Apparent Agency requires actual acts to hold a hotel liable for the injuries allegedly caused by a tour company
Posted: June 8, 2015 Filed under: Pennsylvania | Tags: agency, Apparent Authority, Dunns River Falls, Hotel, Jamaica, Montego Bay, Principal, Tour Company Leave a commentApparent agency requires actual cloaking by the principal with the cloth of agency on the agent so that third parties believe what they are assuming. The third parties must then reply on the agency to their detriment.
Cash v. Six Continents Hotels, 2004 U.S. Dist. LEXIS 2901
State: Pennsylvania, United States District Court for the Eastern District of Pennsylvania
Plaintiff: Malleria Cash and Frederika Harrell
Defendant: SIX CONTINENTS HOTELS
Plaintiff Claims: Negligence
Defendant Defenses: No relationship with the true defendant
Holding: For the defendant
Year: 2004
The plaintiffs in this case were in Montego Bay Jamaica. They were staying with the defendant, Holiday Inn Sunspree Hotel. Through the hotel, they arraigned a tour to Dunns River Falls in Ocho Rios, Jamaica with Harmony Tours, Ltd.
Harmony Tours Ltd maintained a desk in the hotel lobby. However, there was no other legal connection between Holiday Tours and the defendant hotel.
The plaintiffs were transported to the falls and dropped off “for a long period of time without any guidance or assistance.” While they were there, the plaintiffs claimed they were trying to climb the waterfall without the assistance of a guide, slipped, fell, and sustained injuries.
They filed this suit in Federal District Court for the Eastern District of Pennsylvania, which the parties agreed was the correct court and that Pennsylvania law, controlled the case.
Analysis: making sense of the law based on these facts.
The court started out going through the requirements as the court to grant a motion for summary judgment filed by the defendant. The issue that must be answered on whether to grant a motion for summary judgment is “whether reasonable minds may differ as to the verdict.” If there are no facts that are in dispute and no reasonable mind can find differently then the motion should be granted.
However, if the facts can be interpreted differently or a reasonable mind might find them differently, then a motion for summary judgment should not be granted.
The basis for the argument of the plaintiffs that the tour company was related was not legal but apparent. The plaintiffs argued the tour company was an apparent agent of the tour company. An apparent agent is defined as:
…one who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care or skill of such an apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he were such.
If the principal “clothes his agent with apparent authority is estopped to deny such authority.” However, the court could find nothing that supported this argument.
In looking at the facts the court identified all the ways the plaintiff has been informed that the defendant hotel was not associated with the tour company.
No one ever represented that the tour company was an agent or affiliated in any special way with the hotel. The ticket the plaintiffs were given after purchasing the tour states:
…take notice that Harmony Tours Ltd. which conducts tours and excursions sold at this desk is an independent contractor. Holiday Inn (Jamaica) Inc. is not responsible for any loss, damage or injury which anyone may suffer arising out of, or in the course of, or in connection with any such tour or excursion.
On top of that, there was no evidence offered by the plaintiff to support its theory.
Even if there was evidence to support facts showing apparent authority, the plaintiffs must then prove that they justifiably relied upon the representation. The plaintiffs would have to argue that they relied upon representations that the tour was the principal of the hotel and that the hotel made a representation that led to the injury.
In this case, that is a reach based on the facts and the court did not buy it.
The case was dismissed.
So Now What?
The critical part is whenever it may appear that you are in a relationship with another business, and you are not; you need to make all customers of both or yours aware of the facts.
Notices posted at the cash register of a retail store that the store is not related to any of the third parties soliciting business in the store.
If you are a hotel, then a sign in the lobby explaining the relationship or near any brochures as well as in this case, printing that notice on the receipt.
Always be upfront with your relationship with your customers.
What do you think? Leave a comment.
 James H. “Jim” Moss |
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of eight books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk
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The harder a court works to justify its decision the more suspect the reasoning. In this case, a ski area is liable for injuries to a spectator no matter what risks she knew and assumed.
Posted: November 17, 2014 Filed under: Assumption of the Risk, Pennsylvania, Ski Area, Skiing / Snow Boarding | Tags: assumption of the risk, Doctrine of Voluntary Assumption of Risk, Inc., No Duty Rule, Pennsylvania, Pennsylvania Skier's Responsibility Act, Restatement (Second) of Torts, ski area, Ski Shawnee, skiing 2 CommentsNeither the Pennsylvania Skier’s Responsibility Act, assumption of the risk, nor the No Duty Rule were enough to stop this lawsuit. Spectators are always at risk. Either that or the defense attorneys failed to discover the necessary elements to prove their case in a deposition.
Barillari v. Ski Shawnee, Inc., 986 F. Supp. 2d 555; 2013 U.S. Dist. LEXIS 161029
State: Pennsylvania, US District Court for the Middle District of Pennsylvania
Plaintiff: Colleen Barillari and William Barillari
Defendant: Ski Shawnee, Inc.
Plaintiff Claims: negligence
Defendant Defenses: Pennsylvania Skier’s Responsibility Act and Assumption of the Risk
Holding: for the plaintiff
Year: 2013
The plaintiff was a skier. On the day in question, she was not skiing but was watching her husband take a lesson. She was standing on the snow but not close enough, in her opinion, to be at risk. She was behind a tape that separated the ski run from the instruction area. She was standing on a ski run though.
The plaintiffs are residents of New Jersey; Ski Shawnee is located in Pennsylvania. Residents of two different states gave the Federal District Court jurisdiction for the case. The federal court system was created so residents of two different states involved in litigation did not feel like the home state was favoring the person who lived there.
Standing there a skier collided with her. She filed a complaint alleging negligence and her husband filed a claim for loss of consortium. The ski area filed a motion for summary judgment based on the Pennsylvania Skier’s Responsibility Act and assumption of the risk which the court denied with this decision.
Analysis: making sense of the law based on these facts.
The defense relied upon two distinct but similar theories for its case, The Pennsylvania Skier’s Responsibility Act and assumption of the risk. The court went through an extensive analysis of the law and other, mostly conflicting case law in its decision. What was even more interesting though was the court applied traditional definitions of assumption of the risk in its analysis of the Pennsylvania Skier’s Responsibility Act even though the act defines the risks assumed by a skier as under the doctrine of voluntary assumption of the risk.
(c) 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).
The doctrine of voluntary assumption of risk has been defined by Pennsylvania courts as “where one, with full knowledge or full opportunity of knowledge, voluntarily-assumes a danger he is barred from recovery under the doctrine of voluntary assumption of risk:” As interpreted by another decision “plaintiff knew of the risk, appreciated its character and voluntarily chose to accept it.”
Here the court started with the RESTATEMENT (SECOND) OF TORTS, § 496A which defines the doctrine of assumption of risk as “”[a] plaintiff who voluntarily assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for such harm.” The Restatement of Torts is a compendium of the law put together by experts, mostly legal professors who have reviewed the law of the states in their area of expertise and put it down in the restatement. It is the basis of research and provides a foundation for understanding the law on a particular subject. Rarely do courts adopt the restatement as is. It is modified and adapted based on prior case law in the state and how the state supreme court follows the law.
The court then stated that when this definition and defense, assumption of the risk, is applied to sport it is called the No Duty Rule, “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.”
Under Pennsylvania law when applied to ski areas this has been interpreted to mean “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.”
Consequently, “[w]here 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.
The court stated Pennsylvania had a two-step analysis to determine whether a plaintiff is subject to the rule.
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 being hit . . . by another skier . . . is one of the ‘inherent risks’ of downhill skiing . . .
The court then looked at several if not all instances where Pennsylvania courts had determined someone was skiing and assumed the risk. At the end of the analysis, the court stated the plaintiff was a spectator at the time of the incident. Then the court stated that the plaintiff could assume the risk of a collision with another skier, but did not assume the risk of a collision with a skier when she was a spectator because she did not know she could be hit by a skier as a spectator…..standing on a run at the base of a hill.
Because the court found the spectator, who was a skier did not understand that standing on a ski run would be subject to the possibility of being hit by another skier, she did not know the risk and therefore, could not assume the risk. Under the Pennsylvania Skier’s Responsibility Act the plaintiff did not assume the risk and the defendant would not rely on the protection it afforded.
The court then analyzed whether the plaintiff assumed the risk with a traditional definition.
The decision spent two paragraphs describing the defense as a hydra that would not die. Under Pennsylvania law, there are four different types of assumption of risk. The court defined two of them: “One form of this polymorphic doctrine is a voluntary assumption of the risk, where the plaintiff makes a conscious, voluntary decision to encounter a risk of which he is aware.”
A second related corollary of the assumption of risk doctrine is sometimes titled the “no-duty rule.” It applies when a plaintiff tacitly agrees to relieve the defendant of a duty by entering a certain relationship with the defendant, when the plaintiff is then injured by an inherent risk of that activity, such as a spectator at a sporting event.
The court determined the two remaining types of assumption of the risk did not apply in this case in a footnote.
The two remaining forms of assumption of the risk do not apply to this case. These are i) express assumption of the risk; and, ii) situations in which the plaintiff’s conduct in voluntarily encountering a known risk is itself unreasonable.
Under Pennsylvania law assumption of the risk is a three-step process (even though the decision stated earlier it was only two):
[t]o grant summary judgement on [that basis] the court must conclude, as a matter of law: (1) the party consciously appreciated the risk that attended a certain endeavor; (2) assumed the risk of injury by engaging in the endeavor despite the appreciation of the risk involved; and (3) that injury sustained was, in fact, the same risk of injury that was appreciated and assumed. This assumption of risk defense is established as a matter of law “only where it is beyond question that the plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous condition.” Moreover, “[t]he mere fact one engages in activity that has some inherent danger does not mean that one cannot recover from a negligent party when injury is subsequently sustained.”
The court focused on the knowledge of the plaintiff. “Rather, the plaintiff must be aware of “the particular danger” from which he is subsequently injured in order to voluntarily assume that risk as a matter of law.”
Again, the court went through several Pennsylvania cases distinguishing the definition of assumption of the risk the judge wanted to use from the other cases in Pennsylvania. The court then held:
Mrs. Barillari did not voluntarily assume the risk of her injury under this doctrine because there are no facts demonstrating she was specifically aware of the risk of the type of harm she suffered–namely, a skier crashing into a spectator.
This decision was based on the plaintiff’s statement:
Rather, Mrs. Barillari stated she was not worried about a skier crashing into her, “because [she] was close enough to the ribbon and [she] was with other people that were just watching. [She] wasn’t standing with a bunch of skiers. [She] was standing with spectators.”
Under this logic, you would not know you could be hit skiing by a skier if you were standing in a group of trees……on the side of a run.
Like the plaintiffs in Bolyard and Handschu, Mrs. Barillari did not possess the requisite conscious appreciation of the specific risk of harm that caused her injury.
The court then went back and looked at whether the No Duty Rule applied in this case. The No Duty Rule is defined as:
…the plaintiff has entered voluntarily into some relation with the defendant which he knows to involve the risk, and so is regarded as tacitly or impliedly agreeing to relieve the defendant of responsibility, and to take his own chances.
Again, the court wove its way through the Pennsylvania case law, even at one point stating the No Duty Rule applied to spectators. However, the court found the rule did not apply in this case because there was a difference in the risk the rule applied to. The risk the rule applied to must be a necessary element of the sport, not just a possible risk.
Applying these principles to the case before the Court, the no-duty rule cannot protect the Defendant and bar Mrs. Barillari’s claim. The Defendant asserts that this case is directly analogous to the example of a spectator at a baseball game being hit by a foul ball–Mrs. Barillari was a spectator by a ski slope that was hit by a skier. Although a skier crashing into spectators may be a foreseeable risk inherent in the sport of skiing, it is not a necessary and inherent element of that sport
The court summed up its decision by stating the burden on ski areas to protect spectators would not be that great.
Furthermore, charging ski facilities with the ordinary duty of care to protect spectators from ski crashes, rather than shielding them with “no-duty,” will not in any way affect the essence of skiing. The ski resort may erect mesh fences, snow walls, ropes, and other sorts of precautions around the sides and at the base of the slopes without impeding the rhythmic descent of countless alpine enthusiasts.
So Now What?
Spectators will be protected because in the future I’m sure they will not be allowed anywhere near the slopes in Pennsylvania for fear of being sued.
One of the biggest holes in all ski area defenses is spectators. Either watching friends or loved one’s ski or attending an event or race, spectators are always subject to injury. I believe only the Colorado Skier Safety act has been interpreted broadly enough, because it is written broadly enough to protect the ski area from suits by spectators.
Not only do spectators get hit by skiers, they get knocked by racers who leave the trail and plow into them. The slip and fall getting on or off the slope, and they get lost hiking up or down the hill appearing suddenly on an open run or not appearing for hours.
This case is a great look at the law of Assumption of the Risk in Pennsylvania. Other than that, it is a judicial greased pig to reach a decision that the court wanted.
|
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
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Barillari v. Ski Shawnee, Inc., 986 F. Supp. 2d 555; 2013 U.S. Dist. LEXIS 161029
Posted: November 7, 2014 Filed under: Assumption of the Risk, Legal Case, Pennsylvania, Ski Area, Skiing / Snow Boarding | Tags: Appeal, assumption of the risk, Doctrine of Voluntary Assumption of Risk, Inc., Indemnity, No Duty Rule, Pennsylvania, Pennsylvania Skier's Responsibility Act, Restatement (Second) of Torts, ski area, Ski Shawnee, skiing Leave a commentTo Read an Analysis of this decision see: The harder a court works to justify its decision the more suspect the reasoning. In this case, a ski area is liable for injuries to a spectator no matter what risks she knew and assumed.
Barillari v. Ski Shawnee, Inc., 986 F. Supp. 2d 555; 2013 U.S. Dist. LEXIS 161029
Colleen Barillari and William Barillari, Plaintiffs, v. Ski Shawnee, Inc., Defendant.
Civ. No. 3:12-CV-00034
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
986 F. Supp. 2d 555; 2013 U.S. Dist. LEXIS 161029
November 12, 2013, Decided
November 12, 2013, Filed
PRIOR HISTORY: Barillari v. Ski Shawnee, Inc., 2012 U.S. Dist. LEXIS 4998 (M.D. Pa., Jan. 17, 2012)
CORE TERMS: skiing, sport, downhill, skier, spectator, no-duty, summary judgment, ski, hit, ball, SKIER’S RESPONSIBILITY ACT DOES, risk doctrine, foul ball, amusement, matter of law, inherent risks, slope, baseball game, baseball, genuine, snow, ski lift, collision, mountain, ski resorts, risks inherent, nonmoving party, frequent, sporting, player
COUNSEL: [**1] For Colleen Barillari, William Barillari, h/w, Plaintiffs: Edward Shensky, Jeffrey A. Krawitz, Stark & Stark, Newtown, PA.
JUDGES: Matthew W. Brann, United States District Judge.
OPINION BY: Matthew W. Brann
OPINION
[*557] MEMORANDUM
Before the Court is Ski Shawnee, Inc.’s (“Defendant”) motion for summary judgment in the negligence action filed by Colleen Barillari and William Barillari (“Plaintiffs”). The complaint alleges Colleen Barillari suffered an injury and William Barillari suffered a corresponding loss of consortium, both caused by the Defendant’s alleged negligence. See Pls.’ Compl. 9-13, Jan. 6, 2012, ECF No. 1.
The Defendant moves for summary judgment in its favor on two related, but alternative theories relying on the assumption of the risk doctrine: first, that the Plaintiffs’ claims are barred by the Pennsylvania Skier’s Responsibility Act, 42 Pa. C.S.A. § 7102(c); or, alternatively, that the claims are barred by the traditional common law assumption of the risk doctrine. See Def.’s Br. Supp. Mot. Summ. J. 5-9, Dec. 3, 2012, ECF No. 17 [hereinafter Def.’s Br.]. The Court hereby denies the Defendant’s motion for summary judgment on both theories for the reasons that follow.
I. BACKGROUND
This case arises from [**2] an accident Mrs. Barillari suffered at the Shawnee Mountain Ski Area, Monroe County, Pennsylvania, on January 10, 2010. Def.’s Statement Material Facts ¶ 1, Dec. 3, 2012, ECF No. 18 [hereinafter Def.’s SOF]. Although Mrs. Barillari had skied previously, she was not a ticketed skier that day. Def.’s SOF ¶¶ 3-4; Pls.’ Answer Statement Facts ¶ 3, Dec. 19, 2012, ECF No. 19 [hereinafter Pls.’ SOF]. On that particular occasion, she came to the ski area to watch her husband and her children take ski lessons. Def.’s SOF ¶¶ 6-13.
The accident occurred while Mrs. Barillari was standing on the snow of the slope close to tape that divided a ski run from the instruction area where Mr. Barillari was taking a lesson. See Def.’s SOF ¶¶ 12-13; Pls.’ SOF ¶¶ 10-11. There was a sign that read: “ATTENTION A Ticket or a Pass is Required to be on the Snow.” Def.’s SOF ¶ 19. Nevertheless, Ski Shawnee, Inc. employees admitted that the sign may be ambiguous and that its stated policy was not routinely enforced. Pls.’ SOF ¶ 19.
Mrs. Barillari was generally aware of the risks of collision between skiers. [*558] Def.’s SOF ¶ 7. At the time, however, she was not worried about skiers colliding with her because she believed [**3] that she was close enough to the dividing tape and there were other spectators in the area. Def.’s SOF ¶¶ 15-17; Pls.’ SOF ¶¶ 15-17. Unfortunately for Mrs. Barillari, a skier did collide with her and caused an injury to her left leg. Pls.’ SOF, at 2. The Court considers the legal arguments in light of these facts.
II. DISCUSSION
A. LEGAL STANDARDS
1. Summary Judgment
Summary judgment is appropriate when the court is satisfied 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.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 330, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). A genuine issue of material fact exists if “the evidence is such that a reasonable jury could find for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). When the court considers the evidence on summary judgment, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [her] favor.” Id. at 255.
The party moving for summary judgment bears the burden of establishing the nonexistence of a “genuine issue” of material fact. In re Bressman, 327 F.3d 229, 237 (3d Cir. 2003) (internal quotations and [**4] citations omitted). The moving party may satisfy this burden by either submitting evidence that negates an essential element of the nonmoving party’s claim, or demonstrating the other party’s evidence is insufficient to establish an essential element of its claim. Id. at 231.
Once the moving party satisfies this initial burden, the nonmoving party “must set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). To do so, the nonmoving party must “do more than simply show that there is some metaphysical doubt as to material facts.” Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). Rather, to survive summary judgment, the nonmoving party must “make a showing sufficient to establish the existence of [every] element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. Moreover, “[w]hen opposing summary judgment, the non-movant may not rest upon mere allegations, but rather must identify those facts of record which would contradict the facts identified by the movant.” Port Auth. of N.Y. and N.J. v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2003) (internal [**5] quotations and citation omitted).
In deciding the merits of a party’s motion for summary judgment, the court’s role is to determine whether there is a genuine issue for trial, not to evaluate the evidence and decide the truth of the matter. Anderson, 477 U.S. at 249. Credibility determinations are the province of the factfinder, not the district court. BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Consequently, summary judgment may be granted only “if the movant shows 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. 54(a).
2. Pennsylvania Law Must Be Applied In This Case
This case is before the Court as a diversity of citizenship action under 28 U.S.C. § 1332. The Plaintiffs are citizens of New [*559] Jersey, the Defendant is a Pennsylvania corporation with a principal place of business in Pennsylvania, and the amount in controversy is alleged to be over $75,000–consequently, diversity jurisdiction is proper. See 28 U.S.C. § 1332; Pls.’ Compl., ¶¶ 1, 2, 46.
As this is a diversity action and Pennsylvania was the situs of the injury, this Court “must apply Pennsylvania law to the facts of [**6] this case.” Berrier v. Simplicity Mfg., Inc., 563 F.3d 38, 46 n. 11 (3d Cir. 2009) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938)).
B. THE PENNSYLVANIA SKIER’S RESPONSIBILITY ACT DOES NOT APPLY TO THIS CASE
The Defendant asserts that the Plaintiffs’ claims are barred by the assumption of the risk doctrine. Def.’s Br., at 6. The Pennsylvania General Assembly expressly provided this doctrine as a defense in downhill skiing cases in the Comparative Negligence Statute. See 42 Pa. C.S.A. § 7102(c). The pertinent portion of the statute, commonly known as the Skier’s Responsibility Act, reads:
(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). 1
1 As a general rule, subsections (a) and (a.1) [**7] supplant the assumption of the risk doctrine with a system of comparative fault in most negligence cases. Nevertheless, assumption of the risk was expressly preserved for injuries arising from downhill skiing, as noted. See 42 Pa. C.S.A. § 7102; Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 762 A.2d 339, 341 (2000).
The Restatement (Second) of Torts, § 496A, summarizes the essence of the assumption of the risk doctrine: “[a] plaintiff who voluntarily assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for such harm.” As the Supreme Court of Pennsylvania elucidated, “[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.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1186 (2010) (citing Restatement (Second) of Torts, § 496A, cmt. C, 2).
Applying those principles to the Skier’s Responsibility Act, that same court “made clear that this ‘no-duty’ rule applies to the operators of ski resorts, so that [**8] 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.” Chepkevich, 2 A.3d at 1186 (citing Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 762 A.2d 339, 343-44 (2000)). Consequently, “[w]here 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.
[*560] The Supreme Court of Pennsylvania established a two-part analysis to determine whether a plaintiff was subject to the assumption of the risk doctrine adopted in the Skier’s Responsibility Act. See Huges v. Seven Springs Farm, Inc. 762 A.2d at 343-44. “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 being hit . . . by another skier . . . is one of the ‘inherent risks’ of downhill skiing . . . .” Id. at 344. If both of these prerequisites are met, then summary judgment is appropriate because, as a matter of law, [**9] the Defendant would have had no duty to Mrs. Barillari. See id.
First, the Court considers whether Mrs. Barillari was “engaged in the sport of downhill skiing at the time of her injury.” Id. As the court noted in Hughes v. Seven Springs Farm, Inc.:
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.
Hughes, 762 A.2d at 344.
In that case, the court held that a plaintiff who was skiing towards the chair lift through an area at the base of the mountain where several trails converged when she was struck from behind by another skier could not recover because the assumption of risk doctrine applied. Hughes, 762 A.2d at 340, 345. Although the plaintiff “was not in the process of skiing downhill, but rather was propelling herself towards the ski lift at the base of the mountain,” the [**10] court found this action was within the scope of engaging “in the sport of downhill skiing.” Id. at 344-45. The court noted that to decide otherwise would “interpret the Act, as well as the sport of downhill skiing, in an extremely narrow, hypertechnical and unrealistic manner.” Id. at 344.
In Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174 (2010), the Supreme Court of Pennsylvania held that a skier’s negligence action based on her fall from a ski lift was barred by the doctrine of assumption of the risk because she was engaged in the sport of downhill skiing and the fall was an inherent risk of that sport. Chepkevich, 2 A.3d at 1194-95. The court noted 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.” Id. at 1187-88.
A number of other courts have addressed the scope of the Skier’s Responsibility Act as well. See, e.g., Bjorgung v. Whitetail Resort, LP, 550 F.3d 263 (3d Cir. 2008) (finding that a skier’s claim based on the lack of safety netting, improper course plotting, or [**11] soft loose snow was barred because those were risks inherent in skiing); Burke v. Ski America, Inc., 940 F.2d 95 (4th Cir. 1991) (interpreting Pennsylvania law to find ski resort had no duty of care to injured skier because a “double black diamond” slope with rocks and trees was an obvious inherent danger of skiing); Smith v. Seven Springs Farm, Inc., 716 F.2d 1002 (3d Cir. 1983) (Aldisert, J.) (finding that a skier’s claim was barred by assumption of the risk when he chose to ski a steep, icy expert slope with unpadded poles for snowmaking equipment); Lin v. Spring Mountain Adventures, Inc., CIV. [*561] A. 10-333, 2010 U.S. Dist. LEXIS 136090, 2010 WL 5257648 (E.D. Pa. Dec. 23, 2010) (holding that the Act barred a skier’s claim because colliding with snow making equipment was an inherent risk); Savarese v. Camelback Ski Corp., 417 F. Supp. 2d 663, (M.D. Pa. 2005) (Caputo, J.) (holding that a skier was barred from recovery where the injury occurred when he attempted to board the ski lift when the bottom of the chair was not folded down for seating); Bell v. Dean, 2010 PA Super 151, 5 A.3d 266 (Pa. Super. Ct. 2010) (finding that a skier assumed the risk of collision with a snowboarder such that the snowboarder could not be found negligent); [**12] Crews v. Seven Springs Mountain Resort, 2005 PA Super 138, 874 A.2d 100 (Pa. Super. Ct. 2005) (holding that the risk of colliding with a drunk underage snowboarder was not a risk inherent in the sport of downhill skiing).
The case before the Court, however, is distinguishable from all of these cases–Mrs. Barillari was not “engaged in the sport of downhill skiing” at the time of her collision, as required by the statute. 2 Hughes, 762 A.2d at 344. Although someone wearing skis and standing in the area of Mrs. Barillari and the other spectators on a momentary pause in their run may well have been “engaged in the sport,” that is an entirely different matter from someone who is purely a spectator. See id. Even though a collision with a skier is a prominent injury considered to be inherent in the sport of skiing as contemplated by the statute and the courts, the fact remains that Mrs. Barillari was merely a spectator not engaged in the sport. See id.
2 The Court recognizes that “engaged” may be defined as “greatly interested,” which could suggest that spectators are “engaged in the sport of downhill skiing.” Merriam-Webster’s New International Dictionary (3d ed. 2013). As is apparent from the context of the [**13] relevant Supreme Court of Pennsylvania decisions, however, this is not the manner in which the court used the term “engaged.” See, e.g., Hughes, 762 A.2d at 344. Rather, the context surrounding the court’s usage of the term indicates a meaning closer to “occupied” or “employed” when using the phrase “engaged in the sport of downhill skiing.” See id.; Merriam-Webster’s New International Dictionary (3d ed. 2013).
If this Court were to include Mrs. Barillari as a person subject to the Skier’s Responsibility Act, it would necessarily extend the confines of Pennsylvania’s law beyond the scope of its current applicability. That is not this Court’s place, and the Court declines to do so. Instead, the Court must apply the law as Pennsylvania’s own Supreme Court has instructed. See, e.g., Hughes, 762 A.2d at 344-45. Consequently, the Court finds that the assumption of the risk doctrine, as articulated in the statue and interpreted by courts, does not apply to bar Mrs. Barillari’s claim, because she was not “engaged in the sport of downhill skiing” at the time of her accident. See Hughes, 762 A.2d at 344-45.
C. TRADITIONAL ASSUMPTION OF THE RISK DOES NOT BAR THE PLAINTIFFS’ CLAIMS
The Defendant [**14] asserts that, in the alternative, the traditional common law defense of assumption of the risk should bar the claim. Def.’s Br., at 6. Although Pennsylvania has severely limited the traditional assumption of the risk doctrine and some courts have questioned its ongoing viability, the fact remains that Pennsylvania courts continue to apply assumption of the risk in a variety of cases outside the context of downhill skiing. See, e.g., Zinn v. Gichner Systems Grp., 880 F. Supp. 311 (M.D. Pa. 1995) (Caldwell, J.) (holding assumption of the risk barred plaintiff’s claim when he continued to work after landowner refused to cover opening in which he was injured); Howell v. Clyde, [*562] 533 Pa. 151, 620 A.2d 1107 (1993) (finding that the plaintiff guest who helped secure gunpowder for a firework cannon and participate in lighting it assumed the risk of his injury); see also Rutter v. Ne. Beaver Cnty. Sch. Dist., 496 Pa. 590, 437 A.2d 1198, 1212 (1981) (Nix, C.J., dissenting) (“[T]his doctrine constitutes a necessary and viable component of tort law.”).
Borrowing Justice Antonin Scalia’s memorable phrase concerning a similarly limited but resurgent doctrine in another area of law, assumption of the [**15] risk survives “[l]ike some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.” Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398, 113 S. Ct. 2141, 124 L. Ed. 2d 352 (1993). Nevertheless, the doctrine remains viable in certain circumstances, a monstrous hydra though it may be.
There are four different theoretical species of assumption of the risk–two of which are at issue in this case. See Hughes, 762 A.2d at 341-42; Restatement (Second) of Torts, § 496A, cmt. c. One form of this polymorphic doctrine is a voluntary assumption of the risk, where the plaintiff makes a conscious, voluntary decision to encounter a risk of which he is aware. See Hughes, 762 A.2d at 342; Restatement (Second) of Torts, § 496A, cmt. c, 3.
A second related corollary of the assumption of risk doctrine 3 is sometimes titled the “no-duty rule.” It applies when a plaintiff tacitly agrees to relieve the defendant of a duty by entering a certain relationship with the defendant, when the plaintiff is then injured by an inherent risk of that activity, such as a spectator at a sporting event. See Hughes, 762 A.2d at 342; Restatement (Second) of Torts, § 496A, cmt. c, 3 [**16] . As both of these manifestations of that intractable doctrine are at issue here, the Court addresses them in turn, first analyzing voluntary assumption of the risk. 4
3 See Berman v. Radnor Rolls, Inc., 374 Pa. Super. 118, 542 A.2d 525, 531 (1988) (discussing the discrete conceptual differences between voluntary assumption of the risk as an affirmative defense to a breached duty and the “no-duty” theory with its inherent absence of a duty).
4 The two remaining forms of assumption of the risk do not apply to this case. These are i) express assumption of the risk; and, ii) situations in which the plaintiff’s conduct in voluntarily encountering a known risk is itself unreasonable. See Hughes, 762 A.2d at 341-42; Restatement (Second) of Torts, § 496A, cmt. c, 1, 4.
1. Voluntary Assumption of the Risk Does Not Bar Plaintiff’s Claim in this Case
As Judge A. Richard Caputo articulated when considering a case involving voluntary assumption of the risk: “[t]o grant summary judgement on [that basis] the court must conclude, as a matter of law: (1) the party consciously appreciated the risk that attended a certain endeavor; (2) assumed the risk of injury by engaging in the endeavor despite [**17] the appreciation of the risk involved; and (3) that injury sustained was, in fact, the same risk of injury that was appreciated and assumed.” Bolyard v. Wallenpaupack Lake Estates, Inc., 3:10-CV-87, 2012 U.S. Dist. LEXIS 24598, 2012 WL 629391, at *5 (M.D. Pa. Feb. 27, 2012) (Caputo, J.). This assumption of risk defense is established as a matter of law “only where it is beyond question that the plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous condition.” Barrett v. Fredavid Builders, Inc., 454 Pa. Super. 162, 685 A.2d 129, 131 (1996). Moreover, “[t]he mere fact one engages in activity that has some inherent [*563] danger does not mean that one cannot recover from a negligent party when injury is subsequently sustained.” Bullman v. Giuntoli, 2000 PA Super 284, 761 A.2d 566, 573 (Pa. Super. Ct. 2000).
The dispositive analytical point in the case before this Court is determining what constitutes a plaintiff’s conscious appreciation of the risk. It is not enough that the plaintiff was generally aware that the activity in which he was engaged had accompanying risks. See Bolyard, 2012 U.S. Dist. LEXIS 24598, 2012 WL 629391, at * 6 (citing Handschuh v. Albert Dev., 393 Pa. Super. 444, 574 A.2d 693 (1990)). Rather, the plaintiff must be [**18] aware of “the particular danger” from which he is subsequently injured in order to voluntarily assume that risk as a matter of law. Id.
For example, in Bolyard v. Wallenpaupack Law Estates, Inc., 3:10-CV-87, 2012 U.S. Dist. LEXIS 24598, 2012 WL 629391, at *5-6 (M.D. Pa. Feb. 27, 2012), Judge Caputo held, inter alia, that assumption of the risk did not apply to a plaintiff who went snow-tubing on an old ski slope, hit a rut, and crashed into a tree. Judge Caputo recognized that, while the plaintiff “was generally aware that snow tubing on a tree-lined trail was dangerous, there [was] no evidence in the record that she had any knowledge of the specific hazards of that particular slope.” Bolyard, 2012 U.S. Dist. LEXIS 24598, 2012 WL 629391, at *6. This was a material distinction, such that the elements of voluntary assumption of the risk remained unsatisfied–therefore, as a matter of law, the plaintiff did not assume the risk. Id.
Similarly, in Handschuh v. Albert Dev., 393 Pa. Super. 444, 574 A.2d 693, 696 (1990), the court held that assumption of the risk did not apply when a plumbing contractor sustained injuries and died because a trench in which he was laying pipe collapsed. The court noted that the plaintiff was aware of the general [**19] risk of ditch collapses and that the particular job would be delicate. Handschuh, 574 A.2d at 694. Nevertheless, that awareness of the general risks was not sufficient “to compel a finding of a waiver of an individual’s right to complain about a breach of duty of care to the risk taker.” Id. at 696 (original punctuation altered).
In the case before the Court, Mrs. Barillari did not voluntarily assume the risk of her injury under this doctrine because there are no facts demonstrating she was specifically aware of the risk of the type of harm she suffered–namely, a skier crashing into a spectator. See Bolyard, 2012 U.S. Dist. LEXIS 24598, 2012 WL 629391, at *5-6; Handschuh, 574 A.2d at 694, 696; Pls.’ SOF ¶ 5. It is undisputed that Mrs. Barillari was aware of the general risks and dangers inherent in the sport of skiing. She was aware collisions between skiers occurred and she “was worried about [her] children with that.” Def.’s SOF, Oral Dep. Mrs. Barillari 23, Dec. 03, 2012, ECF No. 18, Exh. 5. There is not, however, anything in the record that indicates Mrs. Barillari was specifically aware of the danger that later befell her.
Rather, Mrs. Barillari stated she was not worried about a skier crashing into her, “because [**20] [she] was close enough to the ribbon and [she] was with other people that were just watching. [She] wasn’t standing with a bunch of skiers. [She] was standing with spectators.” Id. at 63-64. Like the plaintiffs in Bolyard and Handschu, Mrs. Barillari did not possess the requisite conscious appreciation of the specific risk of harm that caused her injury. Bolyard, 2012 U.S. Dist. LEXIS 24598, 2012 WL 629391, at *5-6; Handschuh, 574 A.2d at 694, 696. Therefore, the doctrine of voluntary assumption of the risk is inapplicable to this case. See id.
2. The “No-Duty” Rule Does Not Apply
The “no-duty” theory, a corollary species of assumption of the risk discussed [*564] previously in the context of the Skier’s Responsibility Act, applies at common law when: “the plaintiff has entered voluntarily into some relation with the defendant which he knows to involve the risk, and so is regarded as tacitly or impliedly agreeing to relieve the defendant of responsibility, and to take his own chances.” Hughes, 762 A.2d at 341 (citing Restatement (Second) of Torts, §496A, cmt. c, 2). “Again the legal result is that the defendant is relieved of his duty to the plaintiff.” Id.
The no-duty rule applies most prominently in the context of a spectator [**21] at a sporting event, such as a fan hit by a foul ball at a baseball game. See, e.g., Schentzel v. Philadelphia Nat’l League Club, 173 Pa. Super. 179, 96 A.2d 181 (1953). As the Restatement observes, “a spectator entering a baseball park may be regarded as consenting that the players may proceed with the game without precautions to protect him from being hit by the ball.” Restatement (Second) of Torts, §496A, cmt. c, 2.
“In Pennsylvania, the law imposes ‘no duty’ to protect spectators from risks that are common, frequent, and expected [in the sport].” Petrongola v. Comcast-Spectacor, L.P., 2001 PA Super 338, 789 A.2d 204, 210 (2001). “However, a facility may be held liable if the design of the facility deviates from the established custom in some relevant way.” Id. “The central question, then, is whether [a plaintiff’s] case is governed by the ‘no-duty’ rule applicable to common, frequent and expected risks of [the sport] or by the ordinary rules applicable to all other risks which may be present [at a sporting facility].” Jones v. Three Rivers Mgmt. Corp., 483 Pa. 75, 394 A.2d 546, 551 (1978).
For example, in Schentzel v. Philadelphia National League Club, 173 Pa. Super. 179, 186-92, 96 A.2d 181 (1953), [**22] the no-duty rule barred the claim of a plaintiff hit by a foul ball in the stands at a baseball game. The court noted that, even though there was scant evidence the plaintiff knew about the prevalence of foul balls, the defendant owed her no duty because foul balls are an inherent risk of attending a baseball game. Schentzel,173 Pa. Super. at 186-92.
In Loughran v. The Phillies, 2005 PA Super 396, 888 A.2d 872, 876-77 (Pa. Super. Ct. 2005), a majority of the court held that the no-duty rule barred a spectator’s claim for injuries suffered in the stands at a baseball game. There, the center-fielder threw the ball into the stands after catching it for the final out of the inning–as is customarily done to provide souvenirs for fans–when the unsuspecting plaintiff was hit and injured by the ball. Loughran, 888 A.2d at 874. Although this was not the typical foul ball hit into the stands, the majority considered this custom to be inherent in the sport. Id. at 877. They noted that the plaintiff failed to establish the defendants “deviated from the common and expected practices of the game of baseball.” 5 Id.
5 Judge John T. Bender dissented from this majority opinion, writing:
since the act of tossing a ball to fans [**23] as a souvenir is extraneous to the game and not necessary to the playing of the game, a spectator does not “assume the risk” of being struck by a ball entering the stands for this purpose, nor is there any valid reason in law or policy to extend the immunity of the “no duty” rule to this practice. Rather, if a baseball player wants to go beyond the confines of the game . . . he should be charged with the obligation of doing it in a reasonably safe and prudent manner.
Loughran, 888 A.2d at 882.
By contrast, in Jones v. Three Rivers Management Corporation, 483 Pa. 75, 394 A.2d 546, 548, 552-553 (1978), the court held that the no-duty rule did not apply because the patron was hit by a ball while using an interior walkway to the concessions [*565] area, rather than while seated in the stands. The court noted that “in a ‘place of amusement’ not every risk is reasonably expected.” Jones, 394 A.2d at 551. That particular injury was due to a failure in the ballpark’s design such that the no-duty rule should not apply. Id. at 551-52.
The Jones court also drew a distinction between risks that are merely inherent in the activity, and those risks that are not only inherent but also necessary to the activity. See id.; [**24] see also Loughran, 888 A.2d at 880 (Bender, J., dissenting) (“A careful reading of Jones, reveals that the no-duty rule applies not just when one’s injury is caused by a risk inherent to the activity, but also when the risk in question is necessary to the activity.”). For example, while foul balls in the stands are an inherent and necessary part of any baseball game, a bat flying into the stands is an inherent risk of baseball but not a necessary component of the game. Jones, 394 A.2d at 551; see also Schentzel, 96 A.2d at 182 (“There is a million foul balls, maybe three or four or five an inning, goes into the stand [sic].”).
The court further illuminated this distinction with analogies, writing that: “[m]ovies must be seen in a darkened room, roller coasters must accelerate and decelerate rapidly and players will bat balls into the grandstand.” Id. at 550-51. As Judge John T. Bender poignantly extrapolated in his Loughran dissent:
if movie houses are made to lighten the theatres so that no one trips, the movie-going experience would be greatly diminished if not destroyed. If amusement parks are made to design roller coasters so as to eliminate all jerkiness and smooth out all changes [**25] in direction they would no longer be capable of being classified as “thrill rides” and the word “amusement” might be deleted from the term “amusement parks.” But if baseball players and their employers, are charged with exercising reasonable care in the practice of providing souvenir balls to patrons, the “Fall Classic” will remain a classic sporting contest and all those regular season and playoff games preceding it would still be played in a manner consistent with Abner Doubleday’s original intent.
Loughran, 888 A.2d at 881.
According to the principles discussed in Jones and Loughran, the no-duty rule can be said to apply when, to avoid injury, a “place of amusement” must alter conditions at the facility in such a way that would change the very essence of the activity for which it is made. See Loughran, 888 A.2d at 881; Jones, 394 A.2d at 550-52. This does not affect the duty of sports facilities and places of amusement to protect patrons against foreseeable risks not inherent and necessary such that they are “common, frequent, and expected” in the very essence of that central activity. Jones, 394 A.2d at 551
Applying these principles to the case before the Court, the no-duty rule cannot [**26] protect the Defendant and bar Mrs. Barillari’s claim. The Defendant asserts that this case is directly analogous to the example of a spectator at a baseball game being hit by a foul ball–Mrs. Barillari was a spectator by a ski slope that was hit by a skier. See Def.’s Br., at 8-10. Although a skier crashing into spectators may be a foreseeable risk inherent in the sport of skiing, it is not a necessary and inherent element of that sport. See Jones, 394 A.2d at 551-52.
A majority of fans attend a baseball game expecting to see a number of foul balls hit into the stands. See Schentzel, 96 A.2d at 182. The Court is not aware of a similar majority that assumes they will see [*566] a number of skiers crash violently into spectators on a day trip to the mountain.
Furthermore, charging ski facilities with the ordinary duty of care to protect spectators from ski crashes, rather than shielding them with “no-duty,” will not in any way affect the essence of skiing. See Loughran, 888 A.2d at 881. The ski resort may erect mesh fences, snow walls, ropes, and other sorts of precautions around the sides and at the base of the slopes without impeding the rhythmic descent of countless alpine enthusiasts.
Therefore, [**27] the issues in this case do not present an instance where the “no-duty” rule applies. Rather, the existence of any negligence by either or both parties should be submitted to a jury.
III. CONCLUSION
For the foregoing reasons, Ski Shawnee Inc.’s motion for summary judgment is denied.
An appropriate Order follows.
BY THE COURT:
/s/ Matthew W. Brann
Matthew W. Brann
United States District Judge
ORDER
AND NOW, this 12th day of November, 2013, it is hereby ORDERED, in accordance with a Memorandum of this same date, that the Defendant, Ski Shawnee, Inc.’s motion for summary judgment is hereby DENIED.
BY THE COURT:
/s/ Matthew W. Brann
Matthew W. Brann
United States District Judge
Wroblewski v. Ohiopyle Trading Post, Inc., 2013 U.S. Dist. LEXIS 119206
Posted: May 26, 2014 Filed under: Legal Case, Paddlesports, Pennsylvania, Release (pre-injury contract not to sue), Whitewater Rafting | Tags: Ohiopyle, Ohiopyle Pennsylvania, Ohiopyle State Park, Ohiopyle Trading Post, Raft Rental, Rafting, Release, Whitewater Rafting, Youghiogheny River Leave a commentWroblewski v. Ohiopyle Trading Post, Inc., 2013 U.S. Dist. LEXIS 119206
Cari J. Wroblewski, Plaintiff, v. Ohiopyle Trading Post, Inc., Defendant.
Civil Action No. 12-0780
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
2013 U.S. Dist. LEXIS 119206
August 22, 2013, Decided
August 22, 2013, Filed
COUNSEL: [*1] For CARI J. WROBLEWSKI, Plaintiff: Emmanuel J. Argentieri, LEAD ATTORNEY, Parker McCay, Mount Laurel, NJ; Gary F. Piserchia, PRO HAC VICE, Parker McCay P.A., Mt. Laurel, NJ.
For OHIOPYLE TRADING POST, INC., Defendant: P. Brennan Hart, LEAD ATTORNEY, Jeanette H. Ho, Pietragallo, Bosick & Gordon, Pittsburgh, PA; John R. Brumberg, Pietragallo Gordon Alfano Bosick & Raspanti, LLP, Pittsburgh, PA.
JUDGES: Mark R. Hornak, United States District Judge.
OPINION BY: Mark R. Hornak
OPINION
Mark R. Hornak, United States District Judge
Cari Wroblewski brings suit against Ohiopyle Trading Post, Inc. (“Ohiopyle”) alleging that she suffered injuries to her knee as a result of Defendant’s negligence and gross negligence when she was thrown from her raft during a white water rafting trip. Ohiopyle argues that it is entitled to summary judgment because (1) Plaintiff signed a Rental Agreement which contained a provision releasing Defendant from liability (“Release”) for the very claims made in this matter and (2) Defendant did not have a duty to protect Plaintiff from being thrown from a raft and striking a rock because these are inherent risks of white water rafting. These matters, having been fully briefed by the parties and oral [*2] argument having been presented, are ripe for disposition. For the reasons which follow, Ohiopyle’s Motion for Summary Judgment is granted.
I. Background
Cari Wroblewski was 37 years old at the time of the incident that forms the basis of this lawsuit. Wroblewski Dep. 7:4-5. She holds an associate’s degree in business as well as a bachelor’s degree in accounting. Id. at 8:18-9:19. In April 2010, two months prior to the trip at issue in this case, Plaintiff went white water rafting on the Salt River in Arizona where she signed a rental agreement with a release and was informed that white water rafting could be dangerous and that she could fall out of the raft. Id. 16:21-17:7; 20:14-21:9.
One of Plaintiff’s friends, Steve Rose, made arrangements to rent equipment from Ohiopyle for a rafting trip on the Youghiogheny River with a group of their friends on June 11, 2010. ECF No. 21 ¶ 2; ECF No. 25 ¶ 2. Joel Means, one of the owners of Ohiopyle, testified in his deposition that the lower section of the Youghiogheny River is considered “the intermediate white water section of the River” and consists of Class I through Class III rapids with borderline Class IV at certain levels. Means Dep. 14:8-15:1. [*3] Plaintiff had been told, not by an Ohiopyle employee but most likely by one of her friends in the group, that the rapids on the river would be mild, level two and three rapids. Wroblewski Dep. 37:6-23. 1
1 “Q: What made you think before then that the rapids were levels two or three?
A: From what I had been told they were supposed to be rather mild rapids.
Q: Who told you that they were rather mild rapids?
A: I don’t recall.
Q: It wasn’t anyone from Ohiopyle Trading Post; was it?
A: No
Q: Was it one of the people in your group that went white water rafting that day?
A: Most likely.” Wroblewski Dep. 37:6-23.
On the morning of June 11, 2010, Means noticed that the river was “up and brown” from rain the night before, and that the water level had risen from 2.5 to 3.98 feet. Means Dep. 19:2-11. When the river’s water level reaches four (4) feet, rafters are required by state regulations to have an experienced guide accompany them on their rafting trip. 2 Id. 60:3-6. Ohiopyle is permitted to provide guided white water rafting tours when the level of the river is between four (4) and ten (10) feet. ECF No. 31. Means testified that the river level being of above average flow could make the rafting trip [*4] more difficult, but that the river is more dangerous at low levels than at high levels. Means Dep. 47:18-22.
2 At oral argument, Plaintiff’s counsel persistently argued not that the river level actually was four (4) feet at the time at issue, but that the Court should treat it as if it were. The Court knows of no record basis to do so.
Plaintiff and her friends traveled to the Youghiogheny River for the white water rafting trip on the morning of June 11, 2010. ECF No. 21 ¶ 1; ECF No. 25 ¶ 1. Upon arriving at the River, Plaintiff went to the bathroom for “quite a while” while the rest of her group started to get their rented equipment. ECF No. 25 at 2, ¶ 1; Wroblewski Dep. 31:8-19. Means informed the rest of Plaintiff’s group that the level of the river was above average flow that day and therefore the river that day was a “real white water river” and not a “float trip.” Means Dep. 16:16-17. Means told Steve Rose that if he and the others in the group no longer wished to rent equipment, Ohiopyle would provide the group with a guided whitewater rafting tour at a discounted rate of $40 per person rather than the usual price of $60 per person (a non-guided rafting trip costs about $20 per [*5] person). Id. 38:9-14; 46:21-47:8. Plaintiffs group declined the offer of a discounted guided rafting trip. Means also instructed his employees that day to “make sure [the group understood] what game they’re about to play,” in reference to the river. Id. 39:11-15. Presumably because she was in the bathroom, Plaintiff never heard from Means his advice as to the conditions of the river or offer of a guided tour. Wroblewski Dep. 32:2-12.
When Plaintiff was finished in the bathroom, she went to get her equipment from Ohiopyle and was “in a rush” because her friends had gotten a head start. ECF No. 25 at 2, ¶¶ 2-3; Wroblewski Dep. 31:8-19. An Ohiopyle employee handed Plaintiff a Rental Agreement and told her that she “needed to sign the form and meet up with [her] group because they were getting their gear.” ECF No. 25 at 2, ¶ 5; Wroblewski Dep. 76:6-21. Plaintiff testified that “[t]hey hurried me along” and she was not given an opportunity to read the Rental Agreement. Wroblewski Dep. 78:7; 76:22-23. She also testified that the Ohiopyle employee “didn’t ask me to read it, they just gave it to me and said please sign this and catch up with your group, they’re already getting their stuff.” [*6] Id. 78:3-13. Plaintiff signed Ohiopyle’s Rental Agreement which included a waiver and release of liability provision (“Release”). ECF No. 19-5. 3
3 Plaintiff was not the last person in her group to sign the Rental Agreement, as her signature is the second to last signature on the Rental Agreement. ECF No. 19-5.
After receiving her rafting equipment, Plaintiff and her group received a safety briefing by an Ohiopyle employee before being sent to the river to embark on their trip. ECF No. 25 ¶ 8; Wroblewski Dep. 32:13-16. In the safety briefing, Plaintiff was warned that white water rafting can be dangerous, and it was possible that participants could fall out of the raft. Wroblewski Dep. 33:6-12.
After rafting through the first set of river rapids, Plaintiff grew concerned that the rapids were not level two or three. Id. 37:6-10. Plaintiff stated that she was concerned that the river was more than she could handle, and that she considered getting off of the river but “[t]here was no place to get off.” Id. 40:5-16. Plaintiff did not express her concerns to any others on the rafting trip. Id. 40:10-1. Near the end of the whitewater rafting trip, Plaintiff was thrown from the raft. ECF No. [*7] 21 ¶ 5; ECF No. 25 ¶ 5; Wroblewski Dep. 41:12-20. According to Plaintiff, she was dragged under water and struck her knee on a rock, sustaining serious injuries. ECF No. 21 ¶ 6; ECF No. 25 ¶ 6; Wroblewski Dep. 41:21-42:1.
Plaintiff filed this action against Defendant in June 2012. ECF No. 1. Defendant moved for summary judgment. ECF Nos. 19, 20, 21. Plaintiff filed her response, ECF Nos. 24, 25, and Defendant filed a reply as well as a supplement. ECF Nos. 26, 27, 31. For the reasons discussed below, Defendant’s Motion for Summary Judgment is granted.
II. Standard
Summary judgment is appropriate when “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); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The parties must support their position by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1)(A). In other words, summary judgment may be granted only if [*8] there exists no genuine issue of material fact that would permit a reasonable jury to find for the non-moving party. See Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 250, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
In reviewing the evidence, the court draws all reasonable inferences in favor of the non-moving party. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Huston v. Procter & Gamble Paper Prod. Corp., 568 F.3d 100, 104 (3d Cir.2009) (citations omitted). It is not the court’s role to weigh the disputed evidence and decide which is more probative, or to make credibility determinations. See Anderson, 477 U.S. at 255; Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004); Boyle v. Cnty. of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 247-48 (1986). An issue is “genuine” if a reasonable jury could possibly hold in the non-movant’s favor with regard to that issue. See id. “Where the record taken as a whole could not lead a reasonable trier [*9] of fact to find for the nonmoving party, there is no ‘genuine issue for trial.'” Matsushita, 475 U.S. at 587; Huston, 568 F.3d at 104.
III. Discussion
Ohiopyle advances two arguments in support of its summary judgment motion. First, Defendant submits that the Rental Agreement form signed by Plaintiff contained a valid and enforceable release of liability in favor of Defendant, releasing Defendant from liability for the very claims made in this matter. Secondly, Defendant argues that it did not have a duty to protect Plaintiff from being thrown from a raft and striking a rock because these are inherent risks of white water rafting, and this Defendant should not have any liability.
On June 11, 2010, prior to white water rafting, Plaintiff signed a two-page document that contains a release of liability and is titled “RENTAL AGREEMENT” in capital letters at the top of its first page. ECF No. 19-5. The top half of the first page is a form to be filled out with information relating to the primary renter and the white water rafting equipment to be rented. Id.
The bottom half of the first page begins with the header “TERMS AND CONDITIONS,” with thirteen (13) paragraphs listed in three columns [*10] under this header. Id. The actual language releasing Ohiopyle from liability regardless of its own negligence is listed as paragraph nine (9) in this section. Id. The font of the Release language is the same size as the other paragraphs listed under “TERMS AND CONDITIONS” but, unlike the other paragraphs, is written in all capital letters. Id. The exculpatory clause consequently falls on the bottom half of the front side of the first page, in both the left and middle columns and, by itself, makes up approximately half of the language listed under “TERMS AND CONDITIONS.” Id.
Paragraph nine (9) contains the following language:
9. READ CAREFULLY THE FOLLOWING WAIVER AND RELEASE OF LIABILITY: HAVING RECEIVED A SAFETY TALK BY A MEMBER OP LESSOR’S STAFF, AND HAVING READ THE SAFETY PRECAUTIONS AND RECOMMENDATIONS ON THE REVERSE SIDE HEREOF, LESSEE(S) HEREBY ACKNOWLEDGE THAT HE/SHE/THEY FULLY UNDERSTAND(S): (a) THAT OUTDOOR RECREATIONAL ACTIVITIES HAVE INHERENT RISKS, DANGERS, AND HAZARDS, AND THAT SUCH EXISTS IN MY USE OF THE EQUIPMENT ABOVE DESCRIBED AND MY PARTICIPATION IN WHITE WATER RAFTING AND RELATED ACTIVITIES; (b) THAT MY PARTICIPATION IN SUCH ACTIVITIES AND/OR THE USE OF SUCH EQUIPMENT [*11] MAY RESULT IN INJURY OR ILLNESS, INCLUDING, BUT NOT LIMITED TO, BODILY INJURY, DISEASE, STRAINS, FRACTURES, PARTIAL AND OR TOTAL PARALYSIS, DEATH, OR OTHER AILMENTS THAT COULD CAUSE SERIOUS DISABILITY; (c) THAT SAID RISKS AND DANGERS MAY BE CAUSED BY (i) THE NEGLIGENCE OF THE OWNERS, EMPLOYEES, OFFICERS, OR AGENTS OF LESSOR, (ii) THE NEGLIGENCE OF PARTICIPANTS, (iii) THE NEGLIGENCE OF OTHERS, (iv) ACCIDENTS, (v) BREACHES OF CONTRACT, AND (vi) THE FORCES OF NATURE OR OTHER CAUSES; (d) THAT RISKS AND DANGERS MAY ARISE FROM FORESEEABLE OR UNFORESEEABLE CAUSES, INCLUDING, BUT NOT LIMITED TO, GUIDE DECISION MAKING, INCLUDING THAT A GUIDE MAY MISJUDGE TERRAIN, WEATHER, TRAIL OR RIVER ROUTE LOCATION; WATER LEVEL; FALLING OUT OF OR DROWNING WHILE IN A RAFT, CANOE, OR KAYAK; AND SUCH OTHER RISKS, HAZARDS. AND DANGERS THAT ARE INTEGRAL TO RECREATIONAL ACTIVITIES THAT TAKE PLACE IN A WILDERNESS, OUTDOOR OR RECREATIONAL ENVIRONMENT; AND (e) THAT BY MY PARTICIPATION IN THESE ACTIVITIES AND/OR USE OF THE EQUIPMENT ABOVE DESCRIBED, I HEREBY ASSUME ALL RISKS, DANGERS, AND RESPONSIBILITY FOR ANY LOSSES AND/OR DANGERS, WHETHER CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE OR OTHER CONDUCT OF THE OWNERS, [*12] AGENTS, OR EMPLOYEES OF LESSOR OR ANY OTHER PERSON.
AND FURTHER, ON BEHALF OF MY PERSONAL REPRESENTATIVES, SUCCESSORS, HEIRS, AND ASSIGNS, I DO HEREBY VOLUNTARILY AGREE TO RELEASE, WAIVE, DISCHARGE, HOLD HARMLESS, DEFEND, AND INDEMNIFY LESSOR AND ITS OWNERS, AGENTS, OFFICERS, AND EMPLOYEES FROM ANY AND ALL CLAIMS, ACTIONS, OR LOSSES FOR BODILY INJURY, PROPERTY DAMAGE, WRONGFUL DEATH, LOSS OF SERVICES, OR OTHERWISE WHICH MAY ARISE OUT OF MY USE OF THE EQUIPMENT ABOVE DESCRIBED, OR MY PARTICIPATION IN ANY ACTIVITIES INVOLVING SAID EQUIPMENT. I SPECIFICALLY UNDERSTAND THAT I AM RELEASING, DISCHARGING, AND WAIVING ANY CLAIMS OR ACTIONS THAT I MAY HAVE PRESENTLY OR IN THE FUTURE FOR THE NEGLIGENT ACTS OR OTHER CONDUCT BY THE OWNERS, AGENTS, OFFICERS, OR EMPLOYEES OF LESSOR.
I HAVE READ THE ABOVE WAIVER AND RELEASE, AND, BY SIGNING THIS RENTAL AGREEMENT, AGREE THAT IT IS MY INTENTION TO EXEMPT AND RELIEVE LESSOR AND ITS OWNERS, AGENTS, OFFICERS, AND EMPLOYEES FROM LIABILITY FOR PERSONAL INJURY, PROPERTY DAMAGE, OR WRONGFUL DEATH CAUSED BY NEGLIGENCE OR ANY OTHER CAUSE.
Id.
At the end of the “TERMS AND CONDITIONS” section, at the beginning of the right column, is the following language:
IN WITNESS [*13] WEREOF, and intending to be legally bound hereby, the undersigned Lessee(s) hereby certify that he/she/they have read and understood the terms and conditions of this Rental Agreement, and has/have affixed his/her/their hand(s) and seal(s) hereto on the dated indicated.
Id. Directly underneath this language, and in the column next to the exculpatory clause, multiple lines were provided where Plaintiff and the members of her party signed their names. Id. Plaintiff’s signature is the second to last signature listed on the form. Id.
The second page of the Rental Agreement has two sections. Id. The first section includes the header “SAFETY PRECAUTIONS” and the second section is titled “RECOMMENDATIONS.” Id. Both sections list a number of precautions and recommendations for how white water rafters should conduct themselves while on the river. Id.
The Defendant argues that the Release contained in the Rental Agreement is valid and enforceable. ECF Nos. 19, 20, 26. Plaintiff on the other hand asserts that the Release is unenforceable because its language is not sufficiently conspicuous to alert a party that it serves to release Defendant from liability and that Plaintiff did not actually assent [*14] to the terms of the Rental Agreement. ECF No. 24. To support her contentions, Plaintiff points out that the document was titled “Rental Agreement” and therefore does not provide adequate notice to signors that it is a release of liability. Id. at 7-8. Furthermore, the exculpatory language is placed at the bottom left of the form and not directly above the signature line, is written in small font, and does not appear until paragraph 9 of the form. Id. Plaintiff also argues that no one specifically informed her that she was entering into a contract that would affect her legal rights, and that she was “rushed along” by Defendant’s employees. Id.
The parties agree that this Court must consider Pennsylvania law and apply it in this case. See Lin v. Spring Mountain Adventures, Inc., 2010 U.S. Dist. LEXIS 136090, 2010 WL 5257648, at *3 (E.D. Pa. Dec. 23, 2010). Applying Pennsylvania law, the Pennsylvania Supreme Court explained that:
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 [*15] to the agreement so that the contract is not one of adhesion. . . . 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.
Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1189 (Pa. 2010) (citations omitted).
Plaintiff primarily relies on three release of liability cases to support her contention that the Release is in this instance unenforceable: Beck-Hummel v. Ski Shawnee, Inc., 2006 PA Super 159, 902 A.2d 1266 (Pa. Super. Ct. 2006); [*16] Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174 (Pa. 2010), and Lin v. Spring Mountain Adventures, Inc., No. 10-333, 2010 U.S. Dist. LEXIS 136090, 2010 WL 5257648 (E.D. Pa. Dec. 23, 2010). 4
4 Plaintiff does not argue that the release in this instance is facially invalid.
In Beck-Hummel, the plaintiff brought a negligence claim for injuries she received from colliding with a barrier wall while snow tubing at the defendant’s resort. 2006 PA Super 159, 902 A.2d 1266. There, the release was printed on the backside of a lift ticket that the plaintiff’s husband purchased and had given to plaintiff. Id. at 1267, 1270-71. The release contained hard to read and inconspicuous language, it did not require a signature or acknowledgment, and was printed on the portion of the ticket that would be folded out of sight of the user. Id. at 1269, 1273-1274. The record also revealed the lift ticket was not given to the Plaintiff directly by the operator. The Pennsylvania Superior Court held that plaintiff’s assent to the terms of the disclaimer was not clearly established and therefore it could not hold as a matter of law that the release for snow tubing injuries was enforceable. Id. at 1275.
In Chepkevich, plaintiff skier, who had signed a release [*17] prior to skiing, asked a lift operator to stop a lift so that she and her 6-year-old nephew could board the lift. Although the lift operator agreed to do so, when the lift came behind the plaintiff and her nephew, the operator failed to stop the lift. The skier sued the ski resort for negligence for injuries she received as a result of falling from the ski lift. The release in this case was printed on a single page and titled “RELEASE FROM LIABILITY.” 2 A.3d at 1192. The language releasing liability was in the same font as the rest of the release, included the term “negligence”, and “specifically noted that riding the ski lift is a risky activity.” Id. The plaintiff argued that she did not read the exculpatory language nor did anyone orally inform her that she was entering into such an agreement. Id. at 1180-81. The court held that the release was valid, enforceable, and “clearly encompassed the risk at issue . . . [and] clearly spelled out the parties’ intention to release [defendant] from liability for injuries . . . regardless of any negligence on the part of the [defendant].” Id. at 1195. The court therefore upheld the grant of summary judgment in favor of the defendant. Id.
Finally [*18] in Lin, the plaintiff sued for serious injuries sustained from skiing when she lost control and fell into a snow making machine that was not properly padded. The document containing the release provision was titled “EQUIPMENT RENTAL FORM AND RELEASE FROM LIABILITY.” 2010 U.S. Dist. LEXIS 136090, 2010 WL 5257648, at *2. On the front page of the release was a capitalized, blocked section in the center of the page, above the signature line, instructing the reader to “PLEASE READ THE AGREEMENT ON THE BACK OF THIS FORM BEFORE SIGNING. IT RELEASES U.S. FROM CERTAIN LIABILITY.” Id. Directly between the instruction to read the back of the release and the signature line was the following statement: “I, the undersigned, have carefully read and understood the Acceptance of Risk and Liability Release on the back of this paper.” Id. The exculpatory clause was located on the back of the form and stated multiple times that it was a release from liability. 2010 U.S. Dist. LEXIS 136090, [WL] at *2. The court found that even though the plaintiff had not read the release language, that she “was a voluntary signatory to a full-sized contract.” 2010 U.S. Dist. LEXIS 136090, [WL] at *5. The court held that the exculpatory clause was enforceable and granted defendant’s motion for summary judgment. [*19] 2010 U.S. Dist. LEXIS 136090, [WL] at *9.
This case is not analogous to Beck-Hummel, as Plaintiff contends. Unlike Beck-Hummel, Plaintiff “was not a mere recipient of a release printed on a ticket, but was a voluntary signatory to a full-sized contract.” Lin, 2010 U.S. Dist. LEXIS 136090, 2010 WL 5257648, at *5. Plaintiff signed the Rental Agreement herself, and her signature is immediately preceded by instructions guiding her to read the entirety of the form and confirming that she had done so. Moreover, Plaintiff was provided a full-sized contract in which the Release was set forth on its front side, as opposed to a small unreadable ticket that she did not sign and in which the operative language was written on the reverse side.
Moreover, the language of the Release, construed strictly against Defendant, plainly expresses the intention of the parties to release Defendant from liability for future injury. The paragraph mentions “negligence” five (5) times and that it is a release of liability three (3) times. ECF No. 19-5. 5 Specifically, the first sentence of paragraph 9 asks the signer to carefully read the “WAIVER AND RELEASE OF LIABILITY.” Id.
5 In fact, exculpatory clauses may bar suits based on negligence even where the clause does not specifically [*20] mention the word “negligence” at all. Chepkevich, 2 A.3d at 1193. “It strains common sense to suggest that releases that fail to mention the word ‘negligence’ should consistently be interpreted as barring suits based on negligence claims, while a release that clearly states that suits are barred ‘regardless of negligence’ would not bar such suits.” Id.
Part of Plaintiff’s argument is that she was not personally informed by Ohiopyle of the elevated water level prior to her signing the Rental Agreement. However, the language of the Release explicitly warned of the same things that Defendant’s employees cautioned the rest of Plaintiff’s group. Specially, the Release warns of “bodily injury” from “risks and dangers [that] may arise from foreseeable or unforeseeable causes, including . . . water level” and “falling out of . . . a raft.” Id. Furthermore, the clause stated that by signing the agreement, the signor “assume[s] all risks, dangers, and responsibility for any losses and/or dangers.” Id. In fact, the clause even warns of “total paralysis” and “death.” Id. This paragraph goes on to explain that the signor “specifically understand[s] that I am releasing, discharging, and waiving any [*21] claims or actions that I may have presently or in the future for the negligent acts or other conduct by” the Defendant. Id. Furthermore, “it is my intention to exempt and relieve lessor . . . from liability for personal injury . . . caused by negligence.” Id. It is also important to note that prior to her trip to Ohiopyle, Plaintiff admittedly went white water rafting in Arizona where she signed a rental agreement with a release, and was informed that white water rafting could be dangerous and that she could fall out of the raft. Wroblewski Dep. 16:21-17:7; 20:14-21:9. Moreover, in Ohiopyle’s safety briefing, right before Plaintiff boarded the raft, Plaintiff and her group were warned that white water rafting can be dangerous, and it was possible that she could fall out of the raft. Id. 33:6-12.
The fact that the exculpatory language was contained in the bottom half of the first page, not listed until paragraph 9, and not directly above the signature line does not make it unenforceable, either generally or in this case. While the terms and conditions are in a slightly smaller font than the upper half of the form, they are still clearly readable. Moreover, paragraph 9 is the only paragraph [*22] written entirely in capital letters. Taken as a whole, using a strict (but common sense) interpretation, it is clear the form in question releases the Defendant from liability for injuries such as those sustained by Plaintiff, even if due to Defendant’s own negligence. 6
6 Lahey v. Covington, 964 F. Supp. 1440, 1442 (D. Colo. 1996) is factually similar to this case in that there, the defendant failed to personally inform plaintiff of heightened water level when the plaintiff took a white water rafting trip through defendant’s company. The Arkansas Headwater Recreation Area, a white water rafting regulatory group, recommended against any rafting when the water flow measured 4.0 feet high or more (the same cut-off measurement for rafts without guides at Ohiopyle). The defendant also had a company policy to not take people rafting when the water was four feet or higher. On the day in question, the river measured 3.8 feet but, similar to this case, the defendant did not inform the plaintiff that the water level was “high” that day. Plaintiff signed a release of liability agreement prior to the trip and was injured after being tossed into the river. The court held that the exculpatory portion [*23] of the release agreement was valid and granted defendant’s motion for summary judgment on plaintiff’s negligence claim. Id. at 1446.
Plaintiff contends that summary judgment is also improper because whether she knowingly signed the Rental Agreement and assented to its terms is a question of fact for the jury. ECF No. 24. Plaintiff argues that she did not read the Release and that employees of Defendant did not directly warn or advise her as to the conditions of the river or offer her a guided tour, nor did they orally inform her of what the form stated or ask her to read the form, and that they rushed and “hurried [her] along”, and therefore she did not assent to the terms of the agreement. Id.
Plaintiff voluntarily chose to engage in the sport of white water rafting purely for recreational purposes. Plaintiff signed the Release; she was not compelled, as a legal matter, to sign it, but chose to sign it so that she could go on the white water rafting trip with her group. See Tayar v. Camelback Ski Corp., Inc., 616 Pa. 385, 47 A.3d 1190, 1197 (Pa. 2012) (“[R]ecreational sporting activities may be viewed differently in the context of exculpatory agreements, as each party is free to participate, or [*24] not, in the activity, and, therefore, is free to sign, or not, the release form.”); see also Chepkevich, 607 Pa. 1, 2 A.3d 1174 (release enforceable even though plaintiff had not read agreement); Lin, 2010 U.S. Dist. LEXIS 136090, 2010 WL 5257648 (same). There is no evidence that plaintiff sought to negotiate the terms of the Release or asked for additional time to read it, and to the extent she was “compelled” it was a compulsion arising solely from her personal desire to meet up with her group.
Under Pennsylvania law, the failure to read a contract does not nullify the contract’s validity. Standard Venetian Blind Co. v. Am. Empire Ins. Co., 503 Pa. 300, 469 A.2d 563, 566 (Pa. 1983) (“[I]n the absence of proof of fraud, failure to read [the contract] is an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract or any provision thereof.”); see also 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. [*25] . . . 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.”). 7
7 See also In re Greenfield Estate, 14 Pa. 489, 496 (Pa. 1850) (“[i]f a party, who can read . . . will not read a deed put before him for execution; or if, being unable to read, will not demand to have it read or explained to him, he is guilty of supine negligence, which . . . is not the subject of protection, either in equity or at law.”).
This rule has been applied time and again in the context of recreational activities in which a party signed a pre-injury release of liability. For instance, the Pennsylvania Superior Court affirmed an order granting summary judgment in favor of the owner of a racetrack where the plaintiff had signed an agreement releasing all claims against the racetrack before he was injured. Seaton v. E. Windsor Speedway, Inc., 400 Pa. Super. 134, 582 A.2d 1380 (Pa. Super. Ct. 1990). The Superior Court held that the signed release was enforceable even though plaintiff claimed that he had not read it, did not know that he was signing a release, and did not have time to read the document because of a long line of people behind [*26] him. Id. at 1383 (“His explanation that he did not read it does not, in the absence of fraud or a confidential relationship, extricate him from its operation.”). See also Lin, 2010 U.S. Dist. LEXIS 136090, 2010 WL 5257648, at *6 (“[i]t is a well established rule under Pennsylvania law that failure to read a contract does not relieve a party of their obligation under such contract that they sign, and such parties will be bound by the agreement without regard to whether the terms were read and fully understood.”); Martinez v. Skirmish, U.S.A., Inc., No. 07-5003, 2009 U.S. Dist. LEXIS 51628, 2009 WL 1676144, *7 (E.D. Pa. June 15, 2009) (release enforceable as to negligence for injury to plaintiff during paintball game, noting that plaintiff was accompanied by friends “who could have explained the Waiver & Release to him, if he had asked them to do so. . . . Consequently, [plaintiff’s] failure to read that document cannot constitute a defense to the enforceability of the Waiver & Release.”); Schillachi v. Flying Dutchman Motorcycle Club, 751 F. Supp. 1169, 1174-75 (E.D. Pa. 1990) (release that plaintiff signed before being injured while racing all-terrain vehicle was enforceable even though plaintiff failed to read it because “[t]o accept plaintiff’s [*27] argument that there is such a duty [on the part of the defendant] to inform in this case would essentially abrogate the law of Pennsylvania regarding plaintiff’s duty to read.”). 8
8 In Doe v. Cultural Care, Inc., No. 10-11426-DJC, 2011 U.S. Dist. LEXIS 28226, 2011 WL 1048624, at *4-5 (D. Mass. Mar. 17, 2011), the court held that a release signed by plaintiff was enforceable even if the defendant had rushed her. There, the court explained that
“[t]he fact that [plaintiff] did not take the time to read the terms and conditions of the Agreement because she felt hurried by [defendant] does not change the analysis. [Plaintiff] does not dispute that she executed the Agreement or that it contains the Release. She disputes that she agreed to the terms and conditions, that the Release discharges Defendants from liability or bars her claims since she had no knowledge of the Release and was rushed into executing the Agreement based on Defendants’ representations.”
Id.
Similar to the cases discussed above, Plaintiff voluntarily participated in the white water rafting trip. “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 [*28] services, but merely governs a voluntary recreational activity.” Chepkevich, 2 A.3d at 1191. Plaintiff could have requested additional time to read the agreement, or she could have chosen to not sign the Release and not go white water rafting. See Martinez, 2009 U.S. Dist. LEXIS 51628, 2009 WL 1676144, at *7 (argument that plaintiff had no choice but to sign release because he had pre-paid for the paintball activity was unavailing for the reason that it was a recreational activity where participation was voluntary). Holding that Defendant had a duty to orally inform Plaintiff of what she was signing, or holding a release unenforceable because Plaintiff failed to read the contract containing a release of liability she signed because she felt rushed, would turn this rule on its head.
The Court considers, as it must, all of the relevant circumstances set out in the record, Lin, 2010 U.S. Dist. LEXIS 136090, 2010 WL 5257648, at *6, and is unable to agree with Plaintiff that the Rental Agreement constituted (as a matter of law) an insufficient effort on the part of Ohiopyle to inform her of the fact that by signing that Agreement, she was giving up any right she might have to sue for damages arising from injuries caused even by negligence. In five [*29] (5) different places the Release mentions “negligence” and states that is a release of liability in three (3) places. ECF 19-5. Similar to Chepkevich, “[a]lthough the outcome in this case was certainly unfortunate, the risk was not so unexpected, or brought about in so strange a manner, as to justify placing this injury beyond the reach of the plain language of the Release, which specifically noted” that white water rafting is a risky activity in which water levels can increase or decrease and that you can fall out of the raft. Chepkevich, 607 Pa. 1, 2 A.3d 1174, 1194. Furthermore, between her previous white water rafting trip in Arizona and the safety briefing she was admittedly provided by Ohiopyle, Plaintiff was aware that white water rafting was dangerous and that falling out of a raft was an actual danger of the activity. Moreover, Plaintiff’s argument that there is an issue of material fact as to whether she assented to the terms of the agreement because she felt “rushed” by Defendant, is insufficient to deem the agreement unenforceable in light of her duty under Pennsylvania law to read a contract.
The Release, even when construed against Defendant, clearly spelled out the parties’ intention [*30] to release Defendant from liability and encompassed the risk of varying water levels and falling out of the raft. Consequently, the Release meets the enforceability test under Pennsylvania law. Plaintiff brings a claim for negligence. Negligence is explicitly encompassed within the Release, and Defendant’s Motion for Summary Judgment is granted. 9
9 Because the signed Rental Agreement precludes Plaintiff from bringing a claim of negligence against Defendant, the Court need not decide whether the incident at issue in this case was an inherent risk of white water rafting.
IV. Conclusion
For the foregoing reasons, Defendant’s Motion for Summary Judgment is granted. An appropriate Order will issue.
/s/ Mark R. Hornak
Mark R. Hornak
United States District Judge
Dated: August 22, 2013
Negligence suit over injuries from falling out of a raft that was rented from outfitter. Release was part of raft rental contract.
Posted: May 2, 2014 Filed under: Pennsylvania, Release (pre-injury contract not to sue), Whitewater Rafting | Tags: Ohiopyle, Ohiopyle Trading Post, Raft Rental, Rafting, Release, Whitewater Rafting, Youghiogheny River Leave a commentFederal District court grant’s motion for summary judgment on release language in a rental agreement with multiple signatures from renters on one page. Scary!
Wroblewski v. Ohiopyle Trading Post, Inc., 2013 U.S. Dist. LEXIS 119206
Date of the Decision: August 22, 2013
Plaintiff: Cari J. Wroblewski
Defendant: Ohiopyle Trading Post, Inc.
Plaintiff Claims:
Defendant Defenses: release in raft rental agreement
Holding: for the defendant
The plaintiff had recently gone rafting on the Salt River in Arizona. Two months later she with her friends rented a raft and equipment from the defendant to a raft the Youghiogheny River. The Youghiogheny River is a Class III run although it allegedly borders on Class IV at certain water levels.
Once the water level rises above a certain level the defendant is allowed to operate as a guide service and run river guides with its customers.
While the plaintiff was taking a long time in the restroom, the rest of her group talked to the defendant’s employees about the high water and declined a guided service. The normal price of a guided trip is $60 per person. The rental cost is $20 per person. The defendant offered to add a guide to the trip for $40 per person, a $20 per person discount from the regular price.
After leaving the restroom the plaintiff testified that she was rushed to sign the release and get her “stuff.” The court took note that the plaintiff was not the last person to sign the release. “Plaintiff was not the last person in her group to sign the Rental Agreement, as her signature is the second to last signature on the Rental Agreement.”
After signing the release and getting her gear the plaintiff received a safety briefing and then was sent down the river. During one of the final rapids, the plaintiff fell out of the boat and “was dragged under water and struck her knee on a rock, sustaining serious injuries.”
The case was filed in Federal District Court, which is the trial court, and the opinion is the court’s which was used to grant the defendants motion for summary judgment.
Summary of the case
The court pointed out several issues that the court, and the plaintiff identified. The release started half-way down the page and was titled “Terms and Conditions.” Multiple lines were provided where the parties all signed the same document. Additional legal information was found under section identified as “SAFETY PRECAUTIONS” and “RECOMMENDATIONS.” The overall title of the document was “Rental Agreement.” The court did point out that the font used in the form was small but sufficient.
The plaintiff argued the release was not enforceable because:
…Plaintiff points out that the document was titled “Rental Agreement” and therefore does not provide adequate notice to signors that it is a release of liability. Furthermore, the exculpatory language is placed at the bottom left of the form and not directly above the signature line, is written in small font, and does not appear until paragraph 9 of the form. Plaintiff also argues that no one specifically informed her that she was entering into a contract that would affect her legal rights, and that she was “rushed along” by Defendant’s employees.
The court then went through the cases in Pennsylvania that had thrown the release out. However, in each case this court found the facts were different or the case was not applicable to this one.
The statement of the court as to the relationship between a party signing a release for recreational activities and one for other purposes sets recreational releases apart.
Plaintiff voluntarily chose to engage in the sport of white-water rafting purely for recreational purposes. Plaintiff signed the Release; she was not compelled, as a legal matter, to sign it, but chose to sign it so that she could go on the white-water rafting trip with her group. (“[R]ecreational sporting activities may be viewed differently in the context of exculpatory agreements, as each party is free to participate, or not, in the activity, and, therefore, is free to sign, or not, the release form.”)
The court also took on issues the plaintiff did not identify, which is whether or not the plaintiff attempted to negotiate the release terms. As it has been pointed out several times in other cases, the opportunity or not to negotiate an activity without signing a release or to change a release may void the release.
There is no evidence that plaintiff sought to negotiate the terms of the Release or asked for additional time to read it, and to the extent she was “compelled” it was a compulsion arising solely from her personal desire to meet up with her group.
The court also eliminated the plaintiff’s argument she did not understand what she was signing in one sentence. “Under Pennsylvania law, the failure to read a contract does not nullify the contract’s validity.” The court stated the “Plaintiff could have requested additional time to read the agreement, or she could have chosen to not sign the Release and not go white-water rafting.”
The court held the release stopped the plaintiff’s claims.
The Release, even when construed against Defendant, clearly spelled out the parties’ intention to release defendant from liability and encompassed the risk of varying water levels and falling out of the raft. Consequently, the Release meets the enforceability test under Pennsylvania law. Plaintiff brings a claim for negligence. Negligence is explicitly encompassed within the Release, and Defendant’s motion for Summary Judgment is granted.
So Now What?
Remember a release that is involved in litigation is one that is poorly written. Well written releases do not end up in front of judges and juries. This court upheld the release but in doing so pointed out several issues that in other jurisdictions or maybe in Pennsylvania with different fact patterns would have held the other way.
First, the document was a rental agreement. It was labeled as such and most of the information the court pointed out was based on rental information. You may be able to combine a rental agreement and a release in one document; however, you should clearly label the document as such.
What was amazing is in the day and age when this accident happened, 2010, that a recreation business was still using a sign-in sheet as a release. You don’t buy a house on the same document as your neighbor used. Why would you risk your business by using a document signed by multiple people that defend against a multi-million dollar lawsuit?
Add to that the print size, the release language divided into three different columns in the document and the plaintiff’s arguments that she was hurried; this is a thank heaven’s decision.
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Licensed Professionals cannot have clients sign releases, it’s not who is offering the services, it is, is the professional licensed by the state.
Posted: December 2, 2013 Filed under: Pennsylvania, Release (pre-injury contract not to sue) | Tags: Licensed Professional, Physical Therapist, Physician, Professional, Release, Waiver Leave a commentLicensed people are prohibited by either state law or their ethics from having a client/patient sign a release.
Taylor v. L.A. Fitness International, 2010 Phila. Ct. Com. Pl. LEXIS 252; 16 Pa. D. & C.5th 491
This case was reversed and remanded without an opinion by the SUPERIOR COURT OF PENNSYLVANIA, Taylor, K. v. LA Fitness International, LLC, 32 A.3d 841; 2011 Pa. Super. LEXIS 4194
Every wonder if the hue and cry over medical malpractice why your doctor does not have you sign a release before any procedure or surgery? A release given to a professional, a licensed person, is void. Doctors, lawyers, architects, engineers, almost anyone licensed by the state to perform their jobs, are not allowed to ask their clients for a release. If they do ask, the release is void.
This prohibition against releases flows to those working at the direction of the licensed professional such as nurses, paralegal or in this case, a licensed physical therapist. A release can be used by a personal trainer. A personal trainer is not considered a licensed professional, while a physical therapist is.
Physicians do use Acknowledgement of Risk forms, which in the medical community are called “Informed Consent” forms.
In this case, the plaintiff had signed up at a fitness center and hired a trainer to help her with her recover from an injury. Doing an exercise at the direction of the trainer, she suffered another injury. The plaintiff signed two releases; one for the gym and one for the personal trainer.
The lower court and the appellate court dismissed the claims of the plaintiff based on the two different yet well written releases.
The statement by the court that confused another website was “This Court would like to call attention to the fact that its analysis would have been entirely different if the Plaintiff had been working under the supervision of a licensed physical therapist.” The judge in this case discussed the issue between licensed therapists working under the auspices of a physician.
The Court stated, “The public has an interest in assuring that those claiming to be qualified to follow a doctor’s orders are, in fact, so qualified, and accept responsibility for their actions.” The Court stated, “The public has an interest in assuring that those claiming to be qualified to follow a doctor’s orders are in fact so qualified, and accept responsibility for their actions.”
The court went on to explain why this was true.
The reasoning and logic of Leidy is inapplicable to the sub judice because no recognized statewide standard of care exists for health clubs like LA Fitness or health club employees like Defendant Hale. The legislature created the Broad of Physical Therapy to establish rules and procedures to regulate physical therapy throughout the state of Pennsylvania. See 63 P.S. § 1302.1. The Physical Therapy Practice Act, 63 P.S. § 1301 et seq., provides conclusive evidence of the public interest in protecting the health, safety and welfare of those who seek the services of a physical therapist.
The legal issues presented by the decision are clear and not of great import. As the court said:
The Defendants went to great lengths to draft exculpatory clauses that would comply with Pennsylvania law; therefore, this Court was required to enforce the exculpatory clauses contained in the Membership Agreement and Fitness Service Agreement and Release of Liability.
An article on the web about a release case stated that the release was dependent upon who relied upon the release incorrectly.
Do Something
It takes three years (27 months in my case) of law school after four years of undergraduate study to interpret releases. Make sure you are getting your legal advice from a lawyer and make sure a lawyer is writing your release.
Do Not Follow but See Waiver Law in Pennsylvania: Personal Trainer vs. Licensed Physical Therapist
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Taylor v. L.A. Fitness International, 2010 Phila. Ct. Com. Pl. LEXIS 252; 16 Pa. D. & C.5th 491
Posted: December 2, 2013 Filed under: Legal Case, Pennsylvania, Release (pre-injury contract not to sue) | Tags: Health club, PA, Pennsylvania, Physical Trainer, Release 1 CommentTaylor v. L.A. Fitness International, 2010 Phila. Ct. Com. Pl. LEXIS 252; 16 Pa. D. & C.5th 491
This case was reversed and remanded without an opinion by the SUPERIOR COURT OF PENNSYLVANIA, Taylor, K. v. LA Fitness International, LLC, 32 A.3d 841; 2011 Pa. Super. LEXIS 4194
Kimberly Taylor and Andrew Taylor, h/w v. L.A. Fitness International, LLC d/b/a LA Fitness, USA PT, LLC, d/b/a Body of Change, c/o David White, Jr., Dorian Jefferson Hale
No. 2213
COMMON PLEAS COURT OF PHILADELPHIA COUNTY, PENNSYLVANIA, CIVIL TRIAL DIVISION
2010 Phila. Ct. Com. Pl. LEXIS 252; 16 Pa. D. & C.5th 491
August 30, 2010, Decided
CASE SUMMARY:
JUDGES: [*1] Judge John M. Younge.
OPINION BY: John M. Younge
OPINION
[**493] Younge, J.
The Plaintiffs, Kimberly and Andrew Taylor, filed this appeal from this Court’s Order that granted a motion for summary judgment filed by the above-captioned Defendants. 1
1 The Plaintiffs, Kimberly and Andrew Taylor, will be referred to collectively as the Plaintiff throughout the remainder of this Opinion because Andrew Taylor does not assert an independent cause of action against the Defendants. His claim is based on loss of consortium.
Facts and Procedure:
This personal injury action was brought against the Defendants by the Plaintiff, Kimberly Taylor, who was a member of LA Fitness and a client of Body of Change. The Plaintiff was seriously injured in June of 2007 while exercising at the Huntingdon Valley location for the Defendant, LA Fitness. The Plaintiff alleged to have hired [**494] the Defendant, Body of Change, to provide personal trainers to assist her while exercising at LA Fitness. At the specific time of her injury, she alleged to have been exercising with the Defendant, Dorian Jefferson Hale, a personal trainer and agent of the Defendant, Body of Change. In her Complaint, she alleged that Defendant Hale taught her an improper exercise [*2] and failed to properly assist or spot her while exercising. She alleged that the negligence of Defendant Hale caused her shoulder injury. She alleged that Defendant Hale was an agent of LA Fitness and Body of Change. Her claim against Defendants, LA Fitness and Body of Change, was based on agency and vicarious liability under a theory of respondeat superior.
Following discovery, the Defendants filed the motion for summary judgment that is currently at issue in this appeal. In their motion, the Defendants asserted immunity from suit based on exculpatory clauses contained in the Membership Agreement that the Plaintiff entered into with LA Fitness and the Fitness Service Agreement and Release of Liability that the Plaintiff entered into with Body of Change. 2
2 After this Court granted the Defendants’ motion for summary judgment, the Plaintiff filed two motions to reconsider this Court’s Order that granted summary judgment. In one of her motions to reconsider, she argued for the first time that she did not sign the membership agreement with LA Fitness. For a complete discussion of why her motion for reconsideration was without merit and a discussion of the procedural history surrounding [*3] that motion see § F of this Opinion.
The Membership Agreement at issue contained an exculpatory clause that read as follows:
[**495] IMPORTANT: RELEASE AND WAIVER OF LIABILITY AND INDEMNITY
You hereby acknowledge and agree that Member’s use of L.A. Fitness’ facilities, services, equipment or premises, involves risks of injury to persons and property, including those described below, and Member assumes full responsibility for such risks. In consideration of being permitted to enter any facility of L.A. Fitness (a “club”) for any purpose including, but not limited to, observation use of facilities, services or equipment, or participation in any way, Member agrees to the following: Member hereby releases and holds L.A. Fitness, its directors, officers, employees, and agents harmless from all liability to Member and Member’s personal representatives, assigns, heirs, and next of kin for any loss or damage and forever gives up any claim or demands therefore, on account of injury to Member’s person or property, including injury leading to death of Member, whether caused by the active or passive negligence of L.A. Fitness or otherwise, to the fullest extent permitted by law, while Member is in, upon, [*4] or about L.A. Fitness premises or using any L.A. Fitness facilities, services, or equipment. Member also hereby agrees to indemnify L.A. Fitness from any loss, liability, damage or cost L.A. Fitness may incur due to the presence of Member in, upon or about the L.A. Fitness premises or in any way observing or using any facilities or equipment of L.A. Fitness whether caused by the negligence of Member or otherwise.
You represent (a) that Member is in good physical condition and has no disability, illness, or other condition that could prevent Member from exercising without injury or impairment of member’s health, and (b) that Member has consulted a physician concerning an exercise [**496] program that will not risk injury to Member or impairment of Member’s health. Such risk of injury includes (but is not limited to): injuries arising from use by Member or others of exercise equipment and machines; injuries arising from participation by Member or others in supervised or unsupervised activities or programs at a Club; injuries and medical disorders arising from exercising at a Club such as heart attacks, strokes, heat stress, sprains, broken bones, and torn muscles and ligaments, among others; [*5] and accidental injuries occurring anywhere in Club dressing rooms, showers and other facilities. Member further expressly agrees that the foregoing release, waiver and indemnity agreement is intended to be as broad and inclusive as is permitted by the law of the State of Pennsylvania and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full force and effect. Member has read this release and wavier of liability and indemnity clause, and agrees that no oral representations, statements or inducement apart from this Agreement have been made.
(Defendants’ Motion for Summary Judgment, Exhibit B (July 6, 2009)).
The Fitness Service Agreement and Release of Liability with Body of Change contained two clauses that were relevant to the personal injury action brought by the Plaintiff. These clauses are entitled “Acknowledgement & Assumption of Risk” and “Limitation of Liability & Full Release of BOC” and read in relevant part:
Acknowledgement & Assumption of Risk: Client acknowledges that the Services purchased hereunder include participation in strenuous physical activities, including, but not limited to, aerobic dance, weight training, [*6] stationary bicycling, various aerobic conditioning [**497] machinery and various nutritional programs offered by BOC (the “Physical Activities”). Client acknowledges these Physical Activities involve the inherent risk of physical injuries or other damages, including, but not limited to, heart attacks, muscle strains, pulls or tears, broken bones, shin splints, heat prostration, knee/lower back/foot injuries and any other illness, soreness, or injury however caused, occurring during or after Client’s participation in the Physical Activities. Client further acknowledges that such risks include, but are not limited to, injuries caused by the negligence of an instructor or other person, defective or improperly used equipment, over-exertion of Client, slip and fall by Client, or an unknown health problem of Client. Client agrees to assume all risk and responsibility involved with Client’s participation in the Physical Activities. Client affirms that Client is in good physical condition and does not suffer from any disability that would prevent or limit participation in the Physical Activities. Client acknowledges participation will be physically and mentally challenging, and Client agrees that [*7] it is the responsibility of Client to seek competent medical or other professional advice, regarding any concerns or questions involved with the ability of Client to take part in the Physical Activities. By signing this agreement, Client asserts that Client is capable of participating in the Physical Activities. Client agrees to assume all risk and responsibility for Client’s exceeding her physical limits.
Limitation of Liability & Full Release of BOC: Client, his or her heirs, assigns and next of kin, agree to fully release BOC, its owners, employees, any related entities or authorized agents, including independent contractors from any and all liability, claims and/or litigation or [**498] other actions that Client may have for injuries, disability, or death or other damages of any kind, including but not limited to, direct, special, incidental, indirect, punitive or consequential damages whether arising in tort, contract, breach of warranty or arising out of participation in the Services, including, but not limited to the Physical Activities, even if caused by the negligence or fault of BOC, its owners, employees, any related entities or other authorized agents, including independent contractors. [*8] Client is urged to have this agreement reviewed by an attorney before signing.
(Defendants’ Motion for Summary Judgment, Exhibit C (July 6, 2009)).
Discussion:
This Court granted the Defendants’ Motion for Summary Judgment and dismissed the Plaintiff’s Complaint because the agreements that the Plaintiff entered into with the Defendants contained exculpatory clauses that relieved the Defendants from all liability for the injuries suffered by the Plaintiff. The Defendants went to great lengths to comply with Pennsylvania law when they drafted the exculpatory clauses at issue. The language used in these exculpatory clauses mirrored the language of the two exculpatory clauses that were enforced in Kotovsky v. Ski Liberty Operating Corp., 412 Pa. Super. 442, 603 A.2d 663 (1992). 3
3 The plaintiff in Kotovsky was injured while participating in a downhill ski race. He specifically collided with a fencepost along the outside of the race course. The Court in Kotovsky affirmed a trial court order that granted a motion for judgment on the pleadings based on an exculpatory agreement entered into between the parties prior to the competition.
[**499] In Kotovsky the first exculpatory clause provided, in pertinent [*9] part, as follows:
I agree that I am alone responsible for my safety while participating in competitive events and/or training for competitive events and specifically acknowledge that the following persons or entities including the United States Ski Association, the United States Ski Team, the United States Ski Coaches Association, the ski area, the promoters, the sponsors, the organizers, the promoters, the sponsors, the organizers, the promoter clubs, the officials and any agent, representative, officer, director, employee, member or affiliate of any person or entity named above are not responsible for my safety. I specifically RELEASE and DISCHARGE, in advance, those parties from any and all liability whether, known or unknown, even though that liability may arise out of negligence or carelessness on the part of persons or entities mentioned above. I agree to accept all responsibility for the risks, conditions and hazards which may occur whether they now be known or unknown.
Being fully aware of the risks, conditions and hazards of the proposed activity as a competitor, coach or official, I HEREBY AGREE TO WAIVE, RELEASE AND DISCHARGE any and all claims for damages for death, personal [*10] injury or property damage which I may have or which may hereafter accrue to me as a result of my participation in competitive events or training for competitive events, against any person or entity mentioned above whether such injury or damage was foreseeable.
I further agree to forever HOLD HARMLESS and INDEMNIFY all persons and entities identified above, generally or specifically, from any and all liability for death and/ [**500] or personal injury or property damage result[ing] in any way from my participating in competitive events or training for competitive events.
This Acknowledgement of and Assumption of Risk and Release shall be binding upon my heirs and assigns. (Emphasis added)
Kotovsky v. Ski Liberty Operating Corp., 412 Pa. Super. 442, 445, 603 A.2d 663, 664 (1992).
The second exculpatory clause in Kotovsky provided as follows:
If you do not accept fully the conditions below do not compete, officiate, coach or in any other way participate in any event. I, the undersigned, know that alpine and nordic skiing are action sports carrying significant risk of personal injury. Racing, jumping or freestyle competition is even more dangerous. I know that there are natural and man-made obstacles [*11] or hazards, surfaces and environmental conditions, and risks which in combination with my action can cause me very severe or occasionally fatal injury. I agree that I and not the ski area or its staff or American Ski Racing Alliance, Inc. “(ASRA”) or its staff, am responsible for my safety while I participate in, or train for these events.
I HEREBY RELEASE and discharge, on behalf of myself, my heirs, executors, personal representatives and assigns, ASRA, USSA, their affiliates and subsidiaries and their respective directors, officers, agents, employees, successors and assigns or any of them, from any and all actions, causes of action, claims, damages, demands, injuries and liabilities of any nature whatsoever. (including reasonable attorneys fees and interest) arising out of or in any manner [**501] connected with their involvement with ski races organized, promoted or operated by ASRA. (Emphasis in original).
Id.
The Court in Zimmer v. Mitchell, 253 PA. Super. 474, 385 A.2d 437 (1978), was confronted with an exculpatory clause that was contained in a rental agreement for ski equipment. 4 The exculpatory clause in that rental agreement read, in relevant part, as follows, “I furthermore release [*12] Mitchell and Ness from any liability for damage and injury to myself or to any person or property resulting from the use of this equipment, accepting myself the full responsibility for any and all such damage or injury.” Id. at 478, 385 A.2d at 439. The court chose to enforce the agreement despite the fact that the language of the agreement did not release the defendant for liability based on its own negligence. A different result was reached in Brown where the Superior Court invalidated an exculpatory agreement because “The release in question [did] not spell out the intention of the parties with the necessary particularity. The language [did] not set forth in an unambiguous manner that the releaser, in signing the agreement, intend[ed] to absolve the releasee of liability for the releasee’s own negligence.” Brown v. Racquetball Centers. Inc., 369 Pa. Super. 13, 16, 534 A.2d 842, 843 (1987). 5
4 The plaintiff in Zimmer alleged to have been injured when the bindings on the ski equipment that he had rented from the defendant failed to properly release him. The Court in Zimmer affirmed an order that granted summary judgment based on an exculpatory clause contained in a rental agreement.
5 The plaintiff [*13] in Brown was a member of a health club who slipped when exiting the club’s shower facilities. The Court reversed a trial court order that granted summary judgment in favor of the health club based on an exculpatory clause contained in the application form signed by the plaintiff upon joining the health club. The exculpatory clause read, in relevant, part:
I, LeRoy F. Brown, voluntarily enter the Westend Racquet Club…to participate in the athletic, physical and social activities therein. I have inspected the premises and know of the risks and dangers involved in such activities as are conducted therein and that unanticipated and unexpected dangers may arise during such activities. I hereby and do assume all risks of injury to my person and property that may be sustained in connection with the stated and associated activities in and about those premises. (Emphasis added).
In consideration of the permission granted to me to enter the premises and participate in the stated activities, I hereby, for myself, my heirs, administrators and assigns, release, remise and discharge the owners, operators and sponsors of the premises and its activities and equipment and their respective servants, agents, [*14] officers, and all other participants in those activities of and from all claims, demands, actions and causes of action of any sort, for injury sustained to my person and/or property during my presence on the premises and my participation in those activities due to negligence or any other fault.
Id. at 14, 534 A.2d at 842.
[**502] In the case sub judice, the Defendants made every possible effort to draft exculpatory clauses with language that complied with Pennsylvania precedent. The exculpatory clauses drafted by the Defendants are linguistically similar to the exculpatory clauses quoted in Kotovsky, Zimmer and Brown. The Defendants specifically attempted to remedy the problem identified by the Court in Brown by including language that specifically released liability for injuries caused by the Defendants’ own negligence. Unlike the exculpatory agreement in Brown, in the case sub judice, the Plaintiff clearly and unequivocally agreed to release the Defendant, LA Fitness, from any and all claims whether caused “by the active or passive negligence of LA Fitness or otherwise.” (Defendants’ Motion for Summary Judgment, Membership [**503] Agreement Exhibit B (July 6, 2009)). Under the terms of the Fitness Service Agreement [*15] and Release of Liability, the Plaintiff clearly and unequivocally agreed to release the Defendants from any and all claims “even if caused by the negligence or fault of BOC [Body of Change], its owners, employees, any related entities or other authorized agents, including independent contractors.” (Id. Exhibit C). The Fitness Service Agreement and Release of Liability also provided that the “[Plaintiff] further acknowledges that such risks included, but are not limited to, injuries caused by the negligence of an instructor.” (Id).
In accordance with Pennsylvania precedent, the exculpatory clauses at issue were also highly visible and clearly noticeable within the Membership Agreement and Fitness Service Agreement and Release of Liability. Beck-Hummel v. Ski Shawnee, inc., 2006 PA Super 159, 902 A.2d 1266, 1274 (Pa. Super. 2006) (standing for the proposition that [HN1] an exculpatory clause should be conspicuous on the face of a document and espousing a three part test for determining whether a reasonable person should have noticed an exculpatory clause contained in a document as follows: (1) the disclaimer’s placement in the document, (2) the size of the disclaimer’s print, and (3) whether the disclaimer was [*16] highlighted by being printed in all capital letters or in a type style or color different from the remainder of the document). A plain reading of the Membership Agreement and the Fitness Service Agreement and Release of Liability shows that exculpatory clauses were both written in a larger and different type than the type used in the rest of the contracts in which they appeared. The clauses were both separated and sectioned apart from all other contractual provisions and encased within a box. [**504] The membership Agreement with LA Fitness was entitled “IMPORTANT: RELEASE AND WAIVER OF LIABILITY AND INDEMNITY.” The exculpatory clauses in the Fitness Service Agreement and Release of Liability contained the titles, “Limitation of Liability & Full Release of BOC” and “Acknowledgement & Assumption of Risk.” Both titles were written in bold and in a larger print size than all other material on the page.
The Plaintiff was unable to cite a single valid reason for this Court to decline to enforce the exculpatory clauses at issue. In her response to the Defendants’ motion for summary judgment and her motions to reconsider, the Plaintiff cited six arguments in an attempt to persuade this Court to allow [*17] her to proceed to trial. These arguments were as follows:
A. Defendants’ failed to plead, in their answer and new matter, the defense of waiver and release with regard to the exculpatory clauses…
B. The exculpatory clauses are contracts of adhesion and, therefore, are unconscionable and unenforceable…
C. It is against public policy to enforce a consumer contract that waives negligence on the part of the vendor and its agents and employees…
D. The terms of the exculpatory clauses are ambiguous and, therefore, unenforceable…
E. There is no privity of contract between Defendant, Hale, and plaintiff.
(Plaintiffs’ Memorandum of Law in Support of their Response to Defendants’ Motion for Summary Judgment (August 5, 2009) (citing the topic headings [**505] to Plaintiff’s five arguments against the entry of summary judgment)).
F. [Plaintiff] respectfully requests that this Honorable Court will enter an order amending the record to state that [the Plaintiff] did not execute or sign any contract with [the] Defendant, L.A. Fitness, LLC, and rescind and reverse the…Order granting summary judgment.
(Plaintiffs’ Motion for Reconsideration Based on New Evidence of the… Order Granting Defendants’ Motion for Summary [*18] Judgment (September 22, 2009) (citing the wherefore clause in said motion)).
A. The Defendants’ specifically pled waiver and release in their answer and new matter filed on September 10, 2009
The Defendants’ filed a late answer with new matter on September 10, 2009. This Court allowed the Defendants’ to pursue the exculpatory agreement as a defense despite the late pleading because the Plaintiff was unable to show that she suffered prejudice as a result of the Defendants’ untimely pleading. In Blumenstock v. Gibson, 2002 PA Super 339, 811 A.2d 1029 (PA. Super. 2002), the court wrote:
[HN2] It is true that under Pennsylvania Rule of Civil Procedure 1030, release is an affirmative defense that ordinarily must be pled as new matter. Holmes v. Lankenau Hospital, 426 Pa. Super. 452, 627 A.2d 763, 765 (PA. Super. 1993). Under the Rule, if release is not pled as new matter, the right to assert the defense has been waived. Id. Nevertheless, our Rules of Civil Procedure must be liberally construed so that actions are resolved in a just, speedy and inexpensive manner consistent with Rule 126. Id. 765-66. [**506] The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding [*19] to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties. PA. R.C.P. 126.
Where the rights of the plaintiff have not been prejudiced through the defendant’s failure to plead the defense of release prior to filing a motion for summary judgment, the trial court is not required to strictly enforce Rule 1030. Holmes, 627 A.2d at 766.
Id. at 1039.
In the case sub judice, the Plaintiff could not show prejudice because the Defendants inadvertent oversight had no influence on the litigation. The Defendants mailed a copy of their Answer and New Matter to the Plaintiff on November 13, 2008, but failed to file a copy of the same with the Prothonotary. The Plaintiff did not file a 10-day notice of intent to take a default judgment and a default judgment was never entered. The Defendants stated that they produced the Membership Agreement and the Fitness Service Agreement and Release of Liability in their response to the Plaintiff’s request for production of documents on February 6, 2009. At deposition, the Defendants specifically questioned the Plaintiff about whether [*20] she signed the Membership Agreement and the Fitness Service Agreement and Release of Liability, and she admitted that she signed both agreements. The Defendants then advanced their defense based on the exculpatory clauses at the appropriate stage by motioning for summary judgment at the close of discovery.
[**507] B. This Court’s Order granting summary judgment should be affirmed because the exculpatory clauses at issue did not constitute contracts of adhesion
The Plaintiff argued that the Membership Agreement and the Fitness Service Agreement and Release of Liability were contracts of adhesion and were, therefore, invalid. In support of this argument, she cited the fact that the Defendants openly admitted that the terms of the agreements were non-negotiable. The Plaintiff was presented with standardized boiler plate contracts that contained exculpatory clauses. She was given no opportunity to negotiate the terms of these agreements. If she wanted to exercise at LA Fitness under the supervision of personal trainers provided by Body of Change, she had to sign the agreements as presented.
The Membership Agreement and Fitness Service Agreement and Release of Liability were not contracts of adhesion [*21] because the Plaintiff had the ability to seek other forms of exercise. Pennington v. Lombardi-Martelli 42 Pa. D. & C.4th 425 (1999) (Affirming a trial court’s grant of summary judgments in favor of a stable owner and stating that the exculpatory agreement entered into prior to taking horse riding lessons was not a contract of adhesion because the plaintiff was free to select another riding school.). The Plaintiff chose to exercise at LA Fitness under the guidance of a personal trainer who worked for Body of Change. The Plaintiff could have exercised independently at home or at a variety of other locations including LA Fitness. The Plaintiff’s ability to choose the form of exercise that she would practice defeats her argument based on a theory of adhesion. For example, the Court enforced an exculpatory agreement against a [**508] Plaintiff who was injured in a down hill ski race in Kotovsky v. Ski Liberty Operating Corp., 412 Pa. Super. 442, 603 A.2d 663 (1992). In Kotovsky, the Court stated that the exculpatory agreement was not one of adhesion because the Plaintiff “was not required to enter the contract, but did so voluntarily in order to participate in the downhill ski race.” Id. at 447, 603 A.2d at 665.
C. [*22] This Court’s Order granting summary judgment should be affirmed because Pennsylvania has a public policy of enforcing exculpatory agreements
Exculpatory agreements in the context of athletic events and fitness club memberships have previously been the subject of litigation in Pennsylvania. However, the Plaintiff is completely unable to cite to precedent to establish that exculpatory clauses in the nature of the type at issue in the case sub judice are invalid based on public policy grounds. Courts located in California and Kansas have enforced exculpatory agreements in personal injury actions where the plaintiff was a member of a fitness club and signed contract that contained an exculpatory clause. Fata v. LA Fitness International LLC., 2008 Cal. App. Unpub. LEXIS 7926 (2008); and Ko v. Bally Total Fitness Corp., 2003 U.S. Dist. Lexis 19378. In both Fata and Ko, there was no mention of public policy being violated by the enforcement of the exculpatory clauses contained in either membership agreement with the health club defendants in those cases. In Zipusch v. LA Workout. Inc., 155 Cal. App. 4th 1281, 66 Cal. Rptr. 3d 704 (2007), the Court chose to not enforce an exculpatory agreement; however, it did not [*23] base its decision on public policy grounds. The Plaintiff failed to support her argument that public policy prevents the enforcement of exculpatory [**509] agreements when the Plaintiff engages in athletic activities at a health club where the Plaintiff is a member.
This Court would like to call attention to the fact that its analysis would have been entirely different if the Plaintiff had been working under the supervision of a licensed physical therapist. In Leidy v. Deseret Enterprises, Inc., 252 Pa. Super. 162, 381 A.2d 164 (1977), the Court reversed a trial court order that granted a motion for judgment on the pleadings filed by the defendant (health spa) based on an exculpatory clause in a membership agreement entered into between the parties. In Leidy, the plaintiff alleged to have been “referred to the spa by her doctor as part of post-operative treatment following surgery on the lumbar area of her spine, but that the treatment she was in fact given was directly contrary to her doctor’s instructions to the spa.” Id. at 166, 381 A.2d at 166. The Court stated, “The public has an interest in assuring that those claiming to be qualified to follow a doctor’s orders are in fact so qualified, and accept responsibility for their actions.” The Court stated, “The public has an interest in assuring that those claiming to be qualified to follow a doctor’s orders are in fact so qualified, and accept responsibility for their actions.” Id. 170, 381 A.2d at 168.
The reasoning and logic of Leidy is inapplicable to the sub judice because no recognized statewide standard of care exists for health clubs like LA Fitness or health club employees like Defendant Hale. The legislature created the Broad of Physical Therapy to establish rules and procedures to regulate physical therapy throughout the state of Pennsylvania. See 63 P.S. § 1302.1. The Physical Therapy Practice Act, 63 P.S. § 1301 et seq., provides conclusive evidence of the public interest in protecting [**510] the health, safety and welfare of those who seek the services of a physical therapist. Therefore, this Court would have to be presented with an extremely unusual fact pattern before it would allow a physical therapist to escape liability based on an exculpatory agreement executed by his or her patient. It would be hard to believe that such an agreement truly regulated private interests. Yet at the same time, services provided by a personal [*25] trainer are substantially similar to the services provided by a physical therapist.
The fact pattern of the case sub judice highlights just one of the problems presented by the lack of legislative oversight of the health club and fitness industry in Pennsylvania. This Court would like to refer this matter on the legislature so that it can establish a system for regulation. The clear affect of this lack of legislative oversight means that national health club chains, like the Defendants, can be sued for negligence based upon a breach of an ordinary standard of care that could vary from county to county. Since an ordinary standard of care is applicable, the Defendants need the protection provided by the exculpatory agreement. Clearly, the establishment of a uniform standard of care is necessary. It would then be possible to establish a statewide standard of care that would subject entities and individuals involved in the fitness industry to liability. Legislative oversight would also bolster any argument that an exculpatory agreement should be invalid based on public policy grounds.
D. The terms of the exculpatory clauses are not ambiguous and are therefore enforceable.
As previously discussed, [*26] Plaintiff clearly and unequivocally agreed to release the Defendants from liability [**511] for personal injury. There was nothing ambiguous about the terms of either exculpatory clause. Both clauses specifically identified the types of personal injuries contemplated by the parties when they entered into the agreement. Under the terms of the Membership Agreement, the Plaintiff released LA Fitness from any risk of injury and agreed that:
Such risk of injury include[d] (but is not limited to): injuries arising from use by Member or others of exercises equipment and machines; injuries arising from participation by Member or others in supervised or unsupervised activities or programs at a Club; injuries and medical disorders arising from exercising at a Club such as heart attacks, strokes, heat stress, sprains, broken bones, and torn muscles and ligaments, among others…
The terms of the Fitness Service Agreement and Release of Liability, clearly stated that the,
Client acknowledges these Physical Activities involve the inherent risk of physical injuries or other damages, including, but not limited to, heart attacks, muscle strains, pulls or tears, broken bones, shin splints, heat prostration, knee/lower [*27] back/foot injuries and any other illness, soreness, or injury however caused, occurring during or after Client’s participation in the Physical Activities.
The Plaintiff suffered injuries that were specifically encompassed within the description of injuries contemplated in the exculpatory clauses offered by the Defendants. The Plaintiff’s medical records state that she suffered an anteroinferior dislocation of the left shoulder that led to post-traumatic arthritis and contractures. The Plaintiff was a registered nurse at Magee Rehabilitation. [**512] She should have read and comprehended the ramifications of entering into the Membership Agreement and Fitness Service Agreement and Release of Liability. As a nurse, the Plaintiff should have also understood inherent danger in any exercise routine.
E. This Court’s Order granting summary judgment should be affirmed because privity of contract between the Plaintiff and the Defendant, Dorian Jefferson Hale, is a completely irrelevant issue
There was no dispute as to the fact that the Plaintiff entered into the Fitness Service Agreement and Release of Liability with Body of Change. 6 This agreement specifically states,
Client, his or her heirs, assigns [*28] and next of kin, agree to fully release BOC [Body of Change], its owners, employees, any related entities or other authorized agents, including independent contractors from any and all liability, claims and/or litigation or other actions that Client may have for injuries?even if caused by the negligence or fault of BOC [Body of Change], its owners, employees, any related entities or other authorized agents, including independent contractors.
6 See § F herein discussing the Plaintiffs motion to reconsider based on new evidence wherein she claims that she never signed the Membership Agreement with LA Fitness.
There was no dispute as to the fact that Defendant, Dorian Jefferson Hale, was an agent of Body of Change. Under the specific terms of the Fitness Service Agreement and Release of Liability, all agents of Body of Change were released from liability over to the Plaintiff. As with any other contract, the specific terms of this exculpatory [**513] clause should be enforce in accordance with the plain meaning of its language. For example, the Court in Maloney v. Valley Medical Facilities, Inc., 603 Pa. 399, 984 A.2d 478 (Pa. 2009), permitted a plaintiff to maintain an action against an agent of a principal [*29] despite the fact that the plaintiff had released the agent’s principal. In Maloney, the release that the plaintiff entered into with the principal specifically contained a reservation of rights clause that permitted the plaintiff to proceed against the agent. The Court discussed the application of traditional contract principles and the need to effectuate the intent of the parties who enter into contracts.
The case sub judice is factually distinguishable from Maloney; yet, the reasoning and logic used in Maloney clearly favored the entry of summary judgment in favor of Defendant Hale. The exculpatory clause found in the fitness service agreement and release of liability did not contain a reservation of rights clause whereby the Plaintiff retained the right to sue Defendant Hale. To the contrary, the specific language of the exculpatory clause released Defendant Hale from all liability. Based on the reasoning contained in Maloney, this Court placed great emphasis on the specific language of the exculpatory clause and decided to enforce the agreement as to Defendant Hale as well as the other Defendants.
F. Whether the Plaintiff signed the Membership Agreement with the Defendant, LA Fitness, [*30] is not relevant to the question of whether this Court’s Order granting summary judgment should be affirmed
After this Court granted the Defendants’ motion for summary judgment, the Plaintiff filed a motion to reconsider [**514] based on new evidence. She argued that this Court should vacate its Order granting summary judgment in favor of the Defendant, LA Fitness, because she did not sign the Membership Agreement that contained the exculpatory clause that it offered as an affirmative defense. A brief review of the pleadings and procedural history of this case illustrates the irrelevant and meritless nature of this issue.
Originally the Plaintiff filed a response to the Defendants’ motion for summary judgment that contained an affidavit wherein she admitted that she signed both the Membership Agreement and the Fitness Service Agreement and. Release of Liability. After this Court granted the Defendants’ motion for summary judgment, the Plaintiff filed a motion for reconsideration that contained a second affidavit that contradicted her pervious affidavit. In her second affidavit, she averred that she did not sign the Membership Agreement.
The inconsistencies in the Plaintiff’s case could have created [*31] a legal issue that would have required judicial attention. However, the Plaintiff did not attempt to establish a direct claim of liability against LA Fitness. The Plaintiff did not bring an independent cause of action against LA Fitness on a theory like negligent hiring or supervision. The Plaintiffs claim against LA Fitness was based agency or vicarious liability for the actions or omissions of Defendant Hale. LA Fitness could only be held liable if Defendant Hale was held liable. The action against Defendant Hale was barred based on the exculpatory clauses in the Fitness Service Agreement and Release of Liability. The Plaintiff openly admitted that she signed [**515] Fitness Service Agreement and Release of Liability which states:
Client, his or her heirs, assigns and next of kin, agree to fully release BOC [Body of Change], its owners, employees, any related entities or other authorized agents, including independent contractors from any and all liability, claims and/or litigation or other actions that Client may have for injuries…even if caused by the negligence or fault of BOC [Body of Change], its owners, employees, any related entities or other authorized agents, including independent [*32] contractors.
In reality, the Plaintiff’s signature on the Membership Agreement was really a mere technicality. A plain reading of both affidavits illustrates that the Plaintiff was aware that she had entered into an agreement that had been reduced to writing when she joined L A Fitness. She then proceeded to use the facilities provided by L A Fitness on multiple occasions prior to her accident. She should have read the Membership Agreement and her use of the facility was akin to accepting the terms of the Membership Agreement.
Conclusion:
The Defendants went to great lengths to draft exculpatory clauses that would comply with Pennsylvania law; therefore, this Court was required to enforce the exculpatory clauses contained in the Membership Agreement and Fitness Service Agreement and Release of Liability.
BY THE COURT
/s/ John M. Younge
Judge John M. Younge
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Summer 2013 Commercial Fatalities 8/26/13
Posted: September 4, 2013 Filed under: Alaska, Mountaineering, Pennsylvania, Tennessee, Whitewater Rafting, Wyoming | Tags: Cambridge, Cedar Hills Utah, Chattooga River, Colorado Springs, Death, Exum Mountain Guides, fatality, Grand Teton, Kenai Peninsula, Mountaineering, Nashville Tennessee, NOVA Alaska, Ocoee River, Ohiopyle State Park, Raft, Tennesee, TN, Whitewater Rafting, Wildwater Ltd, Wyoming, Youghiogheny River 3 CommentsThis list is not guaranteed to be accurate. The information is found from web searches and news dispatches. Those references are part of the chart. If you have a source for information on any fatality please leave a comment or contact me. Thank you.
If this information is incorrect or incomplete please let me know. This is up to date as of August 14, 2013. Thanks.
Rafting, Mountaineering and other summer sports are probably still safer than your kitchen or bathroom. This information is not to scare you away from any activity but to help you understand the risks and to study.
Red is a probable death due to medical issues.
Dark blue is a death of an employee while working.
| Date | Activity | State | Location | What | Age | Sex | Home | Ref |
| 5/27 | Whitewater Rafting | AK |
Kenai Peninsula’s Six Mile Creek, Zig Zag Rapid |
washed out of a boat filled with clients and a guide as they entered rapid |
47 | M | Cambridge, UK | |
| 6/8 | Whitewater Rafting | TN | Chattooga River | boat flipped | 58 | M | Nashville, TN | |
| 6/20 | Mountaineering | WY | Lower Saddle of the Grand Teton | slipped on snowfield and slid | 55 | M | Colorado Springs, CO | |
| 7/3 | Summer Camp | CA | Camp Tawonga | Tree fell | 21 | F | Santa Cruz, CA | http://rec-law.us/16RpK3K & http://rec-law.us/124h7TI |
| 7/6 | Whitewater Rafting | PA | Youghiogheny River, Ohiopyle State Park | Foot entanglement with rope | 22 | M | Lancaster, PA | http://rec-law.us/12dNcIz & http://rec-law.us/1btCuRC |
| 7/9 | Summer Camp | UT | Mt. Dell Scout Ranch, UT | Run over by flat bed truck | 14 | M | Cedar Hills, UT | http://rec-law.us/159p1tz |
| 8/14 | Whitewater Rafting | WV | New River, WV | washed out of boat into “meat grinder” area | 16 | M | Germany | http://rec-law.us/1dfgQl8 |
| 8/24 | Whitewater Rafting | TN | Ocoee River, TN | fell out in Grumpy’s rapid | 52 | F | Rex, GA | http://rec-law.us/17fRPnc & http://rec-law.us/1dJZYTU |
| 8/25 | Whitewater Rafting | TN | Ocoee River, TN | fell out in Grumpy’s rapid | 36 | F | Smyrna, TN | http://rec-law.us/17fRPnc & http://rec-law.us/12FJFmh |
Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the areas who have to deal with these tragedies.
Overall it has been a low fatality year!
What do you think? Leave a comment.
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Pennsylvania Skier Safety Act
Posted: August 28, 2013 Filed under: Pennsylvania | Tags: PA, Pennsylvania, Skier Safety Act Leave a commentPennsylvania Skier Safety Act
PENNSYLVANIA STATUTES, ANNOTATED BY LEXISNEXIS (R)
PENNSYLVANIA CONSOLIDATED STATUTES
TITLE 42. JUDICIARY AND JUDICIAL PROCEDURE
PART VII. CIVIL ACTIONS AND PROCEEDINGS
CHAPTER 71. GENERAL PROVISIONS
Go to the Pennsylvania Code Archive Directory
42 Pa.C.S. § 7102 (2012)
§ 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) Recovery against joint defendant; contribution. –(Deleted by amendment).
(b.1) Recovery against joint defendant; contribution. –(Unconstitutional).
(b.2) Apportionment of responsibility among certain nonparties and effect. –(Unconstitutional).
(b.3) Off-road vehicle riding.
(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.1) Savings provisions. –(Unconstitutional).
(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.
§ 2051. Punitive damages for downhill skiing accidents
(a) LEGISLATIVE STATEMENT. –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. The law of this Commonwealth being unclear with regard to the insurability against punitive damages, the operators of downhill skiing areas face uncertainty in securing insurance to indemnify against downhill skiing accidents.
(b) INSURABILITY. –It is not against the public policy of this Commonwealth for an insurance company to insure the operator of a downhill skiing area against punitive damages, other than those punitive damages arising from an intentional tort committed by such operator.
(c) OTHER CASES. –Nothing herein contained shall be construed to change or amend the public policy of this Commonwealth with respect to the insurability against punitive damages in cases arising other than from downhill skiing.
Pennsylvania Sales Representative
Posted: March 17, 2013 Filed under: Pennsylvania | Tags: IC, Independent Sales Rep, Pennsylvania, Rep Leave a commentPENNSYLVANIA STATUTES ANNOTATED
PENNSYLVANIA STATUTES
TITLE 43. LABOR
CHAPTER 27. COMMISSIONED SALES REPRESENTATIVES
Go to the Pennsylvania Code Archive Directory
43 P.S. § 1471 (2012)
§ 1471. Definitions
The following words and phrases when used in this act shall have the meanings given to them in this section unless the context clearly indicates otherwise:
“COMMISSION.” Compensation accruing to a sales representative for payment by a principal, the rate of which is expressed as a percentage of the dollar of orders or sales.
“PRINCIPAL.” Any person who does all of the following:
(1) Engages in the business of manufacturing, producing, importing or distributing a product for sale to customers who purchase such products for resale.
(2) Utilizes sales representatives to solicit orders for such product.
(3) Compensates sales representatives, in whole or in part, by commission.
“SALES REPRESENTATIVE.” A person who contracts with a principal to solicit wholesale orders from retailers rather than consumers and who is compensated, in whole or in part, by commission. The term does not include one who places orders or purchases for his own account for resale or one who is an employee of a principal.
“TERMINATION.” The end of services performed by the sales representative for the principal. The term includes any action that concludes the relationship of the parties.
§ 1472. Contracts
(a) CONTENTS.—When a sales representative enters into an agreement with the principal for the solicitation of wholesale orders, a written contract shall be entered into setting forth the following:
(1) The form of payment and the method by which it is to be computed and made.
(2) A specified period for the performance of services.
(3) The manner and extent to which job-incurred expenses are to be reimbursed.
(4) A specified geographical territory or specified accounts.
(b) COPY OF CONTRACT.—The principal shall provide each sales representative with a signed copy of the con-tract.
§ 1473. Termination
A principal shall pay a sales representative all commission due at the time of termination within 14 days after termination.
§ 1474. Commissions on goods delivered after the end of the agreement
A principal shall pay a sales representative all commissions that become due after termination within 14 days of the date such commissions become due.
§ 1475. Noncompliance
(a) GENERAL.—A principal who willfully fails to comply with the provisions of section 3 or 4 shall be liable to the sales representative in a civil action for:
(1) All commissions due the sales representative, plus exemplary damages in an amount not to exceed two times the commissions due the sales representative.
(2) The cost of the suit, including reasonable attorney fees.
(b) FRIVOLOUS ACTIONS.—If judgment is entered for the principal and the court determines that the action was brought on frivolous grounds, the court shall award reasonable attorney fees and court costs to the principal.
§ 1475.1. When commissions become due
(a) CONTRACT.—The terms of the contract, whether or not in writing, between the principal and sales representative shall determine when commissions become due.
(b) CUSTOM AND USAGE.—If the time when commissions become due cannot be determined by a contract between the principal and sales representative, the past practices of the parties shall control, or, if there are no past practices, the custom and usage prevalent in this Commonwealth for the business that is the subject of the relationship be-tween the parties shall control.
§ 1476. Construction of act
Nothing in this act shall invalidate or restrict any other or additional right or remedy available to sales representatives or preclude sales representatives from seeking to recover in one action on all claims against a principal. The provisions of this act may not be waived. In applying the provisions of this act, the courts of this Commonwealth shall not recognize any purported waiver of the provisions of this act, whether by express waiver or by attempt to make a contract or agreement subject to the laws of another state.
§ 1477. Applicability
The provisions of this act shall apply to existing contracts which can be terminated at will and to contracts entered into or renewed after the effective date of this act. Nothing contained in this section is intended to violate section 17 of Article I of the Constitution of Pennsylvania, relative to impairing the obligations of contracts.
§ 1478. Compliance with requirements for contracts
Within 180 days after the effective date of this act, all contracts described in section 7 shall comply with the provisions of section 2.
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Pennsylvania case reviews the requirements for a valid release in ski accident claim.
Posted: January 14, 2013 Filed under: Assumption of the Risk, Pennsylvania, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: Assumption of risk, assumption of the risk, Inc., Liberty Mountain Resort, Pennsylvania, Pennsylvania Supreme Court, Release, Season Pass, Ski, Ski Liberty, Ski Liberty Operating Corp, Snow Time Leave a commentCahill v. Ski Liberty Operating Corp., 2006 Pa. Dist. & Cnty. Dec. LEXIS 444; 81 Pa. D. & C.4th 344
Release barred claims for injuries from falling on icy slopes
The plaintiff was a season pass holder at the defendant’s resort and an expert skier. While skiing one day he fell on an icy spot created when a snowmaking hydrant malfunctioned and spread water around the area which froze.
Ski Liberty requires season pass holders to sign a release. To get a season pass, skiers first sign up on-line. The online sign up required the plaintiff to click through an acknowledgement of the terms of the season pass which included the release.
A skier then had to sign a written release at the time the season pass was picked up or at the resort. The court specifically set forth the following issues it found important in determining the validity of the release. The release stated the parties intended to be legally bound. That information was conspicuous location above the signature line.
The plaintiff sued because “Ski Liberty was negligent for failing to maintain the ski slopes in a safe manner and/or failing to adequately warn concerning the icy area.” The plaintiff’s injuries were to his face, back, ribs and left hand. The plaintiff’s wife sued for loss of consortium.
What I found interesting was the plaintiff claimed that he did not know there was ice on the slope. I’ve skied through the east and a lot in Pennsylvania. The slopes are all ice, finding snow is the rare occasion.
Summary of the case
The decision starts with the court quoting the Pennsylvania Supreme Court requirements for a valid release.
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 found the requirements were met by the release at issue. The plaintiff was not forced to enter the contract but did so voluntarily. There was no evidence of coercion or inducement. The activity, skiing, is recreational and not essential to the plaintiff’s personal or economic well-being. The release does not contravene public policy because the issues were private in nature and did not affect the rights of the public.
The court then reviewed the Pennsylvania ski statute and found the statute pointed out that skiing had risks. The court also found the statute suggested it was the policy of the state of Pennsylvania to enforce the doctrine of assumption of risk who engages in skiing.
The language of the release spelled out with particularity the intent of the parties. The captions clearly advise the signor of the content and purpose of the release and worked as a notice of the risk as well as a release of liability. The release then in bold letters released the defendant of any liability.
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 court then looked at the plaintiff’s argument that a hazardous condition created by the defendant and known by the defendant is not an inherent risk to the sport of skiing. If the risk was not inherent, then the plaintiff argued the release was void and assumption of risk did not apply.
The court did not agree and dismissed the plaintiff’s argument with a great statement.
His [plaintiff’s] 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.
So Now What?
The decision outlines quite plainly. What is needed to write a release in Pennsylvania. More importantly it points out several points that courts look for to determine if the defendant as acting in a way as to not hide the release and to make sure the defendant truly understood what they were signing.
Those items include:
· Conspicuous notice of the legal purpose of the document
· Plenty of time to review the release before signing
· Captions that point out the legal ramifications rather than hiding them
· Important language in the release in bold print
· A release written in plain English that is understandable by the signor
· A section that explains the possible risks of the activity
· References in the document to outside sources to assist the signor in understanding the document
Courts hate to uphold releases where there is nothing but the pure letter of the contract to rely upon. If the release clearly informed the signor of the risks and the signor had to have known they were signing a release, then the court can easily decide for the defendant.
Plaintiffs: Timothy Joseph Cahill and Anne Leslie Cahill
Defendants: Ski Liberty Operating Corp. t/d/b/a Ski Liberty and t/d/b/a Liberty Mountain Resort and Snow Time, Inc.,
Plaintiff Claims: Ski Liberty was negligent for failing to properly maintain the ski slopes in a safe manner and/or failing to adequately warn concerning the icy area.
Defendant Defenses: Release and Assumption of the Risk
Holding: Release was valid and barred the claims of the plaintiffs
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Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
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Cahill v. Ski Liberty Operating Corp., 2006 Pa. Dist. & Cnty. Dec. LEXIS 444; 81 Pa. D. & C.4th 344
Posted: January 14, 2013 Filed under: Legal Case, Pennsylvania, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: Assumption of risk, LexisNexis, Pennsylvania, Ski Liberty Operating Corp Leave a commentTo Read an Analysis of this decision see: A season pass release for a Pennsylvania ski area was limited to the inherent risks of skiing. Consequently, the plaintiff was able to argue his injury was not due to an inherent risk and Pennsylvania case reviews the requirements for a valid release in ski accident claim.
Cahill v. Ski Liberty Operating Corp., 2006 Pa. Dist. & Cnty. Dec. LEXIS 444; 81 Pa. D. & C.4th 344
Timothy Joseph Cahill and Anne Leslie Cahill, Plaintiffs v. Ski Liberty Operating Corp. t/d/b/a Ski Liberty and t/d/b/a Liberty Mountain Resort and Snow Time, Inc., Defendants
06-8-29 1
1 The parties consistently used the incorrect caption throughout their pleadings. Apparently, the Defendants misread the caption number on the Writ of Summons issued in this matter to read 06-8-29 rather than the proper caption number of 06-S-29. When the Defendants praeciped for a rule to file a complaint, their Praecipe carried the wrong number. All subsequent pleadings have duplicated that initial error. Accordingly, all are advised that the correct caption number, 06-S-29, should be used on all pleadings henceforth.
COMMON PLEAS COURT OF ADAMS COUNTY, PENNSYLVANIA
2006 Pa. Dist. & Cnty. Dec. LEXIS 444; 81 Pa. D. & C.4th 344
November 14, 2006, Decided
JUDGES: [*1] MICHAEL A. GEORGE, Judge.
OPINION BY: MICHAEL A. GEORGE
OPINION
CIVIL
OPINION
[**345] On January 17, 2004, Timothy Joseph Cahill 2 was skiing at the Liberty Mountain Ski Resort located in Carroll Valley, Adams County, Pennsylvania. 3 Cahill, an experienced skier, enjoyed skiing privileges at Ski Liberty through his purchase of a season pass. Cahill applied for the 2003-2004 season pass through a website operated by Ski Liberty. In order to complete the application, the website required Cahill to acknowledge that he agreed to the terms of a “season pass and advantage card release agreement” by clicking the “okay” box on the web page. The web page included an explanation of the terms which included a release and assumption of risk clause. Cahill’s application on the website was followed up with a written [**346] application which Cahill signed on January 11, 2004. In a conspicuous location immediately above his signature, the written application provides that he agreed to be legally bound by the “Notice of Risk”, “Assumption of Risk”, “Release from Liability”, and “Acknowledgement” provided to him by Ski Liberty. 4
2 Timothy Joseph Cahill will be referred to throughout this pleading as “Cahill.” Plaintiff, Anne Leslie Cahill, [*2] is the wife of Timothy Joseph Cahill and has filed a derivative claim for loss of consortium.
3 Liberty Mountain Ski Resort is owned and operated by Snow Time, Inc., which is a Delaware corporation operating in Adams County. Collectively, the parties will be referred to as “Ski Liberty.”
4 Both the website and the written documents accompanying the application provide as follows:
NOTICE OF RISK
I understand and accept the fact that snowsports (skiing…) in their various forms, including the use of lifts are dangerous with inherent and other risks. These risks include but are not limited to… ice and icy conditions… All of the inherent and other risks of snowsports present the risk of permanent catastrophic injury or death.
ASSUMPTION OF RISK
Understanding and agreeing that snowsports are hazardous, I voluntarily and expressly assume for myself the risk of injury while participating in these sports.
RELEASE FROM LIABILITY
In consideration of the use of the ski area’s facilities, I AGREE NOT TO SUE Ski Liberty Operating Corp., Whitetail Mountain Operating Corp., and/or Ski Roundtop Operating Corp., their owners, agents and employees, if injured while using the facilities, regardless of any negligence [*3] on the part of the Ski Area or its employees.
…
ACKNOWLEDGEMENT
In consideration of being permitted to use the facilities at Liberty Mountain Resort, Whitetail Mountain Resort and Ski Roundtop, I expressly acknowledge:
1. I have read and understand the “Notice of Risk.” “Assumption of Risk,” “Release from Liability,” “Be Aware, Ski with Care,” and “Your Responsibility Code.”
…
3. I voluntarily assume for myself all the risks involved in snowsports.
(emphasis in original)
On the date in question, Cahill fell on an icy area while skiing near the bottom of Eastwind and Strata slopes. He claims that although he was unaware of ice in this area, Ski Liberty knew of the danger since, during the previous [**347] evening, a snow-making water hydrant broke releasing water that ultimately froze into ice because of the cold conditions. As a result of his fall, Cahill claims to have severely injured his face, back, ribs and left hand. A Complaint was filed on March 17, 2006, claiming that Ski Liberty was negligent for failing to properly maintain the ski slopes in a safe manner and/or failing to adequately warn concerning the icy area. Ski Liberty has filed an Answer with New Matter alleging Cahill assumed the [*4] risk of his injuries and released Ski Liberty from all liability. Ski Liberty currently moves for judgment on the pleadings.
[HN1] 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. Bata v. Central Penn National Bank of Philadelphia, 423 Pa. 373, 224 A.2d 174, 178 (Pa. 1966). 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. Nederostek v. Endicott-Johnson Shoe Co., 415 Pa. 136, 202 A.2d 72, 73 (Pa. 1964). 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. Dunn v. Board of Property Assessment, Appeals & Review of Allegheny County, 877 A.2d 504 510 n. 12 (Pa. Cmwlth. 2005). Since I find that the release entitles Ski Liberty to judgment as a matter of law, the Complaint will be dismissed.
[HN2] [**348] Although disfavored [*5] under Pennsylvania law, exculpatory agreements, or releases, are valid provided they comply with the safeguards enunciated by our Superior Court in Zimmer v. Mitchell and Ness, 253 Pa. Super. 474, 385 A.2d 437 (Pa. Super. 1978), aff’d, 490 Pa. 428, 416 A.2d 1010 (Pa. 1980) as follows:
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.
Id. at 439. Applying this criteria, I find the releases executed by Cahill to be valid.
The pleadings support the conclusion that the present agreement is not one of adhesion. Cahill was not forced to enter into the contract but did so voluntarily in order to ski at Liberty Mountain. The agreement between the parties related to Cahill’s engaging in a matter of personal choice without any evidence of coercion or inducement negating [*6] the volitional nature of his act. Clearly, this activity is not essential to Cahill’s personal or economic well-being but, rather, was a purely recreational activity. See Kotovsky v. Ski Liberty Operating Corporation, 412 Pa. Super. 442, 603 A.2d 663 (Pa. Super. 1992) (holding that exculpatory agreement signed by skier injured in downhill race was valid).
[**349] The releases also do not contravene public policy. The clauses were purely private in nature and in no way affected the rights of the public. In fact, [HN3] releases such as that before the Court are actually in furtherance of public policy. Our state legislature, in enacting 42 Pa.C.S.A. § 7102(c) (relating to comparative negligence), specifically recognized that there are inherent risks in the sport of downhill skiing and specifically preserved the doctrine of assumption of risk as it applied to downhill skiing injuries and damages. 42 Pa.C.S.A. § 7102(c). This suggests that it is the policy in this Commonwealth to enforce the doctrine of assumption of risk for persons knowingly engaging in downhill skiing. Kotovsky, 603 A.2d at 666.
The releases executed by Cahill are unambiguous in both their language and intent. The language spells out with particularity [*7] 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.
[**350] Cahill received, and acknowledged receipt, of the release from liability on two separate occasions. Notably, the first occasion appears to have been well in advance of the sale thereby allowing him ample opportunity to read it before using the facilities. 5 This factual [*8] background reveals that the intent of the parties was imminently clear and spelled out with the utmost particularity in plain language. Therefore, under the criteria set forth in Zimmer, the releases are valid.
5 The written application reveals an order date for the season pass of October 31, 2003 which circumstantially establishes the date application was submitted by Cahill over the internet.
Perhaps in recognition of the viability of the releases at issue, Cahill does not challenge their validity but, rather, disputes their application to the current facts. In this regard, Cahill suggests that a hazardous condition created by Ski Liberty, and known to exist by the resort, is not an inherent risk to the sport of skiing thereby making the exculpatory agreements and assumption of risk doctrine inapplicable. In support of this argument, Cahill cites Crews v. Seven Springs Mountain Resort, 2005 PA Super 138, 874 A.2d 100 (Pa. Super. 2005). In Crews, the Superior Court reviewed the trial court’s dismissal of a complaint wherein the plaintiff sought damages for injuries received when the plaintiff was involved in a collision with another snowboarder who was a minor under the influence of alcohol. In reversing [*9] the trial court, the Superior Court concluded that the plaintiff did not assume the risk of a collision with an underage drinker on a snowboard since the same is not an inherent risk of the sport of skiing.
Cahill’s reliance on Crews is misplaced. Primarily, Crews specifically limited the issue before the court to an [**351] analysis of the application of the assumption of risk doctrine. Instantly, this Court addresses a separate and distinct issue concerning the validity of an exculpatory agreement. Although these different issues are dealt with simultaneously in a number of court opinions, they are indeed distinguishable and require separate analysis. Compare Zimmer v. Mitchell and Ness, supra with Crews v. Seven Springs Mountain Resort, supra. Accordingly, I find Crews to be inapplicable to the issue of whether the release agreement entered by Cahill is valid.
Since I have found that Cahill knowingly and voluntarily entered into an exculpatory agreement releasing Ski Liberty from both the inherent dangers of downhill skiing and any negligence on the part of Ski Liberty or its employees, it is not necessary to undertake a detailed analysis of application of the assumption of risk doctrine [*10] to the current matter. Nevertheless, as noted, our legislature has expressly preserved assumption of risk as a defense to actions for downhill skiing injuries. 42 Pa.C.S.A. § 7102(c). Moreover, Ski Liberty provided Cahill prior and detailed notice of the dangerous and inherent risks of skiing. The notice is both thorough and exhaustive. 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- [**352] 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 [*11] 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.
Since I find the exculpatory agreement valid, Cahill’s claim cannot be sustained. Similarly, Mrs. Cahill’s derivative claim for loss of consortium must also automatically fail as a matter of law. See Kiers by Kiers v. Weber National Stores, Inc., 352 Pa. Super. 111, 507 A.2d 406 (Pa. Super. 1986); Scattaregia v. Shin Shen Wu, 343 Pa. Super. 452, 495 A.2d 552 (Pa. Super. 1985); and Little v. Jarvis, 219 Pa. Super. 156, 280 A.2d 617 (Pa. Super. 1971).
For the foregoing reasons, Defendants’ Motion for Judgment on the Pleadings is granted.
BY THE COURT:
MICHAEL A. GEORGE
Judge
Date filed: November 14, 2006
ORDER
AND NOW, this 14<th> day of November, 2006, for the reasons set forth in the attached Opinion, Defendants’ Motion for Judgment on the Pleadings is granted. The Prothonotary is directed to enter judgment in favor of the Defendants, Ski Liberty Operating Corp. and Snow Time, Inc.
BY THE COURT:
MICHAEL A. GEORGE
Judge
Tubing brings in a lot of money for a small space, and a well-written release keeps the money flowing
Posted: November 5, 2012 Filed under: Pennsylvania, Snow Tubing | Tags: Eagles, Pennsylvania, Ski Shawnee, Snow Tubing, Tubing Leave a commentMazza v. Ski Shawnee Inc., 2005 Pa. Dist. & Cnty. Dec. LEXIS 113; 74 Pa. D. & C.4th 416
Release stops the lawsuit in this case; however, if written better there might not have been a lawsuit.
Tubing brings in a lot of money for minimal investment and space for an area with snow. On top of that tubing requires no skills and can be done even when you are
exhausted, and you can still have fun. Consequently, tubing hills are showing up everywhere, and at all ski areas.
In this case, the plaintiff’s tube appears to have become detached from the lift and she “catapulted” over an embankment causing her injuries. Normally, the term catapulted means some force was applied to launch the projectile, but when you don’t have a solid legal case, you sometimes pump up the facts.
Summary of the case
The tubing trip was put together by the Fraternal Order of the Eagles. The plaintiff signed a release for the Eagles and for Ski Shawnee. Both releases were reviewed by the courts. Under Pennsylvania law, a release is defined as “a contractual provision relieving a party from any liability resulting from a negligent or wrongful act.” After looking at the releases the court stated the four-part test in Pennsylvania to determine if a release was valid. The ways to invalidate a release under Pennsylvania law are almost identical to the ways releases are invalidated in other states.
(1) The contract must not violate any policy of the law;
(2) The contract must be between individuals and relate to their private affairs;
(3) Each party must be a free bargaining agent rather than one drawn into a contract of adhesion;
(4) The agreement must express the intent of the parties with the utmost particularity.
The court looked at the activity and the releases and found the releases valid. The parties were private parties; the contract was not one of adhesion; the language was conspicuous and expressed the intent of the parties, and snow tubing is a recreational activity.
The plaintiff’s claims were the tubing facility was designed negligently, and the lift was operated negligently. Neither of these issues was identified in the release. However, the court was able to find language in the release which the court found protected the defendants from these claims. The court first found the issues were part of snow tubing and consequently, were an inherent risk of the sport and the release mentioned the lift in it.
So Now What?
Tubing is going to continue to grow as a sport. This is a great decision in Pennsylvania to help a tubing operation write a release and a great decision in other states to argue what the risks of tubing are and as such which ones are inherent to the sport.
However, both releases did not point out the risks of the sport who allowed the plaintiff the slightly open door to start their suit. The better your release is written the greater the chance that an injured and unhappy plaintiff can find a way to test your release.
What do you think? Leave a comment.
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Mazza v. Ski Shawnee Inc., 2005 Pa. Dist. & Cnty. Dec. LEXIS 113; 74 Pa. D. & C.4th 416
Posted: November 5, 2012 Filed under: Legal Case, Pennsylvania, Ski Area, Snow Tubing | Tags: Bensalem Township School District, Eagle, Fraternal Order of Eagles, Mazza, Pennsylvania, Ski, ski area, Ski Shawnee, Snow Tubing, Tubing, United States Leave a commentMazza v. Ski Shawnee Inc., 2005 Pa. Dist. & Cnty. Dec. LEXIS 113; 74 Pa. D. & C.4th 416
Mazza v. Ski Shawnee Inc.
no. 10506 CV 2004
COMMON PLEAS COURT OF MONROE COUNTY, PENNSYLVANIA
2005 Pa. Dist. & Cnty. Dec. LEXIS 113; 74 Pa. D. & C.4th 416
June 29, 2005, Decided
COUNSEL: [*1] Eric W. Wassel, for plaintiffs.
Hugh M. Emory, for defendant.
JUDGES: CHESLOCK, J.
OPINION BY: CHESLOCK, J.
OPINION
[**417] CHESLOCK, J., June 29, 2005 Plaintiffs Jean Mazza and Mark Mazza, h/w, commenced this action by complaint filed on December 29, 2004. The complaint seeks damages for personal injuries stemming from a snow tubing accident which occurred on January 10, 2003. The complaint avers that plaintiff Jean Mazza’s snow tube broke loose from the tubing lift, causing her to be catapulted over an embankment, resulting in significant personal injuries. On February 11, 2005, defendant Ski Shawnee Inc. filed an answer with new matter. On April 25, 2005, defendant filed a motion for judgment on the pleadings. Defendant filed a brief in support of its motion on May 17, 2005. Plaintiffs filed their brief in opposition to defendant’s motion for judgment on the pleadings on June 1, 2005. We heard oral arguments from counsel on June 6, 2005, and we are now prepared to dispose of this matter.
Pa.R.C.P. 1034 provides as follows:
[HN1] “(a) After the relevant pleadings are closed, but within such time as not to unreasonably delay the trial, any party may move for judgment on the pleadings.
[*2] “(b) The court shall enter such judgment or order as shall be proper on the pleadings.”
[HN2] Pa.R.C.P. 1034 provides for a motion for judgment on the pleadings to be used to test whether such a cause [**418] of action as pleaded exists at law. Bensalem Township School District v. Commonwealth of Pennsylvania, 518 Pa. 581, 544 A.2d 1318 (1988). A judgment on the pleadings may be entered where there are no disputed issues of fact and the moving party is entitled to judgment as a matter of law. Kosor v. Harleysville Mutual Insurance Company, 407 Pa. Super. 68, 595 A.2d 128 (1991). In determining if there is a dispute as to facts, the court must confine its consideration to the pleadings and relevant documents. DiAndrea v. Reliance Savings and Loan Association, 310 Pa. Super. 537, 456 A.2d 1066 (1983). “The court must accept as true all well pleaded statements of fact, admissions, and any documents properly attached to the pleadings presented by the party against whom the motion is filed, considering only those facts which were specifically admitted.” Conrad v. Bundy, 777 A.2d 108, 110 (Pa. Super. 2001).
The pleadings [*3] establish that Mazza signed two releases, one provided by defendant and the other provided by the Fraternal Order of Eagles who arranged to use the snow tubing facility on January 10, 2004. Plaintiffs agree that Mazza signed a “Snow tubing acknowledgement of risk and agreement not to sue” (release) which was provided by defendant. The release contains the following language, in relevant part:
“Snow Tubing Acknowledgement Of Risk And Agreement Not To Sue This Is A Contract Read It!
“(1) I understand and acknowledge that snow tubing is a dangerous, risk sport and that there are inherent and other risks associated with the sport and that all of these risks can cause serious and even fatal injuries. . . .
[**419] “(3) I acknowledge and understand that some, but not necessarily all, of the risks of snow tubing are the following: . . .
“*the use of the snow tubing lift or tow, including falling out of a tube, coasting backwards, becoming entangled with equipment and other risks. . . .
“(5) I agree and understand that snow tubing is a purely voluntary recreational activity and that if I am not willing to acknowledge the risks and agree not to sue, I should not go snow tubing.
“(6) [*4] In Consideration Of The Above And Of Being Allowed To Participate In The Sport Of Snow Tubing, I Agree That I Will Not Sue And Will Release From Any And All Liability Ski Shawnee Inc. If I Or Any Member Of My Family Is Injured While Using Any Of The Snow Tubing Facilities Or While Being Present At The Facilities, Even If I Contend That Such Injuries Are The Result Of Negligence Or Any Other Improper Conduct On The Part Of The Snow Tubing Facility.
“(7)I Further Agree That I Will Indemnify And Hold Harmless Ski Shawnee Inc. from any loss, liability, damage or cost of any kind that may incur as the result of any injury to myself, to any member of my family or to any person for whom I am signing this agreement, even if it is contended that any such injury as caused by the negligence or other improper conduct on the part of Ski Shawnee Inc.
“(10) I have read and understood the foregoing acknowledgement of risks and agreement not to sue and am voluntarily signing below, intending to be legally bound thereby.”
[**420] Mazza also signed a release form from the Eagles which provides, in relevant part:
“(1) The Eagle member and guest agrees and understands that snow tubing is [*5] an inherently dangerous sport. Trail conditions vary constantly because of weather conditions and snow tubing and other obstacles and hazards may exist throughout the area. The member voluntarily assumes the risk of injury while participating in the sport. In consideration of using Shawnee Mountain snow tubing facilities the user agrees to accept the risks and agrees not to sue F.O.E. no. 1106 or Ski Shawnee Inc. or its employees or agents if hurt while using the facility regardless of any negligence of F.O.E. no. 1106 or Ski Shawnee Inc. or its employees or agents. . . . The user voluntarily assumes the risk of injury while participating in the sport. . . .
“(3) I have read and understand the foregoing regulations and release agreement and am voluntarily signing below intending to be legally bound thereby.”
The standard of review for a valid release agreement is set forth in Zimmer v. Mitchell and Ness, 253 Pa. Super. 474, 385 A.2d 437 (1978), affirmed, 490 Pa. 428, 416 A.2d 1010 (1980) (citation omitted); see also, Kotovsky v. Ski Liberty Operating Corp., 412 Pa. Super. 442, 447, 603 A.2d 663, 665 (1992). The Superior Court in [*6] Zimmer set forth [HN3] the following four-part test to determine the validity of exculpatory clauses:
(1) The contract must not violate any policy of the law;
(2) The contract must be between individuals and relate to their private affairs;
[**421] (3) Each party must be a free bargaining agent rather than one drawn into a contract of adhesion;
(4) The agreement must express the intent of the parties with the utmost particularity. 253 Pa. Super. at 478, 385 A.2d at 439.
[HN4] As a general rule, exculpatory disclaimers between private parties are enforceable in Pennsylvania and are not viewed as violating public policy. Missar v. Camelback Ski Resort, 30 D.&C.3d 579, 581 (Monroe Cty. 1984). An exculpatory clause is defined as “a contractual provision relieving a party from any liability resulting from a negligent or wrongful act.” Black’s Law Dictionary, 240 (Pocket ed. 1996).
In similar cases, our court has upheld that [HN5] the release language on the back of the ticket constitutes a valid waiver of liability. See generally, Venn v. Shawnee Mountain Ski Area, 5109 Civil 2002 (Monroe Cty. 2004) (Vican, P.J.); King v. Resorts USA Inc. d/b/a Rank Anhert, 8937 Civil [*7] 2001 (Monroe Cty. 2003) (O’Brien, J.); Catanna v. Camelback Ski Corp, 1340 Civil 1992 (Monroe Cty. 2001) (O’Brien, J.); Lee v. Camelback Ski Corp. a/k/a Camelback Ski Area, 8324 Civil 2001 (Monroe Cty. 2002) (Miller, J.); and Nisbett v. Camelback Ski Corp., 2226 Civil 1992 (Monroe Cty. 1996) (Miller, J.). We have held that [HN6] if an exculpatory agreement meets the four-prong test set forth in Zimmer, then the agreement is valid and enforceable.
In the instant case, we believe that the release does not violate any public policy. First, it is between private parties and relates to their private affairs. Second, we [**422] find that it is not a contract of adhesion, the language on the release is clear that if the person is not willing to acknowledge the risks and agree not to sue, he/she should not go snow tubing. (Release P 5.) Mazza was not required to enter into the contract, but she did so voluntarily in order to snow tube at the facility. The language contained on the release is conspicuous and expresses the intent of the parties with the requisite particularity. Furthermore, Mazza’s decision to go snow tubing was an activity which is not essential to plaintiff’s [*8] personal or economic well-being but was purely a recreational activity. See Kotovsky, supra at 447, 603 A.2d at 665. [HN7] An activity is purely recreational if it is not essential to one’s personal or economic well-being. Kotovsky, supra at 447, 603 A.2d at 665. (citation omitted)
Plaintiffs argue that we must deny defendant’s motion because the language contained in the release did not specifically exculpate itself from liability relating to the design of the facility and the lift mechanism. We do not agree. The release specifically set forth that there are many inherent dangers involved in snow tubing. The release specifically identifies the use of the snow tubing lift or tow. Further, Mazza signed the release which specifically sets forth that, even if it is contended that any such injury as caused by the negligence or other improper conduct on the part of Ski Shawnee Inc., she agrees to release and not sue defendant. Moreover, we are not bound by the holding in Martin v. Montage Mountain, 46 D.&C.4th 225 (Lackawanna Cty. 2000), the case cited by plaintiffs. The Martin case involved a [**423] plaintiff who signed a release which was specific [*9] that he would not sue for damages related to the use of a snow tube or lift. Id. at 230. Instantly, we believe that the release was clear that Mazza would not sue for any injuries resulting while using any of the snow tubing facilities or from any injuries sustained while present at the facilities.
For these reasons, we find that judgment on the pleadings may be entered due to the lack of disputed issues of fact and defendant is entitled to judgment as a matter of law. Accordingly, we entered judgment on the pleadings in favor of defendant.
ORDER
And now, June 29, 2005, upon consideration of defendant’s motion for judgment on the pleadings and any response thereto, it is hereby ordered and decreed that defendant Ski Shawnee Inc.’s motion for judgment on the pleadings is hereby granted and judgment is entered in favor of defendant, Ski Shawnee Inc., and against plaintiffs, Jean Mazza and Mark Mazza.
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This case is a summer camp lawsuit and the decision looks at venue and jurisdiction; however the complaint alleges medical malpractice against a camp!
Posted: February 13, 2012 Filed under: Jurisdiction and Venue (Forum Selection), New York, Pennsylvania, Summer Camp | Tags: American Camp Association, Camp, Lawsuit, Medical Malpractice, New York, parent, Physician, summer camp, United States Leave a commentI really wish I could find out how this case resolved
This case covers a fact pattern that probably occurs weekly during the summer. The camper started suffering some illness. The camper was treated at camp by the camp physician and camp nurse then sent to a local hospital.
The parents sued the camp, camp physician, camp nurse and the treating physicians at the hospital for medical malpractice. The specific claim against the camp and its nurse and physician was a failure to “…timely recognize and properly care for and treat Jordan’s condition.”
In order to enroll the child in the camp, the parents were required to sign a camp contract. The contract covered many different details but was never identified by the court as a release.
The mother sued the camp in New York for the alleged injuries to her son.
So?
The second paragraph of the camp contract gave the camp permission to treat the child for any medical surgical or dental issues.
If it is necessary to obtain off-camp medical/surgical/dental services for the camper, such as expenses shall be paid by the parent except the portion supplied by the camp medical staff. Authority is granted without limitation to the camp/assigns in all medical matters to hospitalize/treat/order injections/anesthesia/surgery for the camper. The parent is responsible for all pre-existing medical conditions, out of camp medical/surgical/hospital/pharmaceutical/allergy expenses and for providing adequate quantities of necessary medications and allergy serums to camp in pharmacy containers with doctor’s instructions. The parent(s) or legal guardian(s) hereby states that the camper is in good, normal health and has no abnormal physical, emotional, or mental handicaps”.
(For other articles looking at the medical issues of camps and outdoor activities see Texas makes it easier to write a release because the law is clear, North Carolina may allow a parent to sign away a minor’s right to sue for injuries when the minor is engaged in non-profit activities sponsored by schools, volunteers, or community organizations, ACA Standards are used by Expert for the Plaintiff in a lawsuit against a Camp, Adult volunteer responsibility ends when the minor is delivered back to his parents.)
The basis of the legal arguments on appeal were the jurisdiction and venue of the lawsuit. (For more articles on venue and jurisdiction see Four releases signed and all of them thrown out because they lacked one simple sentence!, A Recent Colorado Supreme Court Decision lowers the requirements to be brought into the state to defend a lawsuit., Jurisdiction in Massachusetts allows a plaintiff to bring in Salomon France to the local court., The legal relationship created between manufactures and US consumers.). The camp was located in Pennsylvania and the jurisdiction and venue clause required any suit to be in Pennsylvania.
The venue of any dispute that may arise out of this agreement or otherwise between the parties to which the camp or its agents is a party shall be either the local District Justice Court or the Court of Common Pleas, Wayne County, Pennsylvania”
The camp operated out of an office in Pennsylvania in the summer where the camp was located, but it had an office in New York during the winter. When the child was ill, he was taken to a hospital which was located in New York.
The camp, camp nurse and camp physician filed motions to dismiss the complaint based on the jurisdiction and venue clause in the contract. The hospital and other physicians being sued also filed motions to dismiss based on the jurisdiction and venue clause in the contract. The contract stated, “the forum selection clause applies to “any dispute that may arise out of this agreement or otherwise between the parties to which the camp or its agents is a party”
To void a jurisdiction and/or venue clause the party opposing it must prove that the clause is:
…unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or it is shown that a trial in the selected forum would be so gravely difficult that the challenging party would, for all practical purposes, be deprived of its day in court.
Without proof of such an issue, then jurisdiction and venue clause are valid and enforceable and will not be set aside. The plaintiff did not prove to the court any of the necessary elements to have the clause set aside.
Thus, the contract allowed the court to dismiss the camp, camp nurse and camp physician’s as defendant and force the plaintiff to re-file the lawsuit in the Wayne County Pennsylvania court. “Accordingly, since the forum selection clause addresses jurisdiction and contains mandatory venue language, the clause fixing venue is enforceable…”
Third Parties – non camp employees
The physicians and hospital argued the language in the contact and the relationship between themselves and the camp then extended the jurisdiction and venue of the contact to them. As such they should be sued in the Common Pleas court of Wayne County Pennsylvania. However, the court found the parties to the original contract, the camp and the parents did not foresee the contract extending that far to third parties.
To reach to third parties in such a case the contract must.
…there are three sets of circumstances under which a non-party may invoke a forum selection clause: First, it is well settled that an entity or individual that is a third-party beneficiary of the agreement may enforce a forum selection clause found within the agreement. Second, parties to a ‘global transaction’ who are not signatories to a specific agreement within that transaction may nonetheless benefit from a forum selection clause contained in such agreement if the agreements are executed at the same time, by the same parties or for the same purpose. Third, a nonparty that is ‘closely related’ to one of the signatories can enforce a forum selection clause. The relationship between the nonparty and the signatory in such cases must be sufficiently close so that enforcement of the clause is foreseeable by virtue of the relationship between them.
Because the parties to the original contract did not contemplate in their formation of the contract, that hospital and physicians would be part of the agreement, the court could not extend the agreement to them in the suit.
So Now What?
This is a good discussion and points out the importance of having a forum selection clause in your documents and especially your release.
The scary and still unanswered part of the decision is the claims of medical malpractice can still be raised against the camp in Pennsylvania.
Make sure you contact your insurance agent and verify that you would be covered if a medical-malpractice claim is brought against you in a case like this. If you have or employee physicians, nurses or other licensed health care providers, you will need to have specific medical-malpractice coverage to cover them if you are sued. However, coverage for a non-entity such as a camp is rarely written into a policy.
What do you think? Leave a comment.
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