 model, meaning (presumably) that the Y Glide model is superior to the Y5 because it comes with, among other features, a Rock Shox fork instead of the Y5’s standard Manitou fork. Page two of the catalogue shows that the Y33 and Y11 models also come with versions of Rock Shox forks, which are listed as upgrades from the Y22 and Y5 models. There is nothing in the catalogue indicating that any type of Rock Shox fork is inappropriate for the Y5 model; the catalogue shows only that a Rock Shox fork is standard on some Y models but not the Y5 model.
[**9] [*544] When Plaintiff received the Bike, it had pedal supports (“cranks”) and handlebars that were not manufactured by Trek. In fact, Defendant contends that, at the time of the accident, nothing but the frame remained of the original Bike. (Def. 56.1 Statement at par. 3.) Plaintiff disputes this but admits that at least the wheel rims, tires, brakes, gear system, pedals and handlebars had been replaced. 10 (Pl. 56.1 Statement at par. 83.)
10 While the Trek catalogue shows that certain standard components on various Trek bikes may be made by different companies, such as Shimano “cranks” and brakes, this fact is irrelevant in light of Plaintiff’s admission that the listed parts were replaced.
Although Ball refused to testify (or did not remember anything) about his use of the Bike prior to selling it to Plaintiff, he described himself as an “aggressive” mountain biker. Ball has raced mountain bikes all over Washington, Idaho and Montana, and has described his typical course as being “rocky,” with jumps measuring two [**10] to eight feet and drop-offs measuring three to twelve feet. Ball estimates that he has fallen about 1,000 times using various mountain bikes. Of those 1,000 incidents, he estimates that he flew over the handlebars 30-50% of the time. It is not clear how many of these incidents, if any, involved the Bike at issue in this case.
During the two years before the crash, Plaintiff rode the Bike at least every other day, and sometimes daily. He estimates that he put more than 1,000 miles on the Bike.
Plaintiff engaged in three different types of riding: “urban assault” riding, dirt jumping and mountain biking. While urban assault riding, Plaintiff stated that he and the Group would ride around at night through the streets of Newburgh and Poughkeepsie and “jump off ledges and stuff.” (DeRienzo Dep. at 69:17-18.)
Coneski stated in his deposition that he thought Plaintiff enjoyed urban assault riding more than other types of riding. Coneski also stated that Plaintiff “really liked jumping off stuff” and that he witnessed Plaintiff performing more than 500 jumps and drops. Coneski does not indicate whether any of these 500 jumps and drops involved the Bike at issue here or whether some were [**11] made using other bikes. Coneski acknowledged that landing on concrete is “really harsh” on a bicycle frame and said that Plaintiff’s urban assault riding was “a little rough.”
Plaintiff did “dirt jumping” with the Bike, which, according to Coneski, “is where you go to a stop where there’s two dirt jumps, where there’s a lip and a landing and just do that all day or as long as you want. That’s dirt jumping.” (Coneski Dep. at 217:25-218:4.) Plaintiff and the Group jumped their bikes four or five times a week in an area where they built eleven dirt ramps. The tallest ramp was five feet high. Coneski testified that he only saw Plaintiff damage a bike one other time before the accident — “I seen him bend a wheel real bad in the front once” — but Coneski did not indicate whether Plaintiff was riding the subject Bike at the time. (Coneski Dep. at 234:16-235-24.) 11
11 Plaintiff bought the Bike from Ball in the fall of 1999. Coneski testified that he thinks the incident where Plaintiff bent a front wheel happened in the summer of 1999, which would mean Plaintiff could not have been riding the subject Bike at the time. (Coneski Dep. at 234:25-235-2; Def. 56.1 Statement at par. 24.)
[**12] In addition to urban assault riding and dirt jumping, Plaintiff used the Bike for mountain biking or “off-road” riding. Plaintiff estimated that he took the Bike over approximately 200 jumps and drop-offs [*545] before the accident, with the highest being ten feet off the ground. Coneski stated in his deposition that in his (non-expert) opinion, Plaintiff’s use of the Bike put the Bike close to, or possibly past, the point where the aluminum frame would be “stressed.”
The day before the crash at issue in this case, Plaintiff was involved in an incident in which the front wheel of the Bike hit the ground at an angle of between 50 and 70 degrees, causing Plaintiff to go flying over the handlebars. Plaintiff claims not to have been injured in this incident.
C. The Owner’s Manual and Warning Sticker
The parties dispute almost everything about the Owner’s Manual and warning stickers.
Each party submitted a different version of a Trek Owner’s Manual with its moving papers. The version submitted by Defendant contains sterner, more prominent warnings about the dangers of various aspects of mountain biking than the version submitted by Plaintiff. It is not clear which version actually was issued [**13] with the Bike when Ball purchased it, and Plaintiff did not produce any Owner’s Manual that was in his possession during discovery. If an Owner’s Manual was issued to Ball when he first purchased the Bike, it is not part of the record.
Plaintiff’s Exhibit 14 is a Trek “All-Terrain Bicycle Owner’s Manual” that, according to an email from defense counsel (attached to the copy of the Owner’s Manual in Pl. Exh. 14), “would have accompanied most 1998 Trek Y-5 bicycles when they were purchased new.” This Owner’s Manual is copyrighted 1997 by Trek and carries the notation, “Trek P/N 971475.” I will refer to this as the “1997 Manual.”
Defendant’s Exhibit 3 is also a Trek “All-Terrain Bicycle Owner’s Manual.” It appears similar to Plaintiff’s Exhibit 14. However, Defendant’s version is copyrighted 1998 and carries the notation, “Trek # 990264.” I will refer to this version as the “1998 Manual.” 12
12 Defendant’s 56.1 Statement at par. 6 states, “Trek issued an Owner’s Manual with the 1998 Trek Y5 that contained a number of safety instructions and warnings, including the following warning about potential frame damage from jumping,” and then quotes warning text that I address more fully below. That text does not appear in the 1997 Manual, the version apparently sent by defense counsel to Plaintiff. Plaintiff states in par. 6 of its 56.1 Statement, “There is no citation by Defendant to any evidence except a 1998 Trek All-Terrain Bicycle Owners Manual. It is unclear whether Defendant is referring in general to the Y5 bike, or is referring to the subject Y5 bike. The original owner of the subject [bike] does not remember if he received an owner’s manual, and the Plaintiff does not think he received an owner’s manual . . . Defense counsel previously represented that a different Owners Manual ‘would have accompanied most 1998 Trek Y-5 bicycles when they were new.'” It is not clear why defense counsel would have produced one version of the Owner’s Manual to Plaintiff during discovery and then sent a different version with its motion papers.
[**14] The 1997 and 1998 Manuals contain substantially different warnings.
For example, page 2 of the 1998 Manual has a box at the bottom of the page that shows the word, “WARNING” in bold against a dark background, with a “!” symbol on a dark triangle. I will refer to the combination of “WARNING” with the “!” on the triangle, bold and highlighted, as the “Warning Sign.” The Warning Sign is accompanied by the following text: “Read Chapter 1 now! It contains important safety information which you should read thoroughly before you ride your new bicycle.” Page 3 shows the Warning Sign at the bottom of the page with the following text: “In this manual, the warning sign [*546] indicates there is the possibility of death or serious injury if an error is made in handling or operation.” Page 5 shows the Warning Sign and states, “Before you ride your new bike, you should read this entire chapter. It includes safety, operational, and riding information that you should know before riding your new bicycle!” Page 6 shows the Warning Sign and states, “This is not a comprehensive maintenance program. Check the entire bicycle carefully. If you spot a problem, do not ride the bike until it has been corrected. [**15] If you are not certain if your bike has a problem, take your bike to your Trek dealer.” Page 15 states, with the Warning Sign, “Never modify your frameset in any way, including sanding, drilling, filing, or by any other technique. Such modifications will void your warranty, may cause your frame to fail, and may contribute to loss of control resulting in personal injury.” The same text appears on page 55 with the Warning Sign. In fact, the 1998 Manual contains the Warning Sign with various accompanying text on 23 of its 56 pages (occasional pages show two Warning Signs with different text).
By contrast, the 1997 Manual does not contain any Warning Sign logos, although it does contain some of the same text. Page 2 has text in a box that says, “IMPORTANT! — Read Chapter 1 now! It contains important safety information which you should read thoroughly before you ride your new bicycle.” This is the same text as the warning on page 2 of the 1998 Manual, but without the Warning Sign. As there are no Warning Sign logos in the 1997 Manual, there is no analogous warning to the one on page 3 of the 1998 Manual that the Warning Sign indicates risk of “death or serious injury if an error is made [**16] in handling or operation.” On page 5 of the 1997 Manual, a text box states: “IMPORTANT! Before you ride your new bike, you should read this entire chapter. It includes safety, operational, and riding information that you should know before riding your new bicycle!” This is similar to the warning on page 5 of the 1998 Manual. Page 6 states, “IMPORTANT: This is not a comprehensive maintenance program. Check the entire bicycle carefully. If you spot a problem, do not ride the bike until it has been corrected. If you are not certain if your bike has a problem, take your bike to your Trek dealer.” This is the same text that appears on page 6 of the 1998 Manual. Page 12 states, “WARNING: Never modify your frameset in any way, including sanding, drilling, filing, or by any other technique. Such modifications will void your warranty, may cause your frame to fail, and often contribute to a loss of control resulting in a personal injury.” Page 48 contains a substantially similar warning. 13 The warnings on pages 12 and 48 of the 1997 Manual are similar to the warnings that appear on pages 15 and 55 of the 1998 Manual. In addition, page 22 of the 1997 Manual contains a text box that states, [**17] “CAUTION: Never ride any bicycle that is not operating properly.” The Court could not find a similar warning in the 1998 Manual (other than the text in the warnings on page 6 of both Manuals). The 1997 Manual contains text boxes with the words, “CAUTION,” “WARNING” or “IMPORTANT” on 21 of its 52 pages.
13 The warning on page 48 of the 1997 Manual merely omits the reference to the warranty: “WARNING: Never modify your frameset in any way, including sanding, drilling, filing, or by any other technique. Doing so may cause your frame to fail or in other ways contribute to a loss of control resulting in a personal injury.”
The most important warning in the 1998 Manual — for purposes of this case — is found on page 12 and takes up approximately [*547] 1/3 of the page. It states (with the Warning Sign):
Jumping your bicycle, performing bicycle stunts, severe off road riding, downhill riding, or any abnormal bike riding can be very dangerous. These activities increase the stress on your frame and components and can [**18] lead to premature or sudden failure of your bicycle frame or components. Such failure could cause a loss of control resulting in serious injury or death.
Industry pictures and videos of these kinds of activities depict very experienced or professional riders. If you choose to jump your bicycle, use it for stunts, or use it in a severe offroad [sic] or downhill environment, carefully inspect your frame and components for signs of fatigue before and after each ride.
Remember; it is much easier to have an accident resulting in serious personal injury in these situations even if your bicycle performs as intended. Use suitable protective gear, including a certified bicycle helmet.
The only “warning” about jumping in the 1997 Manual is at the very bottom of page 10, in regular text (with no text box, Warning Sign or other graphic) and takes up approximately 1/10 of the page. It states in full: “Avoid jumping. Bicycles are not made for jumping. Doing so may cause your frame to fail. Never ride your bicycle in such a manner as to propel your bicycle airborn [sic], including riding over steps and curbs.” This “Avoid jumping” text is the last of five text segments on page 10, [**19] the other four being (in order, from top to bottom): “Wear a helmet,” “Know and observe your local bicycle riding laws,” “Use special care when off-road riding,” and “Use good shifting techniques.” On the opposite (facing) page, there is a text box with the word “CAUTION” and two segments (including bold text) about the dangers of riding at night and in wet conditions. On page 20, there is a list of the IMBA Rules of the Trail
In sum, the warnings on pages 2, 5, 6, 12 and 48 of the 1997 Manual are analogous to the warnings on pages 2, 5, 6, 15 and 55 of the 1998 Manual, except that the warnings in the 1998 Manual are accompanied by Warning Signs and the ones in the 1997 Manual are not. The warning about the specific dangers of jumping is unique to the 1998 Manual, as is the warning that “death or serious injury” could result from errors in operating a bicycle. The free-standing warning against riding a bicycle that is not operating properly is unique to the 1997 Manual, as is the very brief and inconspicuous warning not to jump a bicycle. Interestingly, the 1998 Manual, which contains the more conspicuous and arguably more severe warning about jumping, does not state that a Trek bicycle [**20] should not be used for jumping. The 1997 Manual, by contrast, flatly (though inconspicuously and briefly) states that bicycle should not be used for jumping, but fails to state what the dangers of doing so would be.
Ball testified that he does not remember whether he ever got a Y5 Owner’s Manual when he originally bought the Bike, and he does not remember whether he sent any literature with the Bike when he sold it to Plaintiff. (Ball Dep. at 50:12-18.) When asked if he received an Owner’s Manual with the Bike when he bought it from Ball, Plaintiff stated, “I don’t think so.” (DeRienzo Dep. at 106:17-19.)
Defendant also claims in its 56.1 Statement, pars. 7 and 8, that the 1998 Y5 model came with a sticker on the frame, reading:
WARNING! NEVER RIDE YOUR BICYCLE WITHOUT A HELMET. YOUR OWNER’S MANUAL CONTAINS CRITICAL SAFETY INFORMATION. [*548] READ YOUR OWNER’S MANUAL BEFORE YOU RIDE THIS BICYCLE. IF YOU DON’T HAVE AN OWNER’S MANUAL, SEE YOUR LOCAL DEALER.
Defendant included copies of the sticker as Def. Exhibit 4. However, the copies are not evidence in support of the assertion that the stickers were placed on this Bike in 1998, and Defendant’s 56.1 Statement cites no [**21] testimony from anyone at Trek to the effect that stickers were affixed to any 1998 models of the Y5. Therefore, the assertion does not comply with Local Rule 56.1, which requires that, [HN1] “Each statement by the movant or opponent pursuant to Rule 56.1(a) and (b), including each statement controverting any statement of material fact, must be followed by citation to evidence which would be admissible, set forth as required by Federal Rule of Civil Procedure 56(e).” (Emphasis in original.) 14
14 Of course, Plaintiff does not cite any evidence that such stickers were not affixed to the Bike, in support of the assertions in paragraphs 7 and 8 of Plaintiff’s 56.1 Statement. Instead, all Plaintiff offers is Ball’s testimony in response to the question about whether there was a sticker on the Bike when he bought it: “I don’t believe — I don’t remember.” (Ball Dep. at 69:4-8.) If Defendant can prove that it was Trek’s practice to put those warning stickers on all of the Y5 model bikes, then Ball’s statement that he does not remember whether there were any on his Bike would not suffice to raise a genuine issue of fact.
[**22] D. The Accident
On July 4, 2001, Plaintiff was riding with Mueller, Carubia and Coneski in a wooded area on Cronomer Hill in Newburgh, New York. Carubia was videotaping the others going over jumps and drop-offs. Prior to the accident, Plaintiff had been riding for more than one hour. During that time, Plaintiff did between eight and ten drops.
At one point prior to the accident, the riders approached a drop from a large rock onto a ladder bridge. According to Coneski, Plaintiff contemplated the drop for about twenty minutes and then decided not to do it because, “It just freaked him out.” (56.1 Statements at par. 95.)
The riders subsequently approached the area where the accident occurred, a drop-off of between five and eight feet created by a boulder approximately the size of a car sticking out of the side of Cronomer Hill. Defendant states, in par. 99 of its 56.1 Statement, without citation, that, “Trees and bushes flank the cliff on both sides.” Plaintiff disputes this, but also provides no citation to contrary evidence. Defendant cites the Expert Report of Gerald P. Bretting, P.E., for the assertions that the area leading up to the cliff is angled downward at 18 degrees, and [**23] that the landing area is angled downward at 30 degrees. (Def. 56.1 Statement at pars. 100-101.) Plaintiff disputes this, (pars. 100 and 101 of Pl. 56.1 Statement), citing only Mueller’s testimony that the slope of the ground leading up to the cliff is “Maybe 10-15 degrees. Not a big slope,” (Mueller Dep. at 242:3-7), and Coneski’s testimony that the “take-off” area is “nice flat rock.” (Coneski Dep. at 314:9-14.) 15
15 Bretting visited the site of the accident and stated in his Report that the takeoff area rolled “to near vertical over approximately one foot.” He stated that the vertical drop of the boulder is 5.2 feet and the approximate vertical drop of DeRienzo as he came off the boulder would have been 9.0 feet. He stated that the landing surface has an average down slope of 30 [degrees]. (Expert Report of Gerald P. Bretting, P.E., par. 11, Def. Exh. 2.) Plaintiffs experts’ reports do not offer opinions on the angles at the site or estimate the height of the drop, and the Court cannot locate deposition testimony to that effect (and Plaintiff has not highlighted any).
[**24] Defendant paraphrases (with some errors) the testimony of Coneski regarding [*549] the landing area. (Def. 56.1 at par. 102.) Coneski’s testimony about the landing area was that there are
some rocks and roots, because it’s not a pretty high drop. Four feet or whatever, it isn’t that high. But you land on pretty choppy stuff. . . It’s not real bad, but it’s a little choppy. . . [The rocks are] pretty big, but they’re in the ground. Just the tops are sticking up. And there’s one root that comes right across.
(Coneski Dep. at 313:9-314:2.) According to Coneski, the “coolest part” of this drop is that the rider cannot see the landing area until his bike is already off the boulder. For this reason, the riders used twigs to indicate where the perfect landing spot would be. Specifically, Coneski stated:
We’ll take two twigs and make like a little, narrow spot. Because you can’t tell from up top. When you’re up top all you can see is the top, and the ground is gone. . . We brushed stuff away [from the landing area] with our feet. . . There was like a groove that went right through the rocks, and we put twigs there and kind of lined it up.
(Coneski Dep. at 317: [**25] 25-318:17.) 16
16 Defendant claims Coneski said they placed twigs “along the edge of the cliff to guide them toward the safe landing area.” (Def. 56.1 at par. 105.) Plaintiff disputes this characterization, (Pl. 56.1 at par. 105), noting that Coneski testified that twigs were put on the landing area. Coneski’s testimony is clear: they put twigs on the landing area, in the groove between the rocks — not, as Defendant claims, along the edge of the cliff.
Plaintiff was the first to go over the drop where the accident occurred. When Coneski was asked whether Plaintiff was “trying to go first to prove himself again, because he hadn’t done the previous drop,” Coneski replied, “Maybe. I don’t know.” (Coneski Dep. at 381:18-21.) 17 Plaintiff approached the takeoff area from about thirty feet away. Plaintiff believed he needed to approach the drop with “a good amount of speed” in order to avoid somersaulting. Coneski thought Plaintiff was approaching the drop too slowly and worried that Plaintiff would land the front [**26] wheel first. Coneski stated in his deposition that he cannot do drops as slowly as Plaintiff was approaching this drop because his “front end dies.”
17 In a typical mischaracterization, Defendant claims that Coneski testified that he “thought Plaintiff was trying to prove himself after failing to do the previous drop.” (Def. 56.1 Statement at par. 108.) Purported disputes over the witnesses’ deposition testimony (like the ones noted in this section) were easily resolved by reviewing the subject testimony. Such “disputes” do not create a genuine issue of fact because the witnesses’ statements are clear. The parties also failed to reference much of the relevant testimony in the record, which I have reviewed thoroughly, adding citations where necessary.
While in the air, Plaintiff believed the Bike was “fairly level” to the landing surface. And at some other point during the jump, the front end of the Bike tipped down towards the ground.
Plaintiff does not recall what part of the Bike hit the ground first. Mueller [**27] and Coneski viewed the accident (what they could see of it) from behind (i.e., up the hill from the boulder, since DeRienzo was the first to go over the drop). Mueller stated that Plaintiff’s “front end gradually dropped.” Coneski stated that Plaintiff’s “front wheel was pretty low” and “too low” while Plaintiff was in the air. Coneski also characterized Plaintiff’s body position as he took off as “a little forward” but he also stated that “everything else was okay,” and that Plaintiff did “everything right to try to fix” his position in the air. Specifically, Coneski said Plaintiff put his body [*550] “really, really far back trying to pull the front end up.” (Coneski Dep. 384:9-21.)
Plaintiff thinks that “the bike broke like almost exactly when I somehow touched the ground.” (DeRienzo Dep. 176:4-6.) He does not know if any part of the Bike hit a rock as he landed. (Id. at 175:17-24.) Coneski did not see the frame break, but he stated that he thought the frame broke when Plaintiff hit the ground on landing. (56.1 Statements at par. 125.) Mueller stated that he saw Plaintiff land the Bike front wheel first, but the Court cannot locate any testimony about whether Mueller saw the frame [**28] break.
Plaintiff stated that he “first realized the bike had broke [sic] when I was sitting there and my face felt like it was on fire and my friend Thomas [Mueller] was like, ‘Don’t move.’ He is like, ‘Your bike just broke.'” (DeRienzo Dep. 176:17-21.) Plaintiff realized he had gone over the handlebars when he woke up, but he didn’t remember actually going over. (Id. at 176:25-177:16.)
Plaintiff testified that, had the frame not broken, “I am absolutely positive I would have landed successfully.” (DeRienzo Dep. at 177:6-.7.) Coneski stated that he had “seen people land front wheel like that and have no problem. So that’s — I don’t know if he crashed because of the frame or if it really was totally his fault.” (Coneski Dep. at 393:17-21.)
II. Summary Judgment Standard
[HN2] A party is entitled to summary judgment when there is no “genuine issue of material fact,” and the undisputed facts warrant judgment for the moving party as a matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In addressing a motion for summary judgment, “the court must view the evidence in the light [**29] most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in [its] favor.” Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).
Whether any disputed issue of fact exists is for the Court to determine. Balderman v. United States Veterans Admin., 870 F.2d 57, 60 (2d Cir. 1989). The moving party has the initial burden of demonstrating the absence of a disputed issue of material fact. Celotex v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Once such a showing has been made, the non-moving party must present “specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). The party opposing summary judgment “may not rely on conclusory allegations or unsubstantiated speculation.” Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). Moreover, not every disputed factual issue is material in light of the substantive law that governs the case. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude summary judgment.” Anderson, 477 U.S. at 248. [**30]
III. Discussion
The key to understanding this case is as follows: Plaintiff alleges that he performed the jump in a manner that would have resulted in a successful landing — like all the landings before it — had the Bike frame not failed. Plaintiff further argues that Defendant knew people were using the Y5 model for jumping but that it was not designed or reasonably fit for that use, and that Defendant failed to adequately warn of this danger. Defendant argues, to the contrary, that Plaintiff would have fallen on this occasion even if the frame had not failed, because of his poor position in the air, and that it was Plaintiff’s history of misusing the Bike — and not a defect — that [*551] made it susceptible to failure on this particular occasion. Defendant implies that the failed jump caused the frame to break, and not the other way around. Defendant also argues that it did not market the Y5 model for jumping, that it did warn of the dangers of jumping a Y5 model bike, and that Plaintiff’s failure to read any such warnings is fatal to his claims. Most important, Defendant asserts that Plaintiff has not adduced evidence sufficient to raise a genuine issue of material fact [**31] concerning what caused the accident. As discussed below, I disagree.
Each of the challenged claims — manufacturing defect, failure to warn and breach of warranty — requires proof that the accident was caused by a failure of the Bike’s frame. See, e.g., Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 106, 450 N.E.2d 204, 463 N.Y.S.2d 398 (1983); Gilks v. Olay Co., Inc., 30 F. Supp. 2d 438, 443 (S.D.N.Y. 1998). Since there are scientific and technical issues involved in this determination, expert proof is required. See, e.g., Tiner v. General Motors Corp., 909 F. Supp. 112, 117 (N.D.N.Y. 1995) (citing Food Pageant, Inc. v. Consol. Edison Co., 54 N.Y.2d 167, 445 N.Y.S.2d 60, 429 N.E.2d 738 (1981)). Thus, if plaintiff cannot show that the failure of the Bike frame caused the accident (an assertion that requires the support of admissible expert testimony), the case is over, under any theory. See, e.g., Clarke v. Helene Curtis, Inc., 293 A.D.2d 701, 701-02, 742 N.Y.S.2d 325, 326-27 (2d Dep’t 2002) (granting summary judgment where defendant “established its prima facie entitlement to summary judgment by demonstrating that [**32] there was no causal link between its product and plaintiff’s injuries and plaintiff’s expert’s report was “speculative and conclusory” and “devoid of any reference to a foundational scientific basis”).
Since no one who was present at the time and place of the accident has testified that he observed the frame break apart, no one who was there offers any evidence about causation, and Plaintiff does not argue otherwise. Rather, Plaintiff offers the testimony of two experts that, taken together, purportedly add up to a hypothesis that the failure of the frame caused the accident.
As discussed below, I find that the opinion of Plaintiff’s metallurgical expert, Harold W. Paxton, Ph.D. — that the frame failed because of a defect — gives rise to the reasonable inference that the frame failure caused Plaintiff’s accident. Thus, in order to address the most important question first — causation — I will evaluate Paxton’s qualifications and methodology first. Because Paxton opines on the existence of a defect, I address the sufficiency of Plaintiff’s strict products liability manufacturing defect proof, with respect to summary judgment, at the same time.
Plaintiff’s second expert is John [**33] S. Allen, an electrical engineer with extensive experience in the areas of cycling, cycling safety, and trends in cycling. While Allen offers an opinion that the failure of the Bike frame caused Plaintiff’s accident, for the reasons discussed below, I find that he is not qualified to give such testimony. Allen’s Report also addresses the questions of whether Trek marketed the Y5 for jumping, and whether Trek adequately warned of the dangers of using a Y5 for jumping, areas in which Allen is qualified to testify. I address the sufficiency of Plaintiff’s proof for his failure to warn and breach of warranty claims when I evaluate Allen’s qualifications and methodology.
A. Evaluation of Experts Generally
An evaluation of expert testimony begins with Federal Rule Evidence 702, which states:
[HN3] If scientific, technical, or other specialized knowledge will assist the trier of [*552] fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, [**34] (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Rule 104(a) states in part that, [HN4] “Preliminary questions concerning the qualification of a person to be a witness. . . or the admissibility of evidence shall be determined by the court.” Historically, expert scientific testimony was inadmissible unless it was derived from “generally accepted” scientific techniques. See Frye v. United States, 54 App. D.C. 46, 47, 293 F. 1013, 1014 (1923). Rejecting the Frye standard as too restrictive, but reasoning that Rule 702 “clearly contemplates some degree of regulation of the subjects and theories about which an expert may testify,” the United States Supreme Court articulated a new standard in Daubert v. Merrell Dow Pharmaceuticals, Inc., a toxic tort case involving the question of whether the prescription drug Bendectin caused birth defects. 509 U.S. 579, 589-90, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). [HN5] Under Daubert, a trial court “faced with a proffer of expert scientific testimony” must determine, pursuant to Rule 104(a),
whether [**35] the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.
Id. at 592-93. Thus, the testimony “must be supported by appropriate validation” and must have “a valid scientific connection to the pertinent inquiry,” but it does not necessarily have to be “generally accepted.” Id. at 590. Simply put, the testimony must be scientifically valid and relevant to the case at hand. See, e.g., Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1315-16 (9th Cir. 1995) (“Daubert II”).
[HN6] Two key factors in performing a Daubert analysis are whether the scientific technique can be tested, and whether it has been subjected to peer review and publication. Daubert, 509 at 580. Two other factors bearing on the inquiry are “the known or potential rate of error” and the “existence and maintenance of standards controlling the technique’s [**36] operation.” Id. at 594. Referring to Frye, the Daubert Court stated, “A ‘reliability assessment does not require, although it does permit, explicit identification of a relevant scientific community and an express determination of a particular degree of acceptance within the community.” Id. Finally, the Daubert Court noted that the standard under Rule 702 is a flexible one, focused “solely on principles and methodology, not on the conclusions they generate.” Id. at 595; see also Amorgianos v. AMTRAK, 303 F.3d 256, 265 (2d Cir. 2002) (cited in Wantanabe Realty Corp. v. City of New York, 2004 U.S. Dist. LEXIS 1225, No. 01-Civ.-10137 (LAK), 2004 WL 188088 at *2 (S.D.N.Y. Feb. 2, 2004) (noting that “a district court should consider the indicia of reliability, including, but not limited to, (1) whether the testimony is grounded in sufficient facts, (2) whether the underlying methodology is reliable, and (3) whether the witness has applied the methodology reliably to the facts”).
The Supreme Court clarified Daubert in two subsequent cases, General Electric Co. v. Joiner, 522 U.S. 136, 139 L. Ed. 2d 508, 118 S. Ct. 512 (1997), also a toxic tort [*553] case, and [**37] Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 143 L. Ed. 2d 238, 119 S. Ct. 1167 (1999), a products liability case. In Kumho Tire, a car’s tire blew out, resulting in an accident that killed one passenger and injured others. Plaintiffs sued the manufacturer, alleging that the tire was defective. Plaintiff relied on the testimony of an engineer who had written a report based on “visual and tactile inspection” of the blown tire. Id. at 155. The trial court applied the Daubert factors listed above and found that the engineer’s report lacked sufficient indicia of reliability. Id. at 145. The Eleventh Circuit reversed, holding that Daubert did not apply to non-scientific expert opinions. The Supreme Court reversed the Eleventh Circuit, finding (i) that [HN7] one or more of the four Daubert factors may be applied to experience-based expert reports, and (ii) that the trial court’s “gatekeeping” function created by Daubert applies to all expert testimony, not just scientific expert testimony. Id. at 147-51. The Court stated that the object of Rule 702 “is to make certain that an expert, whether basing testimony upon professional studies [**38] or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Id. at 152.
[HN8] Noting that “there are many different kinds of experts, and many different kinds of expertise,” the Kumho Tire Court honed the Daubert inquiry for experience-based expert testimony to include examination of how often an experience-based methodology has produced erroneous results and whether such a method or preparation is generally accepted in the relevant community. 526 U.S. at 151.
[HN9] The proponent of expert testimony bears the burden of proving the admissibility of that testimony by a preponderance of the evidence. See, e.g., Baker v. Urban Outfitters, Inc., 254 F. Supp. 2d 346, 353 (S.D.N.Y. 2003).
Because Plaintiff has supplied the Expert Reports, testimony, background and professional associations of Paxton and Allen, I find that further submissions by the parties would not add to my analysis. Accordingly, I conduct the Daubert hearing on the papers. 18 See, e.g., Wantanabe, supra, 2004 U.S. Dist. LEXIS 1225, 2004 WL 188088 at *1 n.1 (finding witness’s trial testimony [**39] in the form of a deposition taken de bene esse, an earlier deposition and the expert’s written report provided sufficient information for the court to rule on the admissibility of that expert’s testimony); Anderson v. Hedstrom Corp., 76 F. Supp. 2d 422, 436-37 (S.D.N.Y. 1999) (addressing an issue fully briefed by the parties where the court had no reason to believe any new information would be presented in the future); see also Greenwood v. Koven, 880 F. Supp. 186, 191-92 (S.D.N.Y. 1995) (concluding that it would be wasteful not to decide an issue that the parties had had a full opportunity to brief).
18 Plaintiff consented to a Daubert hearing in its January 23, 2004 letter to the Court, although I note consent is not necessary.
B. Harold W. Paxton (Manufacturing Defect, Causation)
Plaintiff offers the opinion of Harold W. Paxton, Ph.D, that the Bike frame failed due to a defect — a fatigue crack that propagated through the frame’s down tube, caused by excess weld [**40] metal that was deposited on the interior of the tube at the weld cite during the manufacturing process. (Report of Harold W. Paxton, Ph.D., Pl. Exh. B, at 10.)
[*554] 1. Paxton’s Qualifications, Methodology and Conclusions
Harold W. Paxton, Ph.D., is the U.S. Steel University Professor (Emeritus) of Metallurgy 19 and Materials Science at Carnegie Mellon University. Paxton is a Fellow of the American Association for the Advancement of Science, the American Society for Metals, the American Society for Metals and the Mining, Metallurgical and Materials Society of AIME (TMS), as well as a member of the National Academy of Engineering and the Directors of Industrial Research. A consultant to industry and author of many technical papers, primarily in the field of physical metallurgy, Paxton has been a guest lecturer around the world and has received multiple international honors in the field of metallurgy. 20 (See Pl. Exhs. 2, A.)
19 According to Webster’s II New Riverside University Dictionary, “Metallurgy” is defined as, “1. The science or procedures of extracting metals from their ores, of purifying metals, and of creating useful items from metals. 2. Knowledge and study of metals and their properties in bulk and at the atomic level.” Neither party supplied a definition.
[**41]
20 Paxton received his Bachelor of Science and Master of Science degrees in 1947 and 1948 from the University of Manchester and his Ph.D. in 1952 from the University of Birmingham. He joined Carnegie Mellon in 1953 and in 1966 became the Head of the Department of Metallurgy and Materials Science and Director of the Metals Research Laboratory. He was Visiting Professor of Metallurgy and Materials Science at Imperial College, London, in 1962-63 and at the Massachusetts Institute of Technology in 1970 and served two years as the first Director of the Division of Materials Research, National Science Foundation, in 1971-73. He is Past Chairman of the General Research Committee of the American Iron and Steel Institute and in 1982 was President of the American Institute of Mining, Metallurgical and Petroleum Engineers. Returning to Carnegie Mellon in 1986, Paxton taught in the Materials Science and Engineering department, ran a Master’s program in Manufacturing Engineering, and did research on international policy issues in the steel industry. (See Pl. Exhs. 2, A.)
Paxton’s Report, dated June 20, 2003, includes [**42] the following information about his methodology and testing of Plaintiff’s Bike:
The Bike was delivered to him on January 4, 2002 and was in his uninterrupted possession until December 17, 2002. Shortly after receipt, he carried out a preliminary nondestructive examination, involving inspection of the fracture site at low magnification, and photographic recording of selected areas. This inspection revealed that the fracture showed three parts. There was an apparent crack at the edge of the weld zone (15 mm) at the topmost point of the tube and immediately contiguous to the weld with no smooth curvature where the weld met the tube. Well-defined “shear lips” were visible roughly parallel to the sides of the weld but separated from it. Finally, there was a tear through the remainder of the frame tube, which allowed complete separation of the Bike into two pieces held together only by cables. (Paxton Rep. at 2.)
These preliminary observations required destructive evaluation for confirmation, leading to the development of a testing protocol agreed upon with the defense team. (The protocol is attached as Appendix A to Paxton’s Report.) According to the Report (p. 3), a metallurgical expert [**43] for Defendant, David Williams, and defense counsel agreed on a protocol to be carried out at MATCO Associates. 21 Following [*555] the protocol, the cylindrical section attached to the upper frame member was removed from the post that connects the front fork to the handlebars, recorded at each stage photographically by the defense (and the photographs were provided to Paxton.) The other side of the fracture, the upper frame member, was significantly deformed at both ends of the major axis of the elliptical tube frame during the crash, and was thus set aside to provide material for chemical analysis and mechanical testing.
21 Neither party describes what MATCO Associates is, however, Defendant has not argued that this was an improper venue for the tests, so I will not address it. It also appears that it was MATCO technicians who actually performed some or all of the actual tests, but that these technicians followed the protocol agreed upon by Paxton and Williams and counsel for both parties.
Optical microscopy (not [**44] defined in the Report, but evidently, from the text of the analysis, a visual inspection of the fracture site with magnification) was also performed at MATCO. The Report includes photographs and illustrations of this procedure. Paxton concluded that the “grain size” was “larger than in the bulk,” and that “when Trek welded the subject frame enough heat was applied locally for a longer time than normal from an excess of weld metal such that the grain size was increased.” (Report p. 6.)
He also concluded that, “Virtually all of the hardness measurements” near a tested weld site were below those expected for the type of aluminum used in this frame (6061 aluminum) at that weld juncture. (Id.) 22
22 Paxton subsequently abandoned his conclusion about the hardness of the aluminum and the significance of the larger grain size. See discussion, supra pp. 30-31.
Based on these results, Paxton states that he and the defense reached a decision to perform destructive testing on the actual fracture to learn more. [**45] (Report at p. 8.) The procedure is described as follows:
Figure 12 shows the attachment of the “down tube” to the “head tube”. Previous examination was on the other (mating) half of the fracture, and on Weld II. A and B are areas of excess weld metal which had penetrated during assembly. A is adjacent to the fracture and is shown more clearly in Figure 13. B, shown also in Figure 14, was at the bottom of the attachment and was not examined further.
The lines 1, 2 and 3 were where cuts were made to enable examination. The cut along line 1 roughly parallel to the fatigue fracture (Figures 15 and 16) served principally to enable cuts to be made along lines 2 and 3. [Figures 12-17 are photographs of the fracture site taken from various angles, and showing where lines had been drawn on the actual metal to indicate where the cuts would be made to analyze the metal around the fracture.]
The cut along line 3 is shown in Figure 17. The sample was polished, examined in the unetched state and then etched in modified Poulton’s reagent prior to photography. Part of the head tube was discarded for convenience prior to mounting.
A view of the cut along line 2 is shown in [**46] Figure 18. The smaller piece was used for metallographic examination. The excess weld metal (A) is clearly visible. At a higher magnification, one may also see an imperfect joint between excess weld metal A and the down tube, which in effect serves as a crack which propogates into the weld metal. . .
Cut 2 deliberately did not pass through the center of A, and thus a further grinding of some 1 mm. was carried out, with further metallography to allow some 3-D appreciation to be obtained. . .
(Id.) Based on these tests, Paxton reached the following conclusions:
The bike failed by a classical fatigue crack which propagated through the [*556] down tube until the static load could not be supported and the tube tore.
Both [of the welds that were examined] showed that excess metal deposited on the interior during the welding process caused a variety of cracks. In particular, we note that the areas near the fracture show several types of cracks or tears created by uncontrolled welding in the manufacturing process, any of which could have propagated, but were pre-empted by the crack which actually did propagate to failure. The relatively low hardness, corresponding [**47] to lower strength, allowed fatigue to occur more readily.
I do not mean to imply that all TREK bikes would suffer from the inadequacies of the DeRienzo model, but this particular machine did not receive the manufacturing quality which is expected by following TREK’s prescribed processes.
In my view, with a reasonable degree of scientific certainty, the presence of excess weld metal which could not be detected by the TREK standard external inspection was a substantial factor in causing the fatigue crack.
(Report p. 10.)
One of Defendant’s overarching criticisms of Paxton is that he has done no research on the subject of aluminum since the mid-1960’s, has never done analysis of aluminum welds or fatigue cracks, has never observed testing of aluminum welds, and has only a “general understanding” of the authoritative research that has been done on aluminum weld integrity. (Id.) According to Defendant, Paxton does not have “the faintest idea” about the mountain biking industry and has never analyzed a bicycle frame failure. (Id. at 12.)
While it appears that most of Paxton’s research has focused on steel, I find that his extensive education and teaching background [**48] in the field of metallurgy generally, as well as his broad and prestigious professional associations, indicate that he is qualified to undertake analysis of an aluminum bicycle frame like the one in this case. He is a distinguished professor of metallurgy with many years’ experience, multiple awards and many publications in the field. The fact that Paxton has more experience analyzing steel than aluminum goes to the weight of his testimony. See, e.g., Byrne v. Gracious Living Indus., 2003 U.S. Dist. LEXIS 2552, No. 01-Civ-10153 (LAK), 2003 WL 446474 at *1 and n.1 (S.D.N.Y. Feb. 25, 2003).
Paxton’s testimony is also offered for a proper purpose. He offers a scientific opinion that may help the trier of fact determine an ultimate issue in the case: namely, what caused the Bike’s frame to fail. See, e.g., LinkCo, Inc. v. Fujitsu Ltd., 2002 U.S. Dist. LEXIS 12975, No. 00-Civ-7242 (SAS), 2002 WL 1585551 at *1 (S.D.N.Y. July 16, 2002) (noting that expert testimony is admissible when it helps a jury understand facts that are “outside common understanding”). Paxton’s opinions address only the question of why the Bike frame failed (and not whether the frame failure caused Plaintiff to fall), but that is no [**49] bar to admissibility. Moreover, a reasonable inference can be drawn that a defective frame would have caused the accident. See, e.g., Jarvis v. Ford Motor Co., 283 F.3d 33, 45-46 and n.6 (2d Cir. 2002) (finding that existence of a “causative defect” can be inferred from circumstantial evidence) (quoting Hunter v. Ford. Motor Co., 37 A.D.2d 335, 325 N.Y.S.2d 469, 471 (3d Dep’t 1991)).
Defendant’s specific criticisms of Paxton’s Report begin with the comment that Paxton should have investigated the history of this particular Bike, something he concedes he knows nothing about. (Def. Mem. at 12.) According to Defendant, in spite of this lack of knowledge, Paxton assumed, for purposes of his analysis, that the Bike had a “moderate” crash history, even though he concedes that a drop of [*557] eight feet (like those regularly performed by Plaintiff) constitutes a “major episode” with respect to the frame. (Id.) Defendant further contends that Paxton should have visited the site of the accident but did not. (Id.)
I do not find these arguments persuasive on the issue of the admissibility of Paxton’s Report, because Paxton’s conclusion that the Bike had defective [**50] welds is not necessarily undermined by the Bike’s history or the scene of the accident. If anything, these factors go to the weight of Paxton’s testimony, not its admissibility. Further, as noted above, Plaintiff’s burden at this stage is to show that a defect in the product was a “substantial factor” in causing the accident, not that it was the “sole” cause. Even if environmental factors or the history of the Bike were found to have contributed to the failure, those elements would not automatically completely preclude a welding defect from having substantially contributed to the failure. Thus, they are not a basis for rejecting Paxton’s testimony.
Defendant quotes Paxton’s testimony that a proper failure analysis would include a “quantitative assessment of the forces and loads” created by the failure event, and his concession that he never calculated such loads. (Id. at 13.) Again, I do not find this criticism to be fatal to Paxton’s testimony because his conclusion that the product was defective was based on empirical testing of the Bike itself, not on speculative calculations. 23
23 As above, I note that a jury could decide to give Paxton’s report less weight on the basis that he had not calculated the loads.
[**51] Defendant claims Paxton changed his theories about the frame failure repeatedly until about two months before his report was due. (Def. Mem. at 15.) Defendant states that it confronted Paxton at his deposition with errors in his analysis of the hardness of the aluminum, and that Paxton conceded that the aluminum was within Trek’s hardness specifications. 24 (Def. Mem. at 13-14.) Clearly, Paxton has abandoned (since issuing his Report) his theory that the aluminum in the frame was not sufficiently hard. If he should testify to a defect in the hardness at trial, Defendant is, of course, free to cross-examine him.
24 Defendant points out that Paxton said he was “embarrassed” by mistakes made by his technician, who incorrectly machined a sample, broke it in an unintended manner, took thickness measurements from the wrong part of the sample, and miscalculated the tensile strength of the sample. (Def. Mem. at 13.) Defendant also points out that Paxton admitted he failed to follow the standards of the American Society for Testing Materials (ASTM), that he misinterpreted the results because he used the wrong conversion chart, and then misread that chart. (Id. at 14.) Paxton’s deposition transcript confirms these claims.
[**52] Paxton also conceded at his deposition that the enlarged grains he found were not near the fracture site. (Def. Mem. 14; Paxton Dep. at 196:22-197:1). 25 The grain size theory does not seem to be relevant to the conclusions about the weld defect, however, and so does not provide a basis for precluding his testimony. Defendant will be free to cross-examine Paxton on any of his abandoned theories if they come up at trial. 26
25 Defendant also criticizes Paxton’s conclusions about the grain size because Paxton admitted he compared a 100x magnification photo of the allegedly enlarged grains to 50x and 200x magnification photos of what he contended to be normal size grains, conceding that it would be more reasonable to compare photos at the same magnification.
26 Defendant notes that Paxton abandoned another theory at his deposition, that the Bike frame had failed in mid-air, a theory he admitted was based on nothing but speculation. (Def. Mem. at 14.)
[*558] Attacking Paxton’s final conclusion that weld deposits [**53] on the interior of the aluminum frame tubing caused microscopic cracks that were a substantial factor in the frame failure, Defendant claims: (i) Paxton identified three types of cracks but did not attribute the final failure to any one of them; (ii) Paxton testified that it is “not honest” to attribute the frame failure to any one of the alleged manufacturing defects, although they had “real potential” to cause the failure; (iii) Paxton stated there is no such thing as a “perfect” weld, and that all welds have microscopic imperfections, which do “not necessarily” render a frame defective. Defendant also argues that Paxton admitted aluminum will always fail if it is loaded with enough force — defect or no defect — and that a hypothetical perfect frame would fail first in the exact spot where this bike failed if subjected to a strong enough force. (Id.)
In response, Plaintiff quotes Paxton’s Affidavit, dated January 21, 2004 (Pl. Exh. 2), specifically, portions thereof that criticize the conclusions of Defendant’s expert, Gerald P. Bretting, P.E. (professional engineer): 27
3. Briefly summarizing the conclusions stated in the report, my opinion is that the bicycle frame [**54] failed due to a fatigue crack which propagated through the “down tube” until the static load could not be supported and the tube tore. In the course of the manufacturing process, excess weld metal was deposited on the interior of the tube at the weld of the “down tube” and the “head tube”. In the area of the fracture, there were several types of cracks or tears created by uncontrolled welding in the manufacturing process. While it is not possible to identify the specific crack that actually propagated, any one of these cracks could have propagated through the tube to cause the failure. Furthermore, it is probable that one of these cracks actually did propagate to failure, because it is far, far easier for a pre-existing crack to propagate than for a new crack to be created by stresses bending a surface with no pre-existing crack.
4. I have reviewed the affidavit submitted by defense expert Gerald P. Bretting in support of the defendant’s motion for summary judgment. Mr. Bretting agrees that fatigue cracks existed in the area of the “head tube” – “down tube” joint . . . Mr. Bretting provides no support for his assertion that these fatigue [*559] cracks were created by stresses resulting [**55] from prior hard use of the bicycle. . . His scenario is in fact extremely unlikely because, as stated above, it would have been far easier for one of the pre-existing cracks created during the manufacturing process to propagate than for a new crack to be created by stresses bending a surface with no pre-existing crack.
(Pl. Mem. at 23 (quoting Paxton Aff.))
27 Neither party quoted Bretting’s Affidavit at any length in their briefs. Defendant quoted Paxton in its critique of Paxton’s Report, but it did not quote Bretting. Bretting’s Affidavit is attached as Exh. 2 to Def. Notice of Motion. In it, Bretting concludes (among other things) that there were fatigue fractures that existed prior to the ultimate failure, (p. 7), that were created by repeated stresses above the endurance limit of the material used (p. 9); the front wheel was in usable condition after the accident (id.); “pocketing the front wheel on a landing at 50 – 55 [degrees] above the horizontal will result in pitch-over occurring at horizontal decelerations greater than 0.15 g’s” (p. 10); fatigue fractures would have been readily visible (p. 11); the Bike was “not defective in either design or manufacture and was safe for its intended and foreseeable use” (p. 12); the Bike “is not a bicycle that was designed for free-riding” (p. 12); the existence of fatigue cracks had no effect on the causation of this crash (id.); the accident created an “extreme overload condition” that would have approached “the yield limit of a new frame” (id.); Plaintiff was in the process of pitching over the handlebars in this accident “regardless of the frame failure” (p. 13); Plaintiff did not orient his bicycle correctly during the jump, and the failure of the frame “did not affect the crash kinematics of the rider” (p. 14). The admissibility of Bretting’s opinions is not at issue until Plaintiff has established that he can withstand this motion for summary judgment, but Plaintiff also has not challenged Bretting’s qualifications. Bretting appears more than qualified, as a professional engineer with extensive education and training, to advance the opinions above.
[**56] Defendant’s criticisms of Plaintiff’s abandoned theories are much stronger than its criticism of his final opinion that the frame was defective because of excess weld metal deposits. First, Paxton did attribute the final failure to one of the cracks (without specifying which one), noting that it was “probable” and would have been “far easier” for one of the identified fatigue cracks to propagate than for a new crack to form. Second, the fact that Paxton conceded there is no such thing as a “perfect” weld does not, in and of itself, mean that this particular defective weld had the same inconsequential defects as some other welds. Clearly, Paxton opined that this weld was more defective. Defendant has failed to point out any actual error of fact or flaw in reasoning in Paxton’s weld conclusions, thus these criticisms are merely “forensic quibbles” that would go to the weight, and not the admissibility, of Paxton’s opinions. Byrne, supra, 2003 U.S. Dist. LEXIS 2552, 2003 WL 446474 at *1 n.1.
In general, I find that Paxton’s methodology carries sufficient indicia of scientific reliability to warrant submission to a jury under Daubert and its progeny and the Federal Rules of Evidence. Most [**57] significant in this regard is Paxton’s uncontroverted assertion that Defendant’s own metallurgical expert and defense counsel agreed upon the protocols by which Paxton analyzed the Bike’s frame. This alone indicates to the Court that Defendant’s critique of Paxton’s methodology does not render the testimony beyond the scientific pale.
In addition, Paxton’s described procedures tend to indicate to the Court that he carried out a thorough and scientific analysis of the frame, and that these tests formed the basis for his conclusion that fatigue cracks caused by excess weld material were a substantial factor in causing the frame to fail. See, e.g., Byrne, supra, 2003 U.S. Dist. LEXIS 2552, 2003 WL 446474 at *1 (finding sufficient indicia of reliability in expert’s background and the foundation for his opinions, despite a lack of empirical tests on the product that failed and no articulated hypothesis about the cause of failure) (internal citation omitted); see also Bruno v. Toyotomi U.S.A., Inc., 203 F.R.D. 77, 79 n.2 (N.D.N.Y. 2001) (noting that expert was qualified because he held a Ph.D. in the field, had 30-plus years of experience, had published over 100 technical papers [**58] and advised in numerous court cases). Paxton observed the actual Bike, analyzed the welds joining the head tube and down tube where the Bike failed, subjected the fracture site to magnification, and performed destructive chemical analyses. And while Defendant has pointed out several errors in Paxton’s abandoned theories, it has not discredited Paxton’s methods or conclusions regarding the allegedly defective weld.
I also note that Paxton’s qualifications, methodology and final conclusions do not contain the flaws that ordinarily cause an expert’s opinion to be excluded. See, e.g., In re Rezulin Products Liability Litigation, 369 F. Supp. 2d 398, 411-25 (S.D.N.Y. 2005) (excluding expert testimony where expert relied on studies that were only tangentially relevant and ignored relevant, contradictory studies); Davidov v. Louisville Ladder Group, LLC, 2005 U.S. Dist. LEXIS 3117, No. 02-Civ-6652, 2005 WL 486734 at *2 (S.D.N.Y. Mar. 1, 2005) (excluding expert report that [*560] was inconsistent with facts of case); Housing Works, Inc. v. Turner, 362 F. Supp. 2d 434, 447-48 (S.D.N.Y. 2005) (excluding illogical expert report that failed to address facts that would, by common [**59] sense, dictate different conclusions from those reached by the expert); Macaluso v. Herman Miller, Inc., 2005 U.S. Dist. LEXIS 3717, No. 01-Civ-11496 (JGK), 2005 WL 563169 at *6 (S.D.N.Y. Mar. 10, 2005) (excluding expert testimony where expert did not examine actual item in question and his analysis was based on incorrect factual assumptions that rendered all of his subsequent conclusions “purely speculative”); Mink Mart, Inc. v. Reliance Ins. Co., 65 F. Supp. 2d 176, 181 (S.D.N.Y. 1999), aff’d,12 Fed. Appx. 23 (2d Cir. 2000) (excluding expert report where it was based on speculation and not evidence that product in question malfunctioned).
Having determined that Paxton may testify as an expert, I turn to the issue of whether Plaintiff has met his burden to withstand summary judgment on the manufacturing defect claim. I find that he has.
2. Elements of Manufacturing Defect
[HN10] Under New York law, a “manufacturer who places a defective product on the market that causes injury may be liable for the ensuing injuries. A product may be defective when it contains a manufacturing flaw.” Liriano v. Hobart Corp., 92 N.Y.2d 232, 237, 700 N.E.2d 303, 677 N.Y.S.2d 764 (1998) [**60] (“Liriano I”) (internal citation omitted). A manufacturing defect is a flaw that results from the manufacturer’s plans not being carried out correctly, usually caused by an error during the product’s manufacture or assembly. See Van Deusen v. Norton Co., 204 A.D.2d 867, 868-69, 612 N.Y.S.2d 464 (3d Dep’t 1994); Opera v. Hyva, Inc., 86 A.D.2d 373, 376-77, 450 N.Y.S.2d 615 (4th Dep’t 1982). The crux of a strict liability manufacturing defect claim is the product’s failure to perform as expected due to an error in the manufacturing process that resulted in a defect. 28 Rainbow v. Albert Elia Bldg. Co., 79 A.D.2d 287, 294, 436 N.Y.S.2d 480 (4th Dep’t 1981); aff’d, 56 N.Y.2d 550, 449 N.Y.S.2d 967, 434 N.E.2d 1345 (1982).
28 [HN11] Negligence is not an element in a manufacturing defect case; where a manufacturing defect causes injury, recovery may be had regardless of whether the manufacturer used reasonable care. Caprara v. Chrysler Corp., 52 N.Y.2d 114, 123-24, 417 N.E.2d 545, 436 N.Y.S.2d 251 (1981).
[**61] [HN12] To recover for damages for a manufacturing defect (to recover under any strict liability theory, including failure to warn, addressed later in this opinion), a plaintiff must show that the defect was a “substantial factor” in causing his injuries. Bruno, supra, 203 F.R.D. at 78-79; Donald v. Shinn Fu Co. of Am., No. 99-Civ-6397 (ARR), 2002 WL 32068351 at *6 (E.D.N.Y. Sept. 4, 2002) (noting that plaintiff is required to show defect was the “proximate cause” of the injury) (citing Colon v. Bic USA, Inc., 199 F. Supp. 2d 53, 84 (S.D.N.Y. 2001)). A plaintiff asserting a strict liability claim must also show that (i) the product is not reasonably safe as marketed; (ii) the product was used for a normal purpose; (iii) that the plaintiff, by the exercise of reasonable care would not have both discovered the defect and apprehended its danger; and (iv) that the plaintiff would not have otherwise avoided the injury by the exercise of ordinary care. Urena v. Biro Manuf. Co., 114 F.3d 359, 363 (2d Cir. 1997) (citing Fane v. Zimmer, Inc., 927 F.2d 124, 128 (2d Cir. 1991)); see also Brazier v. Hasbro, [**62] Inc., 2004 U.S. Dist. LEXIS 4064, No. 99-Civ-11258 (MBM), 2004 WL 515536 at *5 (S.D.N.Y. Mar. 16, 2004).
[HN13] If a defendant’s expert states that a defect in its product could not be the cause of the accident, plaintiff must [*561] rebut this assertion with admissible expert testimony. Speller v. Sears, Roebuck & Co., 100 N.Y.2d 38, 42, 760 N.Y.S.2d 79, 82, 790 N.E.2d 252, 255 (2003). Where causation is disputed, however, and plaintiff has provided “detailed, non-conclusory expert depositions and other submissions” refuting defendant’s theory, summary judgment is not appropriate. Id. at 43-44 (concluding that the issue of what caused a fire was for a jury to decide, where each side’s experts had competently interpreted burn patterns differently); see also Donald, supra, 2002 WL 32068351 (denying summary judgment where genuine issue of fact existed as to whether mechanic’s failure to use jack stand was proximate cause of his injuries, and noting that accidents are rarely “monocausal” and that determination of whether defect was substantial cause is usually one for a jury). In fact, for a defendant to be entitled to summary judgment on causation, it [**63] must show that plaintiff’s actions were the “sole” cause of his injuries, not merely a substantial contributing factor. Donald, supra, 2002 WL 32068351 at *6; Amatulli v. Delhi Constr. Corp., 77 N.Y.2d 525, 534, 569 N.Y.S.2d 337, 571 N.E.2d 645 (1991) (denying summary judgment where defendant failed to show that plaintiff’s conduct in diving into an above-ground pool was “sole” cause of injuries, sufficient to break chain of causation, where question of fact existed as to whether in-ground installation of above-ground pool created illusion of depth). Where plaintiff and defendant each have competent experts whose opinions are reliable but who reach opposite conclusions on causation, summary judgment is not appropriate. Donald, supra, 2002 WL 32068351 at *7. Cf. Amatulli, supra, 77 N.Y.2d at 533-34 and n.2 (affirming summary judgment on design defect claim where expert opinion was based on “bare conclusory assertions”).
In analyzing the sufficiency of Plaintiff’s evidence, I note first that Paxton’s Affidavit (including portions not quoted by Plaintiff) refutes Defendant’s expert’s theory of causation with [**64] a detailed critique, based on his expertise in metallurgy and the facts of the case. (See Affidavit of Harold W. Paxton, Ph.D., Pl. Exh. 2, pars. 4-8). Paxton states that (i) Bretting agrees there were fatigue cracks in the head-tube/down-tube joint but fails to provide any support for his assertion that these cracks were caused by prior hard use of the Bike; (ii) Bretting fails to account for the fact that the front wheel was in usable condition even after the accident, even though Bretting concludes that the front wheel of the Bike must have been “pocketed” by an exposed rock on landing, which would have bent or buckled it; (iii) Bretting fails to show that his exemplar frame “fairly simulated the condition of the fatigue crack” in the Bike at the time of the accident; and (iv) Bretting states that the Owner’s Manual warns riders to inspect the frame for signs of fatigue, however, according to Paxton, such fatigue cracks “are frequently invisible even to trained eyes.” 29 (Id.) On this basis, Plaintiff defeats Defendant’s motion for summary judgment on the manufacturing claim. See Donald, supra, 2002 WL 32068351 at *7; Speller, supra, 100 N.Y.2d at 42. [**65]
29 Paxton’s Affidavit also alleges the required elements that the Bike was not reasonably safe as marketed and that the defect was latent, and would not have been discovered or avoided using ordinary care.
Further, as noted above, I find that Paxton’s own theories that a defective weld caused the frame to fail are credible and could lead to the inference that the fame failure caused the accident. See, e.g., Jarvis, supra, 283 F.3d at 45 and n. 6. Accordingly, [*562] Defendant has also failed to prove that Plaintiff’s actions were the “sole” cause of his accident, and it is not entitled to summary judgment on the manufacturing defect claim on this basis either. See, e.g., Speller, supra, 100 N.Y.2d at 43-44. 30
30 As discussed more fully below, a reasonable jury could find that jumping is a “normal” use of a bicycle. Cf. Brazier, supra, 2004 U.S. Dist. LEXIS 4064, 2004 WL 515536 at *4-6 (finding that “normal” use requirement was not satisfied where injury was caused by child’s insertion of a toy ball into its mouth, and where no allegation was made that the ball was defective or unsafe for ordinary uses of throwing, bouncing, rolling and catching).
[**66] C. John S. Allen (Failure to Warn, Breach of Warranty)
Plaintiff offers the opinion of John S. Allen that the Y5 model bike was not designed for jumping and that Defendant failed to adequately warn consumers about this fact and about the dangers of jumping a Y5. (See Pl. Mem. at p. 5.) Allen’s opinions undergird Plaintiff’s failure to warn and breach of warranty claims. (Id. at 6-8.)
1. Allen’s Qualifications
Allen’s purported areas of expertise are less traditional than Paxton’s. Allen received a Bachelor of Science degree from the Massachusetts Institute of Technology in Electrical Engineering in 1975. His curriculum vitae lists his thesis as, “Designing, Patenting and Marketing an Innovative Musical Instrument.” He also received a Bachelor of Arts degree from Middlebury College in German Literature in 1968.
Allen has been a Certified League of American Bicyclists Effective Cycling Instructor/League Cycling Instructor since 1982, and served as an Effective Cycling advisor “for Massachusetts” from 1990-95. His “Bicycling Affiliations” include membership on the Board of Directors of the Massachusetts Bicycle Coalition, an “advocacy organization,” since 2003. From [**67] 1989-1992 he served as President of the predecessor organization, Boston Area Bicycle Coalition, and he served as Director of that group from 1982-85 and from 1987-1994. He has been active in the “Coalition” since 1977.
Allen also has been a member of the Board of Directors of the League of American Bicyclists, a national bicyclists’ organization. From 1989-1993, he served as a member of that group’s Consumer Affairs Committee, and drafted a policy on helmet laws. He was the founder and a member of that group’s Massachusetts State Legislative Committee, and initiated the effort to draft a bicycle headlight bill signed into law in 1983, drafting a helmet bill signed into law in 1993. He states that he has been a “State Legislative Representative” since 1984, but it is not clear whether he means that he actually serves as a representative in the State government, or whether this role is an internal one with the League of American Bicyclists. He has been a League member since 1979, and a member of the Bicycle Committee of the National Council on Uniform Traffic Control Devices since 2003. In his capacity as a League member, he served on an advisory panel to the National Council on Uniform [**68] Traffic Control Devices from 2000-03. Allen also is a member of various local cycling and bicycle safety organizations.
His “employment in the field of cycling” includes membership on a team that developed a national curriculum for police about bicycling in 2002, under contract with the Massachusetts Bicycle Coalition. In 2002, he was a “juror” for a bicycle industry design competition in Taiwan. In 2001, he assisted the Governor’s Highway Safety [*563] Bureau in development of materials on bicycle safety. Since 1995 he has been conducting a study of bicycle use on the island of Martha’s Vineyard.
Allen co-authored “Sutherland’s Handbook for Bicycle Mechanics,” and “Sutherland’s Handbook of Coaster-Brake and Internally-Geared Hubs.” He contributed to various Massachusetts State bicycling booklets and publications in the late 1980’s and early 1990’s. In the 1970’s and 1980’s, Allen co-authored various bicycling manuals and articles. Allen’s curriculum vitae also notes that he is an avid cyclist, averaging 3,000 — 5,000 miles on a bicycle per year. (See Pl. Exh. A.)
Based on his background and experience, I find that Allen is qualified as an expert in the areas of the history of [**69] cycling, cycling trends and habits, and cycling safety. In these areas, he has extensive experience and expertise beyond that of an ordinary person. Since this case involves questions of whether Plaintiff’s use of the Bike for jumping should have been foreseen by Trek, Allen’s testimony may assist the trier of fact.
Given his lack of advanced scientific or technical training, however, I conclude that Allen is not qualified to testify about matters involving bicycle design or metallurgical engineering. (Allen’s undergraduate degree was in electrical engineering; a bicycle is not an electrical device.) Nor may he testify to matters the jury is capable of assessing for themselves, e.g., the content and adequacy of any warnings and the content of the videotape of the accident.
Plaintiff attached Allen’s Affidavit to its moving papers but failed to include his actual Report. Fortunately, it was supplied by Defendant. In the Report, dated June 25, 2003, 31 Allen states that he reviewed Paxton’s Report, as well as the depositions of DeRienzo, John Platt, 32 Jeremy Ball, a Jeff Amundsen, 33 Clint Kolda, Trek Catalogs from 1997-2001, documents produced by both parties in discovery, [**70] the video of the accident “at normal speed and in slow motion,” selected frames as photographs, the Bike itself, and various bicycle-related literature (excerpts of which are attached to his Affidavit). He also took his own series of photographs of the Bike.
31 The letterhead on which Allen submitted his Report includes a caption with four bullet points listing what, I assume, he advertises as his professional services: “Technical writing, translation; Mechanical design, acoustics; Consultant on bicycling; Effective Cycling instructor.”
32 It appears from the excerpts of Platt’s deposition submitted by Plaintiff that he is another Trek engineer, though the matter is far from clear, as the portion of his deposition that would detail his experience and employment was not included. I do not base any of my findings on this assumption, however, and the matter can be resolved at a later date.
33 Neither party submitted any portion of the deposition transcript of Amundsen, so the Court has no idea who he is or what he said. As with Platt, however, nothing in this opinion rests on any assumption about Amundsen, so the matter need not be resolved here. If issues later arise about the testimony of Platt or Amundsen, and if any of Allen’s admissible conclusions are called into question as a result, those issues will be resolved at that time, and nothing I say in this opinion should be construed to prescribe a certain result in that analysis.
[**71] Allen’s Report begins with a short section entitled, “Description of crash.” Since the video on which this description must be based will likely be one of the key pieces of evidence admitted in this case, this section of the Report only describes evidence that the jury itself will view. Allen’s description of a crash he did not witness adds nothing to the evidence itself and does not purport to explain an issue beyond lay ken. He may not testify about [*564] the matters discussed in this section of his Report. See Turner, supra, 362 F. Supp. 2d at 448.
The next section is entitled, “About welded aluminum as a bicycle frame material.” This section of the Report states that steel tubing was the “traditional material for bicycle frames until the early 1970’s.” It describes some of the characteristics of steel, noting that bicycle frames made of steel “have traditionally carried a lifetime warranty against frame failure due to breakage.” It then describes how aluminum came to be used as a material for bicycle frames, discusses specific characteristics of aluminum, and compares its performance (as a metal, not specifically as a bicycle frame material) with that of steel. [**72] This paragraph describes aluminum’s progression to failure and describes what can happen if aluminum welding is not carried out “very carefully.”
Allen may testify about the history of bicycle frames, which metals were used when (and why). But he may not testify about the specific characteristics of steel and aluminum, the comparison of these metals, the description of aluminum’s progression to failure, and the description about what can happen if aluminum is welded without care. All of this is beyond Allen’s expertise, and thus is not admissible. Indeed, Allen’s comments about the properties of steel and aluminum would have been entirely proper — and only could be proper — coming from Paxton or someone with his level of training in metallurgy.
The next section is entitled, “Reinforcing the joints of bicycle frames.” It begins with a statement that, “Several measures have been used to increase the strength of bicycle tubing near the joints, where it is weakened by brazing or welding and is subject to the highest stress.” Allen then describes two types of reinforcement, added material such as “lugs” and “gussets,” and varied thickness in the ends of the tubes called “butted tubing. [**73] ” He states that, “Such measures can produce a lighter-weight frame while providing strength where it is needed.” The first sentence of the next paragraph states that, “The DeRienzo frame used tubing of constant cross-section, and with no added reinforcement at the head tube-main tube joint.” He then opines that the frame would have failed even if the joint had been reinforced.
I will allow Allen to testify about the common methods for reinforcing a bicycle frame. He may also opine that such techniques allow for strength and lighter weight, since his conclusion is one that is more likely based on his considerable knowledge and experience in the field of bicycling than on any scientific analysis.
However, Allen’s statement that this Bike was not reinforced will not be admitted. The jurors will see for themselves that there are no “lugs” or “gussets” or varied thickness in the tubing. Allen may tell the jury that methods for reinforcement exist and describe what they are and why reinforcement is important.
I also decline to allow Allen to opine that this Bike’s frame would have failed even if it had been reinforced. Allen is not qualified to speculate on issues of engineering and bicycle [**74] design.
A section entitled, “Replacement of components” follows. The only admissible opinion in this section about which Allen may testify at trial is the last sentence: “Replacement of original equipment parts is a normal and expected condition of bicycle use and maintenance.” As Allen is an expert on the history of bicycling and the habits of bicycle riders, his knowledge in this area exceeds that of the average lay person. His opinion is helpful to the trier of fact because it addresses whether Plaintiff’s use of the Bike — including his replacement of many parts — should have been expected by Trek.
[*565] The rest of that paragraph states that (i) some components on the Bike were not original (for which the jury will not need an expert, since Plaintiff himself will testify to his replacing specific parts); (ii) that the replacement of the front fork was the “only one” of these replaced parts that might have affected the stress on the frame (which is a question of bicycle design or engineering, beyond Allen’s expertise); and (iii) that there was no evidence that the replacement Rock Shox fork malfunctioned (again, a question of bicycle engineering). He may not opine about any of this.
[**75] The next section is entitled, “Use of the bicycle off road.” This section describes the history and development of mountain biking as a sport, its origins in BMX racing, and the way mountain bikes are commonly used. Significantly, Allen states that Plaintiff’s type of “hard use in off-road riding . . . is entirely foreseeable and to be expected.” He also states that, “The expectation of cyclists has always been that any bicycle component which did not show immediate evidence of damage — typically, a bent frame, fork, rim or axle, or a pinch-flatted tire — was still serviceable.” This testimony is admissible.
Allen’s comments about what the Trek catalogs show (i.e., that “Trek was well aware of rough use, telling of riding over large logs, and the like”) are not necessary, since the jury will be able to examine the catalogs and read the text for themselves. Likewise, his comments about what Paxton’s testing showed are not admissible (as only Paxton need testify to his own results).
The last paragraph of that section appears to be an analysis of the forces exerted on the frame during the landing. I will not allow Allen to opine on this issue.
Allen’s Report closes with a list of [**76] his conclusions. The only admissible opinions in the conclusion are (1) that the “use of the DeRienzo bicycle off-road, including jumps and drop-offs within limits that did not cause immediately obvious damage to the bicycle, was a normal and expected use;” and (2) that the “replacement of components on the DeRienzo bicycle was a normal and expected condition of use of a bicycle.”
Defendant attacks Allen’s qualifications, specifically claiming that his opinions are inadmissible because: (i) Allen is a cycling safety instructor with no training or qualifications with respect to bicycle design, “wouldn’t consider” himself an expert in bicycle design, and concedes that designing a bicycle frame would involve “issues of material science and structural engineering, which are beyond” his expertise; (ii) there is no proof that Allen has special training in interpreting warning labels; (iii) Allen has no special knowledge about mountain biking, has owned only one mountain bike which he gave up after 20 miles because the sport was “too stressful,” has never jumped a mountain bike, has never seen a mountain bike crash, and acquired his only knowledge about mountain biking from reading consumer [**77] mountain biking books between his deposition and providing his report; (iv) Allen offers no reliable methodology, analysis or testing to support his opinion that the Y5 model is not designed for jumping or that Defendant’s warning about jumping is defective, cites no standards, authorities or testing, and offers no proof that the alternative warnings he references are more effective than Defendant’s warnings about stunt jumping or that these manufacturers’ customers have fewer accidents or injuries; (v) Allen’s opinion that Defendant failed to warn a rider to use a full-face helmet was not included in his expert report nor mentioned during his deposition; and (vi) Allen does not address the conspicuousness of Defendant’s existing warning and offers no alternative. (Def. Mem. at pp. 23-24; Def. [*566] Reply Mem. at pp. 6, 8-10.) As he did with Paxton, Plaintiff only quotes from Allen’s Affidavit, dated January 28, 2004, in a manner that can be read (very liberally) to refute Defendant’s arguments.
While I agree with some of Defendant’s assertions — most notably, that Allen is not qualified to testify to matters involving bicycle design engineering — I find that many of Allen’s opinions [**78] are in fact based on his experience and knowledge as an expert in bicycling history and current trends in cycling. See Kumho Tire, supra, 526 U.S. at 138-39.
To sum up, Allen may testify to the following (only): 34
1. Steel tubing was a traditional material for bicycle frames until the early 1970’s. Bicycles frames made of steel traditionally carried a lifetime warranty against frame failure due to breakage. In the 1970’s aluminum tubing bicycle frames were developed, which were lighter and stiffer than the steel frames.
2. Replacement of original equipment parts is a normal and expected condition of bicycle use and maintenance.
3. Mountain biking grew out of BMX racing. Hard use of a mountain bike in off-road riding is foreseeable and expected. Cyclists expect that a bicycle component that does not show signs of damage is still serviceable.
34 I do not prescribe the wording of Allen’s admissible testimony, only the subjects on which he may opine. No opinions of Allen that were not testified about at his EBT are admissible. See Endorsed Memo, dated December 5, 2003.
[**79] Having determined the parameters of Allen’s admissible testimony, I turn now to the question of whether Plaintiff has met its burden to withstand summary judgment on the failure to warn and breach of warranty claims. I find that he has.
2. Failure to Warn
[HN14] Under New York law, a manufacturer who places a defective product on the market that causes injury may be held strictly liable for the ensuing injuries if the product is not accompanied by adequate warnings for the use of the product. Liriano I, supra, 92 N.Y.2d at 243. The failure to warn must be a proximate cause of plaintiff’s injuries. See Voss, supra, 59 N.Y.2d at 107.
[HN15] The elements of a failure to warn claim are: (i) a danger existed to a significant portion of defendant’s consumers requiring additional warning; (ii) the alleged danger was known or reasonably foreseeable; and (iii) a proposed alternative warning would have prevented Plaintiff’s accident. Gebo v. Black Clawson Co., 92 N.Y.2d 387, 392, 681 N.Y.S.2d 221, 224, 703 N.E.2d 1234 (1998). A plaintiff does not have the burden, at the summary judgment stage, to show that an adequate warning would have prevented [**80] his injury. Liriano v. Hobart Corp., 170 F.3d 264, 271 (2d Cir. 1999) (“Liriano II”). Where the type of injury suffered by plaintiff is “exactly the kind of injury” that a warning might have prevented,
rather than require the plaintiff to bring in more evidence to demonstrate that his case is of the ordinary kind, the law presumes normality and requires the defendant to bring in evidence tending to rebut the strong inference, arising from the accident, that defendant’s negligence was in fact a but for cause of the plaintiff’s injury.
Id. at 271 (citing Zuchowicz v. United States, 140 F.3d 381, 388 nn. 6-7 (2d Cir. 1998)).
Some courts in this Circuit have held that a manufacturer may be held liable for injuries caused by its
failure to warn of the dangers arising from the foreseeable misuse [*567] or modification of the product as well. See Liriano I, supra, 92 N.Y.2d at 240; Hedstrom, supra, 76 F. Supp. 2d at 445 (noting that manufacturer has a duty to warn of danger of reasonably foreseeable, unintended uses and misuses of a product); see also Beneway v. Superwinch, Inc., 216 F. Supp. 2d 24, 29-30 (N.D.N.Y. 2002) [**81] (denying summary judgment where there were questions about whether it was reasonably foreseeable that customers would use a product a certain way and whether defendant adequately warned users of the existence of and need for an optional safety latch). Under this line of cases, evidence that a manufacturer might reasonably have foreseen a particular type of misuse raises an issue of fact that precludes the granting of summary judgment. Darsan v. Guncalito, 153 A.D.2d 868, 871, 545 N.Y.S.2d 594 (2d Dep’t 1989); see also Miller v. Anetsberger Bros., Inc., 124 A.D.2d 1057, 1059, 508 N.Y.S.2d 954, 956 (4th Dep’t 1986) (question of fact existed as to whether defendant had a duty to warn plaintiff of the danger of cleaning a machine while rollers were operating, given that safety was easy to disengage, manufacturer knew users cleaned while rollers were operating and also knew that it was more convenient to do so). The Liriano I court noted that there is “no material distinction between foreseeable misuse and foreseeable alteration of a product,” and that, “in certain circumstances, a manufacturer may have a duty to warn of dangers associated with the [**82] use of its product even after it has been sold.” 92 N.Y.2d at 240 n.2. This is a fact-specific inquiry. Id. In addition, “A manufacturer’s superior position to garner information and its corresponding duty to warn is no less with its ability to learn of modifications made to or misuse of a product.” Id. at 240-41.
Other courts have held that strict liability cannot attach unless a product is being used in a “normal” manner. See, e.g., Brazier, supra, 2004 U.S. Dist. LEXIS 4064, 2004 WL 515536 at *5 (noting that Hedstrom and Beneway were decided after Urena, supra, 114 F.3d at 364 n.2, but failed to mention that case, which adhered to the requirement that the use had to be “normal”). 35
35 I decline to reconcile these two lines of cases until necessary — that is, if or when the jury in this case concludes that modifying and/or jumping a Y5 bike is a “misuse” of such a bike. For reasons discussed below, however, I find it highly unlikely that a jury would so conclude, because Plaintiff was riding the Bike when he jumped it and had the accident. This case is nothing like Brazier, where a child tried to eat a toy ball and that use was not considered “normal.” 2004 U.S. Dist. LEXIS 4064, 2004 WL 515536 at *6.
[**83] [HN16] An expert opinion accompanied by submissions showing industry-wide advertisements encouraging a particular use of a product is probative on the issue of whether defendant knew its product was being used in a certain manner. Amatulli, supra, 77 N.Y.2d at 533-34 and n.2. This duty is not open-ended, however, and a manufacturer is not required to insure that subsequent owners and users will not adapt the product to their unique uses. Liriano I, supra, 92 N.Y.2d at 238. 36
36 The Liriano case involved a plaintiff whose hand was caught in a meat grinder manufactured by defendant. The machine came with a safety latch, which, arguably, would have prevented plaintiff’s injuries, but someone had removed the safety before plaintiff used the machine. One question was whether the defendant could be liable for failure to warn of the dangers of using the machine without the safety, even though the existence of the safety feature precluded a design defect claim. The Second Circuit Court of Appeals certified this question to the New York Court of Appeals, which answered the question in the affirmative. Even though the case at bar no longer includes a design defect claim, the Liriano case is instructive in its examination of a manufacturer’s duty (under that line of cases) to warn of the dangers of using a modified product, where the manufacturer knew or should have known that consumers were modifying its product in a certain way. But see, e.g., Urena, supra, 114 F.3d at 364 n.2 (noting that a manufacturer cannot be strictly liable when its product has been “substantially altered” but concluding that a question of fact existed as to whether plaintiff’s injury was caused by a defect or a modification).
[**84] [*568] [HN17] The adequacy of a warning is generally a question of fact for the jury. See Urena, supra, 114 F.3d at 366. The adequacy of a warning is only a question for the judge when the warning is accurate, clear and unambiguous. See, e.g., Hayes v. Spartan Chem. Co., 622 So. 2d 1352 (Fla. Dist. Ct. App. 1993). A warning that is inconspicuously located and written in small print may be deficient. Arbaiza v. Delta Int’l Mach. Corp., 1998 U.S. Dist. LEXIS 17886, No. 96-Civ-1224 (RJD), 1998 WL 846773 (E.D.N.Y. Oct. 5, 1998).
[HN18] One issue that typically precludes summary judgment on a failure to warn claim is whether the information contained in any issued warning was “commensurate with the manufacturer’s knowledge of the nature and extent of the dangers from foreseeable use of its product.” Cooley v. Carter-Wallace Inc., 102 A.D.2d 642, 648-49, 478 N.Y.S.2d 375 (4th Dept. 1984); Johnson v. Johnson Chem. Co., Inc., 183 A.D.2d 64, 69, 588 N.Y.S.2d 607 (2d Dept. 1992) (noting that “Whether a particular way of misusing a product is reasonably foreseeable, and whether the warnings which accompany a product are adequate to deter such potential [**85] misuse, are ordinarily questions for the jury.”)
Finally, [HN19] failure to read a warning is not dispositive. Hedstrom, supra, 76 F. Supp. 2d at 445. While it is true that, in many cases, a plaintiff who admits that he failed to read a warning that was issued with the product will have failed to show that any deficiency in that warning was the proximate cause of his injuries, plaintiff’s failure to read an insufficiently conspicuous or prominent warning will not necessarily defeat the causation element of a failure to warn claim. See, e.g., Sosna v. Am. Home Products, 298 A.D.2d 158, 158, 748 N.Y.S.2d 548 (1st Dep’t 2002) (citing Hedstrom, supra, 76 F. Supp. 2d at 443-44 and Johnson, supra, 183 A.D.2d 64 and distinguishing those two cases from the situation where a plaintiff has simply alleged a warning was substantively inadequate but has failed to read it); Arbaiza, supra, 1998 U.S. Dist. LEXIS 17886, 1998 WL 846773 at *7 (finding that plaintiff, who could not read English, could bring a failure to warn claim even though he admitted that he did not read the warning that accompanied the product, which was in English [**86] and arguably inconspicuous). The Hedstrom court also noted that summary judgment is particularly inappropriate where a third party might have read a warning and passed it on to the plaintiff. 37 76 F. Supp. 2d at 445.
37 The Hedstrom court examined the “realities of society” in determining whether a warning might have been conveyed to plaintiff via a third party. Hedstrom, supra, 76 F. Supp. 2d at 445 n. 22; see also Ferebee v. Chevron Chem. Co., 237 U.S. App. D.C. 164, 736 F.2d 1529, 1539 (D.C. Cir.), cert. denied, 469 U.S. 1062, 105 S. Ct. 545, 83 L. Ed. 2d 432 (1984). The Hedstrom court noted that a witness to the accident, who testified that she was concerned about how plaintiff was using the product but did not say so at the time, might have spoken up had an adequate written warning accompanied the product. Hedstrom, supra, 76 F. Supp. 2d at 445 n.23. Similarly, the Ferebee court noted that “if the jury could reasonably have found that the information on an adequately labeled [product] would have been communicated to the plaintiff — even if he personally did not read the warning — the failure to provide such warning could validly be treated as a proximate cause of [plaintiff’s] injury.”
[**87] [*569] Plaintiff asserts that his use of the Bike for jumping was typical of aggressive mountain bikers — so, normal and not a misuse — and that Trek was aware that riders such as he would purchase a Trek Y5 bike for jumping. Allen’s admissible opinions support this claim. Plaintiff asserts that Trek did not warn of the dangers of jumping at all, and that its buried admonitions in an Owner’s Manual to check the frame for damage were inadequate because they were inconspicuous and also because a visual inspection of the frame would not lead to the discovery of the type of damage that caused the frame to fail — namely, fatigue cracks in the head tube/down tube weld. (Pl. Mem. at 2-3.)
Defendant counters that jumping was not a normal use of a Y5 bike, that Plaintiff misused the Bike causing damage to the frame, that Trek did adequately warn of the dangers of jumping a Y5 Bike, and, as above, that any possible failure to warn was not the proximate cause of the accident in any case. Specifically, Defendant claims Plaintiff cannot recover for failure to warn because (i) Plaintiff admits he never saw an Owner’s Manual; and (ii) the accident was caused by his misuse of the Bike and his poor jumping [**88] technique. (See, e.g., Def. Mem. at pp. 1-3, 20-22.)
Since Allen’s testimony that jumping is an “entirely foreseeable” and “expected” use of a mountain bike is admissible, I find that Plaintiff withstands summary judgment on that issue. Further, Allen opines that it was foreseeable that a user would modify a bike the way Plaintiff modified this Bike, i.e., by replacing (among other components), the standard fork with a Rock Shox fork, which the parties agree is designed for jumping (see supra p. 5). This could lead to an inference that Trek knew users would modify Y5 bikes to make them more suitable for jumping.
Further, Exhibits B, C, and D to Allen’s Affidavit are copies of pages from mountain biking books, all of which include references to jumping and some of which show pictures of mountain bikers airborne on their bikes. In addition, Plaintiff’s Exh. 18 shows pages of a 1998 Trek Catalog that includes at least one picture of an airborne mountain biker (the page shows Y model bikes, but not the Y5 model, which appears on the next page, where there is no picture of a rider). Based on this evidence and Allen’s testimony, a jury would be entitled to find that it [**89] is both common for mountain bikers to jump their bikes and common for Trek consumers to modify Y5 model bikes to make them more suitable for jumping. See, e.g., Amatulli, supra, 77 N.Y.2d at 533-34. 38 If a jury so concluded, it could also conclude that Trek knew or should have known it had a duty to warn explicitly of the dangers of using a Y5 model for jumping. See, e.g., Darsan, supra, 153 A.D.2d at 871.
38 Of course, at this stage I do not conclude that Plaintiff has proven these things, only that it has adduced enough proof to submit the issue to a jury.
As for the Owner’s Manual, the fact that the parties submitted two different versions with substantially different warnings and graphics is enough to raise triable issues of fact on the failure to warn claim. Moreover, both Manuals contain warnings on almost half of their pages, which could lead a jury to conclude that any warning against jumping was inconspicuous — in either Manual. See Arbaiza, supra, 1998 U.S. Dist. LEXIS 17886, 1998 WL 846773 [**90] at *7; Sosna, supra, 298 A.D.2d at 158. Thus, it is far from clear whether Trek warned Y5 users not to jump or of the dangers of jumping, and if it did, whether those warnings were conspicuous and/or adequate. Thus, even if I adhere to the stricter standard barring failure to warn claims where [*570] a plaintiff has failed to read a conspicuous or adequate warning, Plaintiff’s claims withstand summary judgment. There is also a dispute about whether Trek pasted a warning on the Bike itself — and, if so, to which version of the Owner’s Manual it referred — which precludes summary judgment.
In addition, based on Hedstrom and Ferebee, a jury could conclude that, had an adequate warning against jumping been issued with the Bike (or Y5’s generally), the “realities of society” — i.e., the realities of the mountain biking community — might have resulted in Plaintiff’s friends advising him not to use a Y5 model for jumping, even if Plaintiff had not read the warning himself. 76 F. Supp. 2d at 445 nn. 22, 23. Thus, Defendant’s motion for summary judgment on the failure to warn claim must be denied.
3. Breach of Warranty
[HN20] A plaintiff injured by a defective [**91] product may recover for breach of warranty under New York law. This remedy, grounded in various provisions of the New York Uniform Commercial Code, has not been subsumed by the tort cause of action for strict products liability. See Castro v. QVC Network, Inc., 139 F.3d 114, 117-18 (2d Cir. 1998); Denny v. Ford Motor Co., 87 N.Y.2d 248, 256, 662 N.E.2d 730, 639 N.Y.S.2d 250 (1995).
[HN21] A product must be “fit for the ordinary purposes for which such goods are used” to be considered merchantable under New York’s version of the Uniform Commercial Code. Brazier, supra, 2004 U.S. Dist. LEXIS 4064, 2004 WL 515536 at *4 (quoting N.Y. U.C.C. § 2-314(2)(c)). Thus, liability for breach of warranty depends on “the expectations for the performance of the product when used in the customary, usual and reasonably foreseeable manners.” Denny, supra, 87 N.Y.2d at 258-59. Accordingly, a plaintiff must show that the product “was being used for the purpose and in the manner intended.” Beneway, supra, 216 F. Supp. 2d at 30. Privity of contract is not required in a personal injury action for breach of warranty. Heller v. U.S. Suzuki Motor Corp., 64 N.Y.2d 407, 411, 488 N.Y.S.2d 132, 477 N.E.2d 434 (1985). [**92]
[HN22] Where there are questions about whether a product was being used in a reasonably foreseeable manner, summary judgment is not appropriate. Id. at 30.
Thus, Plaintiff’s breach of warranty claim requires proof that the Bike did not meet expectations for performance because it failed during his jump or landing, which was a reasonably foreseeable use of the Bike. As noted above, Plaintiff has supplied admissible evidence sufficient to raise a genuine issue of fact on the question of whether the Y5 was marketed for use in jumping. This, combined with Clint Kolda’s testimony, noted above, that taking a Y5 model bike off a 5-foot drop would constitute a “crash,” could indicate that jumping was reasonably foreseeable, but that the Y5 was not designed or reasonably safe for such use. See Beneway, supra, 216 F. Supp. 2d at 30; cf. Brazier, supra, 2004 U.S. Dist. LEXIS 4064, 2004 WL 515536 at *4 (granting summary judgment on a breach of warranty claim, where child had placed ball in mouth and where “no reasonable jury could conclude that a toy ball is performing an ordinary purpose when a child inserts it into his mouth.”) Accordingly, Defendant’s motion for summary judgment [**93] on breach of warranty also must be denied.
IV. Conclusions
(1) Defendant’s motion for summary is denied in full.
(2) Plaintiff’s experts, Harold W. Paxton, Ph.D., and John S. Allen, are [*571] qualified to testify within the parameters set by this opinion.
(3) Plaintiff has withdrawn his design defect claim. The remaining claims sound in negligence, breach of warranty and strict products liability (manufacturing defect and failure to warn).
This constitutes the decision and order of the Court.
Dated: July 14, 2005
Colleen McMahon
U.S.D.J.
Recreation Law 