Bonnen v. Pocono Whitewater, Ltd. (M.D. Pa. 2021)
Posted: January 31, 2022 Filed under: Pennsylvania, Release (pre-injury contract not to sue), Whitewater Rafting | Tags: Diversity Action, Foot Entrapment, Forged Signature, Fraud, Jurisdiction & Venue, Jurisdiction and Venue, Pennsylvania, Pocono Whitewater, Release, Whitewater, Whitewater Rafting Leave a commentCAROLINE BONNEN, et al., Plaintiffs,
v.
POCONO WHITEWATER, LTD., Defendant.
Civil Action No. 3:20-cv-01532
United States District Court, M.D. Pennsylvania
September 17, 2021
MEMORANDUM
JOSEPH F. SAPORITO, JR., U.S. Magistrate Judge.
This diversity action is before the court on the defendant’s motion to dismiss the amended complaint under Fed.R.Civ.P. 12(b)(6) based on enforcement of a forum selection provision. (Doc. 15). The action arises out of an incident where the plaintiffs decedent died as a result of being thrown from a raft while Whitewater rafting on the Lehigh River in Carbon County, Pennsylvania. For the reasons set forth herein, we will deny the motion.
I. Statement of Facts
On September 1, 2019, Christopher Santana was one of nine occupants in an eight-person raft, none of whom were guides, who were Whitewater rafting on the Lehigh River in Jim Thorpe, Carbon County, Pennsylvania. After the raft hit a rock, Santana was thrown from the raft into turbulent and rocky waters. His foot became lodged between rocks causing him to become submerged underwater, which resulted in his death by drowning. The plaintiff, Caroline Bonnen, individually and as Administratrix of the Estate of Christopher Santana, brings this wrongful death and survival action against the defendant, Pocono Whitewater, Ltd.
The defendant has filed a motion to dismiss (Doc. 15), seeking dismissal on the ground that a forum selection provision contained in a release of liability purportedly signed by the decedent sets the Court of Common Pleas of Carbon County as the appropriate and agreed-upon venue for any dispute “aris[ing] out of th[e] agreement or otherwise between the parties.” (Doc. 14-5).
A review of the amended complaint reflects that the plaintiff did not plead whether the release of liability has any relevance to the incident. Rather, the plaintiff has pled that the defendant was negligent, grossly negligent, and reckless in its conduct in a variety of several itemized instances. (Doc. 9 ¶ 31). In her opposition papers, the plaintiff contends that the release of liability, which includes the forum selection clause contained therein, is invalid because the decedent did not execute the release. (Doc. 20 passim; Doc. 21, at 3-5). The plaintiff maintains that it was she who signed the decedent’s name, without authority to contract on behalf of the decedent. (Id.).
The motion has been fully briefed by the parties and is ripe for disposition. (Doc. 16; Doc. 21).
II. Legal Standard
Rule 12 (b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move to dismiss for “failure to state a claim upon which relief is granted.” Fed.R.Civ.P. 12(b)(6). “Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds the plaintiffs claims lack facial plausibility.” Warren Gen. Hosp. v. Amgen, Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). In deciding the motion, the court may consider the facts alleged on the face of the complaint, as well as “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellab, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). Although the Court must accept the fact allegations in the complaint as true, it is not compelled to accept “unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegations.” Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v. McGreevy, 481 F.3d 187, 195 (3d Cir. 2007). Nor is it required to credit factual allegations contradicted by indisputably authentic documents on which the complaint relies or matters of public record of which we may take judicial notice. In re Washington Mut. Inc., 741 Fed.Appx. 88, 91 n.3 (3d Cir. 2018); Sourovelis v. City of Philadelphia, 246 F.Supp.3d 1058, 1075 (E.D. Pa. 2017); Banks v. Cty. of Allegheny, 568 F.Supp.2d 579, 588-89 (W.D. Pa. 2008).
III. Discussion
Turning to the motion to dismiss based on enforcement of a forum selection provision under Fed.R.Civ.P. 12(b)(6), when the parties’ agreement contains a valid forum selection clause designating a particular forum for settling disputes arising out of their contract, a Rule 12(b)(6) dismissal is a permissible means of enforcing that forum selection clause. Salovaara v. Jackson Nat’l Life Ins. Co., 246 F.3d 289, 298 (3d Cir. 2001). Podesta v. Hanzel, 684 Fed.Appx. 213, 216 (3d Cir. 2017); see also Eureka Res., LLC v. Hoden Roots LLC, ___F.Supp.3d.___, 2021 WL 3545068, at * 1 & n.5 (M.D. Pa. Aug. 11, 2021).
Here, the plaintiff disputes the validity of the release containing a forum selection clause because it was allegedly signed in the decedent’s name by his mother, the plaintiff, without authorization or consent by the decedent. Based on the factual allegations by the parties, we are unable to conclude that the decedent unambiguously manifested his assent to the forum selection clause, and thus we are unable to find that the forum selection clause is valid. See Oak Street Printery LLC v. Fujifilm N. Am. Corp., 895 F.Supp.2d 613, 619 (M.D. Pa. 2012). Because the validity of the form selection clause remains in doubt, the defendant’s preferred forum-the Carbon County state courts-is not controlling. See Id. Moreover, Pennsylvania law holds that such a release agreement cannot bind non-signatories. See Valentino v. Philadelphia Triathlon, LLC, 150 A.3d 483, 497 (Pa. Super. Ct. 2016) (noting that a statutory “wrongful death claimant possesses an independent, non-derivative right of action” that cannot be subjected to a forum selection clause, signed by the decedent, without the claimant’s consent); cf. Buttermore v. Aliquippa Hospital, 561 A.2d 733, 736 (Pa. l989)(holding that a wife’s consortium claim was an independent cause of action, and thus not barred by a settlement agreement to which she was not a signatory). Therefore, construing all well-pleaded facts as true, as we must, we are constrained to deny the motion to dismiss.
An appropriate order follows.
Pennsylvania Comparative Negligence Statute
Posted: May 14, 2020 Filed under: Assumption of the Risk, Pennsylvania | Tags: comparative negligence, contributory negligence, Doctrine of Voluntary Assumption of the Risk, downhill skiing, Intentional Tort, Joint Liability, Negligence, Off Road, Off-Road Vehicle, Off-Road Vehicle Riding, Voluntary Assumption of the Risk 4 CommentsPennsylvania Statutes
42 Pa.C.S. JUDICIARY AND JUDICIAL PROCEDURE
Part VII CIVIL ACTIONS AND PROCEEDINGS
Chapter 71 GENERAL PROVISIONS
§ 7102 Comparative negligence
(a) General rule.–In all actions brought to recover damages for negligence resulting in death or injury to person or property, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff or his legal representative where such negligence was not greater than the causal negligence of the defendant or defendants against whom recovery is sought, but any damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff.
(a.1) Recovery against joint defendant; contribution.
(1) Where recovery is allowed against more than one person, including actions for strict liability, and where liability is attributed to more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of that defendant’s liability to the amount of liability attributed to all defendants and other persons to whom liability is apportioned under subsection (a.2).
(2) Except as set forth in paragraph (3), a defendant’s liability shall be several and not joint, and the court shall enter a separate and several judgment in favor of the plaintiff and against each defendant for the apportioned amount of that defendant’s liability.
(3) A defendant’s liability in any of the following actions shall be joint and several, and the court shall enter a joint and several judgment in favor of the plaintiff and against the defendant for the total dollar amount awarded as damages:
(i) Intentional misrepresentation.
(ii) An intentional tort.
(iii) Where the defendant has been held liable for not less than 60% of the total liability apportioned to all parties.
(iv) A release or threatened release of a hazardous substance under section 702 of the act of October 18, 1988 (P.L. 756, No. 108) , known as the Hazardous Sites Cleanup Act.
(v) A civil action in which a defendant has violated section 497 of the act of April 12, 1951 (P.L. 90, No. 21), known as the Liquor Code.
(4) Where a defendant has been held jointly and severally liable under this subsection and discharges by payment more than that defendant’s proportionate share of the total liability, that defendant is entitled to recover contribution from defendants who have paid less than their proportionate share. Further, in any case, any defendant may recover from any other person all or a portion of the damages assessed that defendant pursuant to the terms of a contractual agreement.
(a.2) Apportionment of responsibility among certain nonparties and effect. –For purposes of apportioning liability only, the question of liability of any defendant or other person who has entered into a release with the plaintiff with respect to the action and who is not a party shall be transmitted to the trier of fact upon appropriate requests and proofs by any party. A person whose liability may be determined pursuant to this section does not include an employer to the extent that the employer is granted immunity from liability or suit pursuant to the act of June 2, 1915 (P.L. 736, No. 338), known as the Workers’ Compensation Act. An attribution of responsibility to any person or entity as provided in this subsection shall not be admissible or relied upon in any other action or proceeding for any purpose. Nothing in this section shall affect the admissibility or nonadmissibility of evidence regarding releases, settlements, offers to compromise or compromises as set forth in the Pennsylvania Rules of Evidence. Nothing in this section shall affect the rules of joinder of parties as set forth in the Pennsylvania Rules of Civil Procedure.
(b) Deleted by 2011, June 28, P.L. 78, No. 17, § 1, imd. effective.
(b.3) Off-road vehicle riding./para>
(1) Off-road vehicle riding area operators shall have no duty to protect riders from common, frequent, expected and nonnegligent risks inherent to the activity, including collisions with riders or objects.
(2) The doctrine of knowing voluntary assumption of risk shall apply to all actions to recover damages for negligence resulting in death or injury to person or property brought against any off-road vehicle riding area operator.
(3) Nothing in this subsection shall be construed in any way to abolish or modify a cause of action against a potentially responsible party other than an off-road vehicle riding area operator.
(c) Downhill skiing
(1) The General Assembly finds that the sport of downhill skiing is practiced by a large number of citizens of this Commonwealth and also attracts to this Commonwealth large numbers of nonresidents significantly contributing to the economy of this Commonwealth. It is recognized that as in some other sports, there are inherent risks in the sport of downhill skiing.
(2) The doctrine of voluntary assumption of risk as it applies to downhill skiing injuries and damages is not modified by subsections (a) and (a.1).
(c.2) Savings provisions.–Nothing in this section shall be construed in any way to create, abolish or modify a cause of action or to limit a party’s right to join another potentially responsible party.
(d) Definitions.–As used in this section the following words and phrases shall have the meanings given to them in this subsection:
“Defendant or defendants.” Includes impleaded defendants.
“Off-road vehicle.” A motorized vehicle that is used off-road for sport or recreation. The term includes snowmobiles, all-terrain vehicles, motorcycles and four-wheel drive vehicles.
“Off-road vehicle riding area.” Any area or facility providing recreational activities for off-road vehicles.
“Off-road vehicle riding area operator.” A person or organization owning or having operational responsibility for any off-road vehicle riding area. The term includes:
(1) Agencies and political subdivisions of this Commonwealth.
(2) Authorities created by political subdivisions.
(3) Private companies.
“Plaintiff.” Includes counter claimants and cross-claimants.
Cite as 42 Pa.C.S. § 7102
History. 1978, April 28, P.L. 202, No. 53, § 10(89), effective June 27, 1978. Amended 1980, Oct. 5, P.L. 693, No. 142, § 222(a), effective in 60 days; 1982, Dec. 20, P.L. 1409, No. 326, art. II, § 201, effective in 60 days; 2002, June 19, P.L. 394, No. 57, § 2, effective in 60 days; 2004, July 15, P.L. 736, No. 87, § 5, imd. effective; 2011, June 28, P.L. 78, No. 17, § 1, imd. effective.
Ruts left in slope by snowmaking ATV did not rise to the level of recklessness or gross negligence in the Pennsylvania skiing lawsuit.
Posted: February 3, 2020 Filed under: Assumption of the Risk, Pennsylvania, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: All Terrain Vehicle, assumption of the risk, ATV, Blue Knob, Blue Knob Recreation, downhill skiing, Exculpatory Language, Gross negligence, Inherent Risk, Pennsylvania Skier Safety Act, recklessness, Release, Ruts, Season Pass Holder, ski area, Snow Making, Sport, sport of downhill skiing, Waiver Leave a commentGreat review of gross negligence and recklessness law under Pennsylvania law in this decision.
Kibler v. Blue Knob Recreation, Inc., 2018 PA Super 89 (Pa.Super. 2018)
State: Pennsylvania, Superior Court of Pennsylvania
Plaintiff: Patrick Kibler and Kathryn Kibler, Husband and Wife
Defendant: Blue Knob Recreation, Inc., /d/b/a Blue Knob All Seasons Resort, and Blue Knob Resort, Inc.
Plaintiff Claims: Negligence and Gross Negligence
Defendant Defenses: Release
Holding: For Defendant
Year: 2017
Summary
Ruts left on the slope are an inherent risk of skiing and do not rise to gross negligence in Pennsylvania. Plaintiff assumed the risk of his injuries both under the Pennsylvania Skier Safety Act and the release he signed for his pass.
Facts
On March 21, 2014, [appellant] applied for a season ski pass for the 2014-2015 ski season at Blue Knob Ski Resort. [Appellant] signed and dated the season pass/application agreement, which contained [184 A.3d 977] information and guidelines about the Blue Knob season pass.
On December 21, 2014 at 9:00 a.m., [appellant] arrived at Blue Knob to ski with friends. Prior to arriving at the resort, [appellant] learned that five slopes were open to ski. [Appellant] eventually would ski on two of these five open slopes. After skiing down a slope identified as “Lower Mambo,” [appellant] stopped to look for his skiing companions, who were snowboarding on another slope. In an attempt to rejoin them without walking back up the slope, [appellant] intended to ski toward the middle of “Lower Mambo Valley” in order to reach a ski lift. While traversing this area, [appellant] ran over “trenches” he avers were four-to-six inches deep and six-to-eight inches wide, which extended halfway across the ski slope. Defendants’ employees identified the trenches as being caused by an all-terrain-vehicle operated by a resort employee. [Appellant] fell when encountering these trenches, causing him to fracture his left tibia and fibula.
Plaintiff sued for his injuries, and the trial court dismissed his claim on a motion for summary judgment. This was the plaintiff’s appeal.
Analysis: making sense of the law based on these facts.
The court first looked at the issues in this appeal from the standpoint of the Pennsylvania Skier Safety Act. The act states that skiers voluntarily assume the risk of the sport. Unlike most other skier safety acts, the Pennsylvania Skier Safety Act does not list the risks the skier assumes. That is left up to the court in each case. This leads to more litigation as each plaintiff is free to argue that the risk that caused his accident is not an inherent risk of skiing and not covered under the Pennsylvania Skier Safety Act.
When reviewing whether a risk is inherent and part of the sport of skiing the Pennsylvania Supreme Court created standards to assist courts in making that decision.
First, this Court must determine whether [appellant] was engaged in the sport of downhill skiing at the time of [his] injury. If that answer is affirmative, we must then determine whether the risk [encountered] is one of the “inherent risks” of downhill skiing, which [appellant] must be deemed to have assumed under the Act. If so, then summary judgment was appropriate because, as a matter of law, [appellant] cannot recover for [his] injuries.
Inherent risks of skiing in Pennsylvania are those “that are ‘common, frequent, or expected’ when one is engaged in a dangerous activity, and against which the defendant owes no duty to protect.”
The court found the plaintiff was engaged in downhill skiing. Downhill skiing has a broad definition under Pennsylvania law.
Obviously, the sport of downhill skiing encompasses more than merely skiing down a hill. It includes those other activities directly and necessarily incident to the act of downhill skiing. Such activities include boarding the ski lift, riding the lift up the mountain, alighting from the lift, skiing from the lift to the trail and, after a run is completed, skiing towards the ski lift to start another run or skiing toward the base lodge or other facility at the end of the day.
To determine if wheel ruts in the slope were a risk in skiing the court turned to a New York decision.
Appellate Division of the New York Supreme Court, and find that wheel ruts in the terrain are an inherent risk to the sport of downhill skiing. Accordingly, we hold that appellants cannot recover damages as a matter of law, and that the trial court properly granted defendants’ motion for summary judgment.
However, the court never found or determined if the Pennsylvania Skier Safety Act prevented the claim. The court then turned to the release the plaintiff signed when he paid for his season pass.
The plaintiff argued the release should be void.
Specifically, appellant avers that the release in question is “not a valid exculpatory release” due to the fact that the release is ambiguous, the release is “without print of a size and boldness that draws the attention of an ordinary person,” and there is no evidence that appellants actually read the release.
The court then looked for the requirements under Pennsylvania law for a release to be valid.
It is generally accepted that an exculpatory clause is valid where three conditions are met. First, the clause must not contravene public policy. Secondly, the contract must be between persons relating entirely to their own private affairs and thirdly, each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion. [[O]ur supreme court] noted that once an exculpatory clause is determined to be valid, it will, nevertheless, still be unenforceable unless the language of the parties is clear that a person is being relieved of liability for his own acts of negligence. In interpreting such clauses we listed as guiding standards that: 1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing the immunity is upon the party invoking protection under the clause.
Since the release was between the ski area and a skier, it was a private contract and did not contravene public policy. The court then looked at whether the release was enforceable. That standard required the court to:
…construe the release strictly against [defendants] to determine whether it spells out the intention of the parties with particularity and shows to the intent to release [defendants] from liability by express stipulation, recognizing that is [defendants’] burden to establish immunity.”
To be valid in Pennsylvania a release must spell out with particularity the intentions of the parties.
…construe the release strictly against [defendants] to determine whether it spells out the intention of the parties with particularity and shows to the intent to release [defendants] from liability by express stipulation, recognizing that is [defendants’] burden to establish immunity.
The plaintiff argued the release should be void because:
Appellants first aver that the language of the release was ambiguous. Specifically, appellants allege that the release failed to “clearly and unequivocally intend for the defendant[s] to be relieved from liability, using language understandable to an ordinary and knowledgeable person so participants know what they have contracted away.” Appellants then allege that the release failed include any reference to the risk encountered by appellant. Appellants specifically argue that “the risk [appellant] encountered, i.e. , deep and wide frozen trenches in the middle of a beginner’s slope, are not stated because it is nonsensical to contend such a serious hazard is inherent to the sport.
The plaintiff then argued the release lacked conspicuity and “was without print of a size and boldness that draws the attention of an ordinary person.” The court referred to Pennsylvania Uniform Code, which set froth requirements for contracts and defines what a conspicuous term is:
(i) A heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font or color to the surrounding text of the same or lesser size.
(ii) Language in the body of a record or display in larger type than the surrounding text, in contrasting type, font or color to the surrounding text of the same size, or set off from surrounding text of the same size by symbols or other marks that call attention to the language.
The court found the release valid because exculpatory language was preceded by a heading that was written in all caps equal to the size of the text in the exculpatory paragraph. The heading also contained two exclamation points to draw attention to it.
The plaintiff then argued he did not read the release. (That’s his problem no one else’s!) “Our cases provide that “failure to read an agreement before signing it does not render the agreement either invalid or unenforceable.”
The court then reviewed the gross negligence, and reckless conduct claims the plaintiff made. A claim that the actions of the defendant were reckless would not be barred by a release. The court then reviewed the definition of gross negligence.
The general consensus finds [that] gross negligence constitutes conduct more egregious than ordinary negligence but does not rise to the level of intentional indifference to the consequences of one’s acts.” (relying in part on bailment cases and in part on the definition of “gross negligence” as applied to the [Mental Health Procedures Act[9] ] ). Gross negligence may be deemed to be a lack of slight diligence or care compromising a conscious, voluntary act or omission in “reckless disregard” of a legal duty and the consequences to another party. While it is generally true that the issue of whether a given set of facts satisfies the definition of gross negligence is a question of fact to be determined by a jury, a court may take the issue from a jury, and decide the issue as a matter of law, if the conduct in question falls short of gross negligence, the case is entirely free from doubt, and no reasonable jury could find gross negligence.
The court then identified the definition of recklessness.
Recklessness is distinguishable from negligence on the basis that recklessness requires conscious action or inaction which creates a substantial risk of harm to others, whereas negligence suggests unconscious inadvertence.
Then the court reviewed recklessness as defined by the Restatement (Second) of Torts:
The actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.
Restatement (Second) of Torts § 500 (1965). The Commentary to this Section emphasizes that “[recklessness] must not only be unreasonable, but it must involve a risk of harm to others substantially in excess of that necessary to make the conduct negligent.” cmt. a. Further, as relied on in Fitsko, the Commentary contrasts negligence and recklessness:
Reckless misconduct differs from negligence in several important particulars. If differs from that form of negligence which consists in mere inadvertence, incompetence, unskillfulness, or a failure to take precautions to enable the actor adequately to cope with a possible or probable future emergency, in that reckless misconduct requires 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…. The difference between reckless misconduct and conduct involving only such a quantum of risk as is necessary to make it negligent is a difference in the degree of risk, but this difference of degree is so marked as to amount substantially to a difference in kind.
Finally, the court summed up the definitions as:
Recklessness is more than ordinary negligence and more than want of ordinary care; it is an extreme departure from ordinary care, a wanton or heedless indifference to consequences, and indifference whether or not wrong is done, and an indifference to the rights of others
Since the plaintiff could not prove any intentional conduct on the part of the defendant, the actions of the defendant were not reckless or gross negligence.
[Appellants] aver that Defendants’ snow-making crew created the “trenches” by operating an all-terrain-vehicle across part of the ski-slope, rather than entirely along the sides of the slopes.[Footnote 7] While apparently against normal maintenance policy and procedures and arguably negligent, we do not believe these actions amount to gross negligence or recklessness. Defendants’ employees were engaged in the normal and expected process of maintaining the ski slopes and did so in a careless fashion, producing a condition that— although possibly dangerous— was not inherently unexpected upon a ski slope. We view such conduct to be a matter of “… mere inadvertence, incompetence, unskillfulness, or a failure to take precautions” rather than recklessness.
The summary judgement of the trial court dismissing the plaintiff’s claims was upheld.
So Now What?
Anytime you do anything outside of the scope of operations of your competitors you set yourself up for a claim. Using ATV’s on the ski slope rather than a snow machine created that opportunity here for the plaintiff.
The ATV was a vehicle that could be used by the defendant year round and probably saved them money. However, the amount of time their employees spent defendant this claim and responding to the allegations I would guess wiped out that savings.
If you insist and being different, which is necessary for any industry to grow and change, justify the why with thought and reasons that are more than money. In this case, simply grooming after the ATV had passed would have solved the problem.
What do you think? Leave a comment.
Copyright 2019 Recreation Law (720) 334 8529
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Author: Outdoor Recreation Insurance, Risk Management and Law
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By Recreation Law Rec-law@recreation-law.com James H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,
Pennsylvania Supreme Court upholds use of an express assumption of the risk agreement to bar a claim for wrongful death during a triathlon
Posted: January 27, 2020 Filed under: Assumption of the Risk, Pennsylvania, Release (pre-injury contract not to sue), Triathlon | Tags: assumption of the risk agreement, LLC., multi-sport-event, negligent act, Pennsylvania's wrongful-death statute, Philadelphia Triathlon, Restatement (Second) of Torts, signed electronically, Supreme Court of Pennsylvania, Triathlon, Wrongful Death Statute Leave a commentThe court defined the written agreement, signed electronically, as an assumption of the risk agreement, even though a lower court had called it a liability waiver.
Valentino v. Philadelphia Triathlon, LLC, 209 A.3d 941 (Pa. 2019)
State: Pennsylvania, Supreme Court of Pennsylvania
Plaintiff: Michele Valentino, as Administratrix of the Estate of Derek Valentino, Deceased, and Michele Valentino, in Her Own Right
Defendant: Philadelphia Triathlon, LLC
Plaintiff Claims: Pennsylvania Wrongful Death Statute
Defendant Defenses: Express Assumption of the Risk Agreement
Holding: For the Defendant
Year: 2019
Summary
Pennsylvania Supreme Court upholds release to stop claims under PA’s wrongful-death statute. Since the deceased assumed the inherent risks of the sport, that removed the duty of the defendant triathlon therefore, the triathlon could not be negligent. No negligence, no violation of the wrongful-death statute.
Facts
In 2010, Triathlon organized a multi-sport-event, comprised of swimming in the Schuylkill River, cycling for more than fifteen miles, and running for more than three miles. To compete in the event, each participant was required to register, pay a fee, and execute electronically a liability waiver agreement that included an assumption of the risk provision (“Agreement”). On January 24, 2010, Decedent complied with these requisites by electronically registering as a participant in the triathlon and executing the Agreement.
The triathlon took place on June 26, 2010. At approximately 8:30 a.m., Decedent entered the Schuylkill River to begin the first segment of the race. Tragically, Decedent never completed the swimming portion of the competition. Divers retrieved Decedent’s body from the river the next day after he presumably drowned while participating in the triathlon.
The trial court and the appellate court dismissed the plaintiff’s claims based on the express assumption of the risk agreement signed by the deceased. The Supreme Court of Pennsylvania granted the plaintiff’s appeal which resulted in this decision.
Analysis: making sense of the law based on these facts.
The release or wavier used in this agreement is not included in the decision. One small section is quoted, which speaks to the risks the participants in the triathlon must assume. Which makes sense since the court refers to the agreement as an express assumption of the risk agreement rather than a release or waiver.
Pennsylvania follows the Restatement Second of Torts in defining assumption of the risk.
The assumption of the risk doctrine, set forth in Section 496A of the Restatement Second of Torts, provides that “[a] plaintiff who voluntarily assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for such harm.” Restatement Second of Torts, § 496A. Comment c(1) to Section 496A provides that the express assumption of the risk “means that the plaintiff has given his express consent to relieve the defendant of an obligation to exercise care for his protection, and agrees to take his chances as to injury from a known or possible risk.” Id. at cmt. c(1). Notably, the Comment goes on to state that “[t]he result is that the defendant, who would otherwise be under a duty to exercise such care, is relieved of that responsibility, and is no longer under any duty to protect the plaintiff.”
Under Pennsylvania law, “when a plaintiff assumes the risk of an activity it elminates the defendants duty of care”. When the deceased signed the valid agreement and expressly assumed the risks inherent in the triathlon, the decedent extinguished the defendant triathlon’s duty of care.
If there is no duty to the deceased there cannot be any negligence. Existence of a duty and a breach of that duty is the first of four steps to prove negligence.
A negligent act is required to be successful under Pennsylvania’s wrongful-death statute.
Accordingly, once Decedent extinguished Triathlon’s duty of care by expressly assuming all risks in the inherently dangerous sporting event, his heir could not resurrect that duty of care after his death. To do so would afford a decedent’s heirs more rights than those possessed by a decedent while alive.
There were three dissents in the decision. The dissents argued the Pennsylvania wrongful death statute voided the waiver. Since the right of the plaintiff under the wrongful-death statute was a right of a survivor, and the decedent could not sign away a survivor’s rights, the release, waiver or assumption of the risk agreement was void.
So Now What?
You can breathe a little easier in Pennsylvania when using releases signed electronically. It is important to make sure you include assumption of the risk language in your release to make sure the possible plaintiff assumes those risks if the court throws out the release or finds another way to sue the document to defend you.
What do you think? Leave a comment.
Copyright 2019 Recreation Law (720) 334 8529
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
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Valentino v. Philadelphia Triathlon, LLC, 209 A.3d 941 (Pa. 2019)
Posted: January 23, 2020 Filed under: Assumption of the Risk, Pennsylvania, Release (pre-injury contract not to sue), Triathlon | Tags: assumption of the risk, assumption of the risk agreement, Express Assumption of the Risk, expressly assume, expressly assuming all risks, extinguished duty of care, Implied Assumption of the Risk, inherently dangerous sporting event, LLC., Philadelphia Triathlon, Schuylkill River, Summary judgment, Tort, Triathlon, Wrongful Death Act Leave a commentValentino v. Philadelphia Triathlon, LLC, 209 A.3d 941 (Pa. 2019)
Michele Valentino, as Administratrix of the Estate of Derek Valentino, Deceased, and Michele Valentino, in Her Own Right, Appellant
v.
Philadelphia Triathlon, LLC, Appellee
No. 17 EAP 2017
Supreme Court of Pennsylvania
June 18, 2019
Argued: May 15, 2018
Appeal from the Judgment of Superior Court entered on November 15, 2016 at No. 3049 EDA 2013 affirming the Order entered on September 30, 2013 in the Court of Common Pleas, Philadelphia County, Civil Division at No. 1417 April Term, 2012. Jacqueline F. Allen, Judge
Craig A. Falcone, Esq., Sacchetta & Falcone, for Appellant Michele Valentino, as Admin. of the Estate of Derek Valentino, etc.
Barbara Axelrod, Esq., The Beasley Firm, L.L.C., for Appellant Amicus Curiae Pennsylvania Association for Justice.
Heather M. Eichenbaum, Esq., Spector Gadon & Rosen, P.C., for Appellee Philadelphia Triathlon, LLC.
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
ORDER
PER CURIAM
AND NOW, this 18th day of June, 2019, the Court being evenly divided, the Order of the Superior Court is AFFIRMED.
Justice Wecht did not participate in the consideration or decision of this matter.
OPINION IN SUPPORT OF AFFIRMANCE
BAER, JUSTICE.
This Court granted allocatur to determine whether an express assumption of the risk agreement executed by triathlon participant Derek Valentino (“Decedent”) serves as a defense to a wrongful death claim commenced against the Philadelphia Triathlon, LLC (“Triathlon”) by Decedent’s heir (“Appellant”), who was not a signatory to the agreement.[1] The Superior Court held that Decedent’s express assumption of the risks inherent in participation in the sporting event eliminated Triathlon’s duty of care, thereby rendering Triathlon’s conduct non-tortious. Absent tortious activity, the Superior Court concluded that the wrongful death claim brought by Decedent’s heir could not succeed as a matter of law because the Wrongful Death Act premises recovery upon “the wrongful act or neglect or unlawful violence or negligence of another.” 42 Pa.C.S. § 8301. Accordingly, the Superior Court affirmed the trial court’s order granting summary judgment in favor of Triathlon. For the reasons set forth herein, we would affirm the judgment of the Superior Court and adopt its astute legal analysis.
Preliminarily and as explained in more detail infra, we respectfully note that the Opinions in Support of Reversal (both hereinafter collectively referred to as “OISR”) ignore the issue for which we granted allocatur and, instead, attempt to reverse the judgment of the Superior Court on grounds not encompassed by this appeal. Specifically, the OISR would sua sponte hold that express assumption of the risk agreements are void and unenforceable in violation of public policy in cases involving claims brought pursuant to the Wrongful Death Act, 42 Pa.C.S. § 8301. The OISR reaches this conclusion notwithstanding that no party to this appeal challenges the validity of the agreement on public policy grounds or otherwise. We decline to engage in this judicial overreaching and proceed to address the merits of the issue before us.
We begin with a brief recitation of the facts. In 2010, Triathlon organized a multi-sport-event, comprised of swimming in the Schuylkill River, cycling for more than fifteen miles, and running for more than three miles. To compete in the event, each participant was required to register, pay a fee, and execute electronically a liability waiver agreement that included an assumption of the risk provision (“Agreement”). On January 24, 2010, Decedent complied with these requisites by electronically registering as a participant in the triathlon and executing the Agreement.
The executed Agreement stated that Decedent understood “the physical and mental rigors associated with triathlon,” and “that running, bicycling, [and] swimming
… are inherently dangerous and represent an extreme test of a person’s physical and mental limits.” Appellee’s Motion for Summary Judgment Ex. G, dated Aug. 5, 2013. The Agreement further acknowledged Decedent’s understanding that “participation involves risks and dangers which include, without limitation, the potential for serious bodily injury, permanent disability, paralysis and death … and other undefined harm or damage which may not be readily foreseeable[.]” Id. The Agreement provided that Decedent was aware “that these Risks may be caused in whole or in part by [his] own actions or inactions, the actions or inactions of others participating in the Event, or the acts, inaction or negligence of [the Triathlon].” Id.
Germane to this appeal, the Agreement stated that Decedent “expressly assume[d] all such Risks and responsibility for any damages, liabilities, losses or expenses” resulting from his participation in the event. Id. (emphasis added). The Agreement also included a provision stating that Decedent further agreed that if he or anyone on his behalf “makes a claim of Liability against any of the Released Parties, [Decedent] will indemnify, defend and hold harmless each of the Released Parties from any such Liability which any [sic] may be incurred as the result of such claim.” Id. [2]
The triathlon took place on June 26, 2010. At approximately 8:30 a.m., Decedent entered the Schuylkill River to begin the first segment of the race. Tragically, Decedent never completed the swimming portion of the competition. Divers retrieved Decedent’s body from the river the next day after he presumably drowned while participating in the triathlon. On April 12, 2012, Decedent’s widow, Michele Valentino, both in her own right and as administratrix of her husband’s estate (referred to as “Appellant” herein), asserted wrongful death and survival claims against various defendants, including Triathlon. Only the wrongful death claim is at issue in this appeal. Appellant subsequently amended her complaint and the defendants filed preliminary objections. On July 27, 2012, the trial court sustained the defendants’ preliminary objections and struck all references in the complaint that referred to outrageous acts, gross negligence, recklessness, and punitive damages, holding that these averments were legally insufficient as the facts alleged demonstrated only ordinary negligence. The trial court further struck particular paragraphs of the amended complaint on grounds that they lacked specificity.
In December of 2012, following the various defendants’ filing of an answer and new matter, the defendants moved for summary judgment, asserting the Agreement as an affirmative defense. The trial court denied summary judgment, finding that questions of material fact remained regarding the existence of the Agreement. Appellant thereafter stipulated to the dismissal of all defendants except Triathlon. Once discovery was completed, Triathlon again moved for summary judgment. Concluding that the evidence at that point in the proceedings demonstrated that the Agreement was among Decedent’s possessions and was valid and enforceable, the trial court granted summary judgment in favor of Triathlon.
Prior to the trial court issuing its Pa.R.A.P. 1925(a) opinion explaining its rationale for granting summary judgment in favor of Triathlon, the Superior Court, in an unrelated matter, decided the case of Pisano v. Extendicare Homes, Inc., 77 A.3d 651 (Pa. Super. 2013), which held that a non-signatory wrongful death claimant was not bound by an arbitration agreement signed by a decedent.[3] Id. at 663. On April 14, 2012, shortly after Pisano was decided, the trial court issued its Pa.R.A.P. 1925(a) opinion in this matter and urged the Superior Court to vacate its order granting summary judgment in favor of Triathlon based on that decision.
Relying upon Pisano, Appellant argued to the Superior Court that Decedent’s Agreement with Triathlon does not apply to her as a non-signatory and, thus, has no preclusive effect upon her wrongful death claims asserted against Triathlon. In response, Triathlon contended that Decedent’s assumption of the risks inherent in participation in the event relieved its duty of care, thereby rendering Triathlon’s conduct non-tortious as a matter of law. The Triathlon maintained that, absent tortious activity, a wrongful death claim could not succeed because the Wrongful Death Act premises recovery upon “the wrongful act or neglect or unlawful violence or negligence of another.” 42 Pa.C.S. § 8301.
Initially, on December 30, 2015, a divided panel of the Superior Court reversed the trial court’s order in part, holding that under Pisano, Decedent’s Agreement was not applicable to Appellant because she was not a signatory to the contract. The Superior Court thereafter granted en banc argument and withdrew its panel decision.
On November 15, 2016, an en banc Superior Court affirmed the trial court’s order granting Triathlon summary judgment in a published decision. Valentino v. Phila. Triathlon, LLC, 150 A.3d 483 (Pa. Super. 2016). Preliminarily, the Superior Court acknowledged that because a wrongful death claim is not derivative of a decedent’s cause of action, “a decedent may not compromise or diminish a wrongful death claimant’s right of action without consent.” Id. at 493. Nevertheless, the Superior Court went on to hold that “a third-party wrongful death claimant is subject to substantive defenses supported by the decedent’s actions or agreements where offered to relieve the defendant, either wholly or partially, from liability by showing that the defendant’s actions were not tortious.” Id.
The Superior Court found that the available substantive defense here was Decedent’s contractual assumption of the risks inherent in participation in the triathlon.
The assumption of the risk doctrine, set forth in Section 496A of the Restatement Second of Torts, provides that “[a] plaintiff who voluntarily assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for such harm.” Restatement Second of Torts, § 496A. Comment c(1) to Section 496A provides that the express assumption of the risk “means that the plaintiff has given his express consent to relieve the defendant of an obligation to exercise care for his protection, and agrees to take his chances as to injury from a known or possible risk.” Id. at cmt. c(1). Notably, the Comment goes on to state that “[t]he result is that the defendant, who would otherwise be under a duty to exercise such care, is relieved of that responsibility, and is no longer under any duty to protect the plaintiff.” Id.
Pennsylvania case law illustrates that one’s assumption of the risks inherent in a particular activity eliminates the defendant’s duty of care. SeeHughes v. Seven Springs Farm Inc., 563 Pa. 501, 762 A.2d 339, 343 (2000) (explaining that under Section 496A of the Restatement Second of Torts, where the plaintiff assumes the risk of harm, the defendant is under no duty to protect the plaintiff from such risks); Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120, 125 (1983) (explaining that one’s assumption of the risk of injury is simply another way of expressing the lack of duty on the part of the defendant to protect against such risks); Thompson v. Ginkel, 95 A.3d 900, 906 (Pa. Super. 2014) (citation omitted) (acknowledging that the assumption of the risk doctrine is a function of the duty analysis required in all negligence actions).
Relying on this substantive tort law, the Superior Court in the instant case held that by knowingly and voluntarily executing a valid agreement expressly assuming the risks inherent in participating in the sporting event, Decedent extinguished Triathlon’s duty of care, thereby rendering its conduct not tortious. Valentino, 150 A.3d at 493.[4] As noted, the intermediate appellate court concluded that absent tortious conduct, Appellant’s wrongful death claim could not survive as a matter of law; thus, the trial court did not err in granting summary judgment in favor of Triathlon. Id.
The Superior Court in the instant case readily distinguished Pisano on the ground that it did not involve an agreement to assume all risks inherent in a particular activity, which would serve to eliminate the duty element of the wrongful death action against the alleged tortfeasor. Acknowledging Pisano’s principle that a third party’s right of action in a wrongful death claim is an independent statutory claim of a decedent’s heirs and is not derivative of a decedent’s right of action, the Superior Court emphasized that “a wrongful death claim still requires a tortious injury to succeed.” Valentino, 150 A.3d at 493. The Superior Court cogently explained that Pisano does not undermine the fundamental principle that a statutory claimant in a wrongful death action has the burden of proving that the defendant’s tortious conduct caused the decedent’s death. It opined that this cannot occur where the
decedent assumed all risks inherent in participating in the activity and thereby abrogated any duty the putative tortfeasor may have had. Id.
Similarly, the Superior Court distinguished this Court’s decision in Buttermore v. Aliquippa Hospital, 522 Pa. 325, 561 A.2d 733 (1989), upon which Appellant had relied. Valentino, 150 A.3d at 495. In that case, James Buttermore was injured in an automobile accident and signed a release in settlement of his claim against the tortfeasors for the sum of $25,000, agreeing to release all persons from liability. Buttermore, 561 A.2d at 734. The issue on appeal to this Court was whether Buttermore’s wife, who was not a signatory to the settlement agreement, had an independent right to sue the tortfeasors for loss of consortium. Id. at 735. Acknowledging that the release applied to all tortfeasors, including the defendants, this Court held that one could not bargain away the rights of others who were not a party to the contract. Id. Because Buttermore’s wife was not a party to her husband’s settlement agreement and because she sought to sue in her own right for loss of consortium, we held that she had an independent cause of action, unaffected by her husband’s settlement agreement. Id. at 736.
The Superior Court below distinguished Buttermore, finding that unlike the express assumption of the risk agreement here, the settlement agreement in Buttermore did not extinguish a requisite element of the wife’s loss of consortium claim. Valentino, 150 A.3d at 496. Stated differently, unlike the express assumption of the risk agreement in the instant case, nothing in the settlement agreement in Buttermore precluded the finding that the defendants acted tortiously.
We agree with the Superior Court’s application of well-settled tort law and its conclusion that the assumption of the risk agreement entered into between Decedent and the Triathlon operates much differently than the settlement agreement in Buttermore and the arbitration agreement in Pisano, as the latter agreements do not preclude a finding that the defendant acted tortiously. We further agree with the intermediate appellate court that a decedent’s valid assumption of the risk agreement does not negate his heir’s right to commence a wrongful death lawsuit, but it “can support a defense asserting that the alleged tortfeasor owed no duty to the decedent.” Valentino, 150 A.3d at 494.
Accordingly, once Decedent extinguished Triathlon’s duty of care by expressly assuming all risks in the inherently dangerous sporting event, his heir could not resurrect that duty of care after his death. To do so would afford a decedent’s heirs more rights than those possessed by a decedent while alive. Such a result not only defies logic, but also the statutory requisites for a wrongful death claim. As there is no genuine issue of material fact and it is clear that Triathlon is entitled to judgment as a matter of law, we would affirm the judgment of the Superior Court, which affirmed the trial court order granting summary judgment in Triathlon’s favor. See Pa.R.C.P. 1035.2 (providing that summary judgment is appropriate only when there is no genuine issue as to any material fact or when a party which will bear the burden of proof has failed to present evidence sufficient to present the issue to the jury).
As noted, regarding the OISR’s sua sponte public policy declaration, our primary objection is that the issue of whether the express assumption of the risk agreement violates public policy is not properly before the Court; thus, the grant of relief on this claim cannot serve as a means to disturb the judgment of the Superior Court.
SeeSteiner v. Markel, 600 Pa. 515, 968 A.2d 1253, 1256 (2009) (holding that an appellate court may not reverse a judgment on a basis that was not properly raised and preserved by the parties).
Additionally, we observe that the OISR declares the express assumption of the risk agreement violative of the public policy set forth in the Wrongful Death Act, i.e., to compensate family members of victims of tortious conduct, without any explanation as to how tortious conduct can exist in the absence of a duty of care. Further, the OISR seeks to invalidate not all express assumption of the risk contracts, but only those relating to wrongful death claims, based upon the public policy set forth in the Wrongful Death Act. Accordingly, under the OISR’s reasoning, express assumption of the risk agreements would generally be valid to preclude a participant’s ordinary negligence claims against the purveyor of an inherently dangerous sport or activity, but would be invalid where a participant’s injuries were fatal and his heirs sought recovery for wrongful death. Thus, a participant who suffered grievous non-fatal injury would have no redress, but his family would have redress if the participant succumbed to his injuries.
This result is untenable as there is no evidence to suggest that it is the public policy of the Commonwealth of Pennsylvania to elevate the rights of victims’ heirs over those of the victims themselves or to immunize wrongful death claims from ordinary and readily available defenses. In fact, not only did the General Assembly premise recovery in wrongful death on the precise tortious conduct that caused the decedent’s fatal injuries, but directed expressly that a wrongful death action “may be brought, under procedures prescribed by general rules.” 42 Pa.C.S. § 8301(a). There is simply no provision in the Wrongful Death Act that renders an heir’s entitlement to relief absolute. Had the Legislature intended that mandate, it would have so directed.
Moreover, it is not the role of this Court to create the public policy of this Commonwealth. Instead, “public policy is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interest.” Burstein v. Prudential Prop. & Cas. Ins. Co., 570 Pa. 177, 809 A.2d 204, 207 (2002) (quoting Eichelman v. Nationwide Ins. Co., 551 Pa. 558, 711 A.2d 1006, 1008 (1998)). We have held that “only dominant public policy” justifies the invalidation of a contract and in the “absence of a plain indication of that policy through long governmental practice or statutory enactments, or violations of obvious ethical or moral standards, the Court should not assume to declare contracts contrary to public policy.” Burstein, 809 A.2d at 207. Significantly, we have acknowledged that in such circumstances, “courts must be content to await legislative action.” Id.
The OISR fails to heed this warning. By declaring the public policy of this Commonwealth, untethered to legislative fiat and in a case where the issue is not before us, the OISR comes dangerously close to displacing the legislative process with judicial will. Accordingly, we would affirm the judgment of the Superior Court, which affirmed the order granting summary judgment in favor of the Triathlon. While the facts of this case are most tragic, this Court may not afford relief where the law does not so provide.
Chief Justice Saylor and Justice Todd join this opinion in support of affirmance.
OPINION IN SUPPORT OF REVERSAL
DOUGHERTY, JUSTICE.
The question before the Court is whether the Superior Court erred when it determined
a pre-injury exculpatory waiver signed by a triathlon participant provides a complete defense to claims brought by the participant’s non-signatory heirs pursuant to the Wrongful Death Act, 42 Pa.C.S. § 8301. We would find the waiver is unenforceable against the heirs and does not preclude their wrongful death action. We would therefore reverse the Superior Court’s decision and remand to the trial court for further proceedings.
In 2010, appellee Philadelphia Triathlon, LLC, organized the Philadelphia Insurance Triathlon Sprint (the Triathlon). The Triathlon consisted of three events: (1) a 0.5 mile swim; (2) a 15.7 mile bicycle race; and (3) a 3.1 mile run. The swim portion of the Triathlon took place in the Schuylkill River in Philadelphia, Pennsylvania. As a participant in the Triathlon, Decedent, Derek Valentino, registered as a participant for the Triathlon and executed a Waiver and Release of Liability (the Waiver) by affixing his electronic signature to an online registration form.
On race day, at approximately 8:30 a.m., Decedent entered the Schuylkill River for the swim portion of the Triathlon, but he did not complete the swim and, on the following day, his body was recovered from the Schuylkill River. There is no dispute Decedent drowned in the river while participating in the Triathlon. SeeValentino v. Phila. Ins. Co., No. 120401417, 2014 WL 4796614, at *1 (Pa. Com. Pl. Aug. 26, 2014).
Appellant Michele Valentino filed a lawsuit in her individual capacity and as Administratrix of the Estate of Derek Valentino, against several defendants, including appellee, asserting survival claims on Decedent’s behalf and wrongful death claims on her own behalf and that of her children.[1] See Amended Complaint at ¶¶ 26-28, 34-36, citing 42 Pa.C.S. § 8302 (Survival Act provides “[a]ll causes of action or proceedings, real or personal, shall survive the death of the plaintiff or of the defendant …”); Amended Complaint at ¶¶29-33, 37-41, citing 42 Pa.C.S. § 8301(a), (b) (Wrongful Death Act provides spouse, children or parents of decedent can bring action “to recover damages for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another”).[2] In response to preliminary objections, the trial court entered orders striking from the complaint all references to outrageous acts, gross negligence and recklessness. The trial court also struck appellant’s claim for punitive damages. Remaining in the case were several allegations of ordinary negligence, specifically, that appellee failed to: make a
reasonable inspection of the premises and event course; remove or take measures to prevent dangerous conditions; follow rules, regulations, policies and procedures governing safety standards; properly train the Triathlon’s agents, servants and employees with respect to safety rules, regulations, policies and procedures; properly supervise the Triathlon’s employees to ensure the Triathlon was conducted in a reasonable and safe manner; properly construct or design a safe event route to avoid dangerous conditions; regulate or control the number of individuals participating in each phase of the race simultaneously; have proper rules, regulations, policies and procedures for the timely recognition and response of event participants in distress and need of rescue; and have adequate safety personnel on hand for each aspect of the event. Seeid. at ¶ 22(b), (d) & (f) – (l).
Thereafter, appellee filed an answer with new matter, claiming Decedent was sufficiently negligent himself to completely bar appellant’s recovery, or alternatively, to reduce appellant’s recovery in accordance with the amount of comparative negligence attributed to Decedent. See Answer with New Matter at ¶43, citing Comparative Negligence Act, 42 Pa.C.S. § 7102. In addition, appellee asserted the complete defense of assumption of risk, claiming it owed no duty to Decedent or his survivors based on Decedent’s execution of the Waiver. Id. at ¶¶44, 46.
a. Summary Judgment
On September 30, 2013, the trial court granted appellee’s motion for summary judgment and dismissed all of appellant’s remaining claims with prejudice. On appellant’s motion for reconsideration, the court opined summary judgment on the survival action was proper based on the Waiver. Valentino, 2014 WL 4796614, at *2. The court reversed itself regarding appellant’s wrongful death action, and opined that claim should be remanded for further proceedings based on the Superior Court’s decision in Pisano v. Extendicare Homes, Inc., 77 A.3d 651, 663 (Pa. Super. 2013), appeal denied, 624 Pa. 683, 86 A.3d 233 (Pa. 2014) (resident-decedent’s contractual agreement with nursing home to arbitrate all claims was not binding on non-signatory wrongful death claimants). Id. at *3. In recommending the wrongful death action be remanded, the trial court observed “a decedent can contract away his own right to recover in court under a survival action, [but] he cannot similarly alienate the rights of third parties to recover in their own wrongful death actions.” Id.
b. Superior Court
A divided en banc panel of the Superior Court subsequently affirmed summary judgment on all claims. Valentino v. Phila. Triathlon, LLC, 150 A.3d 483 (Pa. Super. 2016).[3] The majority reasoned that, for a decedent’s heirs to recover damages in a wrongful death action, there must be an underlying tortious act by the defendant. See id. at 492-93, quotingKaczorowski v. Kalkosinski, 321 Pa. 438, 184 A. 663, 664 (1936) (“… a right to recover must exist in the party injured when he died in order to entitle[ ] those named in the act to sue…. [W]here the deceased would have been barred by contributory negligence, or by the statute of limitations, the parties suing for his death are likewise barred.”) (internal citations omitted). The majority further held its own decision in Pisano, which allowed non-signatory wrongful death claimants to file a court action despite their decedent’s execution of an arbitration
agreement, is limited to the facts of that case. Id. at 493. The majority opined an heir’s right to recover for her decedent’s wrongful death is dependent upon the existence of a tortious act that caused the death, stating “while a third party’s wrongful death claim is not derivative of the decedent’s right of action, a wrongful death claim still requires a tortious injury to succeed.” Id. Underpinning the en banc majority’s analysis was its position that arbitration and settlement agreements “bind[ ] only the parties to the agreement while the [liability waiver] extends to non-signatory third-parties.” Id. at 497 n.9. The en banc majority considered the Waiver to be an express assumption of all risks which eliminated any legal duty otherwise owed to anyone by appellee, creating a complete bar to tort liability.[4] Id.
Appellant filed a petition for allowance of appeal and this Court granted review of two questions:
Whether the Superior Court erred when it determined that a waiver of liability form, executed solely by the decedent, and stating the signer assumes all risks of participation in a triathlon, also binds his heirs, thereby precluding them from bringing a wrongful death action?
Whether the defense of assumption of risk should be abolished except in those situations where it is specifically permitted by the Comparative Negligence Act?[5]
Valentino v. Phila. Triathlon, LLC, 641 Pa. 515, 168 A.3d 1283 (2017) (per curiam ).
Our standard and scope of review on appeal from summary judgment are well-established. “[A]n appellate court may reverse the entry of summary judgment only where it finds that the trial court erred in concluding that the matter presented no genuine issue as to any material fact and that it is clear that the moving party was entitled to judgment as a matter of law.” Phillips v. Cricket Lighters, 576 Pa. 644, 841 A.2d 1000, 1004 (2003), citingPappas v. Asbel, 564 Pa. 407, 768 A.2d 1089 (2001). In determining whether the lower court erred in granting summary judgment, the standard of review is de novo and the scope of review is plenary. Liss & Marion, P.C. v. Recordex Acquisition Corp., 603 Pa. 198, 983 A.2d 652, 657 (2009), citingLJL Transp., Inc. v. Pilot Air Freight Corp., 599 Pa. 546, 962 A.2d 639, 647 (2009). We consider the parties’ arguments with these standards in mind.
II.
Appellant argues the Superior Court erred in determining the Waiver, which
was executed solely by Decedent, barred his heirs’ wrongful death action. Appellant first notes wrongful death actions are statutorily authorized in Pennsylvania:
(a) General rule.–An action may be brought, under procedures prescribed by general rules, to recover damages for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another if no recovery for the same damages claimed in the wrongful death action was obtained by the injured individual during his lifetime and any prior actions for the same injuries are consolidated with the wrongful death claim so as to avoid a duplicate recovery.
42 Pa.C.S. § 8301(a). Relying on Pennsylvania jurisprudence, appellant argues a wrongful death action is derivative of the victim’s fatal injuries, but is nevertheless meant to compensate a decedent’s survivors “for the pecuniary loss they have sustained by the denial of future contributions decedent would have made in his or her lifetime.” Appellant’s Brief at 13-15, quotingFrey v. Pa. Elec. Comp., 414 Pa.Super. 535, 607 A.2d 796, 798 (1992), and citingTulewicz v. Se. Pa. Transp. Auth., 529 Pa. 588, 606 A.2d 427, 431 (1992), Kaczorowski, 184 A. at 664 (wrongful death claim is “derivative” because “it has as its basis the same tortious act which would have supported the injured party’s own cause of action”).
Appellant relies on Buttermore v. Aliquippa Hospital, 522 Pa. 325, 561 A.2d 733 (1989), where the tort-victim husband executed a general release and settlement agreement after a car accident which purported to waive recovery by “any and all other persons associations and/or corporations[.]” Appellant’s Brief at 15-16, quotingButtermore, 561 A.2d at 734. Plaintiff’s wife did not sign the release agreement. The Buttermores filed a suit against medical professionals who treated him after the accident, including a claim brought by wife for loss of consortium. Seeid. at 16. On appeal from summary judgment, this Court ruled husband’s claim was barred by the release he executed, but wife’s claim was not because she herself had not signed it. Id., citingButtermore, 561 A.2d at 736. Appellant argues the lower courts’ ruling the Waiver in this case, which only Decedent signed, bars his heirs’ wrongful death claims is in direct contravention of Buttermore . Id. at 17-18, citingButtermore, 561 A.2d at 735.
In response, appellee contends summary judgment was properly entered and dismissal of appellant’s wrongful death claims should be affirmed. Appellee argues a wrongful death action is derivative of, and dependent upon, a tortious act that results in decedent’s death. Appellee’s Brief at 13, citingCentofanti v. Pa. R. Co., 244 Pa. 255, 90 A. 558, 561 (1914) (additional citations omitted). Appellee insists the Superior Court correctly determined Decedent’s execution of the Waiver meant appellee’s conduct was rendered non-tortious in all respects because appellee no longer owed Decedent any duty of care. Id. at 16-17, citingMontagazzi v. Crisci, 994 A.2d 626, 635 (Pa. Super. 2010) (plaintiff knowingly and voluntarily encountering an obvious and dangerous risk relieves those “who may have otherwise had a duty”); Staub v. Toy Factory, Inc., 749 A.2d 522, 526 (Pa. Super. 2000) (en banc ) (“Our [S]upreme [C]ourt appears to have concluded that in a negligence action, the question whether a litigant has assumed the risk is a question of law as part of the court’s duty analysis ….”) (additional citations omitted). Appellee also argues Pisano is not applicable here. Appellee contends Pisano determined only the narrow issue of whether a wrongful death plaintiff is bound by an arbitration agreement which she did not sign, and is not relevant to questions regarding
the exculpatory Waiver signed by Decedent. Seeid. at 24.
III.
The Wrongful Death Act (the Act), provides an independent statutory cause of action that belongs to specific claimants, i.e. the surviving spouse, children or parents of the deceased. 42 Pa.C.S. § 8301 (Act provides spouse, children or parents of decedent can bring action “to recover damages for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another”). SeeKaczorowski, 184 A. at 665 (“By the statute there is given an explicit and independent right of action to recover the damages peculiarly suffered by the parties named therein.”). This statutory claim for wrongful death “is derivative because it has as its basis the same tortious act which would have supported the injured party’s own cause of action. Its derivation, however, is from the tortious act and not from the person of the deceased, so that it comes to the parties named in the statute free from personal disabilities arising from the relationship of the injured party and tort-feasor.” Id. at 664 (internal citations omitted). Accordingly, Pennsylvania courts recognize that while wrongful death actions seek damages for losses to heirs arising from their relative’s wrongful death, the claims are not derivative of — or limited by — the decedent’s own rights. SeePisano, 77 A.3d at 660.
It is clear the General Assembly intended the Act to compensate the decedent’s surviving heirs, not the decedent himself, whose own losses are encompassed in a survival action. Compare 42 Pa.C.S. § 8301(wrongful death) with 42 Pa.C.S. § 8302 (survival); see alsoAmato v. Bell & Gossett, 116 A.3d 607, 625 (Pa. Super. 2015), quotingHatwood v. Hosp. of the Univ. of Pa., 55 A.3d 1229, 1235 (Pa. Super. 2012) (“The purpose of the Wrongful Death Statute … is to compensate the decedent’s survivors for the pecuniary losses they have sustained as a result of the decedent’s death…. A wrongful death action does not compensate the decedent; it compensates the survivors for damages which they have sustained as a result of the decedent’s death.”) (additional citations omitted). The Act is thus designed to assure a decedent’s heirs may seek compensation “for the loss of pecuniary benefits which [they] would have received from the deceased had death not intervened.” Kaczorowski, 184 A. at 665. Also, the Act is a remedial statute, and as such it must be liberally interpreted to effect its purpose and promote justice. 1 Pa.C.S. § 1928(c); Amadio v. Levin, 509 Pa. 199, 501 A.2d 1085, 1087 (1985) (wrongful death statute is “remedial in nature and purpose, and as such should be liberally construed to accomplish the objective of the act”); see alsoO’Rourke v. Commonwealth, 566 Pa. 161, 778 A.2d 1194, 1203 (2001) (noting remedial statutes are to be liberally construed to effect objectives).
With these principles and the legislative purpose of the Act in mind, we must determine whether the Waiver provides a complete defense to a wrongful death claim brought by non-signatory heirs. A liability waiver is, at its core, a contract, and must be construed and interpreted in the same manner as other contracts — such as arbitration clauses or settlement agreements and releases — when determining whether it is effective against a non-signatory third party. The Waiver purports to be an exculpatory contract, and such contracts are generally disfavored by the law. SeeEmployers Liability Assur. Corp. v. Greenville Business Men’s Ass’n., 423 Pa. 288, 224 A.2d 620, 623 (1966) (“contracts providing for immunity from liability for negligence must be construed strictly since
they are not favorites of the law”); see alsoSoxman v. Goodge, 372 Pa.Super. 343, 539 A.2d 826, 828 (1988) (“the law … recognized that lying behind [exculpatory] contracts is a residuum of public policy which is antagonistic to carte blanche exculpation from liability and thus developed the rule that these provisions would be strictly construed with every intendment against the party seeking their protection”), quotingPhillips Home Furnishings Inc. v. Continental Bank, 231 Pa.Super. 174, 331 A.2d 840, 843 (1974). Accordingly, a pre-injury exculpatory agreement is valid only when “it does not contravene public policy, is between parties relating entirely to their private affairs, and where each party is a free bargaining agent so that the contract is not one of adhesion.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1177 (2010), citingTopp Copy Prods., Inc. v. Singletary, 533 Pa. 468, 626 A.2d 98, 99 (1993). This Court has consistently recognized the exculpatory contract is an agreement that is “intended to diminish legal rights which normally accrue as a result of a given legal relationship or transaction … [which must be] construed strictly against the party seeking [its] protection.” Dilks v. Flohr Chevrolet, Inc., 411 Pa. 425, 192 A.2d 682, 687 (1963), quotingMorton v. Ambridge Borough, 375 Pa. 630, 101 A.2d 661, 663 (1954).
Thus, in determining whether the Waiver provides a defense to appellant’s wrongful death action, we must liberally apply the remedial Act while we simultaneously construe the Waiver strictly against appellee as the party seeking protection from the contract. We would hold the Superior Court did the opposite in its decision below: the court erroneously gave the Waiver the broadest application possible while disregarding the remedial nature of the Act and the public policy considerations underpinning it.[6]
First, we note the Waiver is a contract between Decedent and appellee involving their own private affairs. Chepkevich, 2 A.3d at 1177. The Waiver includes broad language barring Triathlon participants from filing suit to recover damages for injuries or death “which may arise out of, result from, or relate to my participation in the [Triathlon], including claims for Liability caused in whole or in part by the negligence of” appellees. See Waiver attached as Exhibit A to appellee’s Answer and New Matter. However, the Waiver is plainly not an agreement between Triathlon participants’ wrongful death heirs and appellee. We emphasize a wrongful death action belongs solely to a decedent’s heirs, is intended to compensate them, and does not accrue to the decedent. SeeHatwood, 55 A.3d at 1235, quotingMachado v. Kunkel, 804 A.2d 1238, 1246 (Pa. Super. 2002) (“Under the wrongful death act the widow or family is entitled, in addition to costs, to compensation for the loss of the contributions decedent would have made …”). Thus, while a pre-injury exculpatory
waiver might indeed be effective to bar a survival claim by a decedent’s estate, it is quite another thing to conclude the decedent’s agreement acts as a complete defense to statutory claims that are specifically available to his non-signatory heirs. Appellee argues the Waiver provides a complete defense to appellant’s wrongful death claim, but in our considered view, allowing the Waiver to have this effect would require us to ignore the purpose of the Act and the public policy concerns it was specifically enacted to protect.[7]
Our conclusion is consistent with prior Pennsylvania case law arising from wrongful death actions. As this Court has stated, such lawsuits are meant to compensate the statutory beneficiaries, i.e. the spouse, children or parents of the decedent for the pecuniary losses they sustained as a result of their relative’s death. SeeTulewicz, 606 A.2d at 431. Accordingly, our courts have recognized the distinct nature of these claims and have declined to enforce a decedent’s own agreements and obligations against his heirs. SeeButtermore, 561 A.2d at 736 (release signed by husband barred his own action against hospital but not the independent action of wife, who did not sign release); Pisano, 77 A.3d at 660, citingKaczorowski, 184 A. at 664 (wrongful death claim is derived from injury to decedent but it is independent and distinct cause of action; decedent’s agreement to arbitrate not binding on non-signatory heirs); see alsoRickard v. Am. Nat’l Prop. & Cas. Co., 173 A.3d 299 (Pa. Super. 2017) (decedent’s agreement to accept insurance benefits in exchange for allowing subrogation by insurer not binding on non-signatory heirs who recovered damages in subsequent wrongful death action against tortfeasor). The Waiver in this regard is analogous to the settlement and release agreement at issue in Buttermore, or the arbitration agreement in Pisano .
We observe that the undisputed purpose of the Act is “to provide a cause of action against one whose tortious conduct caused the death of another.” Amadio, 501 A.2d at 1087. And, as we have stated, exculpatory contracts must be read narrowly. SeeDilks, 192 A.2d at 687; see alsoTayar v. Camelback Ski Corp. Inc., 616 Pa. 385, 47 A.3d 1190, 1196 (2012) (for exculpatory clause to be enforceable “contract language must be construed strictly”), quotingTopp Copy, 626 A.2d at 99. Allowing the Waiver to have a broad exculpatory effect with respect to non-signatory wrongful death claimants would essentially make the right the General Assembly created for certain heirs through the Act an illusory one. Abrogation of an express statutory right to recovery in this way violates public policy, and a pre-injury exculpatory waiver that contravenes public policy is invalid and unenforceable. Chepkevich, 2 A.3d at 1177. Cf.Tayar, 47 A.3d at 1203 (curtailing purported effect of waiver on public policy grounds). Moreover, our recognition of relevant public policy concerns in this regard does not constitute “creation” of public policy. See OISA at 947. Our law is clear that determination of whether contract terms may be avoided on public policy grounds “requires a showing of overriding public policy from legal precedents [or] governmental practice ….” Tayar, 47 A.3d at 1199. The public policy
we recognize here is well-established in both judicial precedents and statutory enactment. This Court has declined to enforce exculpatory contracts “[w]here the legislature has, by definite and unequivocal language, determined the public policy of this Commonwealth with regard to a particular subject, [because] that pronouncement cannot be set aside and rendered unenforceable by a contract between individuals.” Boyd v. Smith, 372 Pa. 306, 94 A.2d 44, 46 (1953) (exculpatory waiver of liability unenforceable on public policy grounds due to conflict with statute). Precluding the use of the Waiver as a carte blanche automatic defense to wrongful death actions comports with the remedial purpose and protection expressed in the Act. A contrary holding elevates a private contract above public policy embodied in a statutory enactment, and overrides our jurisprudence directing a narrow and strict construction of exculpatory waivers.
Accordingly, we would hold the Waiver is void and unenforceable with respect to appellant’s wrongful death claims and, as such, the Waiver should not be available to appellee as a defense in the underlying wrongful death litigation.[8] We would hold the Superior Court erred in affirming summary judgment in favor of appellee on that basis, and reverse and remand to the trial court for further proceedings on appellant’s wrongful death claim.
Justice Donohue and Justice Mundy join this opinion in support of reversal.
OPINION IN SUPPORT OF REVERSAL
DONOHUE, JUSTICE.
I join Justice Dougherty’s Opinion in Support of Reversal (“OISR”) in full. I too disagree with the Superior Court’s conclusion that the Decedent’s exculpatory agreement may serve as a complete defense to the wrongful death heir’s claim against the Triathlon. I write separately to express my view that, in light of the derivative nature of wrongful death actions, the Superior Court was technically correct in its analysis of the mechanical operation of the liability waiver in reaching its conclusion. However, when the mechanical operation of the law works to defeat the purpose of a remedial statute like the Wrongful Death Act, by way of the broad enforcement of a legally disfavored exculpatory agreement, the mechanical operation must yield.
As Justice Dougherty explains, this Court has repeatedly affirmed a requirement that exculpatory agreements must be narrowly and strictly construed because exculpatory language, which purports to relieve a person of liability even when he has negligently caused injury to another, is not favored in the law. OISR (Dougherty, J.) at 952-53, 954-55 (citing Employers Liability Assur. Corp. v. Greenville Business Men’s Ass’n., 423 Pa. 288, 224 A.2d 620, 623 (1966); Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1189 (2010); Topp Copy Prods. Inc. v. Singletary, 533 Pa. 468, 626 A.2d 98 (1993);
Dilks v. Flohr Chevrolet, Inc., 411 Pa. 425, 192 A.2d 682, 687 (1963)). Here, Appellant does not challenge the validity or the enforceability of the contractual assumption of risk in the survival action she brought (as administratrix) on behalf of Decedent’s estate. Therefore, for purposes of this appeal, the liability waiver is valid and enforceable as a complete defense to the survival action. As between the Triathlon and Decedent, there is a knowing and voluntary agreement to extinguish Decedent’s ability to recover for claims of ordinary negligence.
I believe that we must, however, decline to allow the liability waiver to defeat a wrongful death action brought by heirs who never agreed, expressly or otherwise, to eliminate their statutory right to recover for their pecuniary loss resulting from the death of their loved one that, as alleged, was tortious but for the liability waiver. Allowing the liability waiver to defeat the wrongful death action, as the Superior Court did, gives the waiver the broadest possible reading, contrary to our mandate to narrowly construe such provisions. The tenet of strict construction requires that we limit this liability waiver to its narrowest effect: a bar to recovery under the survival action.
Moreover, as noted by Justice Dougherty, for an exculpatory waiver to be valid, it must meet three conditions: it must not contravene public policy, the contract must be between persons relating entirely to their own private affairs, and each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion. OISR (Dougherty, J.) at 952-53 (citing Chepkevich, 2 A.3d at 1177). As to these first two prongs, this Court’s decision in Boyd v. Smith, 372 Pa. 306, 94 A.2d 44 (1953), is instructive. In Boyd, an agreement between a property owner and a tenant relieved the property owner from liability for any injury occasioned by the property owner’s negligence in the maintenance of the leased building. Boyd, 94 A.2d at 45. However, pursuant to statute, “no building … shall be used for human habitation unless it is equipped with a fire escape or fire escapes as required by law.” Id. (quoting 53 P.S. § 3962). The property in question was not equipped with fire escapes. The building caught fire and, unable to escape the building by fire escape, the tenant sustained serious injuries and sued. The property owner attempted to rely on the exculpatory agreement in the lease to avoid liability.
We declined to find the waiver enforceable, explaining:
Such a protective clause is undoubtedly valid and enforceable if it does not contravene any policy of the law, that is, if it is not a matter of interest to the public or the state but merely an agreement between persons relating entirely to their private affairs. The situation becomes an entirely different one in the eye of the law when the legislation in question is, as here, a police measure obviously intended for the protection of human life; in such event public policy does not permit an individual to waive the protection which the statute is designed to afford him.
Id. at 46. We further held, “where the legislature has, by definite and unequivocal language, determined the public policy of this Commonwealth with regard to a particular subject, that pronouncement cannot be set aside and rendered unenforceable by a contract between individuals.” Id.
We are tasked here with determining the legal effect of a liability waiver upon a third party, not the signatory – a far more extreme reach of the waiver of liability than in Boyd . However, as in Boyd, the fullest enforcement of the liability waiver would contravene an unequivocal policy determination by the General Assembly,
namely that wrongful death heirs are entitled to recover pecuniary losses from the party responsible for their provider’s death. See OISR (Dougherty, J.) at 952-53, 954.
The Wrongful Death Act, which is remedial in nature and must be construed liberally, assures that surviving heirs do not need to go without financial support nor look to public welfare agencies to shoulder the economic burden of the loss of a provider. SeeKaczorowski, 184 A. at 665; see alsoGershon v. Regency Diving Center, 368 N.J.Super. 237, 845 A.2d 720, 728 (2004) (observing that, “in many wrongful death cases the decedent was the ‘breadwinner’ and the heirs are children, incompetents or those otherwise economically dependent on the decedent”). Notably, in the case at bar, Decedent was a forty-year-old husband and father of two who worked full-time for United Parcel Service and part-time as a licensed realtor. See Appellant’s Response to Triathlon’s Motion for Summary Judgment at 2.
Allowing the Triathlon to use Decedent’s waiver of liability to defeat a wrongful death claim would require us to ignore clear public policy embedded in the wrongful death statute and our laws governing decedents more generally. Analogously, the General Assembly has for centuries prohibited spousal disinheritance by will in order to ensure the surviving spouse’s financial security after the decedent’s death. SeeIn re Houston’s Estate, 371 Pa. 396, 89 A.2d 525, 526 (1952); see also 20 Pa.C.S. § 2203 (authorizing a surviving spouse to take against the will an elective share of one-third of the deceased’s property, subject to certain exceptions, thereby ensuring the surviving spouse’s right to some inheritance). Thus, a married individual cannot eliminate his spouse’s statutory entitlement, even through an attempted disinheritance in a last will and testament. In my view, it is impossible to reconcile allowing a sporting event participant to eradicate a statutory claim for wrongful death damages when he could not accomplish a disinheritance by virtue of a will. For this reason, and because liability waivers are disfavored, I join Justice Dougherty in narrowly construing the liability waiver so that it is enforceable only in the survival action brought on behalf of Decedent’s estate, where it was not challenged. Cf.Tayar, 47 A.3d at 1203 (curtailing purported effect of waiver on public policy grounds). So construed, it has no effect on the wrongful death action. Like Justice Dougherty, I would decline to give any effect to the Decedent’s contractual waiver of the Triathlon’s duty of care in the wrongful death action because doing so would implicate public, not merely private, affairs and would contravene the policy set forth by our legislature in the Wrongful Death Act which we must liberally construe. OISR (Dougherty, J.) at 954-55; see alsoChepkevich, 2 A.3d at 1189; Boyd, 94 A.2d at 46.
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Notes:
[1] We also granted allowance of appeal to determine whether to abolish the assumption of the risk doctrine under circumstances where the Comparative Negligence Act does not expressly permit its application. Appellant, however, waived this issue by not challenging the overall viability of the assumption of the risk doctrine in the lower tribunals. See Pa.R.A.P. 302(a) (providing that “[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal”).
[2] In block capital lettering above the signature line, the Agreement stated that Decedent’s acceptance of the Agreement confirmed that he read and understood its terms, that he understood that he would surrender substantial rights, including the right to sue, and that Decedent signed the agreement freely and voluntarily. Id. This final paragraph went on to state that acceptance of the Agreement constituted “a complete and unconditional release of all liability to the greatest extent allowed by law.” Id.
[3] In Pisano, the decedent had executed an agreement at the time of his admission to a long-term care nursing facility (“Extendicare”), providing that any dispute arising from the agreement would be resolved by binding arbitration. Id. at 653. The decedent’s son subsequently commenced a wrongful death action against Extendicare in the trial court. Extendicare filed preliminary objections, seeking to have the case dismissed for lack of subject matter jurisdiction. The trial court overruled Extendicare’s preliminary objections, holding that a wrongful death action is a creature of statute and is independent of the right of action of the decedent’s estate. Id. at 654. Thus, the trial court concluded, the decedent’s agreement to arbitrate disputes did not preclude the wrongful death claim brought by the decedent’s son. Id.
The Superior Court affirmed. The court reasoned that pursuant to 42 Pa.C.S. § 8301, a wrongful death action is not derivative of the decedent’s claim, but is a separate and distinct right of action belonging to statutory claimants to compensate them for damages they sustained as a result of the decedent’s death. Id. at 656-8. The Pisano court concluded that the arbitration agreement was not binding on the decedent’s son because he was not a party to that agreement; thus, the trial court was correct in refusing to compel arbitration.
[4] Notably, the Superior Court presumed the validity of the Agreement as Appellant presented no claim to the contrary. See id. at 492 n.6 (explaining that Appellant “does not challenge the substantive validity of the liability waiver as a bar to her claims of ordinary negligence. Consequently, we need not address the validity of the exculpatory provisions in the context of this case.”). By declaring the Agreement void as against public policy, the OISR ignores this clear waiver of any challenge to the Agreement on those grounds.
[1] Appellant stipulated to the dismissal of all defendants other than appellee on January 29, 2013, and they are not involved in this appeal. See Stipulation of Dismissal Without Prejudice.
[2] In Pennsylvania, wrongful death claims are separate and distinct from survival claims, although both involve allegations of negligence against the defendant. SeeDubose v. Quinlan, 643 Pa. 244, 173 A.3d 634, 637 (2017); Kiser v. Schulte, 538 Pa. 219, 648 A.2d 1, 4 (1994) (discussing differences between survival and wrongful death claims); Tulewicz v. Se. Pa. Transp. Auth., 529 Pa. 588, 606 A.2d 427, 431 (1992); (“the two actions are designed to compensate two different categories of claimants”); Pisano v. Extendicare Homes, Inc., 77 A.3d 651, 654 (Pa. Super. 2013), appeal denied, 624 Pa. 683, 86 A.3d 233 (Pa . 2014) (“Pennsylvania courts have repeatedly distinguished wrongful death claims from survival claims”). The survival claim is the “continuation of a cause of action that accrued to the plaintiff’s decedent while the decedent was alive …. On the other hand, a wrongful death action accrues to the decedent’s heirs when the decedent dies of such an injury ….” Dubose, 173 A.3d at 637. As explained more fully infra, a wrongful death claim is an independent action which belongs to the decedent’s heirs for damages aimed to compensate members of a decedent’s family for their loss. Tulewicz, 606 A.2d at 431.
[3] Judge Olson authored the majority opinion joined by P.J. Gantman, P.J.E. Bender, and Judges Bowes, Shogun and Ott.
[4] In a concurring and dissenting opinion joined by Judges Panella and Lazarus, P.J.E. Ford Elliott determined Buttermore v. Aliquippa Hospital, 522 Pa. 325, 561 A.2d 733 (1989) was instructive on the analysis of the Waiver, despite the majority’s effort to distinguish it. Valentino, 150 A.3d at 501-02 (Ford Elliott, P.J.E., concurring and dissenting). Judge Ford Elliott noted the Waiver is similar to the release in Buttermore, and the non-signatory heir in that case had an independent right to sue for the injury she suffered as a result of her decedent’s death. Id. Judge Ford Elliott stated the majority’s holding the Decedent’s own assumption of risk created a complete defense to his heirs’ wrongful death action would “eviscerate the Pennsylvania wrongful death statute which creates an independent and distinct cause of action, not derivative of the decedent’s rights at time of death.” Id. at 502. Judge Ford Elliott would also have relied on Pisano to reverse summary judgment. Id. at 504.
[5] This Court granted review of this second issue and ordered supplemental briefing via a per curiam order dated January 26, 2018. As acknowledged by the Opinion in Support of Affirmance (OISA), although appellant challenged the effectiveness of the Waiver as it applied to Decedent, she never questioned the overall viability of the doctrine of assumption of the risk below, and the issue is therefore waived. See OISA at 942, n.1.
[6] The OISA suggests our view of the case ignores the question before the Court. See OISA at 942-43. Respectfully, the OISA’s position reveals an overly narrow reading of the issue on appeal, i.e., whether an exculpatory contract can be enforced against non-signatory heirs in a claim made pursuant to the Wrongful Death Act. Seesupra at 950-51. In answering that question, we examine the terms of the Waiver within the context in which it is to be enforced. We cannot disregard the nature of the underlying suit and our jurisprudence guiding our interpretation of exculpatory contracts, which specifically includes a consideration of public policy. SeeChepkevich, 2 A.3d at 1177 (exculpatory agreement is valid only when “it does not contravene public policy …”). Although the question granted on appeal did not include the term “public policy,” we must surely consider public policy when determining whether an exculpatory agreement is valid and enforceable under the given circumstances.
[7] The OISA accurately observes an exculpatory agreement would “generally be valid to preclude a participant’s ordinary negligence claims against the purveyor of an inherently dangerous sport or activity,” but nevertheless rejects our view that the same waiver could be ineffective as a defense in a wrongful death claim while providing a viable defense in a survival action. See OISA at 947. We consider the disparate treatment of the Waiver in the two causes of action to be the direct result of the different goals and purposes served by the relevant statutes. Seesupra at 942, n.2.
[8] Importantly, our holding would not render appellee defenseless in that litigation, despite the OISA statement our reading means appellant’s right to relief is “absolute”. See OISA at 947. We recognize a wrongful death action is a tort claim arising from the alleged “wrongful act or neglect or unlawful violence or negligence of another.” 42 Pa.C.S. § 8301. Appellant must still prove the elements of her case, including causation, before any recovery would be assured. See, e.g.,Phillips v. Cricket Lighters, 576 Pa. 644, 841 A.2d 1000, 1008 (2003) (to maintain negligence action, plaintiff must show defendant had duty to conform to standard of conduct, breach of duty, the breach caused the injury, and the injury resulted in damages).
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Release stops lawsuit by plaintiff thrown from ATV in Pennsylvania.
Posted: November 4, 2019 Filed under: Activity / Sport / Recreation, Pennsylvania, Release (pre-injury contract not to sue) | Tags: activities, adhesion, Assumption of risk, ATV All Terrain Vehicle, conspicuity, enforceable, Exculpatory clause, font, genuine issue, Gym, initialed, intent of a party, legal right, Lost Trails, Lost Trails ATV Adventures, Lost Trails LLC, material fact, Membership, minor child, non-moving, parties, recreational activity, requirements, ride, rushed, signing, Sports, Summary judgment, summary judgment motion, ticket, Trails, waiver form Leave a commentRelease signed 8 months earlier saved defendant.
Scott-Moncrieff v. Lost Trails, LLC, 2018 U.S. Dist. LEXIS 146936 *; 2018 WL 4110742
State: Pennsylvania; United States District Court for the Middle District of Pennsylvania
Plaintiff: Patrice Scott-Moncrieff
Defendant: The Lost Trails, LLC, d/b/a Lost Trails ATV Adventures
Plaintiff Claims: Negligence
Defendant Defenses: Release
Holding: for the Defendant
Year: 2018
Summary
Year old release still valid to stop claims. Plaintiff rented ATV and signed a release. Eight months later she rented an ATV from the same defendant again but did not sign another release. The original release was enough to stop her lawsuit.
Facts
On October 20, 2013, Plaintiff visited Defendant’s ATV facility for the first time and, prior to using the facility, executed a waiver of liability. Plaintiff did not read the waiver in its entirety prior to signing it, and claims she was rushed during the process. On June 22, 2014, Plaintiff returned to the facility, at which time she alleged suffered injuries when she was thrown from the ATV she was riding.
The release the plaintiff signed had several places to initial the release which she did.
The defendant filed a motion for summary judgment and this is the response to that motion.
Analysis: making sense of the law based on these facts.
The release in this case also had an assumption of the risk clause, which the court found as valid proof the plaintiff assumed of the risk, “…within the waiver, Plaintiff specifically acknowledged that she was assuming all of the risks associated with these activities.”
The plaintiff argued the release was void because:
Plaintiff argues that Plaintiff did not sign a waiver on the date of the accident, and therefore did not waive any liability or assume any risk; that she was rushed and unable to read the original waiver in its entirety; that the waiver is unenforceable as not properly conspicuous; and finally, that because the earlier waiver signed by Plaintiff was “for all time thereafter” it should not be enforced.
The court then reviewed the requirements for a release, an exculpatory clause in a contract in Pennsylvania.
An exculpatory clause is valid if the following conditions are met: 1) the clause does not contravene public policy; 2) the contract is between parties relating entirely to their own private affairs; and 3) the contract is not one of adhesion.
A valid exculpatory clause is only enforceable if “the language of the parties is clear that a person is being relieved of liability for his own acts of negligence.”
A waiver of liability violates public policy only if it involves “a matter of interest to the public or the state. Such matters of interest to the public or the state include the employer-employee relationship, public service, public utilities, common carriers, and hospitals
Under Pennsylvania law, the release did not contravene public policy because it did not affect a matter of interest to the public or the state. Recreation is not a public interest in most states. Also, the release was between private parties and only affecting the rights to the parties to the agreement.
Pennsylvania has a three-prong test to determine if a release violates public policy, the Topp Copy standard.
The exculpatory clause at issue in this case does not contravene public policy because it does not affect a matter of interest to the public or the state. See Kotovsky, 603 A.2d at 665-66 (holding that releases did not violate public policy because “[t]hey were [in] contracts between private parties and pertained only to the parties’ private rights. They did not in any way affect the rights of the public.”). Thus, the exculpatory clause meets the first two prongs of the Topp Copy standard for validity.
The contract meets the third prong of the Topp Copy validity standard because it is not a contract of adhesion. Agreements to participate in “voluntary sporting or recreational activities” are not contracts of adhesion because “[t]he signer is a free agent who can simply walk away without signing the release and participating in the activity, and thus the contract signed under such circumstances is not unconscionable.”
The court went on to define a contract of adhesion is a contract where the signor has no other choice but to sign the agreement.
“The signer is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential services, but merely governs a voluntary recreational activity.” The Agreement at issue here is not a contract of adhesion because it is a contract to participate in voluntary recreational activities. The Agreement does not relate to an essential service, and Plaintiff was free to engage in the activity, or not, as she wished. She was under no compulsion to do so.
The court then went on to determine if the release was enforceable under Pennsylvania law, meaning that was the language sufficient to give notice to the parties of what they were doing. The agreement must relieve a party for the liability of their own negligence. To determine if the release was enforceable the court must determine if:
1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing the immunity is upon the party invoking protection under the clause.
Here the court found the language was sufficient and the agreement was valid.
The plaintiff then argued that the release should not be held against her because she did not sign the release on the day she was injured. She found the defendant had a policy that all persons must sign the release each time they came to the defendant. This policy was discovered by questioning a maintenance man that had been terminated.
Plaintiff submits that the waiver she executed in October 2013 did not apply to her visit to Defendant on June 22, 2014, because “it is uncontroverted that the Defendant has a policy that dictates all riders must sign a waiver every time they ride an ATV at their park” and Plaintiff did not sign a waiver when she visited the park in June 2014.
The court found the testimony of the maintenance man had no bearing on the case. He was not working for the defendant at the time of the accident, he was not involved in getting releases signed when he did work for the defendant and he did not represent nor was he acting on behalf of the defendant.
The release signed by the plaintiff on her first trip to the defendant’s business was still valid. The release stated it was to remain binding “for all time thereafter.”
The court did not seem to care that even if the policy had been in place it did not matter because the plaintiff signed a release that was still in force.
Here, the language of the waiver form is unequivocal in stating the intent that it is binding for all time thereafter. As the Pennsylvania Supreme Court has stated,
The word “all” needs no definition; it includes everything, and excludes nothing. There is no more comprehensive word in the language, and as used here it is obviously broad enough to cover liability for negligence. If it had been the intention of the parties to exclude negligent acts they would have so written in the agreement. This paragraph of the lease is clear and unambiguous. No rules of construction are required to ascertain the intention of the parties.
The court found the release executive by the plaintiff on her first trip was valid to prevent the lawsuit when she was injured on her second trip.
Then the plaintiff argued she was rushed and unable to read the first release she signed. The court quickly shot that argument down.
One who is about to sign a contract has a duty to read that contract. In the absence of fraud, the failure to read a contract before signing it is “an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract.”
Finally, the plaintiff argued the release not “properly conspicuous.” This was based on language a Pennsylvania court used to void a “release” on the back of a lift ticket because it was not conspicuous. Since this release was found within a contract, signed by the plaintiff that argument also failed.
Even if those conspicuity requirements applied, however the exculpatory clauses in the Waiver Form would still be enforceable. The document is titled, in larger font, bold, underlined, and all capital letters “LOST TRAILS ATV ADVENTURES WAIVER FORM.” The language specifically indicating release and discharge, assumption of the risk, an agreement not to sue, and indemnification, are set of in all capitals in the numbered paragraphs, and were acknowledged by Plaintiff initialing each paragraph.
The release was upheld and the case was dismissed.
So Now What?
This seems like the same old person gets hurt recreating and tries stupid ways to get out of the consequences of signing a release. And to a major extent it is. However, there are a few interesting issues.
Courts are less likely to enforce a release for activities involving motors, unless NASCAR is big in your state. Add an engine to recreation and some courts think differently.
The second is the use of a release signed by the plaintiff prior to the date of her injury. Your release should always be written so there is no date for the agreement to terminate. Having the person sign a release each time they use your facilities is good. Handing the court a dozen releases signed on different dates proves the plaintiff had plenty of time to read and understand the release and assumed the risk of the activity.
But making sure your release is valid for more than that date and time is critical. First a release good for a specific time frame may be out of date when it is needed to stop a lawsuit in court. Second, you never know when someone will slip through the system and not sign the release and get hurt. Finally, you could lose the release you need. Granted there are ways to get lost documents admitted into court, however, it is much easier to present the court with a signed release that covers the incident no matter when the release was signed or the incident occurred.
What do you think? Leave a comment.
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Scott-Moncrieff v. Lost Trails, LLC, 2018 U.S. Dist. LEXIS 146936; 2018 WL 4110742
Posted: October 28, 2019 Filed under: Activity / Sport / Recreation, Legal Case, Pennsylvania, Release (pre-injury contract not to sue) | Tags: activities, adhesion, Assumption of risk, conspicuity, enforceable, Exculpatory Agreement, Exculpatory clause, font, genuine issue, Gym, initialed, intent of a party, legal right, Lost Trails, Lost Trails LLC, material fact, Membership, minor child, non-moving, parties, recreational activity, Release, requirements, ride, rushed, signing, Sports, Summary judgment, summary judgment motion, ticket, Trails, Waiver, waiver form Leave a comment
Scott-Moncrieff v. Lost Trails, LLC
, 2018 U.S. Dist. LEXIS 146936 *; 2018 WL 4110742
United States District Court for the Middle District of Pennsylvania
August 29, 2018, Decided; August 29, 2018, Filed
CIVIL ACTION NO. 3:16-CV-1105
2018 U.S. Dist. LEXIS 146936 *; 2018 WL 4110742
PATRICE SCOTT-MONCRIEFF, Plaintiff v. THE LOST TRAILS, LLC, et al, Defendants
Subsequent History: Appeal filed, 09/13/2018
Counsel: [*1] For Patrice Scott-Moncrieff, Plaintiff: James W. Sutton, III, LEAD ATTORNEY, LAW OFFICES OF VIASAC & SHMARUK, FEASTERVILLE, PA.
For The Lost Trails, LLC, d/b/a Lost Trails ATV Adventures, Defendant, Cross Claimant, Cross Defendant: John T. McGrath, Jr., Marshall, Dennehey, Warner, Coleman & Goggin, Scranton, PA; Michael J. Connolly, Moosic, PA.
Judges: KAROLINE MEHALCHICK, United States Magistrate Judge.
Opinion by: KAROLINE MEHALCHICK
MEMORANDUM OPINION
Before the Court is a motion for summary judgment filed by Defendant, The Lost Trails, LLC (“Lost Trails”) in this matter. The motion (Doc. 50) was filed on November 14, 2017, together with a brief in support (Doc. 52), and Statement of Facts (Doc. 53). Plaintiff, Patrice Scott-Moncrieff, filed a brief in opposition (Doc. 54) on November 28, 2017, a reply brief (Doc. 55) was filed on December 6, 2017, and a sur reply brief (Doc. 62) was filed on January 17, 2018. This motion is ripe for disposition. For the following reasons, the Court will grant the motion for summary judgment.
I. Factual Background and Procedural History
The factual background is taken from Defendant’s Statements of Undisputed Material Facts (Doc. 53). Where the parties dispute certain facts, [*2] those disputes are noted. In addition, the facts have been taken in the light most favorable to the plaintiff as the non-moving party, with all reasonable inferences drawn in her favor. This is in accordance with the Local Rules of this Court, which state, in pertinent part, as follows:
LR 56.1 Motions for Summary Judgment.
A motion for summary judgment filed pursuant to Fed.R.Civ.P.56, shall be accompanied by a separate, short and concise statement of the material facts, in numbered paragraphs, as to which the moving party contends there is no genuine issue to be tried.
The papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts, responding to the numbered paragraphs set forth in the statement required in the foregoing paragraph, as to which it is contended that there exists a genuine issue to be tried.
Statements of material facts in support of, or in opposition to, a motion shall include references to the parts of the record that support the statements.
All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing [*3] party.
Local Rule 56.1 (emphasis added).
To comply with Local Rule 56.1, Plaintiff should (1) clearly and unequivocally admit or deny whether each fact contained in Defendant’s statement of facts is undisputed and/or material, (2) set forth the basis for any denial if any fact is not admitted in its entirety, and (3) provide a citation to the record that supports any such denial. Occhipinti v. Bauer, No. 3:13-CV-1875, 2016 U.S. Dist. LEXIS 136082, 2016 WL 5844327, at *3 (M.D. Pa. Sept. 30, 2016); Park v. Veasie, 2011 U.S. Dist. LEXIS 50682, 2011 WL 1831708, *4 (M.D. Pa. 2011). As such, where Plaintiff disputes a fact set forth by Defendant, but fails to provide a citation to the record supporting their denial, that fact will be deemed to be admitted. “Unsupported assertions, conclusory allegations, or mere suspicions” are insufficient to overcome a motion for summary judgment. Schaar v. Lehigh Valley Health Servs., Inc., 732 F.Supp.2d 490, 493 (E.D.Pa. 2010). In this matter, Plaintiff, though including a statement of fact in her brief in opposition to Defendant’s motion for summary judgment (Doc. 54), does not comply with the local rules and submit a separate statement of material facts in opposition to Defendant’s statement of material facts. Notably, despite being given the opportunity to file a sur-reply brief in this matter, after Defendant raises the issue of Plaintiff’s failure to file a statement of facts in its Reply Brief (Doc. 55), Plaintiff still [*4] did not file a separate statement of fact. As such, the facts set forth in Defendant’s statement of material facts will be deemed admitted.
On October 20, 2013, Plaintiff visited Defendant’s ATV facility for the first time and, prior to using the facility, executed a waiver of liability. (Doc. 50-2, at 4-5; DOC. 53, AT ¶¶ 5, 9). Plaintiff did not read the waiver in its entirety prior to signing it, and claims she was rushed during the process. (Doc. 53, at ¶ 7; Doc. 50-2, at 71). On June 22, 2014, Plaintiff returned to the facility, at which time she alleged suffered injuries when she was thrown from the ATV she was riding. (Doc. 1).
The release from liability signed by Plaintiff on October 20, 2013 reads, in pertinent part, as follows:
In consideration for the opportunity for event participation and utilization of general admission, all facilities, equipment and premises of Lost Trails, LLC (LT), North American Warhorse Inc, (NAW) Theta Land Corp. (TLC), 1000 Dunham Drive LLC (DD), and their respective affiliates, members, agents, employees, heirs and assigns and other associates in furtherance of the sport of Off-Road Riding, racing and any other activities, scheduled or unscheduled, [*5] (hereinafter collectively called “Off-Roading.”) This Waiver shall commence on the date first signed and shall remain binding for all time thereafter.
By signing this document, I hereby understand and agree for me and/or my minor child to this Release of Liability, Wavier of Legal rights and Assumption of Risk and to the terms hereof as follows:
2. I hereby RELEASE AND DISCHARGE LT, NAW, TLC, DD and all related parties, event volunteers, company officers, directors, elected officials, agents, employees, and owners of equipment, the land used for Off-Roading activities and any owners of adjourning lands to the premises (hereinafter collectively referred to as “Released parties”) from any and all liability claims, demands or causes of action that I, my minor child or my representatives and my heirs may hereafter have for injuries, loss of life, and all other forms of damages arising out of my voluntary participation in Off-Roading activities.
3. I understand and acknowledge that Off-Road riding and racing activities have inherent dangers that no amount of care, caution, instruction or expertise can eliminate and I EXPRESSLY AND VOLUNTARILY ASSUME ALL RISK OF DEATH OR PERSONAL INJURY [*6] OR OTHER FORMS OF DAMAGES SUSTAINED WHILE PARTICIPATING IN OFF-ROADING ACTIVITIES WHETHER OR NOT CAUSED BY THE NEGLIGENCE OF THE RELEASE PARTIES.
4. I further agree that I WILL NOT SUE OR OTHERWISE MAKE A CLAIM on behalf of me and/or on behalf of my minor child, against the Released Parties for damages or other losses sustained as a result of my participation in Off-Roading activities.
5. I also agree to INDEMNIFY AND HOLD THE RELEASED PARTIES HARMLESS from all claims, judgments and costs, including attorneys’ fees, incurred in the connection with any action brought against them, jointly or severally, as a result of my or my minor child’s participation in “Off-Roading” activities.
6. I take full responsibility for, and hold harmless Released Parties for any injury, property damage, or death that I or my minor child may suffer or inflict upon others .or their property as a result of my engaging in Off-Roading activities.
7. I further represent that I am at least 18 years of age, or that as the parent or (adult) legal guardian, I waive and release any and all legal rights that may accrue to me, to my minor child or to the minor child for whom I am (adult) legal guardian, as the result of [*7] any injury or damage that my minor child, the minor child for whom I am (adult) legal guardian, or I may suffer while engaging in Off-Roading activities.
8. I hereby expressly recognize that this Release of Liability, Waiver of Legal Rights and Assumption of Risks is a contract pursuant to which I have released any and all claims against the Released Parties resulting from participation in Off-Roading activities including any claims related to the negligence of the Released Parties by any of the undersigned.
9. I further expressly agree that the foregoing Release of Liability, Waiver of Legal Rights and Assumption of Risks is intended to be as broad and inclusive as is permitted by law of the province or state in which services, materials and/or equipment are provided and the course of business is conducted, and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full legal force and effect. I agree that, should any claim or action arise from my participation as described herein, including any issue as to the applicability of this Release or any provision contained within it, proper Jurisdiction and Venue will lie only in Monroe [*8] County, Pennsylvania and I waive Jurisdiction and Venue anywhere else.
Plaintiff initialed all of the above provisions. She did not initial paragraph 10 on the next page, however, which states as follows:
l0. Having had ample time and opportunity to raise any concerns or questions that I may have, and having read and understood the information, I certify my acceptance of the aforementioned provisions by signing below.
I am in good health and physical condition. I am voluntarily participating with knowledge that dangers are involved and agree to assume all risks. I also understand that if I am injured or become ill, I agree that Lost Trails LLC, or any of its employees, volunteers or guests will not be held liable should they render medical assistance to me or my minor child.
Despite not specifically initialing paragraph 10, Plaintiff did sign the agreement, indicating her acceptance and understanding of the exculpatory clauses. (Doc. 54-1).
II. Legal Standard
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be granted only if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” only [*9] if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A dispute of material fact is “genuine” if the evidence “is such that a reasonable jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248. In deciding a summary judgment motion, all inferences “should be drawn in the light most favorable to the non-moving party, and where the non-moving party’s evidence contradicts the movant’s, then the non-movant’s must be taken as true.” Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994).
A federal court should grant summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000). In deciding a motion for summary judgment, the court’s function is not to make credibility determinations, weigh evidence, or draw inferences from the facts. Anderson, 477 U.S. at 249. Rather, the court must simply “determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249.
The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion,” and demonstrating the absence of a genuine dispute of any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). If the movant makes [*10] such a showing, the non-movant must go beyond the pleadings with affidavits or declarations, answers to interrogatories or the like in order to demonstrate specific material facts which give rise to a genuine issue. Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324. The non-movant must produce evidence to show the existence of every element essential to its case, which it bears the burden of proving at trial, because “a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323. Furthermore, mere conclusory allegations and self-serving testimony, whether made in the complaint or a sworn statement, cannot be used to obtain or avoid summary judgment when uncorroborated and contradicted by other evidence of record. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990); see also Thomas v. Delaware State Univ., 626 F. App’x 384, 389 n.6 (3d Cir. 2015) (not precedential) (“[U]nsupported deposition testimony, which is contradicted by the record, is insufficient to defeat summary judgment.”); NLRB v. FES, 301 F.3d 83, 95 (3d Cir. 2002) (“[The plaintiff’s] testimony . . . amounts to an unsupported, conclusory assertion, which we have held is inadequate to satisfy the movant’s burden of proof on summary judgment.”).
As this jurisdiction of this Court is sounded in the diversity of the parties pursuant to 28 U.S.C. § 1332(a), Pennsylvania substantive [*11] law will apply. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).
III. Discussion
Defendant submits that it is entitled to judgment in its favor because Plaintiff executed a valid waiver of all liability prior to ever engaging in any recreational activities on Defendant’s property; because such releases and waivers are recognized under Pennsylvania law; and because within the waiver, Plaintiff specifically acknowledged that she was assuming all of the risks associated with these activities. (Doc. 52, at 2). In response, Plaintiff argues that Plaintiff did not sign a waiver on the date of the accident, and therefore did not waive any liability or assume any risk; that she was rushed and unable to read the original waiver in its entirety; that the waiver is unenforceable as not properly conspicuous; and finally, that because the earlier waiver signed by Plaintiff was “for all time thereafter” it should not be enforced. (Doc. 54).
A. The Exculpatory Clause is Valid
An exculpatory clause is valid if the following conditions are met: 1) the clause does not contravene public policy; 2) the contract is between parties relating entirely to their own private affairs; and 3) the contract is not one of adhesion. Evans v. Fitness & Sports Clubs, LLC, No. CV 15-4095, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at *3 (E.D. Pa. Sept. 28, 2016); [*12]
Topp Copy Prods., Inc. v. Singletary, 533 Pa. 468, 626 A.2d 98, 99 (Pa. 1993). A valid exculpatory clause is only enforceable if “the language of the parties is clear that a person is being relieved of liability for his own acts of negligence.” Id. A waiver of liability violates public policy only if it involves “a matter of interest to the public or the state. Such matters of interest to the public or the state include the employer-employee relationship, public service, public utilities, common carriers, and hospitals.” Seaton v. E. Windsor Speedway, Inc., 400 Pa. Super. 134, 582 A.2d 1380, 1382 (Pa. Super. Ct. 1990); see also Kotovsky v. Ski Liberty Operating Corp., 412 Pa. Super. 442, 603 A.2d 663, 665 (Pa. Super. Ct. 1992). The exculpatory clause at issue in this case does not contravene public policy because it does not affect a matter of interest to the public or the state. See Kotovsky, 603 A.2d at 665-66 (holding that releases did not violate public policy because “[t]hey were [in] contracts between private parties and pertained only to the parties’ private rights. They did not in any way affect the rights of the public.”). Thus, the exculpatory clause meets the first two prongs of the Topp Copy standard for validity.
The contract meets the third prong of the Topp Copy validity standard because it is not a contract of adhesion. Agreements to participate in “voluntary sporting or recreational activities” are not contracts of adhesion because “[t]he signer is a free agent [*13] who can simply walk away without signing the release and participating in the activity, and thus the contract signed under such circumstances is not unconscionable.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1190-91 (Pa. 2010). “The signer is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential services, but merely governs a voluntary recreational activity.” Id. The Agreement at issue here is not a contract of adhesion because it is a contract to participate in voluntary recreational activities. The Agreement does not relate to an essential service, and Plaintiff was free to engage in the activity, or not, as she wished. She was under no compulsion to do so. See Chepkevich, supra; see also Hinkal v. Pardoe, 2016 PA Super 11, 133 A.3d 738, 741-2 (Pa. Super. Ct. 2016) (en banc), appeal denied, 636 Pa. 650, 141 A.3d 481 (Pa. 2016) (citing the “thorough and well-reasoned opinion” of the trial court, which held that the plaintiff’s gym membership agreement was not a contract of adhesion because exercising at a gym is a voluntary recreational activity and the plaintiff was under no compulsion to join the gym). The Agreement meets all three prongs of the Topp Copy standard for validity, and thus the exculpatory clause is facially valid.
B. The Exculpatory Clause is Enforceable
Even if an exculpatory clause is [*14] facially valid, it is enforceable only if it clearly relieves a party of liability for its own negligence. Evans v. Fitness & Sports Clubs, LLC, No. CV 15-4095, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at *5 (E.D. Pa. Sept. 28, 2016). The following standards guide a court’s determination of the enforceability of an exculpatory clause:
1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing the immunity is upon the party invoking protection under the clause.
The Court now turns to Plaintiff’s arguments against the enforceability of the exculpatory clause.
1. Plaintiff’s first waiver is enforceable, including the clause “for all time thereafter.”
Plaintiff submits that the waiver she executed in October 2013 did not apply to her visit to Defendant on June 22, 2014, because “it is uncontroverted that the Defendant has a policy that dictates all [*15] riders must sign a waiver every time they ride an ATV at their park” (Doc. 54, at 4), and Plaintiff did not sign a waiver when she visited the park in June 2014. Defendant counters that Plaintiff is misconstruing the record in making this assertion. (Doc. 55, at 2). Specifically, Defendant submits that the testimony cited by Plaintiff is that of a former maintenance man who has nothing to do with policy or procedure at Defendant’s property, and further, that he neither testifying as a representative of, nor acting on behalf of, Lost Trails, LLC. (Doc. 55-1, at 4). The testimony offered by the Plaintiff on this issue is that of Matthew Anneman, who testified as follows:
Q: Everybody that goes there is supposed sign the waiver before they go out on the trails, is that fair to say?
Q: Do you know if Miss Moncrieff signed a waiver before she went on the trail that day?
A: Yes. It is imperative that everybody who comes to ride on that mountain is to fill out a waiver.
Q: So every single time somebody comes to the facility, before they go out there, they go in and sign a waiver.
Q: And you’re not involved in that part of it, the sign in, and the waiver.
A: No, no. Leslie or one [*16] of her employees would work the front desk.
(Doc. 54-1, at 12; Anneman Dep. at 36).
The Court finds this testimony to have little to no bearing on the validity and applicability of the October 2013 waiver. Even construing the evidence in the record in Plaintiff’s favor, Mr. Anneman’s testimony does not change the fact Plaintiff did sign a waiver in October 2013, one which indicated that it “shall remain binding for all time thereafter.” (Doc. 54-1, at 20) (emphasis added). Nothing in the record before the Court indicates that Mr. Anneman was responsible for either policy at Defendant’s facility, or in any way even involved with the waiver process. Further, the language of the waiver is clear. In interpreting the language of a contract, courts attempt to ascertain the intent of the parties and give it effect. Sycamore Rest. Grp., LLC v. Stampfi Hartke Assocs., LLC, 2017 Pa. Super. 221, 174 A.3d 651, 656 (2017); LJL Transp., Inc. v. Pilot Air Freight Corp., 599 Pa. 546, 962 A.2d 639, 648 (2009). When a writing is clear and unequivocal, its meaning must be determined by its contents alone. Synthes USA Sales, LLC v. Harrison, 2013 Pa. Super. 324, 83 A.3d 242, 250-51 (2013); Murphy v. Duquesne Univ. of the Holy Ghost, 565 Pa. 571, 591, 777 A.2d 418, 429 (2001) (citations and quotation marks omitted). “[I]t is not the function of this Court to re-write it, or to give it a construction in conflict with … the accepted and plain meaning of the language used.” Id.; citing Robert F. Felte, Inc. v. White, 451 Pa. 137, 144, 302 A.2d 347, 351 (1973) (citation omitted). Here, the language of the waiver form (Doc. 54-1, [*17] at 20) is unequivocal in stating the intent that it is binding for all time thereafter. As the Pennsylvania Supreme Court has stated,
The word “all” needs no definition; it includes everything, and excludes nothing. There is no more comprehensive word in the language, and as used here it is obviously broad enough to cover liability for negligence. If it had been the intention of the parties to exclude negligent acts they would have so written in the agreement. This paragraph of the lease is clear and unambiguous. No rules of construction are required to ascertain the intention of the parties.
Topp Copy Prods. v. Singletary, 533 Pa. 468, 472, 626 A.2d 98, 100 (1993); citing Cannon v. Bresch, 307 Pa. 31, 34, 160 A. 595, 596 (1932).
As such, the Court finds that the October 2013 waiver executed by Plaintiff was in effect during her June 2014 visit to Defendant’s property.1
2. Plaintiff’s argument that she was rushed and unable to read the original waiver in its entirety is without merit.
Plaintiff next argues that, should the Court find that the 2013 waiver was in effect in June 2014, she was rushed and therefore did not have time to read the waiver before signing it. “The law of Pennsylvania is clear. One who is about to sign a contract has a duty to read that contract [*18] first.” Hinkal v. Pardoe, 2016 Pa. Super. 11, 133 A.3d 738, 743, appeal denied, 636 Pa. 650, 141 A.3d 481 (2016); In re Estate of Boardman, 2013 PA Super 300, 80 A.3d 820, 823 (Pa.Super.2013); citing Schillachi v. Flying Dutchman Motorcycle Club, 751 F.Supp. 1169, 1174 (E.D.Pa.1990) (citations omitted). In the absence of fraud, the failure to read a contract before signing it is “an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract.” Germantown Sav. Bank v. Talacki, 441 Pa.Super. 513, 657 A.2d 1285, 1289 (1995) (citing Standard Venetian Blind Co. v. American Emp. Ins. Co., 503 Pa. 300, 469 A.2d 563, 566 note (1983)); see also Wroblewski v. Ohiopyle Trading Post, Inc., No. CIV.A. 12-0780, 2013 U.S. Dist. LEXIS 119206, 2013 WL 4504448, at *7 (W.D. Pa. Aug. 22, 2013) (Under Pennsylvania law, the failure to read a contract does not nullify the contract’s validity.); Arce v. U-Pull-It Auto Parts, Inc., No. 06-5593, 2008 U.S. Dist. LEXIS 10202, 2008 WL 375159, at *5-9 (E.D.Pa. Feb.11, 2008) (written release found to be enforceable even when the agreement was in English but the plaintiff only read and spoke Spanish, noting that the “[p]laintiff cannot argue that the release language was inconspicuous or somehow hidden from his attention…. Nor did Defendant have an obligation to verify that [p]laintiff had read and fully understood the terms of the document before he signed his name to it.”). In this case, there is no allegation or evidence of fraud, and as such, Plaintiff’s argument is without merit.
3. The waiver is properly conspicuous.
Finally, Plaintiff avers that summary judgment should be denied because the waiver was not properly conspicuous, and relies on the Pennsylvania Superior Court’s decision in Beck-Hummel in making [*19] this assertion. The Beck-Hummel court addressed the enforceability of a waiver of liability printed on the back of a tubing ticket. The exculpatory language appeared in a font that was “just barely readable,” and smaller than the font used for some other portions of the ticket. Id. at 1274-75. The Beck-Hummel court looked to the conspicuousness of the waiver of liability as a means of establishing whether or not a contract existed, setting forth three factors to consider in determining conspicuousness: 1) the waiver’s placement in the document; 2) the size of the waiver’s font; and 3) whether the waiver was highlighted by being printed in all capital letters or a different font or color from the remainder of the text. Beck-Hummel, 902 A.2d at 1274. After considering these factors, the Beck-Hummel court could not conclude as a matter of law that the exculpatory clause was enforceable because the language of the ticket was not sufficiently conspicuous as to put the purchaser/user on notice of the waiver. Id.at 1275.
However, in a more recent Pennsylvania Superior Court case, the court held that, as in the case presently before this Court, where the exculpatory clause was part of a signed contract between the parties, the requirements of [*20] conspicuity set forth in Beck-Hummel would not necessarily apply. In Hinkal v. Pardoe, the en banc Superior Court of Pennsylvania examined whether the Beck-Hummel conspicuity requirements for the enforcement of exculpatory clauses applies to signed valid written contracts. Hinkal v. Pardoe, 2016 Pa. Super. 11, 133 A.3d 738, 743-745, appeal denied, 636 Pa. 650, 141 A.3d 481 (2016). In Hinkal, the plaintiff had signed a membership agreement with Gold’s Gym that contained a waiver of liability for negligence claims on the back page. Id. at 741. The Hinkal court found the plaintiff’s comparison of her case to Beck-Hummel “inapposite” because, unlike a waiver printed on the back of a tubing ticket that did not require a signature; the gym waiver was part of a signed agreement. Id. at 744-45. Further, the court noted that conspicuity is generally not required to establish the formation of a contract, but “has been resorted to as a means of proving the existence or lack of a contract,” where it is unclear whether a meeting of the minds occurred, and imposing such a requirement would allow a properly executed contract to be set aside through one party’s failure to do what the law requires – reading a contract. Id. at 745. The Hinkal court concluded that the waiver of liability was valid and enforceable because [*21] the plaintiff had signed the agreement. Similarly, in Evans v. Fitness & Sports Clubs, LLC, the District Court determined that the exculpatory clauses contained in a fitness club’s membership agreements were valid and enforceable where the plaintiff had signed both a membership and personal training agreement, including an acknowledgement that the plaintiff had read and understood the entire agreement, including the release and waiver of liability, appears directly above the plaintiff’s signature on the first page of each agreement. Evans v. Fitness & Sports Clubs, LLC, No. CV 15-4095, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at *6 (E.D. Pa. Sept. 28, 2016).
The Court finds the agreement at issue in this case to be far more in line with the waivers discussed by the Pennsylvania Superior and Eastern District of Pennsylvania courts in Hinkal and Evans. The waiver form in this case was two pages in length, and initialed and signed by Plaintiff. It was not, like the waiver in Beck-Hummel, printed in small font on the back of a tubing ticket. This was a waiver that was reviewed, initialed and signed by Plaintiff. As such, the requirements of conspicuity set forth in Beck-Hummel would not necessarily apply. Hinkal v. Pardoe, 133 A.3d at 743-745.
Even if those conspicuity requirements applied, however [*22] the exculpatory clauses in the Waiver Form would still be enforceable. The document is titled, in larger font, bold, underlined, and all capital letters “LOST TRAILS ATV ADVENTURES WAIVER FORM.” The language specifically indicating release and discharge, assumption of the risk, an agreement not to sue, and indemnification, are set of in all capitals in the numbered paragraphs, and were acknowledged by Plaintiff initialing each paragraph. (Doc. 54-1, at 20). Immediately above the signature line, in all capital bold letters, the release reads:
I HAVE READ THIS RELEASE OF LIABILITY, WAIVER OF LEGAL RIGHTS AND ASSUMPTIONS OF RISK AND FULLY UNDERSTAND ITS CONTENTS. I SIGN IT WILLINGLY, VOLUNTARILY AND HAVING HAD AMPLE OPPORTUNITY TO RAISE ANY QUESTIONS OR CONCERNS THAT I MAY HAVE, I ACKNOWLEDGE THAT I AM PARTICIPATING VOLUNTARILY WITH KNOWLEDGE THAT DANGERS ARE INVOLVED AND I AGREE TO ASSUME ALL THE RISKS.
These clauses are conspicuously set apart, appearing in capital letters, and in the case of the final paragraph, fully set apart, in all bold and all capitals. Further, the agreement itself is titled “Waiver Form” which notifies the reader of the purpose of the form. [*23] Plaintiff initialed the paragraphs setting forth the exculpatory clauses,2 and signed the agreement directly underneath the final, most prominent waiver clause. As such, the Court finds that the exculpatory clauses are valid and enforceable. See Evans, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at n. 6.
IV. Conclusion
For the reasons set forth above, the undisputed material facts in the record establish that Defendant is entitled to summary judgment. Viewing the record in light most favorable to the Plaintiff, the Court finds that the exculpatory clauses at issue are valid and enforceable. As such, Defendant’s motion will be granted, and judgment will be entered in favor of Defendant.
United States Magistrate Judge
ORDER
AND NOW, this 29th day of August, 2018, IT IS HEREBY ORDERED that for the reasons set forth in the memorandum filed concurrently with this Order, Defendant’s motion for summary judgment (Doc. 50) is GRANTED, and judgment is entered in favor of Defendant. The Clerk of Court is directed to CLOSE this matter.
United States Magistrate Judge
End of Document
Paperwork, the death of trees and in this case the only defense the defendant had at this stage of the trial because the paperwork was not taken care of properly.
Posted: March 11, 2019 Filed under: Jurisdiction and Venue (Forum Selection), Minors, Youth, Children, Pennsylvania, Summer Camp | Tags: 1.I.L., applies, conspicuous, enforceability, factors, Forum selection clause, improper venue, Inc., Independent Lake Camp, invalid, legible, Motion to Dismiss, Notice, parties, print, terms, Venue Leave a commentThe youth camp failed to keep a good copy of the registration paperwork. What was presented to the court as a forum selection clause was illegible so the court held it was not valid.
State: Pennsylvania, United States District Court, Eastern District of Pennsylvania
Plaintiff: Ben Epps, et al.
Defendant: 1.I.L., INC., d/b/a Independent Lake Camp
Plaintiff Claims: Negligence
Defendant Defenses: Motion to Dismiss because of improper venue
Holding: For the Plaintiff
Year: 2007
Summary
Lawsuits are not games; they are not invitations to parties, there is a lot of money riding on the outcome in most cases. Documents needed for the case must be given to the attorneys defending the case in the condition in which they are maintained. In this case, a document was faxed to the defense attorneys and in such a bad way the court could not read the document. Since the court could not read the document, the court assumed the original was the same, and therefore, the document was not valid.
At the same time, if you are collecting and keeping documents that may end up in court, you need to create a system that preserves these documents in perfect condition so if they do get to court the judge can read them.
Finally, you must get the documents from the people you need a signature from in a condition the court will accept.
Facts
Plaintiffs allege that on June 24, 2005, their son, Axel, fell from a bike and was seriously injured while attending Defendant’s Independent Lake Camp located in Orson, Wayne County, Pennsylvania. Plaintiffs allege that Axel’s accident was caused by Defendant’s negligence while Defendant was acting in loco parentis. Specifically, Plaintiffs allege that Defendant: 1) failed to provide proper supervision and safeguards; 2) gave Axel a bike, helmet, and other equipment without properly training him to use them; 3) allowed Axel to use a bike track, which was inappropriate for his age and experience; and 4) failed to obtain parental consent for its actions.
Plaintiffs further allege that Axel suffered serious and permanent physical injuries, including permanent cognitive and psychological damage, several fractures, lacerations resulting in scarring, cervical and lumbar sprain, and a shock to his nervous system. Plaintiffs also claim that Axel’s injuries include severe financial losses in the form of future costs of treatment and therapy, loss of earnings, and loss of earning capacity.
Defendant brought its motion to dismiss for improper venue alleging that the Registration Agreement, which Plaintiffs had to sign for Axel to attend camp, contained a forum selection clause. Defendant attached a blank, unsigned version of the Independent Lake Camp Registration 2005 (“Registration Agreement”) to its motion to dismiss. Defendant alleges that under the Registration Agreement, the proper forum would be a court in Wayne County, which is located in the Middle District of Pennsylvania.
In Plaintiffs’ response to Defendant’s motion to dismiss, Plaintiffs argued that the blank Registration Agreement was unsigned and thus that Defendant failed to show that Plaintiffs had agreed to the terms in the document, including the forum selection clause. Plaintiffs averred by affidavit that they did not agree and would not have agreed to such a forum selection clause.
Defendant then provided a signed copy of the Registration Agreement, in which the information requested had been filled in and which was signed by Plaintiff Ben Epps. Defendant submitted an affidavit by Daniel Gould, the president of Defendant and Director of Independent Lake Camp. Mr. Gould avers that, after an exhaustive and diligent search, Defendant could only locate a photocopy of the signed Registration Agreement and was unable to locate the original. He avers that the original agreement is presumed lost and/or destroyed through no bad faith or improper act on the part of Defendant. The photocopy of the agreement provided to the court also appears to be a faxed copy, as evident from a fax header across the top margin.
In the copy of the signed Registration Agreement submitted by Defendant, the small print containing the terms of the agreement is blurry and barely legible. As Defendant concedes, the right-side margin, toward the bottom, is cut off, truncating the forum selection clause.
Analysis: making sense of the law based on these facts.
The defendants filed a motion to dismiss because the plaintiffs had filed the case in the wrong court according to the agreement, the registration form signed by the parents of the injured youth. The forum selection clause as defined by the courts or agreement to hold the trial at a specific court, allegedly stated the trial was to be held in Wayne County Court, Pennsylvania. The plaintiffs filed the case in the federal district our in Pennsylvania. The defendants filed a motion to dismiss from federal court and force the case to the state court.
The jurisdiction in the case was going to be Pennsylvania law no matter what; however, the trial would not be held in the back yard of the defendant, which is normally a good thing for the defendant.
When in the federal district court system, if a forum selection clause is upheld the case is simply transferred to the proper court. However, in this case because the selection clause stated a state court the case could not be transferred. The case would be dismissed at the federal court. The case could be refiled in the state court at that time if the statute of limitations had not run.
However, here, the document that was presented to the court that was the alleged agreement by the parents to only sue in state court was not legible.
The court agrees that the small print of the forum selection clause in the photocopied and faxed signed Registration Agreement is blurry and illegible, and does not provide reasonable notice of its terms. The court cannot assume that Mr. Epps signed a clear version of the agreement that became blurry and illegible upon subsequently being photocopied and faxed, because such evidence is not before the court. There is no evidence that Plaintiff Ben Epps signed any version of the Registration Agreement other than the document provided to the court.
Further, even if the forum selection clause were legible, it’s essential term, that any cause of action be brought in Wayne County, Pennsylvania, is cut off so as to be incomprehensible. Even if legible, the term “V– County Pennsylvania” in the forum selection clause gives no reasonable notice of the location of any agreed-upon forum.
The court concludes that the forum selection clause is inconspicuous and does not give notice of its terms to a reasonable person in violation of strong Pennsylvania public policy. The forum selection clause therefore is unreasonable, invalid, and unenforceable. Because the court finds that the forum selection clause is unreasonable and invalid, it does not address the private and public factors as transfer considerations under § 1404(a).
The agreement was a copy that had been faxed, was illegible and could not be read by the court.
Since the court could not read the document, the legal wording was incomplete and the entire document had sections missing the court could not find there was an agreement. The motion to change venue was dismissed.
So Now What?
I would guess the camp had received the faxed copy from the parents. There would be no need to fax the documents around the camp. The camp probably had sent the documents to the parents for their signature, and they had faxed them back. This was mistake one, because the camp accepted a badly faxed copy of the document.
- When you receive an email, fax, or original where you cannot make out what is going on, signature seems off, the document is unreadable, you must get a good copy. Tell the signor to do it again and make the copy legible.
- Set up a system to check documents when they come in.
- Set the system up with enough time so that is time to correct problems. Don’t place yourself in a position where you are balancing the money coming in versus proper paperwork you need.
Second, the camp seemed to not locate the original fax, but only had a copy of the faxed document.
- Develop a system to store and maintain the documents. Now day’s scanners are so efficient all the documents can be scanned and maintained in seconds. The original paper documents can be preserved and kept for the statue of limitations for the state, and a good electronic copy is also available.
Don’t allow a kid or adult to come to camp, attend the program, participate in the activity unless you have all the paperwork you need, signed and in a good legible condition. Then and only then cash the check and open the gates.
What do you think? Leave a comment.
Copyright 2018 Recreation Law (720) 334 8529
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By Recreation Law Rec-law@recreation-law.com James H. Moss
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forum selection clause, venue, parties, improper venue, enforceability, terms, legible, notice, motion to dismiss, conspicuous, applies, factors, invalid, print, 1.I.L., INC., Independent Lake Camp, forum selection clause,
Epps, et al., v. 1.I.L., INC., d/b/a Independent Lake Camp, 2007 U.S. Dist. LEXIS 93335, 2007 WL 4463588
Posted: March 10, 2019 Filed under: Jurisdiction and Venue (Forum Selection), Legal Case, Minors, Youth, Children, Pennsylvania, Summer Camp | Tags: 1.I.L., applies, conspicuous, enforceability, factors, Forum selection clause, improper venue, Inc., Independent Lake Camp, invalid, legible, Motion to Dismiss, Notice, parties, print, terms, Venue Leave a commentEpps, et al., v. 1.I.L., INC., d/b/a Independent Lake Camp, 2007 U.S. Dist. LEXIS 93335, 2007 WL 4463588
Ben Epps, et al., Plaintiffs, v. 1.I.L., INC., d/b/a Independent Lake Camp, Defendant.
Civil Action No. 07-02314
United States District Court, Eastern District of Pennsylvania
December 19, 2007
ORDER
MEMORANDUM
James T. Giles J.
I. Introduction
Before the court is Defendant 1.I.L., Inc.’s Motion to Dismiss for Improper Venue pursuant to Federal Rule of Civil Procedure 12(b)(3). Plaintiffs, Bens Epps and Amy Monroe, as parents and natural guardians of Axel Epps and in their own right, bring suit based in diversity jurisdiction, 28 U.S.C. § 1332, against Defendant 1.I.L. Inc. for personal injuries allegedly sustained by their son, Axel, while attending Defendant’s camp.
The primary issue raised by Defendant’s motion and determined by the court is whether the forum selection clause in the Registration Agreement at issue is valid and enforceable. The court finds that the forum selection clause contained in the signed Registration Agreement is not enforceable because it does not provide reasonable notice of its terms. The court concludes that Plaintiffs have brought suit in a proper venue and denies Defendant’s motion to dismiss for the reasons that follow.
II. Factual Background
Plaintiffs allege that on June 24, 2005, their son, Axel, fell from a bike and was seriously injured while attending Defendant’s Independant Lake Camp located in Orson, Wayne County, Pennsylvania. (Pls.’ Compl. ¶ 6.) Plaintiffs allege that Axel’s accident was caused by Defendant’s negligence while Defendant was acting in loco parentis. (Pls.’ Compl. ¶ 7.) Specifically, Plaintiffs allege that Defendant: 1) failed to provide proper supervision and safeguards; 2) gave Axel a bike, helmet, and other equipment without properly training him to use them; 3) allowed Axel to use a bike track, which was inappropriate for his age and experience; and 4) failed to obtain parental consent for its actions. (Pls.’ Compl. ¶ 8.)
Plaintiffs further allege that Axel suffered serious and permanent physical injuries, including permanent cognitive and psychological damage, several fractures, lacerations resulting in scarring, cervical and lumbar sprain, and a shock to his nervous system. (Pls.’ Compl. ¶ 9.) Plaintiffs also claim that Axel’s injuries include severe financial losses in the form of future costs of treatment and therapy, loss of earnings, and loss of earning capacity.
Plaintiffs, citizens of New York, brought suit in the Eastern District of Pennsylvania because Defendant is a citizen of Pennsylvania with offices in both Montgomery County and Wayne County. (Pls.’ Compl. ¶ 1-4; Pls.’ Br. in Supp. of Ans. to Mot. of Def. to Dismiss for Improper Venue (“Pls.’ Supp. Ans.”) 1; Def.’s Br. in Supp. of Mot. to Dismiss for Improper Venue (“Def.’s Supp.”) 1, 5.) Plaintiffs demand damages in excess of $150,000 for each of the two counts in the complaint as well as interest and costs of the suit.
III. Procedural History
Plaintiffs filed their Complaint on June 7, 2007. Defendant brought its motion to dismiss for improper venue alleging that the Registration Agreement, which Plaintiffs had to sign for Axel to attend camp, contained a forum selection clause. (Def.’s Mot. to Dismiss 2.) Defendant attached a blank, unsigned version of the Independent Lake Camp Registration 2005 (“Registration Agreement”) to its motion to dismiss. (Def.’s Mot. to Dismiss, Ex. A.) Defendant alleges that under the Registration Agreement, the proper forum would be a court in Wayne County, which is located in the Middle District of Pennsylvania. (Def.’s Mot. to Dismiss, Ex. A.) The blank Registration Agreement, in which the print is small but clear and legible, provides in part:
It is agreed that any dispute or cause of action arising between the parties, whether out of this agreement or other wise [sic], can only be brought in a court of competent jurisdiction located in Wayne County Pennsylvania [sic] and shall be construed in accordance with the laws of Pennsylvania.
(Def.’s Mot. to Dismiss, Ex. A.)
In Plaintiffs’ response to Defendant’s motion to dismiss, Plaintiffs argued that the blank Registration Agreement was unsigned and thus that Defendant failed to show that Plaintiffs had agreed to the terms in the document, including the forum selection clause. Plaintiffs averred by affidavit that they did not agree and would not have agreed to such a forum selection clause. (Pls.’ Supp. Ans. 2, Ex. B ¶¶ 2-3 (Ben Epps Aff.), Ex. C ¶¶ 2-3 (Amy Monroe Aff.).)
Defendant then provided a signed copy of the Registration Agreement, in which the information requested had been filled in and which was signed by Plaintiff Ben Epps. Defendant submitted an affidavit by Daniel Gould, the president of Defendant and Director of Independent Lake Camp. Mr. Gould avers that, after an exhaustive and diligent search, Defendant could only locate a photocopy of the signed Registration Agreement and was unable to locate the original. (Gould Aff. ¶¶ 5, 7-10.) He avers that the original agreement is presumed lost and/or destroyed through no bad faith or improper act on the part of Defendant. (Gould Aff. ¶ 10.) The photocopy of the agreement provided to the court also appears to be a faxed copy, as evident from a fax header across the top margin. (Gould Aff. Ex. A (Signed Registration Agreement).)
In the copy of the signed Registration Agreement submitted by Defendant, the small print containing the terms of the agreement is blurry and barely legible. As Defendant concedes, the right-side margin, toward the bottom, is cut off, truncating the forum selection clause. (Gould Aff. ¶ 6, Ex. A.) Consequently, if the print were clearly legible, when compared with the clear, blank version of the agreement, the forum selection clause would read:
It is agree [sic] any dispute or cause of action arising between the parties, whether out of this agreement or other wise [sic], can only be brought in a court of competent jurisdiction located in V [or three-quarters of a W] County Pennsylvania [sic] and shall be construed in accordance with the laws of Pennsylvania.
(Gould Aff. Ex. A.) Thus, if legible, most or all of the letters in the word “Wayne,” as in “Wayne County Pennsylvania,” are missing. (Gould Aff. ¶ 6, Ex. A.)
In Plaintiffs’ reply to Defendant’s affidavit, Plaintiffs do not dispute that Plaintiff Ben Epps’ signature appears on the copy of the Registration Agreement. Nor do Plaintiffs argue that the entire agreement itself is invalid. (Compare Pls.’ Supp. Ans. 2-3 (arguing, before Defendant’s production of a signed agreement, that the Registration Agreement was not enforceable because there was no objective manifestation of the parties’ intention to be contractually bound), with Pls.’ Reply to Def.’s Aff. 1 (arguing, after Defendant’s production of a signed Registration Agreement, that there was no meeting of the minds as to the forum selection clause because the wording of the clause was truncated and indiscernible).) Thus, the issue determined by the court is the enforceability of the forum selection clause.
III. Discussion
Federal law applies in the determination of the effect given to a forum selection clause in diversity cases. Jumara v. State Farm Ins. Co., 55 F.3d 873, 877 (3d Cir. 1995) (quoting Jones v. Weibrecht, 901 F.2d 17, 19 (2d Cir. 1990)). To evaluate the enforceability of the forum selection clause here, the court determines if the standard for dismissal or transfer is proper.[1] See id. at 877-78. If the standard for transfer applies, the court then determines if the forum selection clause is reasonable. See id. at 880 (citing M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 12-13 (1972)).
A. Dismissal or Transfer under 28 U.S.C. § 1404(a) or 1406.
Although dismissal is a “permissible means of enforcing a forum selection clause that allows suit to be filed in another federal forum,” the Third Circuit cautions that “as a general matter, it makes better sense, when venue is proper but the parties have agreed upon a not- unreasonable forum selection clause that points to another federal venue, to transfer rather than dismiss.” Salovaara v. Jackson Nat’l Life Ins. Co., 246 F.3d 289, 298-99 (3d Cir. 2001); see Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 28-29, 32 (1988) (holding that a federal court sitting in diversity jurisdiction should treat a request to enforce a forum selection clause in a contract as a motion to transfer venue under applicable federal law, 28 U.S.C. § 1404(a)); 15 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3803.1 (2d ed. 1986 & Supp. 2006).
Transfer, however, is not available when a forum selection clause specifies a non-federal forum. Salovaara, 246 F.3d at 298. The forum selection clause in the Registration Agreement, if valid and untruncated, would provide that “any dispute . . . can only be brought in a court of competent jurisdiction located in Wayne County Pennsylvania” and does not limit jurisdiction to state court. The provision’s plain language is construed to permit the action in any court of the county, including the federal court in the federal judicial district encompassing Wayne County, Pennsylvania, regardless of whether the federal court is physically located in the county. See Jumara, 55 F.3d at 881 (construing an arbitration provision requiring the action to transpire within a particular county to mean that the action would be permitted in any court, state or federal, with jurisdiction encompassing that county). Transfer is an available remedy because the forum selection clause, if valid and untruncated, includes a federal forum. See id. at 881-83 (applying the § 1404(a) analysis for transfer where a forum selection clause permitted any state or federal forum within a particular county).
Because transfer is the appropriate remedy, the court must then consider whether 28 U.S.C. § 1404(a) or § 1406 applies. “Section 1404(a) provides for the transfer of a case where both the original venue and the requested venue are proper. Section 1406, on the other hand, applies where the original venue is improper and provides for either transfer or dismissal of the case.” Id. at 878. Whether venue is proper in this district is governed by the federal venue statute, 28 U.S.C. § 1391. Id.
Without considering the forum selection clause, venue is proper in the Eastern District of Pennsylvania. Neither party disputes that Defendant is subject to personal jurisdiction in this district because Defendant transacts business here. See 28 U.S.C. § 1391(c); Jumara, 55 F.3d at 878-79; Stewart, 487 U.S. at 29 n.8 (“The parties do not dispute that the District Court properly denied the motion to dismiss the case for improper venue under 28 U.S.C. § 1406(a) because respondent apparently does business [there].”); see also (Pls.’ Supp. Ans. 1; Def.’s Supp. 3). This court therefore concludes that the appropriate analysis is whether the case should be transferred under § 1404(a). See Salovaara, 246 F.3d at 298-99.
B. Transfer under 1404(a) Is Improper Because the Forum Selection Clause Is Unreasonable and Unenforceable.
Section 1404(a) controls the inquiry of whether to give effect to a forum selection clause and to transfer a case.[2] Stewart, 487 U.S. at 29, 32. Before considering the factors under Section 1404(a), the court first examines the validity or reasonableness of the forum selection clause through application of the test in M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 12-13 (1972). “Where the forum selection clause is valid, which requires that there have been no ‘fraud, influence, or overweening bargaining power,’ the plaintiffs bear the burden of demonstrating why they should not be bound by their contractual choice of forum.” Jumara, 55 F.3d at 879-80 (quoting Bremen, 407 U.S. at 12-13).
A forum selection clause is unreasonable and invalid if the objecting party demonstrates that (1) the forum selection clause is the result of fraud or overreaching, (2) its enforcement would violate a strong public policy of the forum, or (3) its enforcement would result in litigation so seriously inconvenient and unreasonable that it would deprive a litigant of his or her day in court. Bremen, 407 U.S. at 15-17; In re Diaz Contracting, Inc., 817 F.2d 1047, 1051-52 (3d Cir. 1987).
To dispose of this issue, the court need only address whether the enforcement of the forum selection clause violates a strong public policy of the forum. Under Pennsylvania law, a clause in a contract must be conspicuous, so as to provide notice of its terms to a reasonable person. See, e.g., 13 Pa.C.S. § 2316 (requiring that limitation of warranties terms be conspicuous); 13 Pa.C.S. § 1201 (defining “conspicuous”); Beck-Hummel v. Ski Shawnee, Inc., 2006 Pa. Super 159, P23-24 & n.12-13 (Pa. Super. Ct. 2006) (relying on the requirement for conspicuous terms in the sale of goods context in a case involving the sale of services, and finding that disclaimer language on a ski ticket was not sufficiently conspicuous to put a purchaser on notice of its contents). Plaintiffs argue that the forum selection clause contained in the signed Registration Agreement is invalid because the wording of the clause is “truncated and indiscernible.” (Pls.’ Reply 1.)
The court agrees that the small print of the forum selection clause in the photocopied and faxed signed Registration Agreement is blurry and illegible, and does not provide reasonable notice of its terms. The court cannot assume that Mr. Epps signed a clear version of the agreement that became blurry and illegible upon subsequently being photocopied and faxed, because such evidence is not before the court. There is no evidence that Plaintiff Ben Epps signed any version of the Registration Agreement other than the document provided to the court.
Further, even if the forum selection clause were legible, its essential term, that any cause of action be brought in Wayne County, Pennsylvania, is cut off so as to be incomprehensible. Even if legible, the term “V– County Pennsylvania” in the forum selection clause gives no reasonable notice of the location of any agreed-upon forum.
The court concludes that the forum selection clause is inconspicuous and does not give notice of its terms to a reasonable person in violation of strong Pennsylvania public policy. The forum selection clause therefore is unreasonable, invalid, and unenforceable. Because the court finds that the forum selection clause is unreasonable and invalid, it does not address the private and public factors as transfer considerations under § 1404(a).
V. Conclusion
For the foregoing reasons, Defendant’s Motion to Dismiss for Improper Venue is denied. An appropriate order follows.
ORDER
AND NOW, this 19th day of December, 2007, upon consideration of Defendant 1.I.L., Inc.’s Motion to Dismiss for Improper Venue (Doc. No. 4), Plaintiffs’ Response in opposition thereto, Defendant’s Affidavit of Daniel Gould and Exhibits (Doc. Nos. 8 & 9), and Plaintiffs’ Reply, it is hereby ORDERED that said motion is DENIED for the reasons set forth in the attached memorandum.
Notes:
[1] Prior to Defendant’s production of a signed Registration Agreement, Plaintiffs argued that the forum selection clause should not be enforced because it did not meet the standard of reasonable communicativeness, as set forth in Marek v. Marpan Two, Inc., 817 F.2d 242, 245 (3d Cir. 1987), due to the agreement’s small print. Marek applies primarily in cases involving maritime law. See, e.g., Gibbs v. Carnival Cruise Lines, 314 F.3d 125, 130 (3d Cir. 2002); Hodes v. S. N.C. Achille Lauro ed Altri-Gestione, 858 F.2d 905, 906, 909-12 (3d Cir. 1988). As discussed below, the court follows more recent Third Circuit precedent on the enforceability of forum selection clauses.
[2] Section 1404(a) provides that “a district court may transfer any civil action to any other district or division where it might have been brought” for “the convenience of parties and witnesses” and “in the interest of justice.” 28 U.S.C. § 1404(a); see Stewart, 487 U.S. at 29. Courts must adjudicate motions to transfer based on an “individualized, case-by-case consideration of convenience and fairness,” weighing a number of factors. Id. (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)). A court’s review is not limited to the three enumerated factors in § 1404(a) – convenience of the parties, convenience of witnesses, or interests of justice – and courts may consider various private and public interests. Jumara, 55 F.3d at 879-80.
The parties’ agreement as to the proper forum, although not dispositive, receives “substantial consideration” in the weighing of relevant factors. Id. at 880; see Stewart, 487 U.S. at 29-30 (“The presence of a forum selection clause . . . will be a significant factor that figures centrally in the district court’s calculus. . . . The flexible and individualized analysis Congress prescribed in § 1404(a) thus encompasses consideration of the parties’ private expression of their venue preferences.”). The deference generally given to a plaintiff’s choice of forum is “inappropriate where the plaintiff has already freely chosen an appropriate venue.” Jumara, 55 F.3d at 880.
Get check boxes and initials out of your release!
Posted: February 18, 2019 Filed under: Pennsylvania, Release (pre-injury contract not to sue) | Tags: activities, adhesion, All Terrain Vehicle, Assumption of risk, ATV, Check Box, checkbox, conspicuity, enforceable, Exculpatory clause, font, genuine issue, Gym, initialed, initials, intent of a party, legal right, material fact, Membership, minor child, non-moving, parties, Public Policy, recreational activity, Release, requirements, ride, rushed, signing, Sports, Summary judgment, summary judgment motion, The Lost Trails, The Lost Trails LLC, ticket, Trails, waiver form Leave a commentIf the defendants release did not have a catch all phrase at the bottom of the document the release would be invalid because an initial had not been signed by the plaintiff.
Scott-Moncrieff v. Lost Trails, LLC, 2018 U.S. Dist. LEXIS 146936 *; 2018 WL 4110742
State: Pennsylvania: United States District Court for the Middle District of Pennsylvania
Plaintiff: Patrice Scott-Moncrieff
Defendant: The Lost Trails, LLC, et al
Plaintiff Claims: Plaintiff argues that Plaintiff did not sign a waiver on the date of the accident, and therefore did not waive any liability or assume any risk; that she was rushed and unable to read the original waiver in its entirety; that the waiver is unenforceable as not properly conspicuous; and finally, that because the earlier waiver signed by Plaintiff was “for all time thereafter” it should not be enforced.
Defendant Defenses: Release
Holding: For the defendant
Year: 2018
Summary
The plaintiff did not initial one of the initial boxes on the release she signed. This gave the plaintiff enough of an argument to make an appellate argument. But for a final paragraph that covered the uninitialed box language this release would have failed.
Facts
On October 20, 2013, Plaintiff visited Defendant’s ATV facility for the first time and, prior to using the facility, executed a waiver of liability. Plaintiff did not read the waiver in its entirety prior to signing it, and claims she was rushed during the process. On June 22, 2014, Plaintiff returned to the facility, at which time she alleged suffered injuries when she was thrown from the ATV she was riding.
Plaintiff initialed all of the above provisions. She did not initial paragraph 10 on the next page, however, which states as follows:
l0. Having had ample time and opportunity to raise any concerns or questions that I may have, and having read and understood the information, I certify my acceptance of the aforementioned provisions by signing below.
I am in good health and physical condition. I am voluntarily participating with knowledge that dangers are involved and agree to assume all risks. I also understand that if I am injured or become ill, I agree that Lost Trails LLC, or any of its employees, volunteers or guests will not be held liable should they render medical assistance to me or my minor child.
Despite not specifically initialing paragraph 10, Plaintiff did sign the agreement, indicating her acceptance and understanding of the exculpatory clauses.
Analysis: making sense of the law based on these facts.
The court first reviewed the validity of releases under Pennsylvania law. Pennsylvania has a three-part test to determine if releases are valid.
An exculpatory clause is valid if the following conditions are met: 1) the clause does not contravene public policy; 2) the contract is between parties relating entirely to their own private affairs; and 3) the contract is not one of adhesion. A valid exculpatory clause is only enforceable if “the language of the parties is clear that a person is being relieved of liability for his own acts of negligence.”. A waiver of liability violates public policy only if it involves “a matter of interest to the public or the state. Such matters of interest to the public or the state include the employer-employee relationship, public service, public utilities, common carriers, and hospitals.” The exculpatory clause at issue in this case does not contravene public policy because it does not affect a matter of interest to the public or the state.
The three requirements all evolve around the public policy argument. It is against public policy to have someone sign a release for a necessity, where the bargaining power is not equal or if the contract is so nasty it should not be signed by anyone. A release, a contract, to ride an ATV is valid because it is not a necessity, it is between parties of equal bargaining power and it is voluntary.
The contract meets the third prong of the Topp Copy validity standard because it is not a contract of adhesion. Agreements to participate in “voluntary sporting or recreational activities” are not contracts of adhesion because “[t]he signer is a free agent who can simply walk away without signing the release and participating in the activity, and thus the contract signed under such circumstances is not unconscionable.” “The signer is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential services, but merely governs a voluntary recreational activity.”
If the release passes the first three tests, it still must be scrutinized by the court to determine if it clearly relieves the defendant of liability. If the language of the agreement sets forth the requirements necessary for the plaintiff to understand she is liable for her injuries.
Even if an exculpatory clause is facially valid, it is enforceable only if it clearly relieves a party of liability for its own negligence. The following standards guide a court’s determination of the enforceability of an exculpatory clause:
1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing the immunity is upon the party invoking protection under the clause.
If the release, or any contract under Pennsylvania law meets those tests it is finally reviewed to determine if both parties clearly understood the intent of the agreement. In the case of a release, both parties must understand that the possible plaintiff is giving up his or her right to sue the possible defendant.
Further, the language of the waiver is clear. In interpreting the language of a contract, courts attempt to ascertain the intent of the parties and give it effect. When a writing is clear and unequivocal, its meaning must be determined by its contents alone. “[I]t is not the function of this Court to re-write it, or to give it a construction in conflict with … the accepted and plain meaning of the language used.” Here, the language of the waiver form is unequivocal in stating the intent that it is binding for all time thereafter.
In this case, the court found the release passed all of the tests.
As such, the Court finds that the October 2013 waiver executed by Plaintiff was in effect during her June 2014 visit to Defendant’s property.1
Once the release was found to be valid the next issue was whether or not the plaintiff had signed the release. The plaintiff argued because she had not initialed an initial box, had not read the release in its entirety
One who is about to sign a contract has a duty to read that contract first.” In the absence of fraud, the failure to read a contract before signing it is “an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract.” (Under Pennsylvania law, the failure to read a contract does not nullify the contract’s validity.)
The court did look at situations were the release was enforceable even if the plaintiff did not read the release or could not read the release.
…(written release found to be enforceable even when the agreement was in English but the plaintiff only read and spoke Spanish, noting that the “[p]laintiff cannot argue that the release language was inconspicuous or somehow hidden from his attention…. Nor did Defendant have an obligation to verify that [p]laintiff had read and fully understood the terms of the document before he signed his name to it.”). In this case, there is no allegation or evidence of fraud, and as such, Plaintiff’s argument is without merit.
The plaintiff argued the release was unenforceable because it was inconspicuous. However, the argument seemed to be based on case law that found waivers to be void then the real facts of this case.
The waiver form in this case was two pages in length, and initialed and signed by Plaintiff. It was not, like the waiver in Beck-Hummel, printed in small font on the back of a tubing ticket. This was a waiver that was reviewed, initialed and signed by Plaintiff. As such, the requirements of conspicuity set forth in Beck-Hummel would not necessarily apply.
The saving language of the release that covered the un-initialed section 10 was. Even though paragraph 10 was not initialed, the heading clearly stated what the document was and the intentions of the parties. The language that covered the un-initialed paragraph 10 was:
I HAVE READ THIS RELEASE OF LIABILITY, WAIVER OF LEGAL RIGHTS AND ASSUMPTIONS OF RISK AND FULLY UNDERSTAND ITS CONTENTS. I SIGN IT WILLINGLY, VOLUNTARILY AND HAVING HAD AMPLE OPPORTUNITY TO RAISE ANY QUESTIONS OR CONCERNS THAT I MAY HAVE, I ACKNOWLEDGE THAT I AM PARTICIPATING VOLUNTARILY WITH KNOWLEDGE THAT DANGERS ARE INVOLVED AND I AGREE TO ASSUME ALL THE RISKS.
The court found that the entire agreement was covered by this saving language above. So, the failure to initial one paragraph was not enough to void the release.
The court summarized its reasoning for finding the release valid and upholding the dismissal of the plaintiff’s claims because of the release.
These clauses are conspicuously set apart, appearing in capital letters, and in the case of the final paragraph, fully set apart, in all bold and all capitals. Further, the agreement itself is titled “Waiver Form” which notifies the reader of the purpose of the form. Plaintiff initialed the paragraphs setting forth the exculpatory clauses,2 and signed the agreement directly underneath the final, most prominent waiver clause. As such, the Court finds that the exculpatory clauses are valid and enforceable.
So Now What?
But for language at the bottom of the release which the court found to cover for the language that was not initialed the release would have failed. It is important to note; the court analysis stated the language that was not initialed was not part of the release.
If you have initial boxes, initials, etc., and one box is not initialed, in Pennsylvania that paragraph that is not initialed or initialed is invalid. Dependent upon the language, your release maybe void, if you don’t have the boxes checked or initialed.
Why use them anyway. Here the court explains why they are unnecessary, the language at the bottom of your release should tie everything together. Once you sign you acknowledge that you have read and understood the entire document. The checkboxes or initials can only hurt you in a release, not help you.
What do you think? Leave a comment.
Copyright 2018 Recreation Law (720) 334 8529
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exculpatory clause, parties, enforceable, material fact, summary judgment, conspicuity, activities, minor child, initialed, non-moving, Trails, signing, Sports, waiver form, font, summary judgment motion, recreational activity, assumption of risk, intent of a party, genuine issue, legal right, requirements, membership, adhesion, rushed, ticket, ride, gym, check box, checkbox, initials, The Lost Trails, The Lost Trails LLC, ATV, All Terrain Vehicle, Release, Public Policy
Scott-Moncrieff v. Lost Trails, LLC, 2018 U.S. Dist. LEXIS 146936 *; 2018 WL 4110742
Posted: February 11, 2019 Filed under: Legal Case, Pennsylvania, Release (pre-injury contract not to sue) | Tags: activities, adhesion, All Terrain Vehicle, Assumption of risk, ATV, Check Box, checkbox, conspicuity, enforceable, Exculpatory clause, font, genuine issue, Gym, initialed, initials, intent of a party, legal right, material fact, Membership, minor child, non-moving, parties, Public Policy, recreational activity, Release, requirements, ride, rushed, signing, Sports, Summary judgment, summary judgment motion, The Lost Trails, The Lost Trails LLC, ticket, Trails, waiver form Leave a commentScott-Moncrieff v. Lost Trails, LLC, 2018 U.S. Dist. LEXIS 146936 *; 2018 WL 4110742
Scott-Moncrieff v. Lost Trails, LLC
United States District Court for the Middle District of Pennsylvania
August 29, 2018, Decided; August 29, 2018, Filed
CIVIL ACTION NO. 3:16-CV-1105
2018 U.S. Dist. LEXIS 146936 *; 2018 WL 4110742
PATRICE SCOTT-MONCRIEFF, Plaintiff v. THE LOST TRAILS, LLC, et al, Defendants
Subsequent History: Appeal filed, 09/13/2018
exculpatory clause, parties, enforceable, material fact, summary judgment, conspicuity, activities, minor child, initialed, non-moving, Trails, signing, Sports, waiver form, font, summary judgment motion, recreational activity, assumption of risk, intent of a party, genuine issue, legal right, requirements, membership, adhesion, rushed, ticket, ride, gym
Counsel: [*1] For Patrice Scott-Moncrieff, Plaintiff: James W. Sutton, III, LEAD ATTORNEY, LAW OFFICES OF VIASAC & SHMARUK, FEASTERVILLE, PA.
For The Lost Trails, LLC, d/b/a Lost Trails ATV Adventures, Defendant, Cross Claimant, Cross Defendant: John T. McGrath, Jr., Marshall, Dennehey, Warner, Coleman & Goggin, Scranton, PA; Michael J. Connolly, Moosic, PA.
Judges: KAROLINE MEHALCHICK, United States Magistrate Judge.
Opinion by: KAROLINE MEHALCHICK
MEMORANDUM OPINION
Before the Court is a motion for summary judgment filed by Defendant, The Lost Trails, LLC (“Lost Trails”) in this matter. The motion (Doc. 50) was filed on November 14, 2017, together with a brief in support (Doc. 52), and Statement of Facts (Doc. 53). Plaintiff, Patrice Scott-Moncrieff, filed a brief in opposition (Doc. 54) on November 28, 2017, a reply brief (Doc. 55) was filed on December 6, 2017, and a sur reply brief (Doc. 62) was filed on January 17, 2018. This motion is ripe for disposition. For the following reasons, the Court will grant the motion for summary judgment.
I. Factual Background and Procedural History
The factual background is taken from Defendant’s Statements of Undisputed Material Facts (Doc. 53). Where the parties dispute certain facts, [*2] those disputes are noted. In addition, the facts have been taken in the light most favorable to the plaintiff as the non-moving party, with all reasonable inferences drawn in her favor. This is in accordance with the Local Rules of this Court, which state, in pertinent part, as follows:
LR 56.1 Motions for Summary Judgment.
A motion for summary judgment filed pursuant to Fed.R.Civ.P.56, shall be accompanied by a separate, short and concise statement of the material facts, in numbered paragraphs, as to which the moving party contends there is no genuine issue to be tried.
The papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts, responding to the numbered paragraphs set forth in the statement required in the foregoing paragraph, as to which it is contended that there exists a genuine issue to be tried.
Statements of material facts in support of, or in opposition to, a motion shall include references to the parts of the record that support the statements.
All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing [*3] party.
Local Rule 56.1 (emphasis added).
To comply with Local Rule 56.1, Plaintiff should (1) clearly and unequivocally admit or deny whether each fact contained in Defendant’s statement of facts is undisputed and/or material, (2) set forth the basis for any denial if any fact is not admitted in its entirety, and (3) provide a citation to the record that supports any such denial. Occhipinti v. Bauer, No. 3:13-CV-1875, 2016 U.S. Dist. LEXIS 136082, 2016 WL 5844327, at *3 (M.D. Pa. Sept. 30, 2016); Park v. Veasie, 2011 U.S. Dist. LEXIS 50682, 2011 WL 1831708, *4 (M.D. Pa. 2011). As such, where Plaintiff disputes a fact set forth by Defendant, but fails to provide a citation to the record supporting their denial, that fact will be deemed to be admitted. “Unsupported assertions, conclusory allegations, or mere suspicions” are insufficient to overcome a motion for summary judgment. Schaar v. Lehigh Valley Health Servs., Inc., 732 F.Supp.2d 490, 493 (E.D.Pa. 2010). In this matter, Plaintiff, though including a statement of fact in her brief in opposition to Defendant’s motion for summary judgment (Doc. 54), does not comply with the local rules and submit a separate statement of material facts in opposition to Defendant’s statement of material facts. Notably, despite being given the opportunity to file a sur-reply brief in this matter, after Defendant raises the issue of Plaintiff’s failure to file a statement of facts in its Reply Brief (Doc. 55), Plaintiff still [*4] did not file a separate statement of fact. As such, the facts set forth in Defendant’s statement of material facts will be deemed admitted.
On October 20, 2013, Plaintiff visited Defendant’s ATV facility for the first time and, prior to using the facility, executed a waiver of liability. (Doc. 50-2, at 4-5; DOC. 53, AT ¶¶ 5, 9). Plaintiff did not read the waiver in its entirety prior to signing it, and claims she was rushed during the process. (Doc. 53, at ¶ 7; Doc. 50-2, at 71). On June 22, 2014, Plaintiff returned to the facility, at which time she alleged suffered injuries when she was thrown from the ATV she was riding. (Doc. 1).
The release from liability signed by Plaintiff on October 20, 2013 reads, in pertinent part, as follows:
In consideration for the opportunity for event participation and utilization of general admission, all facilities, equipment and premises of Lost Trails, LLC (LT), North American Warhorse Inc, (NAW) Theta Land Corp. (TLC), 1000 Dunham Drive LLC (DD), and their respective affiliates, members, agents, employees, heirs and assigns and other associates in furtherance of the sport of Off-Road Riding, racing and any other activities, scheduled or unscheduled, [*5] (hereinafter collectively called “Off-Roading.”) This Waiver shall commence on the date first signed and shall remain binding for all time thereafter.
By signing this document, I hereby understand and agree for me and/or my minor child to this Release of Liability, Wavier of Legal rights and Assumption of Risk and to the terms hereof as follows:
2. I hereby RELEASE AND DISCHARGE LT, NAW, TLC, DD and all related parties, event volunteers, company officers, directors, elected officials, agents, employees, and owners of equipment, the land used for Off-Roading activities and any owners of adjourning lands to the premises (hereinafter collectively referred to as “Released parties”) from any and all liability claims, demands or causes of action that I, my minor child or my representatives and my heirs may hereafter have for injuries, loss of life, and all other forms of damages arising out of my voluntary participation in Off-Roading activities.
3. I understand and acknowledge that Off-Road riding and racing activities have inherent dangers that no amount of care, caution, instruction or expertise can eliminate and I EXPRESSLY AND VOLUNTARILY ASSUME ALL RISK OF DEATH OR PERSONAL INJURY [*6] OR OTHER FORMS OF DAMAGES SUSTAINED WHILE PARTICIPATING IN OFF-ROADING ACTIVITIES WHETHER OR NOT CAUSED BY THE NEGLIGENCE OF THE RELEASE PARTIES.
4. I further agree that I WILL NOT SUE OR OTHERWISE MAKE A CLAIM on behalf of me and/or on behalf of my minor child, against the Released Parties for damages or other losses sustained as a result of my participation in Off-Roading activities.
5. I also agree to INDEMNIFY AND HOLD THE RELEASED PARTIES HARMLESS from all claims, judgments and costs, including attorneys’ fees, incurred in the connection with any action brought against them, jointly or severally, as a result of my or my minor child’s participation in “Off-Roading” activities.
6. I take full responsibility for, and hold harmless Released Parties for any injury, property damage, or death that I or my minor child may suffer or inflict upon others .or their property as a result of my engaging in Off-Roading activities.
7. I further represent that I am at least 18 years of age, or that as the parent or (adult) legal guardian, I waive and release any and all legal rights that may accrue to me, to my minor child or to the minor child for whom I am (adult) legal guardian, as the result of [*7] any injury or damage that my minor child, the minor child for whom I am (adult) legal guardian, or I may suffer while engaging in Off-Roading activities.
8. I hereby expressly recognize that this Release of Liability, Waiver of Legal Rights and Assumption of Risks is a contract pursuant to which I have released any and all claims against the Released Parties resulting from participation in Off-Roading activities including any claims related to the negligence of the Released Parties by any of the undersigned.
9. I further expressly agree that the foregoing Release of Liability, Waiver of Legal Rights and Assumption of Risks is intended to be as broad and inclusive as is permitted by law of the province or state in which services, materials and/or equipment are provided and the course of business is conducted, and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full legal force and effect. I agree that, should any claim or action arise from my participation as described herein, including any issue as to the applicability of this Release or any provision contained within it, proper Jurisdiction and Venue will lie only in Monroe [*8] County, Pennsylvania and I waive Jurisdiction and Venue anywhere else.
Plaintiff initialed all of the above provisions. She did not initial paragraph 10 on the next page, however, which states as follows:
l0. Having had ample time and opportunity to raise any concerns or questions that I may have, and having read and understood the information, I certify my acceptance of the aforementioned provisions by signing below.
I am in good health and physical condition. I am voluntarily participating with knowledge that dangers are involved and agree to assume all risks. I also understand that if I am injured or become ill, I agree that Lost Trails LLC, or any of its employees, volunteers or guests will not be held liable should they render medical assistance to me or my minor child.
(Doc. 54-1, at 21).
Despite not specifically initialing paragraph 10, Plaintiff did sign the agreement, indicating her acceptance and understanding of the exculpatory clauses. (Doc. 54-1).
II. Legal Standard
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be granted only if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” only [*9] if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A dispute of material fact is “genuine” if the evidence “is such that a reasonable jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248. In deciding a summary judgment motion, all inferences “should be drawn in the light most favorable to the non-moving party, and where the non-moving party’s evidence contradicts the movant’s, then the non-movant’s must be taken as true.” Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994).
A federal court should grant summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000). In deciding a motion for summary judgment, the court’s function is not to make credibility determinations, weigh evidence, or draw inferences from the facts. Anderson, 477 U.S. at 249. Rather, the court must simply “determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249.
The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion,” and demonstrating the absence of a genuine dispute of any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). If the movant makes [*10] such a showing, the non-movant must go beyond the pleadings with affidavits or declarations, answers to interrogatories or the like in order to demonstrate specific material facts which give rise to a genuine issue. Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324. The non-movant must produce evidence to show the existence of every element essential to its case, which it bears the burden of proving at trial, because “a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323. Furthermore, mere conclusory allegations and self-serving testimony, whether made in the complaint or a sworn statement, cannot be used to obtain or avoid summary judgment when uncorroborated and contradicted by other evidence of record. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990); see also Thomas v. Delaware State Univ., 626 F. App’x 384, 389 n.6 (3d Cir. 2015) (not precedential) (“[U]nsupported deposition testimony, which is contradicted by the record, is insufficient to defeat summary judgment.”); NLRB v. FES, 301 F.3d 83, 95 (3d Cir. 2002) (“[The plaintiff’s] testimony . . . amounts to an unsupported, conclusory assertion, which we have held is inadequate to satisfy the movant’s burden of proof on summary judgment.”).
As this jurisdiction of this Court is sounded in the diversity of the parties pursuant to 28 U.S.C. § 1332(a), Pennsylvania substantive [*11] law will apply. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).
III. Discussion
Defendant submits that it is entitled to judgment in its favor because Plaintiff executed a valid waiver of all liability prior to ever engaging in any recreational activities on Defendant’s property; because such releases and waivers are recognized under Pennsylvania law; and because within the waiver, Plaintiff specifically acknowledged that she was assuming all of the risks associated with these activities. (Doc. 52, at 2). In response, Plaintiff argues that Plaintiff did not sign a waiver on the date of the accident, and therefore did not waive any liability or assume any risk; that she was rushed and unable to read the original waiver in its entirety; that the waiver is unenforceable as not properly conspicuous; and finally, that because the earlier waiver signed by Plaintiff was “for all time thereafter” it should not be enforced. (Doc. 54).
A. The Exculpatory Clause is Valid
An exculpatory clause is valid if the following conditions are met: 1) the clause does not contravene public policy; 2) the contract is between parties relating entirely to their own private affairs; and 3) the contract is not one of adhesion. Evans v. Fitness & Sports Clubs, LLC, No. CV 15-4095, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at *3 (E.D. Pa. Sept. 28, 2016); [*12] Topp Copy Prods., Inc. v. Singletary, 533 Pa. 468, 626 A.2d 98, 99 (Pa. 1993). A valid exculpatory clause is only enforceable if “the language of the parties is clear that a person is being relieved of liability for his own acts of negligence.” Id. A waiver of liability violates public policy only if it involves “a matter of interest to the public or the state. Such matters of interest to the public or the state include the employer-employee relationship, public service, public utilities, common carriers, and hospitals.” Seaton v. E. Windsor Speedway, Inc., 400 Pa. Super. 134, 582 A.2d 1380, 1382 (Pa. Super. Ct. 1990); see also Kotovsky v. Ski Liberty Operating Corp., 412 Pa. Super. 442, 603 A.2d 663, 665 (Pa. Super. Ct. 1992). The exculpatory clause at issue in this case does not contravene public policy because it does not affect a matter of interest to the public or the state. See Kotovsky, 603 A.2d at 665-66 (holding that releases did not violate public policy because “[t]hey were [in] contracts between private parties and pertained only to the parties’ private rights. They did not in any way affect the rights of the public.”). Thus, the exculpatory clause meets the first two prongs of the Topp Copy standard for validity.
The contract meets the third prong of the Topp Copy validity standard because it is not a contract of adhesion. Agreements to participate in “voluntary sporting or recreational activities” are not contracts of adhesion because “[t]he signer is a free agent [*13] who can simply walk away without signing the release and participating in the activity, and thus the contract signed under such circumstances is not unconscionable.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1190-91 (Pa. 2010). “The signer is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential services, but merely governs a voluntary recreational activity.” Id. The Agreement at issue here is not a contract of adhesion because it is a contract to participate in voluntary recreational activities. The Agreement does not relate to an essential service, and Plaintiff was free to engage in the activity, or not, as she wished. She was under no compulsion to do so. See Chepkevich, supra; see also Hinkal v. Pardoe, 2016 PA Super 11, 133 A.3d 738, 741-2 (Pa. Super. Ct. 2016) (en banc), appeal denied, 636 Pa. 650, 141 A.3d 481 (Pa. 2016) (citing the “thorough and well-reasoned opinion” of the trial court, which held that the plaintiff’s gym membership agreement was not a contract of adhesion because exercising at a gym is a voluntary recreational activity and the plaintiff was under no compulsion to join the gym). The Agreement meets all three prongs of the Topp Copy standard for validity, and thus the exculpatory clause is facially valid.
B. The Exculpatory Clause is Enforceable
Even if an exculpatory clause is [*14] facially valid, it is enforceable only if it clearly relieves a party of liability for its own negligence. Evans v. Fitness & Sports Clubs, LLC, No. CV 15-4095, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at *5 (E.D. Pa. Sept. 28, 2016). The following standards guide a court’s determination of the enforceability of an exculpatory clause:
1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing the immunity is upon the party invoking protection under the clause.
The Court now turns to Plaintiff’s arguments against the enforceability of the exculpatory clause.
1. Plaintiff’s first waiver is enforceable, including the clause “for all time thereafter.”
Plaintiff submits that the waiver she executed in October 2013 did not apply to her visit to Defendant on June 22, 2014, because “it is uncontroverted that the Defendant has a policy that dictates all [*15] riders must sign a waiver every time they ride an ATV at their park” (Doc. 54, at 4), and Plaintiff did not sign a waiver when she visited the park in June 2014. Defendant counters that Plaintiff is misconstruing the record in making this assertion. (Doc. 55, at 2). Specifically, Defendant submits that the testimony cited by Plaintiff is that of a former maintenance man who has nothing to do with policy or procedure at Defendant’s property, and further, that he neither testifying as a representative of, nor acting on behalf of, Lost Trails, LLC. (Doc. 55-1, at 4). The testimony offered by the Plaintiff on this issue is that of Matthew Anneman, who testified as follows:
Q: Everybody that goes there is supposed sign the waiver before they go out on the trails, is that fair to say?
Q: Do you know if Miss Moncrieff signed a waiver before she went on the trail that day?
A: Yes. It is imperative that everybody who comes to ride on that mountain is to fill out a waiver.
Q: So every single time somebody comes to the facility, before they go out there, they go in and sign a waiver.
Q: And you’re not involved in that part of it, the sign in, and the waiver.
A: No, no. Leslie or one [*16] of her employees would work the front desk.
(Doc. 54-1, at 12; Anneman Dep. at 36).
The Court finds this testimony to have little to no bearing on the validity and applicability of the October 2013 waiver. Even construing the evidence in the record in Plaintiff’s favor, Mr. Anneman’s testimony does not change the fact Plaintiff did sign a waiver in October 2013, one which indicated that it “shall remain binding for all time thereafter.” (Doc. 54-1, at 20) (emphasis added). Nothing in the record before the Court indicates that Mr. Anneman was responsible for either policy at Defendant’s facility, or in any way even involved with the waiver process. Further, the language of the waiver is clear. In interpreting the language of a contract, courts attempt to ascertain the intent of the parties and give it effect. Sycamore Rest. Grp., LLC v. Stampfi Hartke Assocs., LLC, 2017 Pa. Super. 221, 174 A.3d 651, 656 (2017); LJL Transp., Inc. v. Pilot Air Freight Corp., 599 Pa. 546, 962 A.2d 639, 648 (2009). When a writing is clear and unequivocal, its meaning must be determined by its contents alone. Synthes USA Sales, LLC v. Harrison, 2013 Pa. Super. 324, 83 A.3d 242, 250-51 (2013); Murphy v. Duquesne Univ. of the Holy Ghost, 565 Pa. 571, 591, 777 A.2d 418, 429 (2001) (citations and quotation marks omitted). “[I]t is not the function of this Court to re-write it, or to give it a construction in conflict with … the accepted and plain meaning of the language used.” Id.; citing Robert F. Felte, Inc. v. White, 451 Pa. 137, 144, 302 A.2d 347, 351 (1973) (citation omitted). Here, the language of the waiver form (Doc. 54-1, [*17] at 20) is unequivocal in stating the intent that it is binding for all time thereafter. As the Pennsylvania Supreme Court has stated,
The word “all” needs no definition; it includes everything, and excludes nothing. There is no more comprehensive word in the language, and as used here it is obviously broad enough to cover liability for negligence. If it had been the intention of the parties to exclude negligent acts they would have so written in the agreement. This paragraph of the lease is clear and unambiguous. No rules of construction are required to ascertain the intention of the parties.
Topp Copy Prods. v. Singletary, 533 Pa. 468, 472, 626 A.2d 98, 100 (1993); citing Cannon v. Bresch, 307 Pa. 31, 34, 160 A. 595, 596 (1932).
As such, the Court finds that the October 2013 waiver executed by Plaintiff was in effect during her June 2014 visit to Defendant’s property.1
2. Plaintiff’s argument that she was rushed and unable to read the original waiver in its entirety is without merit.
Plaintiff next argues that, should the Court find that the 2013 waiver was in effect in June 2014, she was rushed and therefore did not have time to read the waiver before signing it. “The law of Pennsylvania is clear. One who is about to sign a contract has a duty to read that contract [*18] first.” Hinkal v. Pardoe, 2016 Pa. Super. 11, 133 A.3d 738, 743, appeal denied, 636 Pa. 650, 141 A.3d 481 (2016); In re Estate of Boardman, 2013 PA Super 300, 80 A.3d 820, 823 (Pa.Super.2013); citing Schillachi v. Flying Dutchman Motorcycle Club, 751 F.Supp. 1169, 1174 (E.D.Pa.1990) (citations omitted). In the absence of fraud, the failure to read a contract before signing it is “an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract.” Germantown Sav. Bank v. Talacki, 441 Pa.Super. 513, 657 A.2d 1285, 1289 (1995) (citing Standard Venetian Blind Co. v. American Emp. Ins. Co., 503 Pa. 300, 469 A.2d 563, 566 note (1983)); see also Wroblewski v. Ohiopyle Trading Post, Inc., No. CIV.A. 12-0780, 2013 U.S. Dist. LEXIS 119206, 2013 WL 4504448, at *7 (W.D. Pa. Aug. 22, 2013) (Under Pennsylvania law, the failure to read a contract does not nullify the contract’s validity.); Arce v. U-Pull-It Auto Parts, Inc., No. 06-5593, 2008 U.S. Dist. LEXIS 10202, 2008 WL 375159, at *5-9 (E.D.Pa. Feb.11, 2008) (written release found to be enforceable even when the agreement was in English but the plaintiff only read and spoke Spanish, noting that the “[p]laintiff cannot argue that the release language was inconspicuous or somehow hidden from his attention…. Nor did Defendant have an obligation to verify that [p]laintiff had read and fully understood the terms of the document before he signed his name to it.”). In this case, there is no allegation or evidence of fraud, and as such, Plaintiff’s argument is without merit.
3. The waiver is properly conspicuous.
Finally, Plaintiff avers that summary judgment should be denied because the waiver was not properly conspicuous, and relies on the Pennsylvania Superior Court’s decision in Beck-Hummel in making [*19] this assertion. The Beck-Hummel court addressed the enforceability of a waiver of liability printed on the back of a tubing ticket. The exculpatory language appeared in a font that was “just barely readable,” and smaller than the font used for some other portions of the ticket. Id. at 1274-75. The Beck-Hummel court looked to the conspicuousness of the waiver of liability as a means of establishing whether or not a contract existed, setting forth three factors to consider in determining conspicuousness: 1) the waiver’s placement in the document; 2) the size of the waiver’s font; and 3) whether the waiver was highlighted by being printed in all capital letters or a different font or color from the remainder of the text. Beck-Hummel, 902 A.2d at 1274. After considering these factors, the Beck-Hummel court could not conclude as a matter of law that the exculpatory clause was enforceable because the language of the ticket was not sufficiently conspicuous as to put the purchaser/user on notice of the waiver. Id.at 1275.
However, in a more recent Pennsylvania Superior Court case, the court held that, as in the case presently before this Court, where the exculpatory clause was part of a signed contract between the parties, the requirements of [*20] conspicuity set forth in Beck-Hummel would not necessarily apply. In Hinkal v. Pardoe, the en banc Superior Court of Pennsylvania examined whether the Beck-Hummel conspicuity requirements for the enforcement of exculpatory clauses applies to signed valid written contracts. Hinkal v. Pardoe, 2016 Pa. Super. 11, 133 A.3d 738, 743-745, appeal denied, 636 Pa. 650, 141 A.3d 481 (2016). In Hinkal, the plaintiff had signed a membership agreement with Gold’s Gym that contained a waiver of liability for negligence claims on the back page. Id. at 741. The Hinkal court found the plaintiff’s comparison of her case to Beck-Hummel “inapposite” because, unlike a waiver printed on the back of a tubing ticket that did not require a signature; the gym waiver was part of a signed agreement. Id. at 744-45. Further, the court noted that conspicuity is generally not required to establish the formation of a contract, but “has been resorted to as a means of proving the existence or lack of a contract,” where it is unclear whether a meeting of the minds occurred, and imposing such a requirement would allow a properly executed contract to be set aside through one party’s failure to do what the law requires – reading a contract. Id. at 745. The Hinkal court concluded that the waiver of liability was valid and enforceable because [*21] the plaintiff had signed the agreement. Similarly, in Evans v. Fitness & Sports Clubs, LLC, the District Court determined that the exculpatory clauses contained in a fitness club’s membership agreements were valid and enforceable where the plaintiff had signed both a membership and personal training agreement, including an acknowledgement that the plaintiff had read and understood the entire agreement, including the release and waiver of liability, appears directly above the plaintiff’s signature on the first page of each agreement. Evans v. Fitness & Sports Clubs, LLC, No. CV 15-4095, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at *6 (E.D. Pa. Sept. 28, 2016).
The Court finds the agreement at issue in this case to be far more in line with the waivers discussed by the Pennsylvania Superior and Eastern District of Pennsylvania courts in Hinkal and Evans. The waiver form in this case was two pages in length, and initialed and signed by Plaintiff. It was not, like the waiver in Beck-Hummel, printed in small font on the back of a tubing ticket. This was a waiver that was reviewed, initialed and signed by Plaintiff. As such, the requirements of conspicuity set forth in Beck-Hummel would not necessarily apply. Hinkal v. Pardoe, 133 A.3d at 743-745.
Even if those conspicuity requirements applied, however [*22] the exculpatory clauses in the Waiver Form would still be enforceable. The document is titled, in larger font, bold, underlined, and all capital letters “LOST TRAILS ATV ADVENTURES WAIVER FORM.” The language specifically indicating release and discharge, assumption of the risk, an agreement not to sue, and indemnification, are set of in all capitals in the numbered paragraphs, and were acknowledged by Plaintiff initialing each paragraph. (Doc. 54-1, at 20). Immediately above the signature line, in all capital bold letters, the release reads:
I HAVE READ THIS RELEASE OF LIABILITY, WAIVER OF LEGAL RIGHTS AND ASSUMPTIONS OF RISK AND FULLY UNDERSTAND ITS CONTENTS. I SIGN IT WILLINGLY, VOLUNTARILY AND HAVING HAD AMPLE OPPORTUNITY TO RAISE ANY QUESTIONS OR CONCERNS THAT I MAY HAVE, I ACKNOWLEDGE THAT I AM PARTICIPATING VOLUNTARILY WITH KNOWLEDGE THAT DANGERS ARE INVOLVED AND I AGREE TO ASSUME ALL THE RISKS.
These clauses are conspicuously set apart, appearing in capital letters, and in the case of the final paragraph, fully set apart, in all bold and all capitals. Further, the agreement itself is titled “Waiver Form” which notifies the reader of the purpose of the form. [*23] Plaintiff initialed the paragraphs setting forth the exculpatory clauses,2 and signed the agreement directly underneath the final, most prominent waiver clause. As such, the Court finds that the exculpatory clauses are valid and enforceable. See Evans, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at n. 6.
IV. Conclusion
For the reasons set forth above, the undisputed material facts in the record establish that Defendant is entitled to summary judgment. Viewing the record in light most favorable to the Plaintiff, the Court finds that the exculpatory clauses at issue are valid and enforceable. As such, Defendant’s motion will be granted, and judgment will be entered in favor of Defendant.
United States Magistrate Judge
ORDER
AND NOW, this 29th day of August, 2018, IT IS HEREBY ORDERED that for the reasons set forth in the memorandum filed concurrently with this Order, Defendant’s motion for summary judgment (Doc. 50) is GRANTED, and judgment is entered in favor of Defendant. The Clerk of Court is directed to CLOSE this matter.
United States Magistrate Judge
Plaintiff loses because experts could not prove his claims against a camp used for a football camp.
Posted: May 21, 2018 Filed under: New York, Pennsylvania, Summer Camp, Youth Camps | Tags: ACA, Adult, American Camp Association, breached, building code, bunk, Cabin, Coach, constructive notice, cross-claims, engaging, Expert Witness, fellow, fighting, Football Camp, glass, hazardous, high school, horseplay, individual capacity, Infant, inter alia, Leader, negligent supervision, Notice, safety glass, severed, speculative, spontaneous, sudden, Summary judgment, Summer Camp, supervising, Supervision, window Leave a commentACA trained expert witness was hired by injured plaintiff to prove a claim against a summer camp. Again, camp money is used to train expert who then is used against the camp.
Staten Et. Al. v. The City of New York Et. Al., 2013 N.Y. Misc. LEXIS 4257; 2013 NY Slip Op 32252(U)
State: New York, Supreme Court of New York, Richmond County
Plaintiff: Marvin Staten, an Infant Over the Age of 14 years by his Parent and Natural Guardian Cassandra Dozier and Cassandra Dozier, Individually
Defendant: The City of New York, The New York City Department of Education, Camp Chen-A-Wanda, Inc., Louis Cintron, Sr., Louis Cintron, Jr., an infant over the age of 14 years by his Parent and Natural Guardian, Louis Cintron, Sr., Barbara Rose Cintron and Louis Cintron, Jr. an infant over the age of 14 years by his Parent and Natural guardian, Barbara Rose Cintron, Defendants
Plaintiff Claims: Negligent supervision and maintenance of the premises
Defendant Defenses:
Holding: For the defendant Camp
Year: 2013
Summary
American Camp Association (ACA) trained expert witness used ACA material to try and prove the summer camp was liable for the injuries of a camper. The summer camp had passed the duty to control the kids to the school district that had rented the camp and as such was not liable.
To be able to sue for emotional damages under New York law, the parent must have financial damages also. Lacking that, the mother’s claims were dismissed.
Facts
This ruling is the result of several motions filed by different parties and can be confusing.
The minors were at a summer week long football camp. The camp was rented by the defendant New York Department of Education. The camp, Camp Chen-A-Wanda, Inc., was located in Pennsylvania.
The plaintiff was looking through the cabin window where he was bunking to see if anyone was messing with his stuff. The defendant minor punched the plaintiff through the window, injuring the plaintiff with the broken glass from the window. The plaintiff’s expert identified this action as horseplay?
At his deposition, plaintiff testified that shortly after dinner on the date of the accident, he was standing outside his cabin, looking in through a window to “see if anybody was messing around with [his] stuff” when, after a few seconds, defendant Cintron “punched [through] the glass”
The defendant minor had been disciplined before by the school district for fighting.
There was a written agreement between the Defendant Camp and the school district, where the school district agreed to provide one adult (person over age 19) per cabin. In the cabin where the incident took place, the supervisors were two seniors, one of whom was the defendant minor.
The agreement gave control of the people at the camp, including campers to the school district renting the facilities.
This is the decision concerning the various motions.
Analysis: making sense of the law based on these facts.
The camp filed a motion for summary judgment arguing:
(1) it owed no duty to supervise plaintiff or to otherwise protect him from horseplay; (2) no facts have been adduced in support of plaintiffs’ claim that the subject window constituted a “defective condition”; and (3) since the proximate cause of the accident was the sudden, unanticipated independent actions of Cintron (i.e., punching the glass), the Camp cannot be found liable for plaintiff’s injury.
The plaintiff argued the camp was negligent and negligent per se. The negligence per se claim was based on a regulation that required safety glass to be used in windows of bunkhouses. The plaintiff also argued the camp was negligent for failing to exercise risk management and supervise the campers.
I’ve never seen a claim that it was negligent to fail to exercise risk management.
The expert hired by the plaintiff had “44 years in the camping industry and a co-author of the American Camp Association’s ‘2006 Camp Accreditation Process Guide’.” However, the court found the testimony of the expert was conclusory and insufficient to raise a question of fact.
…”conclusory testimony” offered by plaintiff’s expert was “insufficient to raise a question of fact as to whether [the Camp] breached its duty to maintain[] [its] property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the in-jury, and the burden of avoiding the risk” and, further, that the failure of plaintiff’s expert to quote any “authority, treatise [or] standard” in support thereof rendered his ultimate opinion speculative and/or “unsupported by any evidentiary foundation…[sufficient] to withstand summary judgment.
The basis of the plaintiff’s expert witness testimony was based on the 2006 American Camp Association Accreditation Process Guide. However, he failed to demonstrate how, where or when the guide had “been accepted as an authoritative reference work in any court of law, or its applicability to a camp constructed in the 1940s.”
The court also found the expert witnesses reliance on the building codes was misplaced because the camp had been built thirty years prior to the creation of the building code.
The court then stated, “the Camp’s motion for summary judgment is granted, and the complaint and any cross claims as against this defendant are hereby severed and dismissed.”
The court then looked at the cities (New York’s) motions. The court found the duty to supervise the youth was contractually assumed by the city in its contract with the camp. The school also had knowledge of the propensity of the defendant minor to get in fights.
In this regard, actual or constructive notice to the school of prior similar conduct is generally required, since school personnel cannot be reasonably expected to guard against all of the sudden and spontaneous acts that take place among students on a daily basis
The it was foreseeable the fight could occur.
The plaintiff’s mothers claim against the city were dismissed.
However, it is well settled that a parent cannot recover for the loss of society and companionship of a child who was negligently injured, while a claim for the loss of a child’s services must be capable of monetarization in order to be compensable. Here, plaintiff’s mother has offered no proof of the value of any services rendered to her by her son. As a result, so much of the complaint as seeks an award of damages in her individual capacity for the loss of her son’s services must be severed and dismissed.
The defendant camp was dismissed from the lawsuit. The mother’s claims were dismissed from the lawsuit because she could not prove actual damages, only emotional damages, which are not a cause of action in New York.
So Now What?
Here again an ACA trained expert witness tries to use ACA material to prove a camp is negligent. The expert would have been successful if he had better training as an expert witness and knew had to get his guide into evidence.
There are great organizations doing great things for their membership. ACA is one of those organizations. However, like others, the attempt to help their membership be better is making their lives in court a living hell.
What would you think if the person sitting across from you being deposed or on the witness stand says you are a crummy operation and negligent. And you know that your association money went into training him and creating the documents he is using to prove you were negligent.
The final issue is many states are reducing or eliminating who can sue for emotional damages when they witness or are relatives of the plaintiff. Here New York has said you can’t sue for emotional damages for the injury your child received if you don’t have financial damages in the game also.
What do you think? Leave a comment.
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A season pass release for a Pennsylvania ski are was limited to the inherent risks of skiing. Consequently, the plaintiff was able to argue his injury was not due to an inherent risk.
Posted: May 14, 2018 Filed under: Pennsylvania, Ski Area, Skiing / Snow Boarding | Tags: Assumption of risk, atmosphere, contravene, derivative, Downhill, exculpatory, Exculpatory clause, experienced, hazardous, Ice, icy, Inherent Risks, loss of consortium, matter of law, Notice, particularity, Pennsylvania Skier Safety Act, plain language, Public Policy, Release, release agreement, releasing, Resort, risk doctrine, season, Ski, Skier, skiing, Snow, Snowsports, Sport, website, written applica-tion Leave a commentThe defendant one because the court was able to interpret the risk as one that was inherent in skiing. The defendant also, laid out the risks of skiing quite broadly in its information to the plaintiff.
Cahill v. Ski Liberty Operating Corp., 2006 Pa. Dist. & Cnty. Dec. LEXIS 444; 81 Pa. D. & C.4th 344
State: Pennsylvania, Common Pleas Court of Adams County, Pennsylvania
Plaintiff: Timothy Joseph Cahill and Anne Leslie Cahill
Defendant: Ski Liberty Operating Corp. t/d/b/a Ski Liberty and t/d/b/a Liberty Mountain Resort and Snow Time, Inc.
Plaintiff Claims: negligent for failing to properly maintain its ski slopes in a safe manner and/or failing to adequately warn concerning an icy area
Defendant Defenses: Assumption of the Risk and Release
Holding:
Year: 2006
Summary
Plaintiff was injured when he skied over an icy spot and fell at the defendant’s ski area. However, this case was quickly dismissed because he had signed a release and the risk of ice at a ski area was an inherent risk of the Pennsylvania Skier Safety Act.
Facts
The plaintiff purchased a season pass to ski at the defendant’s ski area. He purchased his season pass on-line and signed a release at that time, online. When he went to pick up his season pass, he signed another written release. (See Too many contracts can void each other out; two releases signed at different times can render both release’s void.)
While skiing one day the plaintiff fell on an icy section. He claimed he was unaware of the ice. He severely injured is face, back, ribs and left hand. He sued the defendants for his injuries.
The defendant filed a Motion for Judgment on the Pleadings. A Motion for Judgment on the Pleadings is an argument that the pleadings do not make a legal case to continue the litigation.
A motion for judgment on the pleadings is in the nature of a demurrer as it provides the means to test the legal sufficiency of the pleadings. All of the [P]laintiffs’ allegations must be taken as true for the purposes of judgment on the pleadings. Unlike a motion for summary judgment, the power of the court to enter a judgment on the pleadings is limited by the requirement that the court consider only the pleadings themselves and any documents properly attached thereto. A motion for judgment on the pleadings should be granted only where the pleadings demonstrate that no genuine issue of fact exists and the moving party is entitled to judgment as a matter of law.
Analysis: making sense of the law based on these facts.
The court looked at Pennsylvania law. Like most states in Pennsylvania “exculpatory agreements, or releases, are valid provided, they comply with the safeguards enunciated by our Superior Court.”
Under Pennsylvania law, a release to be valid must:
The contract must not contravene any policy of the law. It must be a contract between individuals relating to their private affairs. Each party must be a free bargaining agent, not simply one drawn into an adhesion contract, with no recourse but to reject the entire transaction…[T]o be enforceable, several additional standards must be met. First, we must construe the agreement strictly and against the party asserting it. Finally, the agreement must spell out the intent of the parties with the utmost particularity.
The court then went through the facts in this case to see if the requirements under the law were met.
The plaintiff was not forced to sign the release but did so freely. The release was signed based on a personal choice of the plaintiff to ski at the defendant’s facilities. “Clearly, this activity is not essential to Cahill’s personal or economic well-being but, rather, was a purely recreational activity.”
The release does not violate public policy because the agreement was private in nature and “in no way affect the rights of the public.”
The court found the release was unambiguous. The release spelled out the intent of the parties and gave notice to the plaintiff of what he was signing.
The releases executed by Cahill are unambiguous in both their language and intent. The language spells out with particularity the intent of the parties. The captions clearly advise patrons of the contents and purpose of the document as both a notice of risk and a release of liability. The waiver uses plain language informing the skier that downhill skiing is a dangerous sport with inherent risks including ice and icy conditions as well as other forms of natural or man-made obstacles, the condition of which vary constantly due to weather changes and use. Importantly, after advising a patron of these dangers, the documents unequivocally, in both bold and capital letters, releases Ski Liberty from liability for any injuries suffered while using the ski facilities regardless of any negligence on the part of Ski Liberty, its employees, or agents. The application of the releases to use of Ski Liberty facilities is not only spelled out specifically in the document but is reinforced by other references to the releases throughout the body of the document.
The plaintiff had ample opportunity to read and review the release before paying for it. The court found the release was clear and spelled out in detail in plain language the intent of the parties.
The plaintiff argued the icy condition was a hazardous condition created by the defendant and is not an inherent risk of the sport of skiing. Because the condition was hazardous, the plaintiff argued you could not assume the risk of the icy area, and the release should be void.
The court found that icy conditions were an inherent risk of skiing in Pennsylvania.
Cahill is an experienced skier who obviously has personal knowledge of the inherent dangers involved in the sport. His experience undoubtedly has taught him that the sport of skiing is not conducted in the pristine and controlled atmosphere of a laboratory but rather occurs in the often hostile and fickle atmosphere of a south central Pennsylvania winter. Those familiar with skiing, such as Cahill, are aware that nature’s snow is regularly supplemented with a man made variety utilizing water and a complex system of sprayers, hydrants, and pipes. Human experience also teaches us that water equipment frequently leaves puddles which, in freezing temperatures, will rapidly turn to ice. The risks caused by this variety of ever-changing factors are not only inherent in downhill skiing but, perhaps, are the very nature of the sport. The self-apparent risks were accepted by Cahill when he voluntarily entered into a business relationship with Ski Liberty. He chose to purchase a ski ticket in exchange for the opportunity to experience the thrill of downhill skiing. In doing so, he voluntarily assumed the risks that not only accompany the sport but may very well add to its attractiveness.
The court upheld the release and granted the defendants motion for judgment on the pleadings. This effectively ended the lawsuit.
So Now What?
It is rare that a Judgment on the Pleadings works, normally; the plaintiff can make an argument that the court finds requires more investigation, so the case can continue.
Here though, the release was well-written and the plaintiff’s argument was thrown out as a risk covered in the Pennsylvania Skier Safety Act.
In this case, the plaintiff was dealt a double blow, with only one being necessary for the defendant to win. He signed a valid release and the risk he undertook was an inherent risk of skiing in Pennsylvania.
What do you think? Leave a comment.
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Under Pennsylvania law, a collision with other skiers or boarders is an inherent risk of skiing. Skiing off the trail because of the collision is also an inherent risk of skiing.
Posted: April 16, 2018 Filed under: Assumption of the Risk, Pennsylvania, Ski Area, Skier v. Skier, Skiing / Snow Boarding | Tags: assumption of the risk, att, Collision, daughter, Downhill, drop-off, edge, elevation, experienced, foot, genuine, inherent, Inherent Risk, knee-jerk, Lift Ticket, matter of law, Pennsylvania Skier Safety Act, pile, Resort, rocks, Ski, skied, Skier, Skier's Responsibility Act, skiing, Slope, Snow, Snowboarder, specific risk, Sport, Summary judgment, Trail, veering Skier Safety Act Leave a commentThe terrain off of the trail was different than normally found at a ski area. A 3-4 drop off into a pile of rocks. However, the risk is skiing off the trail, not what you run into when you do.
Vu v. Ski Liberty Operating Corp., et. al., 2018 U.S. Dist. LEXIS 49013
State: Pennsylvania, United States District Court for the Middle District of Pennsylvania
Plaintiff: Quan Vu and May Siew
Defendant: Ski Liberty Operating Corp., et. al.
Plaintiff Claims: Negligence and Loss of Consortium
Defendant Defenses: Release
Holding: For the defendant
Year: 2018
Summary
The definition of an inherent risk when skiing is not what causes the injury, only the risk that led to the injury. Under Pennsylvania law, there is a broad definition of inherent risks and this case was dismissed because the plaintiff assumed those inherent risks, and the defendant did not owe a duty to protect him from those risks.
Facts
The plaintiff was an experienced skier, who had been skiing for twenty years. He was skiing behind his daughter at the defendant’s ski area. A snowboarder came close to the plaintiff or hit the plaintiff sending or causing him to ski off the trail. He went off the trail, over a 3-4 drop and landed in a pile of rocks.
…Mr. Vu does not recall much detail about his accident. Mr. Vu testified: “I believe there was a snowboarder involved and I — the snowboarder got — either cut me off or got awfully close and I had a knee-jerk reaction to veer because the last thing I want to do is ram into somebody. So I — my knee-jerk reaction is to veer.” However, Mr. Vu could not recall what he saw that caused him to veer, whether he veered to the right or to the left, or whether the snowboarder was above or below him on the hill. The last thing that Mr. Vu remembered was skiing with his daughter.
He sued the defendant ski area because it was:
…negligent in the design, construction, and maintenance of the ski slope, failure to warn Mr. Vu of the dangerous condition, failure to construct a barrier to stop skiers from going over the edge into the pile of rocks, failure to inspect the scope and detect the defective condition, and failure to repair that condition.
The court granted the defendants motion for summary judgment.
Analysis: making sense of the law based on these facts.
The decision was based on the Pennsylvania Skier’s Responsibility Act. The court had to decide if the risks encountered by the plaintiff were inherent risks of skiing.
The Pennsylvania General Assembly expressly preserved the doctrine of assumption of the risk as a defense in downhill skiing cases in the Skier’s Responsibility Act, recognizing that “there are inherent risks in the sport of downhill skiing. As the Supreme Court of Pennsylvania explained, “[t]he assumption of the risk defense, as applied to sports and places of amusement, has also been described as a ‘no-duty’ rule, i.e., as the principle that an owner or operator of a place of amusement has no duty to protect the user from any hazards inherent in the activity.”
If there is no duty, then there can be no negligence.
Where there is no duty, there can be no negligence, and thus when inherent risks are involved, negligence principles are irrelevant–the Comparative Negligence Act is inapplicable–and there can be no recovery based on allegations of negligence.
Pennsylvania has a two-part test to determine if the defendant owed the plaintiff a duty.
First, this Court must determine whether [the plaintiff] was engaged in the sport of downhill skiing at the time of her injury.” “If that answer is affirmative, we must then determine whether the risk” of the circumstance that caused the plaintiff’s injury “is one of the ‘inherent risks’ of down-hill skiing.” If so, then summary judgment must be awarded against the plaintiff as a matter of law.
The first test was met; the plaintiff was skiing at the time of his accident.
The court then had to determine if the risks the plaintiff encountered were inherent to skiing. Under Pennsylvania law, inherent risks “are those that are “common, frequent, and expected” in downhill skiing.”
The plaintiff argued that because the plaintiff was no specifically aware of the risk of the 3-4-foot drop off and the pile of rocks, he could not assume the risk.
Plaintiffs argue that while Mr. Vu “was generally aware of the dangers of downhill skiing,” he was not aware “of the specific hazard of being ejected from the ski trail due to a steep 3 to 4 foot drop-off on that particular slope’s trail edge.” (emphasis in original). Because there is no evidence that Mr. Vu had subjective awareness of these risks, Plaintiffs argue, the doctrine of assumption of the risk cannot apply.
In many cases, assumption of the risk would not be a defense if the injured plaintiff had no specific knowledge of the risk. However, it was not the case here under the statute. It did not matter if the Plaintiff had specific knowledge of the risk or a general knowledge of the risks of skiing, he assumed those risks.
The court then looked at the facts and found there were two circumstances that gave rise to the plaintiff’s injuries, veering to avoid a collision and skiing over the drop off.
The first is an inherent risk of skiing in Pennsylvania.
We can easily conclude that the first risk is inherent and gives rise to no duty on behalf of Defendants. The Supreme Court of Pennsylvania has specifically determined that the risk of collision with another person on the slope is inherent to the sport of downhill skiing: “the risk of colliding with an-other skier is one of the common, frequent and expected risks ‘inherent’ in downhill skiing. Indeed, other skiers are as much a part of the risk in downhill skiing, if not more so, than the snow and ice, elevation, contour, speed and weather conditions.
The next issue was whether skiing over the drop off into a pile of rocks was an inherent risk of skiing. Here again, the court found skiing off the trail, no matter what you may encounter once you are off the trail, is an inherent risk of skiing. The court backed its point up quite interestingly.
We struggled to find case law on point to support our holding because we believe it to be such a common sense and logical conclusion that does not require in-depth analysis.
The court found the defendant did not owe the plaintiff a duty because he assumed the risks of his injury under the Pennsylvania Skier’s Responsibility Act.
So Now What?
Actually, an easy case. Easy under Pennsylvania law because of the Pennsylvania Supreme Courts interpretation of the Pennsylvania Skier’s Responsibility Act. When skiing in Pennsylvania collisions with other skiers or boarders are an inherent risk of skiing and skiing off the trail is also.
What do you think? Leave a comment.
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Vu v. Ski Liberty Operating Corp., et. al., 2018 U.S. Dist. LEXIS 49013
Posted: April 15, 2018 Filed under: Assumption of the Risk, Legal Case, Pennsylvania, Ski Area, Skier v. Skier, Skiing / Snow Boarding | Tags: assumption of the risk, att, Collision, daughter, Downhill, drop-off, edge, elevation, experienced, foot, genuine, inherent, Inherent Risk, knee-jerk, Lift Ticket, matter of law, Pennsylvania Skier Safety Act, pile, Resort, rocks, Ski, skied, Skier, Skier Safety Act, Skier's Responsibility Act, skiing, Slope, Snow, Snowboarder, specific risk, Sport, Summary judgment, Trail, veering Leave a commentVu v. Ski Liberty Operating Corp., et. al., 2018 U.S. Dist. LEXIS 49013
Quan Vu and May Siew, Plaintiffs, v. Ski Liberty Operating Corp., et. al., Defendants,
1:16-cv-2170
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
2018 U.S. Dist. LEXIS 49013
March 26, 2018, Decided
CORE TERMS: skiing, trail, edge, downhill, ski, skier, snowboarder, sport, inherent risk, slope, collision, rocks, summary judgment, drop-off, att, daughter, skied, snow, pile, foot, lift ticket, knee-jerk, genuine, resort, Skier’s Responsibility Act, matter of law, specific risk, experienced, elevation, veering
COUNSEL: [*1] For Quan VU, May Siew, Plaintiffs: D. Aaron Rihn, Mark D. Troyan, LEAD ATTORNEYS, Robert Peirce & Associates, P.C., Pittsburgh, PA USA.
For Ski Liberty Operating Corp. doing business as Liberty Mountain Resort, Defendant: Anthony W. Hinkle, Snow Time, Inc., Cipriani & Werner, P.C., Philadelphia, PA, USA.
For Snow Time, Inc., Ski Liberty Operating Corp., Counterclaim Plaintiffs: Anthony W. Hinkle, Cipriani & Werner, P.C., Philadelphia, PA USA.
For Snow Time, Inc., Ski Liberty Operating Corp., Counterclaim Defendants: Anthony W. Hinkle, Cipriani & Werner, P.C., Philadelphia, PA USA.
JUDGES: Hon. John E. Jones III, United States District Judge.
OPINION BY: John E. Jones III
OPINION
MEMORANDUM
Plaintiffs are Quan Vu and his wife, May Siew. (“Plaintiffs”). Defendants are Ski Liberty Operating Corp. and Snow Time, Inc., operating as Liberty Mountain Resort. (“Defendants”). This action arises out of a skiing accident at Liberty Mountain that left Mr. Vu severely injured. The complaint brings one count of negligence on behalf of Mr. Vu and one count of loss of consortium on behalf of Mrs. Siew, both alleging that the accident was caused by the Defendants’ negligence in maintaining the ski slope and failing to warn Mr. Vu of [*2] the slope’s hazardous condition. (Doc. 1). Presently pending before the Court is the Defendants’ motion for summary judgment. (the “Motion”) (Doc. 36). The Motion has been fully briefed and is therefore ripe for our review. (Docs. 38, 42, 43). For the reasons that follow, the Motion shall be granted.
I. BACKGROUND
On January 23, 2015, Mr. Vu was downhill skiing with his daughter at Liberty Mountain. (Doc. 41, ¶ 24). Mr. Vu was following his daughter from behind as they skied down the Lover Heavenly trail, a blue square intermediate hill, when he had his accident. (Id. at ¶¶ 24-25). Due to his injuries, Mr. Vu does not recall much detail about his accident. (Doc. 37, ¶ 11). Mr. Vu testified: “I believe there was a snowboarder involved and I — the snowboarder got — either cut me off or got awfully close and I had a knee-jerk reaction to veer because the last thing I want to do is ram into somebody. So I — my knee-jerk reaction is to veer.” (Doc. 37, att. 1, pp. 65-66). However, Mr. Vu could not recall what he saw that caused him to veer, whether he veered to the right or to the left, or whether the snowboarder was above or below him on the hill. (Id. at pp. 65-66). The last thing that Mr. Vu remembered [*3] was skiing with his daughter. (Id. at p. 66).
Mr. Vu’s daughter testified: “I saw someone get really close to him and he was trying to avoid them and it was either ramming into him, the snowboarder, or person who was trying to get really close to him, or veering off path.” (Doc. 42, att. 2, p. 8). “He — there was someone trying to kind of get really close to him. And he didn’t want to ram into him. So he — I don’t really understand — know what happened. But he tried to avoid it. And there was like a big ditch or something there. And he tried to stop and tried to avoid the person who was trying to cut him off.” (Id.). “My dad was — the snowboarder was — my dad was kind of like the ham in the middle of a sandwich. Between the end of the trail, the edge of the trail and the snowboarder.” (Id. at p. 9). “I just felt that the snowboarder was getting quite close to my dad and I didn’t want a collision to happen or the snowboarder to ram into my dad.” (Id. at p. 10).
Ultimately, whether he did so intentionally or not, Mr. Vu skied off of the edge of the trail and suffered catastrophic injuries. There was a drop-off at the edge of the ski trail of about three to four feet. (Doc. 41, ¶ 32). Below that drop-off was a large pile [*4] of rocks. (Id. at ¶ 31). Mr. Vu skied off of the edge of the trail, off of the embankment, and landed on the pile of rocks. (Doc. 37, ¶ 11).
Mr. Vu was an experienced skier at the time of his accident. He had skied for over twenty years and was capable of skiing black diamond slopes. (Id. at P 6). Mr. Vu testified that he was familiar with the Skier’s Responsibility Code and understood that he was responsible for skiing in control and in such a manner that he could stop or avoid other skiers. (Id.). Mr. Vu also testified that he understood that skiing is a dangerous sport and that he could get hurt if he skied out of control or if he fell. (Id.).
On the day of his accident, Mr. Vu’s wife purchased his Liberty Mountain Resort Lift Ticket. (Id. at ¶ 18). The back of the lift ticket reads as follows:
PLEASE READ
Acceptance of this ticket constitutes a contract. The conditions of the contract are stated on this ticket & will prevent or restrict your ability to sue Liberty Mountain Resort. If you do not agree with these conditions, then do not use the facility. Snowsports in their various forms, including the use of lifts, are dangerous sports with inherent and other risks. These risks include but are [*5] not limited to: variations in snow, steepness & terrain, ice & icy conditions, moguls, rocks, trees & other forms of forest growth or debris (above or below the surface), bare spots, lift towers, utility lines & poles, fencing or lack of fencing, snowmaking & snowgrooming equipment & component parts, on-snow vehicles & other forms of natural or man-made obstacles, and terrain features on or off designated trails as well as collisions with equipment, obstacles or other snowsport participants. Trail conditions vary constantly because of weather changes and use. All the inherent and other risks involved present the risk of permanent catastrophic injury or death. In consideration of using Liberty’s facilities, the purchaser or user of this ticket agrees to accept the risks of snowsports and understands and agrees that they are hazardous and further agrees NOT TO SUE Ski Liberty Operating Corp., its owners or employees if injured while using the facilities regardless of any negligence, including gross negligence, on the part of the resort, and/or its employees or agents. The purchaser or user of this ticket voluntarily assumes the risk of injury while participating in the sport, and agrees [*6] to report all injuries before leaving the resort . . .
(Doc. 37, Ex. D) (emphasis in original). Though Mr. Vu was uncertain if he read the language on the lift ticket on the day of his accident, he testified that he had read it at some point prior to his accident. (Doc. 37, ¶ 20). At his deposition, Mr. Vu was asked to read portions of the lift ticket and he had trouble doing so because the font was too small. (Doc. 37, att. 1, p. 70).
Mr. Vu and his wife initiated this action with the filing of a complaint on October 27, 2016. (Doc. 1). Plaintiffs allege that Defendants were negligent in the design, construction, and maintenance of the ski slope, failure to warn Mr. Vu of the dangerous condition, failure to construct a barrier to stop skiers from going over the edge into the pile of rocks, failure to inspect the scope and detect the defective condition, and failure to repair that condition. Defendants filed the instant motion for summary judgment on January 31, 2018. (Doc. 36).
I II. LEGAL STANDARD
Summary judgment is appropriate if the moving party establishes “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute [*7] is “genuine” only if there is a sufficient evidentiary basis for a reasonable jury to find for the non-moving party, and a fact is “material” only if it might affect the outcome of the action under the governing law. See Sovereign Bank v. BJ’s Wholesale Club, Inc., 533 F.3d 162, 172 (3d Cir. 2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A court should view the facts in the light most favorable to the non-moving party, drawing all reasonable inferences therefrom, and should not evaluate credibility or weigh the evidence. See Guidotti v. Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764, 772 (3d Cir. 2013) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).
Initially, the moving party bears the burden of demonstrating the absence of a genuine dispute of material fact, and upon satisfaction of that burden, the non-movant must go beyond the pleadings, pointing to particular facts that evidence a genuine dispute for trial. See id. at 773 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). In advancing their positions, the parties must support their factual assertions by citing to specific parts of the record or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” FED. R. Civ. P. 56(c)(1).
A court should not grant summary judgment when there is a disagreement about the facts or the proper inferences that a factfinder could draw from them. See Reedy v. Evanson, 615 F.3d 197, 210 (3d Cir. 2010) (citing Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982)). Still, “the [*8] mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.” Layshock ex rel. Layshock v. Hermitage Sch. Dist., 650 F.3d 205, 211 (3d Cir. 2011) (quoting Anderson, 477 U.S. at 247-48) (internal quotation marks omitted).
III. DISCUSSION
Defendants move for summary judgment on two legal bases. First, Defendants argue that Plaintiffs’ claims are barred as a matter of law because Mr. Vu’s injuries were caused by an inherent risk of skiing. Second, Defendants argue that Plaintiffs’ claims are barred by the exculpatory release language contained on the Liberty Mountain lift ticket. Because we find that Mr. Vu’s injuries arose out of risks inherent to the sport of downhill skiing, we hold that Defendants are entitled to summary judgment as a matter of law without even considering the exculpatory release language of the lift ticket.
The material facts surrounding Mr. Vu’s accident are not in dispute. Though Mr. Vu and his daughter are unclear on the specifics, it is undisputed that Mr. Vu ended up skiing off of the trail, over a drop-off, and into a pile of rocks. (Doc. 37, ¶ 11). Mr. Vu testified that a snowboarder was getting too close to him and his “knee-jerk” reaction was to veer to avoid a collision, causing him [*9] to ski off of the trail and over the embankment. (Doc. 37, att. 1, pp. 65-66). Mr. Vu’s daughter also testified that her father’s accident occurred when he tried to avoid a collision with a snowboarder. (Doc. 42, att. 2, p. 8). While Defendants argumentatively refer to this person as the “phantom snowboarder” and question the credibility of the testimony, for purposes of this Motion we can take Plaintiffs’ facts as true and assume that Mr. Vu skied off of the trail, either intentionally or as a result of a knee-jerk reaction, to avoid colliding with a snowboarder. Even so, summary judgment must be granted in favor of the Defendants because Mr. Vu’s accident occurred as a result of inherent risks of downhill skiing.
The Pennsylvania General Assembly expressly preserved the doctrine of assumption of the risk as a defense in downhill skiing cases in the Skier’s Responsibility Act, recognizing that “there are inherent risks in the sport of downhill skiing.” 42 Pa. C.S. § 7102(c). As the Supreme Court of Pennsylvania explained, “[t]he assumption of the risk defense, as applied to sports and places of amusement, has also been described as a ‘no-duty’ rule, i.e., as the principle that an owner or operator of a [*10] place of amusement has no duty to protect the user from any hazards inherent in the activity.” Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1186 (2010) (citing Restatement (Second) of Torts, § 496A, cmt. C, 2). “Where there is no duty, there can be no negligence, and thus when inherent risks are involved, negligence principles are irrelevant–the Comparative Negligence Act is inapplicable–and there can be no recovery based on allegations of negligence.” Id.
In Hughes v. Seven Springs Farm, Inc., the Supreme Court of Pennsylvania established a two-part test for courts to use to determine whether a plaintiff’s claims are barred by the no duty rule of the Skier’s Responsibility Act. 762 A.2d 339, 343 (2000). “First, this Court must determine whether [the plaintiff] was engaged in the sport of downhill skiing at the time of her injury.” Id. at 344. “If that answer is affirmative, we must then determine whether the risk” of the circumstance that caused the plaintiff’s injury “is one of the ‘inherent risks’ of downhill skiing.” Id. If so, then summary judgment must be awarded against the plaintiff as a matter of law. Id. In the case at-bar, there can be no dispute that Mr. Vu was engaged in the sport of downhill skiing at the time of his accident. The salient question, therefore, becomes whether veering off-trail and over a drop-off into a pile [*11] of rocks to avoid a collision with a snowboarder are inherent risks of downhill skiing. If those risks are inherent to skiing, then Defendants had no duty to protect Mr. Vu. Chepkevich, 2 A.3d at 1186. If those risks are not inherent, traditional principles of negligence apply and we must determine what duty the Defendants owed Mr. Vu, whether the Defendants breached that duty, and whether the breach caused Mr. Vu’s injuries.
We begin with a discussion of what it means for a risk to be “inherent.” The Hughes court explained that “inherent” risks are those that are “common, frequent, and expected” in downhill skiing. Id. In interpreting risks, the Supreme Court of Pennsylvania has instructed that “the clear legislative intent to preserve the assumption of the risk doctrine in this particular area, as well as the broad wording of the Act itself, dictates a practical and logical interpretation of what risks are inherent to the sport.” Chepkevich, 2 A.3d at 1187-88. “Accordingly, courts have rejected attempts by plaintiffs to define the injury producing risks in very a specific and narrow manner.” Cole v. Camelback Mountain Ski Resort, 2017 WL 4621786, at *4 (M.D. Pa. Oct. 16, 2017) (Mariani, J.). For example, the Supreme Court of Pennsylvania in Chepkevich rejected the plaintiff’s argument that she did not assume the “specific [*12] risk” involved, looking instead to the “general risk” that gave rise to the accident. 2 A.3d at 1188. A number of courts have addressed the scope of the Skier’s Responsibility Act and have concluded that some of the inherent risks of downhill skiing include: lack of netting, improper course plotting, or soft snow1; skiing off trail and striking a tree2; collisions with unpadded snow equipment poles3; striking a fence on the edge of the trail4; and collisions with other skiers or snowboarders.5
1 Bjorgung v. Whitetail Resort, L.P., 550 F.3d 263 (3d Cir. 2008).
2 Id.
3 Smith v. Seven Springs Farm, Inc., 716 F.2d 1002 (3d Cir. 1983).
4 Cole, 2017 WL 4621786, at *5.
5 Hughes, 762 A.2d 339.
Before addressing the risks that Mr. Vu encountered, we must address Plaintiffs’ initial argument that the assumption of the risk doctrine is inapplicable. Plaintiffs argue that while Mr. Vu “was generally aware of the dangers of downhill skiing,” he was not aware “of the specific hazard of being ejected from the ski trail due to a steep 3 to 4 foot drop-off on that particular slope’s trail edge.” (Doc. 42, p. 8) (emphasis in original). Because there is no evidence that Mr. Vu had subjective awareness of these risks, Plaintiffs argue, the doctrine of assumption of the risk cannot apply. (Id. at pp. 9-13). For support of this argument, Plaintiffs cite several cases that are materially distinct from the case at-bar. First, Plaintiffs [*13] quote Barillari v. Ski Shawnee, Inc., “[i]t is not enough that the plaintiff was generally aware that the activity in which he was engaged had accompanying risks.” 986 F. Supp. 2d 555, 563 (M.D. Pa. 2013). Importantly, the court made this statement when analyzing the doctrine of voluntary assumption of the risk after determining that the Skier’s Responsibility Act was not applicable because the plaintiff was not engaged in the sport of downhill skiing at the time of the accident. Id. at 561. The instruction of this quote is inapplicable to our consideration of the no duty doctrine of assumption of the risk.
Next, Plaintiffs rely heavily on Bolyard v. Wallenpaupack Lake Estates, Inc., 2012 WL 629391(M.D. Pa. Feb. 27, 2012) (Caputo, J.). In Bolyard, the plaintiff sued the defendant for negligence after sustaining injuries while snow tubing on the defendant’s property. Id. at *1. The court recognized that while the plaintiff had “general knowledge” of the dangers of snow tubing on the hill, she did not assume the risk because “there is no evidence in the record that she had any knowledge of the specific hazards of that particular slope.” Id. at *6. Plaintiffs argue that “[s]imilar to the patron in Bolyard,” Mr. Vu was only generally aware of the risks he could suffer while skiing and thus assumption of the risk is inapplicable. (Doc. [*14] 42, p. 8). We disagree.
Notably, the slope in Bolyard was an old slope that was not currently in operation. 2012 WL 629391, at *1. The court used principles of negligence as applicable to landowners and licensees to determine the duty owed to the plaintiff and, consequently, considered the doctrine of voluntary assumption of the risk as a defense. Id. at **3-6. Analyzing the present action under the no duty rule, we do not consider the defense of voluntary assumption of the risk; instead, we must determine whether Mr. Vu’s injuries arose out of an inherent risk of the sport of skiing such that the Defendants had no duty at all. Pursuant to Hughes and the Skier’s Responsibility Act, there is no duty to protect a skier from the inherent risks of skiing and therefore, “when inherent risks are involved, negligence principles are irrelevant.” Id.
Finally, Plaintiffs cite Perez v. Great Wolf Lodge of the Poconos LLC,6
Staub v. Toy Factory, Inc.,7
Jones v. Three Rivers Mgmt. Corp,8 and Telega v. Sec. Bureau, Inc.9 in support of their position that assumption of the risk does not apply because Mr. Vu did not appreciate the specific risks that caused his accident. To start, none of these cases address the Skier’s Responsibility [*15] Act. These cases discuss appreciation of specific risk only after determining that the no duty rule was inapplicable because the risk encountered was not inherent. Again, we reiterate that “[n]egligence principles are irrelevant where the ‘no duty’ rule applies.” Lin v. Spring Mountain Adventures, Inc., 2010 WL 5257648, at *7 (E.D. Pa. Dec. 23, 2010). Whether the no duty rule applies turns on whether Mr. Vu’s particular injuries arose out of risks inherent in the sport of skiing — an issue that is not dependent on a plaintiff’s subjective awareness of those specific risks.
6 200 F. Supp. 3d 471, 478 (M.D. Pa. 2016) (Mariani, J.).
7 749 A.2d 522, (Pa. Super. 2000).
8 483 Pa. 75, 85, 394 A.2d 546, 551 (1978).
9 719 A.2d 372, 376 (Pa. Super. Ct. 1998).
We now turn to the risks involved in Mr. Vu’s accident. The facts reveal two circumstances that gave rise to Mr. Vu’s injuries: (1) veering to avoid a collision with a snowboarder; and (2) skiing over the drop-off at the edge of the trail and into a pile of rocks. If these risks are inherent to the sport of downhill skiing, Plaintiffs’ claims cannot stand.
We can easily conclude that the first risk is inherent and gives rise to no duty on behalf of Defendants. The Supreme Court of Pennsylvania has specifically determined that the risk of collision with another person on the slope is inherent to the sport of downhill skiing: “the risk of colliding with another skier is one of the common, frequent and expected [*16] risks ‘inherent’ in downhill skiing. Indeed, other skiers are as much a part of the risk in downhill skiing, if not more so, than the snow and ice, elevation, contour, speed and weather conditions.” Hughes, 762 A.2d at 344. Likely in recognition of the clear case law, Plaintiffs do not argue in their brief in opposition to the Motion that avoiding a collision with a snowboarder is a risk that would give rise to a duty on behalf of Defendants. To the extent that Plaintiffs’ claims of negligence are premised on Mr. Vu’s avoidance of a collision with the snowboarder, those claims must fail.
Next, we consider whether skiing over the edge of the trail and encountering a three to four foot drop-off into a pile of rocks is an inherent risk of downhill skiing. Plaintiffs frame this risk as the primary cause of Mr. Vu’s injuries.10 “Simply put, the risk of ejectment from a ski trail due to a 3 to 4 foot drop off and striking one’s head on rocks and/or boulders . . . is not an inherent, frequent, common, and expected risk of skiing.” (Doc. 42, p. 11). All parties recognize that the drop-off was at the edge of the trail rather than a ditch or hole in the slope itself. Though Plaintiffs stress that Mr. Vu did not “willingly [*17] decide to ski off trail,” the distinction is of no consequence. Plaintiffs describe the incident in terms of Mr. Vu being “ejected” from the trail due to the embankment, but it is illogical to argue that the existence of the drop-off itself would cause a skier to go over it. Whether Mr. Vu did so intentionally, accidentally, or as a means of avoiding a collision, the incontrovertible fact is that Mr. Vu did, ultimately, ski off of the three to four foot edge of the trail.
10 “. . . the specific hazard of being ejected from the ski trail due to a steep 3 to 4 foot drop-off on that particular slope’s trail edge.” (Doc. 42, p. 8); “Even if Defendant could establish that having a 3 to 4 foot trail edge drop presents a danger inherent to the sport of skiing . . .” (Id. at p. 9); “. . . he was ejected from the trail when attempting to avoid a collision and was confronted with a 3 to 4 foot drop in elevation from the ski trail.” (Id. at p. 11).
We hold that the risk of skiing off trail and suffering from the change of elevation between the trail and surrounding terrain is an inherent risk of downhill skiing. Mr. Vu was an experienced skier who was well aware of the risks of skiing off the designated slope; he testified repeatedly that he “would never ski off-trail.” (Doc. 41, att. 1, p. 43). He had previously skied at Liberty Mountain on multiple occasions and could not remember ever complaining about the trail or trail markings. (Id. at pp. 35-36). Additionally, Mr. Vu’s daughter testified that she did not have any difficulty discerning the edge of the slope where her father went off trail the evening of the accident. (Doc. 41, att. 2, p. 14). It would be irrational for [*18] any court to hold that skiing off trail and encountering dangerous terrain is not an inherent risk of the sport of downhill skiing — ski slopes are marked and maintained in appreciation of this risk, and beginner and experienced skiers alike know to stay within the trail limits to avoid injury. Mr. Vu himself testified that he understood that he could run into trees, rocks, boulders, or snowmaking equipment if he skied off trail. (Doc. 37, att. 1, p. 71).
We struggled to find case law on point to support our holding because we believe it to be such a common sense and logical conclusion that does not require in-depth analysis. One case from the New York appellate court, however, was particularly analogous. In Atwell v. State, the plaintiff was skiing near the edge of the trail when he observed a “floundering” skier in his path. 645 N.Y.S.2d 658, 659 (1996). Plaintiff “instinctively reacted and turned without thinking” to avoid a collision and ended up skiing off trail and into a tree. Id. The court easily found that plaintiff’s injuries were due to inherent risks of skiing. Id. at 650. “[F]rom claimant’s own description of the accident, there can be no dispute that everything he encountered, including the skier he turned [*19] to avoid hitting, the berm at the edge of the trail referred to by claimant’s expert and the tree with which he collided, are all statutorily recognized as inherent dangers of skiing.” The court noted that “[c]laimant chose to ski near the edge of the trail and there is nothing in the record to indicate that the location of the edge of the trail was not readily observable to him.” Id. Similarly here, Mr. Vu was an experienced skier who chose to ski near the edge of the slope. He had a knee-jerk reaction to avoid a skier, and ended up veering off of the trail and suffering from the elevation change and his collision with rocks. Not only is there a lack of any evidence that the edge of the trail was difficult to discern, but Mr. Vu’s daughter testified at length about how her father was close to the edge of the trail and specifically stated that she could observe the edge of the slope without difficulty. (Doc. 41, att. 2, p. 14).
We agree with the Supreme Court of New Hampshire, which simply held: “Even the most generous reading of the plaintiff’s pleadings reveals the chief cause of his injuries to be an unenumerated, yet quintessential risk of skiing: that a skier might lose control [*20] and ski off the trail. By participating in the sport of skiing, a skier assumes this inherent risk and may not recover against a ski area operator for resulting injuries.” Nutbrown v. Mount Cranmore, Inc., 140 N.H. 675, 684, 671 A.2d 548, 553 (1996).
IV. CONCLUSION
For the foregoing reasons, the Motion shall be granted. A separate order shall issue in accordance with this memorandum.
ORDER
Presently before the Court is Defendants’ motion for summary judgment. (Doc. 36). In conformity with the Memorandum issued on today’s date, IT IS HEREBY ORDERED THAT:
1. Defendants’ motion for summary judgment (Doc. 36) is GRANTED.
2. The Clerk of the Court SHALL CLOSE the file on this case.
/s/ John E. Jones III
John E. Jones III
United States District Judge
Any angry injured guest or a creative attorney will try about anything to win. In this case, the New Jersey Consumer Fraud Act was used to bring a Pennsylvania Ski Area to court in New Jersey
Posted: October 9, 2017 Filed under: Assumption of the Risk, New Jersey, Pennsylvania, Ski Area, Skiing / Snow Boarding | Tags: actionable, advertised, advertisement, ascertainable loss, Assumption of risk, assumption of the risk, business practice, Camelback Mountain Ski Resort, Cammelback, Cause of action, cognizable, common law, concealment, Consumer, consumer fraud, Downhill, factual allegations, Immunity, Legal Case, material fact, merchandise, misleading, New Jersey, New Jersey Consumer Fraud Act, NJCFA, omission, Pennsylvania, presumed to know, quotation marks omitted, reasonable inference, residents, ski area, Ski Area Statutes, Ski Resort, Skier's Responsibility Act, skiing, Skiing / Snow Boarding, Snow, Sport, tort liability, unlawful practice Leave a commentThe lawsuit failed, this time. However, the failure was due to Pennsylvania law more than New Jersey law. The plaintiff argued it was a violation of the act to advertise to New Jersey residents to come skiing in Pennsylvania and now warn of the difficulty of suing for injury’s skiing.
Cole, et al., v. Camelback Mountain Ski Resort, et al., 2017 U.S. Dist. LEXIS 100183
State: Pennsylvania, United States District Court for the Middle District of Pennsylvania
Plaintiff: Gyl Cole, Ronald Cole, her husband
Defendant: Camelback Mountain Ski Resort
Plaintiff Claims: Violation of the New Jersey Consumer Fraud Act
Defendant Defenses: The statute did not apply
Holding: For the defendant
Year: 2017
Summary
In this case the plaintiff sued arguing, the New Jersey consumer Fraud Act was violated by the defendant ski area because it did not put a notice in its ad that was seen in New Jersey, that suing a Pennsylvania ski area was difficult, if not impossible, because of the Pennsylvania Skier’s Responsibility Act.
However, there was nothing in the act that applied to advertising nor was there anything in the law requiring a defendant to inform the consumer about the law that might apply to any relationship between the guest and the ski area.
Facts
The plaintiff and her husband lived in Waretown New Jersey. They went skiing at defendant Camelback Mountain Ski Resort, which is located in Pennsylvania. Although not stated, allegedly they went skiing after reading an advertisement by Camelback.
While skiing on a black diamond run the plaintiff slammed into a six-inch metal pipe and sustained severe injuries.
The plaintiff sued, first in New Jersey state court. The case was transferred to the Federal District Court in New Jersey. How the case was transferred to the Pennsylvania Federal court that issued this opinion is not clear.
The Pennsylvania Federal District Court dismissed the plaintiff’s complaint with the above captioned opinion.
Analysis: making sense of the law based on these facts.
The basis of the plaintiff’s complaint was that a ski area advertising in New Jersey needed to inform New Jersey residents that it was impossible to sue and win a lawsuit against a Pennsylvania ski area. Because the ads of the defendant ski area did not mention that fact, the plaintiffs claimed that the defendant had violated the New Jersey New Jersey Consumer Fraud Act.
All states have a Consumer Fraud Act. Each states act is different from any other state, but generally they were enacted to prevent scam artists from ripping people off. The New Jersey Act awards treble damages and attorney’s fees if a consumer could prove there was “(1) an unlawful practice, (2) an ascertainable loss, and (3) a causal relationship between the unlawful conduct and the ascertainable loss.…”
Most state consumer fraud statutes include greater than simple damages as a penalty to keep fraudulent acts from happening. Many also include attorney fees and costs to encourage attorneys to take up these cases to defend the consumer put fraudulent practices or business on notice or out of business.
Under the act, an unlawful practice was defined as:
[t]he act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate . . .
An unlawful practice was defined as falling into one of three categories: “affirmative acts, knowing omissions, and regulation violations.”
A failure to inform, the argument being made by the plaintiff, was an omission. You could sue based upon the omission if you could prove the defendant “(1) knowingly concealed (2) a material fact (3) with the intention that the consumer rely upon the concealment.”
The underlying duty on the part of the defendant was a duty to disclose. If there was no duty to disclose, then there was no omission. The plaintiffs argued, the Pennsylvania Skier’s Responsibility Act prevented lawsuits against ski areas, or as the
plaintiff’s argued, indemnified ski areas from lawsuits. That information the plaintiff argued needed to be included in the ad, or it violated the New Jersey Act.
The court then looked at Pennsylvania Supreme Courts interpretations of the Pennsylvania Skier’s Responsibility
Act. Those decisions stated the act did not create new law, but kept in place long standing principles of the common law. Meaning that the act reinforced the common law assumption of the risk defense that preceded the Pennsylvania Skier’s Responsibility Act.
The common law in which the Act preserves, the doctrine of voluntary assumption of risk, “has also been described as a ‘no-duty’ rule, i.e., as the principle that an owner or operator of a place of amusement has no duty to protect the user from any hazards inherent in the activity.” In Pennsylvania, “this ‘no-duty’ rule applies to the operators of ski resorts, so that ski resorts have no duty to protect skiers from risks that are ‘common, frequent, and expected,’ and thus ‘inherent’ to the sport of downhill skiing.
Since the act did not create new law, only codified the law, there was little if any requirement of a duty to inform anyone of the law.
Going back to the New Jersey New Jersey Consumer Fraud Act, nothing in the act nor had any court decision interpreting the act held a requirement to inform any consumer of any law. In fact, the law is based on the fact that all people know and understand the law. (A tenet of the law that I personally find confusing. You must know the law; however, to give legal advice you must go to law school. After law school, I know I don’t know all the laws!)
Consequently, there can be no duty to tell a consumer what the law states because they already know law. “…a finding that Plaintiffs’ claim was cognizable under the NJCFA would run counter to a well-known legal maxim: “[a]ll citizens are presumptively charged with knowledge of the law.”
There are exceptions to this rule, when a statute specifically requires some type of notice be given to the consumer, but that was not the case here.
Finally, the court held that to find in favor of the plaintiffs would create a never-ending liability on businesses. In that part of the US, an ad could be seen by someone living in Pennsylvania, New Jersey and New York. No ad could fully inform consumers in all three states about the possible laws that might be in play in that particular ad. “Indeed, the number of relevant legal concept that a business “omitted” from its advertisement would only be limited by the creativity and imagination of the lawyers involved.”
The case was dismissed.
So Now What?
I don’t think you can simply think that this case has no value. You need to take a look, or have your attorney look, at your own state consumer fraud statute. Placing disclaimers in ads would not be logical, but making sure you don’t cross the line and violate your state consumer fraud law can keep you from being sued for violation of the statute in your own state. And damages can skyrocket in many cases once they are trebled and attorney fees, costs and interest are added.
Remember, Marketing makes Promises Risk Management has to pay for©
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By Recreation Law Rec-law@recreation-law.com James H. Moss