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The safety precautions undertaken by the defendant in this mountain bike race were sufficient to defeat the plaintiff’s claims of gross negligence in this Utah mountain bike fatality.

Tour of the Canyonlands was an 18-mile mountain bike race near Moab, Utah. Six miles of the course were on roads. The course was an open course meaning, there might be automobile traffic on the roads; the roads would not be closed to traffic.
Two plaintiffs’ struck a truck on the road, killing one of the mountain bikers.

Milne v. USA Cycling Inc., et. al., 575 F.3d 1120; 2009 U.S. App. LEXIS 17822

State: Utah, United States Court of Appeals for the Tenth Circuit

Plaintiff: Robert J. Milne, an individual; Timothy K. Sorrow, individually and as personal representative on behalf of his deceased son, Samuel B. Hall,

Defendant: USA Cycling Inc., a Colorado corporation, d/b/a National Off-road Bicycle Association; Cycle Cyndicate Inc.,

Plaintiff Claims: negligence, gross negligence, and wrongful death

Defendant Defenses: release, failure to state a claim to prove gross negligence

Holding: For the Defendant

Year: 2009

This is an attempt to recover damages by parents for the injuries they suffer when a son is hurt or dies. It probably involves as many emotional issues as it does legal ones such as how and why did my son die, why didn’t they do more to keep my son alive and possibly even some desire to protect others from the same
fate.

Two mountain bikers entered the Tour of the Canyonlands mountain bike race. Both had entered the race before and were classified as expert racers. They both signed a release prior to the race and had been told the first six miles of the course would be an open course.

An “open course” is one that is not closed to automobile traffic. Cycling on an “open course,” whether on a mountain bike or road bike, you will be encountering cars and be passed by cars. Approximately 25% of all mountain bike races are open course and a majority of road bike races in the US.

The race organizers had put up signs before the racing telling motorists that there was going to be a race. The organizers had volunteers along the route and first aid people to assist riders. They had made the effort to notify all campers on the race route about the race. The defendant driving the truck involved in the collision stated he was not notified about the race, but other people camping with him stated they had been notified.

The accident occurred when one racer attempted to pass another racer on the open part of the course while passing the automobile coming from the opposite direction. The automobile was a Ford Excursion pulling a 30’ trailer. The mountain bikers tangled, and one of the plaintiffs’s crashed into the truck.

Mr. Konitshek testified that, when he saw the oncoming bikers, he veered as far right in his lane of travel as possible, and remained on the right side of the road the entire time. He was going about 5 miles per hour when one of the bikers hit his left sideview mirror, causing it to bang into his window and shatter.

Mr. Hall had attempted to pass both himself and Mr. Milne. Mr. Byrd was immediately behind Mr. Milne, so Mr. Hall passed him first. Mr. Byrd testified that Mr. Hall passed very closely and, because of his proximity and his speed–Mr. Hall was riding about 25 miles per hour at that time–Mr. Casey could feel the wind coming off him as he passed. Then, as Mr. Hall began to pass Mr. Milne, their handlebars locked together, causing them to veer left and strike Mr. Konitshek’s camper. It is not entirely clear what happened next, but at least one racer testified that he saw the trailer run over Mr. Hall.

The release stopped the claims based on simple negligence and wrongful death of the plaintiffs. That left the claims for gross negligence. The Federal District Court (trial court) dismissed the plaintiff’s claims because the plaintiff had not pled any facts to prove their claim of gross negligence.

On the plaintiff’s gross negligence claims, the court determined that the undisputed facts showed that defendants had taken a number of steps to protect the racers’ safety, and even if those steps were taken negligently, they were not grossly negligent.

There was also an issue of the plaintiff’s expert witness whom the trial court had prevented from testifying because the trial court found him to not have any experience as a mountain bike race expert.

The plaintiff’s appealed the trial court’s decision.

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

The appellate court had a long discussion on the courts process to dismiss cases based on motions for summary judgment. The court then started into the analysis of the facts in this case and how they applied to the law.

Gross negligence in Utah is a failure on the part of the defendant to observe even slight care. “Under Utah law, “[g]ross negligence is the failure to observe even slight care; it is carelessness or recklessness to a degree that shows utter indifference to the consequences that may result.” The plaintiff to prove the defendant was grossly negligent must proof “conduct substantially more distant from the appropriate standard of care than does ordinary negligence.”

The facts argued by the plaintiff can then only be interpreted in one way for a court to determine gross negligence cannot be proved. However, even if there are different ways of viewing the facts, gross negligence claims can be beat if there is evidence the defendant did show care or was not lacking care.

However, appeals courts have affirmed grants of summary judgment on gross negligence claims where the undisputed evidence showed that the defendants took precautionary measures and did not ignore known and obvious risks.

In this case, the court could point out numerous instances where the defendant was not careless. “… the plaintiffs have fallen short of producing evidence upon which a jury could conclude that the defendants failed to exercise “even slight care” in organizing and administering this race.

The court also looked at the knowledge of the racers and the fact they assumed the risk of the sport and injuries they encountered.

Mountain bike racing is an inherently dangerous sport, so the defendants cannot be considered grossly negligent merely because they organized a race that placed the racers at risk of injury and even death. Rather, the court must look at the specific steps the defendants took to ensure the racers’ safety in order to determine whether a jury could decide that they
were grossly negligent.

Although the issue of assumption of the risk was reviewed by the court and it obviously factored into the court’s analysis, it was not stated by the court as a reason for its decision.

The plaintiff argued the driver’s statements showed the defendant not done anything. However, the court seemed to discount the driver’s statements and found everyone else did know about the race. A defendant in the case looking not to lose a lawsuit would be more inclined to state he had not been notified.

Mr. Konitshek claimed that the organizers’ efforts to warn people in the area of the upcoming race were ineffective, because he did not know about the race until moments before the accident. Mr. Konitshek’s complaints about the sufficiency of the race organizers’ warnings do not rise to the level of creating a material issue of fact with regard to gross
negligence for two reasons. First, even if the race organizers’ warnings were imperfect, that does not negate the fact that they made rather substantial efforts to warn people, and their failure to reach every person in the area is insufficient to show gross negligence. Second, although Mr. Konitshek testified that he would have changed his plans if he had known about the race in advance, the plaintiffs presented no reason for this court to think that most drivers would change their plans to avoid a bicycle race on a 6-mile stretch of open road.

Utah requires a high disregard of safety issues to constitute gross negligence. Since automobile accidents were rare in mountain bike racing, this being the only one in the ten years of running this event, automobile accidents were not considered a serious threat to the participants. The issues were brought up by the plaintiff’s expert witness whom the court dismissed in one paragraph.

Thus, the organizers’ failure to shut down the road, mark and enforce a center line on the road, more closely monitor vehicular traffic, or more thoroughly warn other area drivers of the upcoming race cannot, as a matter of law, amount to gross negligence in light of the other safety steps taken by the organizers of this race.

Nor is gross negligence proved by 20/20 hindsight.

An examination of cases in other jurisdictions shows that courts have been reluctant to find that race organizers have been grossly negligent for failing to take every precaution that 20/20 hind-sight might counsel.

The court found the plaintiff’s had not presented evidence that could prove to a jury that the race organizers were grossly negligent and the actions of the race organizers in attending to the safety issues discounted or eliminated the plaintiff’s gross negligence claim.

We therefore agree with the district court’s determination that the plaintiffs in this case have failed to provide evidence upon which a reasonable jury could conclude that the race organizers were grossly negligent.

The court then went on to support the trial courts exclusion of the plaintiff’s expert witness because the expert witness did not have sufficient experience in mountain bike racing. 

There was a concurring opinion in this case. A concurring opinion is one where a justice sitting on the appeal agrees with the outcome of the decision but for a different reason than the majority of the justices. In this case, the concurring judge felt the plaintiff’s expert witness statements were enough to beat the gross negligence claim.

In this case, he would have excluded the plaintiff’s expert witness testimony, but would have used his testimony where he stated the defendants exercised some degree of care for the participants as a reason to dismiss the gross negligence claim.

The dismissal of the claims of the plaintiff by the trial court was upheld.

So Now What?

I am seeing case after case where gross negligence claims are made to defeat a release. Twenty years ago, few cases pleaded a claim for gross negligence, and now every case does. As such part of your preparation for any activity, trip or program is to make sure you do not do anything that could support a gross negligence claim.

Gross negligence claims rarely proved at trial, extremely rare. As such their main reason they are pled is to get passed the motion for summary judgment, which increases the cost of continuing the case substantially. Therefore, any settlement offer will be increased significantly. A gross negligence claim hanging over the head of a defendant is also a real threat as some insurance companies will not pay to defend such a claim judgment based on gross negligence are not dischargeable in Bankruptcy.

Planning what safety precautions you should undertake should first start with understanding what your industry does. Know how other races are put on and what precaution to take is the first step. Then looking at your course, your participants or your ability to respond, you should modify the safety program to meet those differences. 

Finally, have a release and fully inform every one of the risks. Most importantly inform them of all risks, maybe even repeatedly, that are different from everyone else or that substantially increase the risk. Assumption of the Risk is the second most-used defense to negligence claims in recreation cases after a release. Always use both.

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

What do you think? Leave a comment.

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Milne v. USA Cycling Inc., et. al., 575 F.3d 1120; 2009 U.S. App. LEXIS 17822

Milne v. USA Cycling Inc., et. al., 575 F.3d 1120; 2009 U.S. App. LEXIS 17822

Robert J. Milne, an individual; Timothy K. Sorrow, individually and as personal representative on behalf of his deceased son, Samuel B. Hall, Plaintiffs-Appellants, v. USA Cycling Inc., a Colorado corporation, d/b/a National Off-road Bicycle Association; Cycle Cyndicate Inc., a Colorado Corporation; Eric Jean, an individual, Defendants-Appellees.

No. 07-4247

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

575 F.3d 1120; 2009 U.S. App. LEXIS 17822

August 10, 2009, Filed

PRIOR HISTORY: [**1]

Appeal from the United States District Court for the District of Utah. (D.C. No. 2:05-CV-00675-TS).

Milne v. USA Cycling, Inc., 489 F. Supp. 2d 1283, 2007 U.S. Dist. LEXIS 42579 (D. Utah, 2007)

COUNSEL: Steve Russell (Jordan Kendall with him on the briefs) of Eisenberg & Gilchrist, Salt Lake City, Utah, for Plaintiffs-Appellants.

Allan L. Larson (Richard A. Vazquez with him on the briefs) of Snow, Christensen, & Martineau, Salt Lake City, Utah, for Defendants-Appellees.

JUDGES: Before McCONNELL, EBEL, and GORSUCH, Circuit Judges. GORSUCH, Circuit Judge, concurring in part and concurring in the judgment.

OPINION BY: EBEL

OPINION

[*1122] EBEL, Circuit Judge.

This diversity jurisdiction case involves Utah state law claims of negligence, gross negligence, and wrongful death based on a tragic accident that occurred during a bicycle race called the “Tour of Canyonlands” near Moab, Utah. During the race, one or more of the racers collided with an SUV and trailer driving in the opposite direction. One racer was killed, and another was badly injured. The injured rider and the decedent’s mother–in her own capacity and on behalf of her son’s estate–filed suit against the race’s organizers and the entities responsible for promoting and overseeing the race.

The district court granted defendants’ motion to strike plaintiffs’ expert’s second [**2] affidavit, and granted summary judgment for the defendants on all claims. On appeal, the plaintiffs only challenge the district court’s decision to exclude their expert’s opinion and to grant summary judgment for the defendants on the plaintiffs’ claims of gross negligence.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM.

I. BACKGROUND 1

1 Because this case comes to us on defendants’ motion for summary judgment, we construe all facts in plaintiffs’ favor. See Beardsley v. Farmland Co-Op, Inc., 530 F.3d 1309, 1313 (10th Cir. 2008) ( [HN1] “This court reviews the district court’s summary judgment decision de novo, viewing the evidence in the light most favorable to the non-moving party . . . .” (quoting Herrera v. Lufkin Indus., Inc., 474 F.3d 675, 679-80 (10th Cir. 2007)) (ellipses in original).

The “Tour of the Canyonlands” (“TOC”) is a cross-country mountain bike race [*1123] through the canyons outside Moab, Utah. The race begins on six miles of an “open course” dirt road, where racers share the road with automobile traffic, and continues for another nineteen miles on rugged off-road paths. On April 25, 2005, two racers–Samuel B. Hall and Robert J. Milne–were racing the TOC when they [**3] struck a Ford Excursion SUV, and the trailer it was pulling, on the six-mile open course portion of the race. Mr. Hall died at the scene from severe head trauma. Mr. Milne was seriously injured, but survived the accident.

Following the accident, Plaintiff-Appellant Timothy Sorrow brought negligence, gross negligence, and wrongful deaths claims personally and on behalf of the estate of her deceased son, Mr. Hall, against the people and entities responsible for organizing the race. Plaintiff-Appellant Robert J. Milne brought claims of negligence and gross negligence on his own behalf against the same defendants.

The three Defendants-Appellees were responsible for organizing, promoting, and overseeing the TOC race on April 25, 2005. U.S.A. Cycling Inc., d/b/a the National Off-Road Bicycle Association (“NORBA”), oversaw the race and drafted the rules governing the race, Cycle Cyndicate organized and promoted the race, and Eric Jean–the president and CEO of Cycle Cyndicate–played a large role in administering and supervising the race.

A. Open Course Mountain Bike Racing

Although a portion of this race took place on an open road, the race was governed exclusively by the mountain bike racing [**4] rules developed by NORBA. These rules differ significantly from road racing rules. For example, road racers must obey a “center-line rule,” and may be disqualified if they cross over the line painted in the middle of the road. Mountain bike racers, on the other hand, will not be disqualified for crossing the center-line. This distinction is based at least in part on the fact that, unlike the roads used for road racing, open-course mountain bike races often take place on dirt roads that do not have a clearly marked center line. Thus, a center-line rule would be difficult, if not impossible, to enforce.

Despite the fact that a mountain bike racer may not be disqualified for crossing the center line, there was evidence that the race organizers told the racers to obey a center-line rule. Even where no center-line rule is in effect, however, racers are expected to be aware of their surroundings, and to veer right if they see oncoming traffic.

Open-course bicycle races are apparently not uncommon in the mountain bike racing world and are especially common in Utah. Mr. Milne testified that about 25% of the mountain bike races he participated in were “open course” races. The TOC itself has taken [**5] place in part on an open course since at least 1998.

Automobile-bicycle accidents are very uncommon at TOC. Mr. Jean stated that throughout the more than ten-year history of the race, with races in many of those years having nearly 500 participants, he is aware of only one accident involving a bicyclist and an automobile–the accident that led to this case. Perhaps because of the low frequency of vehicular accidents, NORBA has no rules dictating that race organizers must regulate traffic on open-course trails to avoid automobile-bicycle [*1124] collisions. There was some evidence that, despite the fact that NORBA has no such requirement, Mr. Jean requested permission to close the road to traffic on the day of the race. Whether or not he made those efforts, it is clear that the permit obtained for the race stated that the race could not stop traffic for more than 15 minutes at a time. 2

2 The race organizers obtained a permit from the Bureau of Land Management (“BLM”) for [**6] the race. However, the record indicates that there was a conflict at the time between the BLM and some of the County governments regarding who had control over the roads in the area. This court expresses no opinion on that conflict.

B. The Racers

Both Mr. Hall and Mr. Milne were classified as “expert” racers, and had extensive mountain bike racing experience. They had raced the TOC before, and were familiar with the course. Before each of these races, they knowingly signed liability release forms, which provided that the parties had waived all claims against the race organizers, including claims premised on the organizers’ negligence. The releases also specifically mentioned that racers were assuming the risk of collision with vehicles. Those warnings, in combination with the race organizers’ pre-race announcements that the first six miles would be on an open course shared with other vehicles, make it clear that Mr. Hall and Mr. Milne knew they could encounter vehicles during their race.

C. Safety Precautions Taken by the Race Organizers

The race organizers took a number of safety precautions both before and during the race. For example, the race organizers posted a sign warning people [**7] in the area of the upcoming race, although that sign had been knocked down at least once during the week the leading up to the race.

On the day of the race, the organizers posted, about a mile and half from the starting line, some attendants whose job it was to warn drivers that a race was taking place, that they might encounter some temporary road closures, and that they would be sharing the road with hundreds of cyclists. Some race organizers also testified that they approached people camped in the area to warn them that a race would be taking place that day. Mr. Konitshek, the driver of the SUV involved in the accident, testified that no one ever came to his campground to warn of the race that morning, despite the fact that his campground was clearly visible from the road. However, the other members of his party testified that the race organizers warned them about the race as they drove away from their campground.

The race organizers also arranged for 25 “course marshals” to help supervise the race. Some of those marshals were posted near intersections or sharp turns in order to mitigate some of the risks associated with the automobile traffic the racers might encounter. However, [**8] no one was assigned to the area right near the accident site, which was relatively straight and wide. Further, even though some course marshals had been assigned to areas between the starting line and the place of the accident, some witnesses testified that they did not notice anyone directing traffic in that area. In addition to the course marshals, Mr. Jean had a few people available to administer first aid to injured riders. Mr. Jean himself also carried a backpack with some medical equipment.

Finally, the race organizers made significant efforts to inform the racers that they might encounter vehicles during the race. In order to ride, race participants had to sign a liability release waiver that specifically mentioned the potential for vehicular [*1125] accidents. Further, before the race began, the race organizers announced that the TOC was an open course race, and that racers might encounter automobile traffic.

D. The Accident

Mr. Konitshek was driving a 2001 Ford Excursion with a 30-foot trailer about five miles from the starting line when he noticed that a group of bikers were approaching his car from the opposite direction. The bikers were spread out too wide for their lane of travel. [**9] That portion of the road was relatively wide, open, and fast. The visibility there was also relatively good. Although the view was partially blocked by some rocks, Mr. Konitshek’s SUV and trailer were visible to racers from at least 150 feet away. Mr. Konitshek testified that, when he saw the oncoming bikers, he veered as far right in his lane of travel as possible, and remained on the right side of the road the entire time. 3 He was going about 5 miles per hour when one of the bikers hit his left sideview mirror, causing it to bang into his window and shatter.

3 There was conflicting evidence on whether Mr. Konitshek or the racers had crossed the center line of the road. Mr. Konitshek was adamant that he had remained on his side. However, one of the riders witnessing the accident testified that the riders remained on their side of the road, although he then recanted his testimony to some extent, stating that it was hard to tell whether the riders and/or the truck had remained on their respective sides of the road. Another rider testified at his deposition that he was certain that Mr. Konitshek’s SUV extended beyond the center line. Still another testified that the SUV certainly remained [**10] on its side of the road the entire time. For purposes of this appeal, we will assume the facts most favorable to Plaintiffs’ argument.

Casey Byrd, a rider who was just behind Mr. Hall and Mr. Milne when the accident occurred, testified that right before the accident, Mr. Hall had attempted to pass both himself and Mr. Milne. Mr. Byrd was immediately behind Mr. Milne, so Mr. Hall passed him first. Mr. Byrd testified that Mr. Hall passed very closely and, because of his proximity and his speed–Mr. Hall was riding about 25 miles per hour at that time–Mr. Casey could feel the wind coming off him as he passed. Then, as Mr. Hall began to pass Mr. Milne, their handlebars locked together, causing them to veer left and strike Mr. Konitshek’s camper. It is not entirely clear what happened next, but at least one racer testified that he saw the trailer run over Mr. Hall.

E. The District Court’s Decision

The district court granted summary judgment for the defendants on all claims. On the plaintiff’s gross negligence claims, the court determined that the undisputed facts showed that defendants had taken a number of steps to protect the racers’ safety, and even if those steps were taken negligently, [**11] they were not grossly negligent. The district court also struck plaintiffs’ expert’s second affidavit, finding that plaintiffs’ witness was not qualified to testify as an expert on mountain bike races. This appeal, challenging the district court’s grant of summary judgment on plaintiffs’ gross negligence claims and the court’s decision to strike plaintiffs’ expert, timely followed.

II. Discussion

A. Federal Law Dictates Summary Judgment Standard

Before turning to the facts of this case, this court must address whether Utah’s summary judgment rules preclude this court from upholding the district court’s grant of summary judgment. [HN2] Under federal law, a defendant may be granted summary judgment whenever plaintiffs fail adequately to “support one of the elements of [*1126] their claim upon which they ha[ve] the burden of proof.” Jensen v. Kimble, 1 F.3d 1073, 1079 (10th Cir. 1993).

[HN3] Utah’s approach to summary judgment is generally parallel to the federal courts’ approach. See, e.g., Burns v. Cannondale Bicycle Co., 876 P.2d 415, 418-20 (Utah Ct. App. 1994) (affirming summary judgment for defendants because plaintiff failed to bring evidence supporting one of the elements regarding which it had the burden [**12] of proof). However, Utah has a special rule for summary judgment in negligence cases that differs significantly from federal law. Under Utah law, “[s]ummary judgment in negligence cases, including gross negligence cases, is inappropriate unless the applicable standard of care is fixed by law.” Pearce v. Utah Athletic Foundation, 2008 UT 13, 179 P.3d 760, 767 (Utah 2008) (emphasis added) (internal quotation omitted). In other words, Utah courts would prevent either party to a negligence dispute from obtaining summary judgment where the standard of care applicable to that dispute has not been “fixed by law.” See Berry v. Greater Park City Co., 2007 UT 87, 171 P.3d 442, 449 (Utah 2007) (explaining that Utah courts will not grant summary judgment in a gross negligence case where the applicable standard of care has not been fixed by law because “[i]dentification of the proper standard of care is a necessary precondition to assessing the degree to which conduct deviates, if at all, from the standard of care–the core test in any claim of gross negligence”); but see RJW Media, Inc. v. CIT Group/Consumer Finance, Inc., 202 P.3d 291, 296, 2008 UT App 476 (Utah Ct. App. 2008) (affirming grant of summary judgment for defendant in a [**13] negligence case where the standard of care had not been “fixed by law” but the defendant had presented uncontested evidence of the appropriate standard of care).

In Pearce, 2008 UT 13, 179 P.3d 760, the most recent Utah Supreme Court case to consider this issue, the plaintiff brought gross negligence claims arising out of injuries that occurred during a bobsled ride. The Utah court reversed the lower court’s grant of summary judgment for the defendants, concluding that summary judgment was inappropriate because the applicable standard of care had not been “fixed by law.” The court held that the generally applicable “reasonably prudent person” standard was insufficiently specific to constitute a standard of care “fixed by law.” Id. at 768 n.2. Rather, for the standard of care in that case to be “fixed by law,” a statute or judicial precedent must articulate “specific standards for designing, constructing, and testing a bobsled run for the public or for operating a public bobsled ride.” Id.; see also Berry, 171 P.3d at 449 (denying motion for summary judgment in negligence case involving a skiercross course because the applicable standard of care was not “fixed by law”); Wycalis v. Guardian Title of Utah, 780 P.2d 821, 825 (Utah. Ct. App. 1989) [**14] (stating that “the applicable standard of care in a given case may be established, as a matter of law, by legislative enactment or prior judicial decision”). Since no statute or precedent provided a standard of care for bobsled rides, the Utah court denied the defendants’ motion for summary judgment. Pearce, 179 P.3d at 768.

Applying Utah law to this case would probably require that we reverse the district court’s grant of summary judgment. It is undisputed that no Utah precedent or legislative enactment specifically establishes the standard of care for running mixed-course bicycle races. Thus, under Utah law, the standard of care in this case is not “fixed by law,” and summary judgment would be inappropriate.

[HN4] Under federal law, on the other hand, a defendant need not establish that the standard of care specific to the factual [*1127] context of the case has been “fixed by law” in order to be granted summary judgment. See Gans v. Mundy, 762 F.2d 338, 342 (3rd Cir. 1985) (holding that defendant moving for summary judgment in a legal malpractice claim need not present expert testimony establishing a standard of care even though a plaintiff in that position would need to do so, because the case [**15] law establishing the plaintiff’s duty to provide expert testimony “cannot fairly be characterized as applying to a defendant’s motion under Rule 56″) (emphasis in original); see also id. at 343 (“[T]he party moving for summary judgment has the ultimate burden of showing the absence of a genuine issue as to any material fact. But once the appellees averred facts and alleged that their conduct was not negligent, a burden of production shifted to the appellant to proffer evidence that would create a genuine issue of material fact as to the standard of care.”) (citations omitted); see generally Young v. United Auto. Workers Labor Employment and Training Corp., 95 F.3d 992, 996 (10th Cir. 1996) (“A party who moves for summary judgment under Rule 56 is not required to provide evidence negating an opponent’s claim. Rather, the burden is on the nonmovant, who must present affirmative evidence in order to defeat a properly supported motion for summary judgment.”) (citations and quotations omitted).

On the contrary, [HN5] federal courts will sometimes grant summary judgment to defendants on negligence claims precisely because of the plaintiff’s failure to present evidence establishing a standard of [**16] care as part of its burden of proof on an element of plaintiff’s case. See, e.g., Briggs v. Washington Metro. Area Transit Auth., 481 F.3d 839, 841, 375 U.S. App. D.C. 343 (D.C. Cir. 2007) (affirming grant of summary judgment for defendants on a negligence claim where plaintiff, who under state law had the burden to provide expert testimony on the standard of care, failed to “offer creditable evidence sufficient to establish a controlling standard of care”); Keller v. Albright, 1 F. Supp. 2d 1279, 1281-82 (D. Utah 1997) (granting defendant’s motion for summary judgment on plaintiff’s legal malpractice claim asserted under Utah law because the plaintiff failed to provide expert testimony regarding the standard of care, and the case did not involve circumstances “within the common knowledge and experience of lay jurors”) (citation and quotation omitted), aff’d, No. 97-4205, 1998 U.S. App. LEXIS 7134, 1998 WL 163363 (10th Cir. Apr. 8, 1998) (unpublished) (affirming “for substantially those reasons set out in the district court’s [opinion]”). Thus, even when Utah substantive law was involved, the federal district court of Utah and the Tenth Circuit have held that the federal courts may grant a defendant summary judgment on a negligence [**17] claim even if the parameters of the standard of care in the relevant industry have not been previously established by precedent or statute. 4 See also Noel v. Martin, No. 00-1532, 21 Fed. Appx. 828, 836 *7 (10th Cir. Oct. 19, 2001) (unpublished) (upholding summary judgment for defendants in a legal malpractice case where the district court properly dismissed plaintiff’s only expert on the issue of the standard of care).

4 Admittedly, there is no indication in Keller v. Albright, 1 F. Supp. 2d 1279, that the plaintiff there argued that the Utah standard for granting summary judgment in a negligence claim should apply.

In Foster v. Alliedsignal, Inc., 293 F.3d 1187 (10th Cir. 2002), this court addressed a closely analogous set of facts involving a conflict between federal and state law standards for granting summary judgment. Foster involved a retaliatory discharge case brought pursuant to Kansas law. Id. at 1190-91. Under Kansas law, a plaintiff can prevail at trial if she establishes [*1128] her case with “clear and convincing evidence.” Id. at 1194 (internal quotation omitted). However, Kansas law provides that “a plaintiff in a retaliation case . . . . can successfully oppose a motion for summary [**18] judgment by a preponderance of the evidence.” Id. at 1194 (internal quotation and citation omitted). In Foster, this court rejected the plaintiff’s efforts to have that lower evidentiary standard apply at the summary judgment stage in federal court. Id. at 1194-95. Instead, this court held that the Supreme Court’s opinion in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986), [HN6] required that courts “view the evidence through the prism of the substantive evidentiary burden.” Id. at 254; see also Silkwood v. Kerr-McGee Corp., 769 F.2d 1451, 1454-55 (10th Cir. 1985) (stating, in the context of a motion for judgment notwithstanding the verdict, that “the question of the sufficiency of the evidence needed to go to the jury in a diversity case is a matter of federal law”); Bank of Cali., N.A. v. Opie, 663 F.2d 977, 979 (9th Cir. 1981) (“[F]ederal law alone governs whether evidence is sufficient to raise a question for the trier-of-fact.”). Applying that standard to the case before it, this court in Foster held that, at summary judgment, the plaintiff “must set forth evidence of a clear and convincing nature that, if believed by the ultimate factfinder, would establish that plaintiff was [**19] more likely than not the victim of illegal retaliation by her employer.” Foster, 293 F.3d at 1195. See also Conrad v. Bd. of Johnson County Comm’rs, 237 F. Supp. 2d 1204, 1266-67 (D. Kan. 2002) (holding that, for state law retaliatory discharge claims, the “clear and convincing standard is applied at the summary judgment stage–at least when the claim is brought in a federal court sitting in diversity”). Thus, although the state law dictated that a plaintiff alleging retaliatory discharge could avoid summary judgment under a preponderance of the evidence standard, [HN7] federal law required that the substantive standard applied at trial (i.e., clear and convincing evidence) governs summary judgment determinations. See Hanna v. Plumer, 380 U.S. 460, 85 S. Ct. 1136, 14 L. Ed. 2d 8 (1965); McEwen v. Delta Air Lines, Inc., 919 F.2d 58, 60 (7th Cir. 1990) (“Federal courts may grant summary judgment under Rule 56 on concluding that no reasonable jury could return a verdict for the party opposing the motion, even if the state would require the judge to submit an identical case to the jury.”); 10A Charles Alan Wright, Arthur R. Miller, and Mary Kay Kane, Federal Practice and Procedure § 2712 (3d ed. 1998) (“[I]n diversity-of-citizenship [**20] actions questions relating to the availability of summary judgment, such as whether there is a disputed issue of fact that is sufficient to defeat the motion, are procedural and therefore governed by Rule 56, rather than by state law.”).

The circumstances of this case are very similar to what we addressed in Foster. Like the evidentiary rule in Foster, [HN8] Utah’s rule foreclosing summary judgment in cases where the standard of care has not been fixed by law applies exclusively at summary judgment. This is clear because Utah law provides that, at trial, the plaintiff has the burden of demonstrating the appropriate standard of care. See Webb v. Univ. of Utah, 2005 UT 80, 125 P.3d 906, 909 (Utah 2005) (“To establish a claim of negligence, the plaintiff must establish . . . that the defendant owed the plaintiff a duty [and] that the defendant breached that duty . . . .”) (citations and quotations omitted); Sohm v. Dixie Eye Ctr., 166 P.3d 614, 619, 2007 UT App 235 (Utah Ct. App. 2007) (“To sustain a medical malpractice action, a plaintiff must demonstrate . . . the standard of care by which the [physician’s] conduct is to be measured . . . .” (quoting Jensen v. IHC Hosps., Inc., [*1129] 2003 UT 51, 82 P.3d 1076, 1095-96 (Utah 2003)) (alteration [**21] in original)); see also Model Utah Jury Instructions, Second Edition, CV301B (2009), http://www.utcourts.gov/resources/muji/ (stating that “to establish medical malpractice” a plaintiff “has the burden of proving,” inter alia, “what the standard of care is”); id. at CV302 (putting the same burden of proof on a plaintiff attempting to prove nursing negligence). By allowing the plaintiff to avoid summary judgment in cases where the standard of care has not been fixed by law, Utah has created a rule very similar to Kansas’s rule allowing plaintiffs to avoid summary judgment under a lesser standard of proof than they would carry at trial. We are, therefore, bound to treat Utah’s unique summary judgment rule in the same way that we treated the rule in Foster, and conclude that, although we will look to Utah law to determine what elements the plaintiffs must prove at trial to prevail on their claims, see Oja v. Howmedica, Inc., 111 F.3d 782, 792 (10th Cir. 1997) (stating that “in a diversity action we examine the evidence in terms of the underlying burden of proof as dictated by state law”), we will look exclusively to federal law to determine whether plaintiffs have provided enough evidence [**22] on each of those elements to withstand summary judgment. 5 As we discuss in the following section, this approach leads us to concur with the district court’s decision granting summary judgment for the defendants.

5 Even if the defendants have some burden to establish that the race was run in accordance with the standard of care in order to be granted summary judgment, they have met that burden controlling. The defendants put on evidence from a number of experienced biking participants that this race was carefully run in accordance with the standard of care they have come to expect in mountain-bike races. Once the testimony of plaintiffs’ expert Sean Collinsworth is excluded, as we hold later was appropriate, plaintiffs put on no conflicting evidence from any witness qualified to articulate a proper standard of care for a mountain bike race. Further, under Utah law, it would probably be unnecessary for defendants to present expert testimony to establish compliance with the standard of care in this case. Compare Collins v. Utah State Dev. Ctr., 992 P.2d 492, 494-95, 1999 UT App 336 (Utah Ct. App. 1999) (holding that expert testimony was not necessary in case involving claim that a center working with the [**23] developmentally disabled was negligent for allowing a resident to ride a swing without any safety devices designed to ensure that she would not fall off), and Schreiter v. Wasatch Manor, Inc., 871 P.2d 570, 574-75 (Utah Ct. App. 1994) (holding that expert testimony was not necessary in a case involving allegations that a senior living center was negligent for failing to install a fire sprinkler system), with Macintosh v. Staker Paving and Const. Co., 2009 UT App 96, 2009 WL 953712, *1 (Utah Ct. App. 2009) (unpublished) (holding that expert testimony was needed to establish the standard of care in a case involving traffic control at a construction site because of the complex rules governing traffic control in that context); see generally Preston & Chambers, P.C. v. Koller, 943 P.2d 260, 263 (Utah Ct. App. 1997) (“Expert testimony is required where the average person has little understanding of the duties owed by particular trades or professions, as in cases involving medical doctors, architects, and engineers.”) (citations and quotations omitted). In any event, plaintiffs have cited no law establishing that Utah would require an expert in this case, and have not addressed this question in their [**24] briefs, so this issue is not before us on appeal. Thus, even if the defendants have the burden at summary judgment to establish that there is no genuine dispute of fact that their conduct satisfied the applicable standard of care, we hold that on this summary judgment record, defendants satisfied that burden.

B. Plaintiffs Failed to Provide Evidence of Gross Negligence

1. Standard of Review

[HN9] “This court reviews the district court’s summary judgment decision de novo, viewing the evidence in the light most favorable to the non-moving party . . . .” Beardsley v. Farmland Co-Op, Inc., 530 F.3d 1309, 1313 (10th Cir. 2008) (quoting Herrera v. Lufkin Indus., Inc., 474 F.3d 675, 679-80 [*1130] (10th Cir. 2007)) (ellipses in original). “Summary judgment is appropriate if the record evidence shows there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1255 (10th Cir. 2005) (citing Fed. R. Civ. P. 56(c)). This court will grant summary judgment for a defendant if the plaintiff fails adequately “to support one of the elements of their claim upon which they ha[ve] the burden of proof.” Jensen, 1 F.3d at 1079. [**25] A plaintiff “cannot avoid summary judgment merely by presenting a scintilla of evidence to support her claim; she must proffer facts such that a reasonable jury could find in her favor.” Turner v. Public Serv. Co. of Colo., 563 F.3d 1136, 1142 (10th Cir. 2009) (citation omitted).

2. Analysis

The parties agree that, under Utah law, the liability releases signed by Mr. Milne and Mr. Hall preclude the plaintiffs from bringing ordinary negligence claims against the defendants. See Pearce, 179 P.3d at 765 (stating that [HN10] “people may contract away their rights to recover in tort for damages caused by the ordinary negligence of others”); see also id. at 766 (holding that “recreational activities do not constitute a public interest and that, therefore, preinjury releases for recreational activities cannot be invalidated under the public interest exception”). However, the plaintiffs argue–and, on appeal, the defendants do not contest–that, under Utah law, a liability release will not prevent a plaintiff from bringing claims of gross negligence. Cf. Hawkins ex rel. Hawkins v. Peart, 2001 UT 94, 37 P.3d 1062, 1065 (Utah 2001) (stating in dicta that a liability release “is always invalid if it applies to harm [**26] wilfully inflicted or caused by gross or wanton negligence”) (quoting 6A Arthur L. Corbin, Corbin on Contracts, § 1472, at 596-97 (1962)). Thus, the only merits issue raised on appeal is whether plaintiffs have offered enough evidence in support of their claims of gross negligence to withstand a motion for summary judgment. 6

6 Aside from her negligence and gross negligence claims, Plaintiff Sorrow also brought wrongful death claims relating to Mr. Hall’s death. However, the appellants have not adequately addressed those claims on appeal, so they will be deemed to have been waived. See United States v. Abdenbi, 361 F.3d 1282, 1289 (10th Cir. 2004) ( [HN11] “The failure to raise an issue in an opening brief waives that issue.”).

[HN12] Under Utah law, “[g]ross negligence is the failure to observe even slight care; it is carelessness or recklessness to a degree that shows utter indifference to the consequences that may result.” Moon Lake Elec. Ass’n, Inc. v. Ultrasystems W. Constructors, Inc., 767 P.2d 125, 129 (Utah Ct. App. 1988) (quoting Atkin Wright & Miles v. Mountain States Tel. & Tel. Co., 709 P.2d 330, 335 (Utah 1985)) (emphasis added); see also Pearce, 179 P.3d at 767 (same). Thus, “the task [**27] confronting a plaintiff who claims injury due to a defendant’s gross negligence is markedly greater than that of a plaintiff who traces his injury to ordinary negligence. Gross negligence requires proof of conduct substantially more distant from the appropriate standard of care than does ordinary negligence.” Berry, 171 P.3d at 449.

[HN13] “Whether an actor’s conduct constitutes negligence is generally a factual question left to a jury. The question should only be answered by the court in rare cases where the evidence is susceptible to only one possible inference.” Roberts v. Printup, 422 F.3d 1211, 1218 (10th Cir. 2005) (citations and quotations omitted). However, appeals courts have affirmed grants of summary judgment on gross negligence claims where the undisputed evidence showed that the defendants [*1131] took precautionary measures and did not ignore known and obvious risks. Cf. Milligan v. Big Valley Corp., 754 P.2d 1063, 1069 (Wyo. 1988) (affirming summary judgment for defendants on “willful and wanton misconduct” claim, holding that the defendants “did not act in utter disregard of” plaintiffs’ safety in organizing a ski race where the race organizers had taken a number of safety precautions, [**28] plaintiffs presented no evidence that there was a preexisting requirement to take additional precautions, and the racers had been notified in advance of the dangers of the race); Santho v. Boy Scouts of Am., 168 Ohio App. 3d 27, 2006 Ohio 3656, 857 N.E.2d 1255, 1262-63 (Ohio Ct. App. 2006) (affirming directed verdict on claim of recklessness arising from an ice skating race in part because race organizers took some safety precautions and there was no evidence that organizer had knowingly disregarded any specific dangers or contravened any industry standards).

Moon Lake Elec. Ass’n, Inc., 767 P.2d at 129. In this case, the plaintiffs have fallen short of producing evidence upon which a jury could conclude that the defendants failed to exercise “even slight care” in organizing and administering this race.

Mountain bike racing is an inherently dangerous sport, so the defendants cannot be considered grossly negligent merely because they organized a race that placed the racers at risk of injury and even death. Rather, the court must look at the specific steps the defendants took to ensure the racers’ safety in order to determine whether a jury could decide that they were grossly negligent.

As discussed above, the undisputed evidence [**29] shows that the race organizers took a number of steps to warn of, and protect against, the risk of an automobile accident during the race. The race organizers posted a sign warning people in the area of the upcoming race, posted attendants near the starting line to warn drivers about the race taking place that day, and approached people camped in the area to warn them that the road would be clogged with bikers that morning.

The race organizers also provided 25 course marshals, some of which were assigned to areas like intersections and sharp turns specifically because of the unique risks of automobile traffic in those areas. No one was assigned to the area right near the accident, but that choice was not grossly negligent in light of the fact that the stretch of road where the accident occurred was relatively straight and wide. The race organizers also had some first aid personnel standing by, in addition to Mr. Jean, who carried a backpack with some medical supplies.

Finally, the racers were warned–both in writing and verbally–that they might encounter traffic during the race. The racers’ decision to compete on a course that they knew they would be sharing with automobiles strongly [**30] undercuts their ability to claim after the fact that it was grossly negligent for the race organizers to conduct an open course race. Cf. Walton v. Oz Bicycle Club of Wichita, No. 90-1597-K, 1991 U.S. Dist. LEXIS 17655, 1991 WL 257088, *4 (D. Kan. Nov. 22, 1991) (granting defendants summary judgment on negligence claim arising from plaintiff striking an automobile during a bicycle race organized by the defendants in part because “the fact that the course was open to normal traffic was explicitly made known to the participants”).

Mr. Konitshek claimed that the organizers’ efforts to warn people in the area of the upcoming race were ineffective, because he did not know about the race until moments before the accident. Mr. Konitshek’s complaints about the sufficiency of the race organizers’ warnings do not rise to the level of creating a material issue of [*1132] fact with regard to gross negligence for two reasons. First, even if the race organizers’ warnings were imperfect, that does not negate the fact that they made rather substantial efforts to warn people, and their failure to reach every person in the area is insufficient to show gross negligence. Second, although Mr. Konitshek testified that he would have changed [**31] his plans if he had known about the race in advance, the plaintiffs presented no reason for this court to think that most drivers would change their plans to avoid a bicycle race on a 6-mile stretch of open road.

[HN14] Utah requires a very high level of disregard for safety in order to constitute gross negligence. See Pearce, 179 P.3d at 767; Atkin Wright & Miles, 709 P.2d at 335; Moon Lake Elec. Ass’n, Inc., 767 P.2d at 129. The undisputed steps that defendants took to enhance the safety of the TOC would prevent any reasonable juror from finding gross negligence under Utah substantive law. Many of the precautions discussed above were specifically designed to prevent accidents with automobiles. Further, there was no evidence that automobile accidents posed a particularly serious risk in this case. On the contrary, the race had been conducted on an open course for over a decade, and this is the first instance of an accident involving a racer and a vehicle. Thus, the organizers’ failure to shut down the road, mark and enforce a center line on the road, more closely monitor vehicular traffic, or more thoroughly warn other area drivers of the upcoming race cannot, as a matter of law, amount to [**32] gross negligence in light of the other safety steps taken by the organizers of this race. Cf. Holzer v. Dakota Speedway, Inc., 2000 SD 65, 610 N.W.2d 787, 793-94 (S.D. 2000) (affirming summary judgment for defendants on reckless conduct claim relating to harm caused to a pit crew member during an automobile race in part because the allegedly reckless conduct that led to the harm in that case had been present during races for three years prior to this accident, and had never before caused anyone any harm).

An examination of cases in other jurisdictions shows that [HN15] courts have been reluctant to find that race organizers have been grossly negligent for failing to take every precaution that 20/20 hindsight might counsel. See Milligan, 754 P.2d at 1069 (affirming summary judgment for defendants on “willful and wanton misconduct” claim arising out of a ski race where the race organizers had taken a number of safety precautions, plaintiffs presented no evidence that there was a preexisting requirement to take additional precautions, and the racers had been notified in advance of the dangers of the race); Santho, 857 N.E.2d at 1262-63 (affirming directed verdict on claim of recklessness arising from an [**33] ice skating race in part because race organizers took some safety precautions and there was no evidence that organizer had knowingly disregarded any specific dangers or contravened any industry standards); Holzer, 610 N.W.2d at 793-94 (affirming summary judgment for defendants on reckless conduct claim relating to harm caused to a pit crew member during an automobile race in part because plaintiff failed to show that, at the time of the accident, the defendants “knew or had reason to know of an unreasonable risk of harm” to the defendant); Walton, 1991 U.S. Dist. LEXIS 17655, 1991 WL 257088 at *4 (granting defendants summary judgment on negligence claim arising from plaintiff striking an automobile during a bicycle race organized by the defendants in part because “the fact that the course was open to normal traffic was explicitly made known to the participants”).

We therefore agree with the district court’s determination that the plaintiffs in this case have failed to provide evidence upon which a reasonable jury could conclude [*1133] that the race organizers were grossly negligent. 7 See Turner, 563 F.3d at 1142 (stating that, [HN16] to avoid summary judgment, a plaintiff “must proffer facts such that a reasonable jury could [**34] find in her favor”).

7 Because we decide this case on the grounds that plaintiffs have failed to present evidence of gross negligence, we do not reach the defendants’ separate argument that, even if they were grossly negligent, their negligence could not have proximately caused the harms complained of in this case.

C. District Court did not Abuse its Discretion by Excluding Plaintiffs’ Expert

1. Standard of Review

[HN17] “Like other evidentiary rulings, [the court] review[s] a district court’s decision to exclude evidence at the summary judgment stage for abuse of discretion.” Sports Racing Servs. v. Sports Car Club of Am.., 131 F.3d 874, 894 (10th Cir. 1997) (citations omitted). “[A] district court abuses its discretion when it renders an arbitrary, capricious, whimsical, or manifestly unreasonable judgment.” Atlantic Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1163 (10th Cir. 2000) (citations and quotations omitted).

[HN18] When testing the admissibility of expert testimony, courts must first determine whether an expert is “qualified by ‘knowledge, skill, experience, training, or education’ to render an opinion.” Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 969 (10th Cir. 2001) [**35] (quoting Fed. R. Evid. 702). Second, if the court determines that a witness is qualified, it must then “determine whether her opinions [a]re ‘reliable.'” Id.

The district court struck the second affidavit of plaintiffs’ expert Sean Collinsworth, concluding that he was “not sufficiently qualified to render expert testimony on the applicable standards of care for mountain bike racing, particularly regarding the TOC[, and] that any such testimony would be speculative and not sufficiently reliable . . . .” (Appx. at 9.)

2. Analysis

Plaintiffs rely heavily on their expert’s testimony to support their claim that the race organizers were grossly negligent. However, plaintiffs’ expert, Sean Collinsworth, admittedly had no experience in organizing, supervising, or studying mountain bike races and, therefore, was not qualified to offer expert testimony on the standard of care for mountain bike races. At his deposition, Mr. Collinsworth was asked, “As a matter of fact–just so we’re clear, you’re not an expert on mountain bike racing . . . Is that a fair statement?” (Appx. at 641.) He answered, “Yes, it is.” (Id.) Nor was he even an experienced mountain bike rider. He had only participated in one [**36] or two mountain bike races, and those were more than 15 years ago. He had never published any articles about bicycle racing of any sort, let alone mountain bike racing. He testified that, as a police officer, he investigated hundreds of vehicle-bicycle collisions, but there was no indication that any of those took place on a dirt road or in the course of a race.

Although Mr. Collinsworth had experience organizing and supervising paved road bike races, the district court reasonably concluded that his experience was insufficient to qualify him to testify about mountain bike races. The facts of this case make it clear that the rules and practices that prevail at mountain bike races–even the on-the-road portion of mountain bike races–are different from the rules and practices that prevail at traditional road races. Most importantly, road racers are always required to obey a center-line [*1134] rule, while mountain bikers racing on dirt roads will generally cross the center-line when there is no oncoming traffic, but are expected to veer right if they see any traffic approaching. Furthermore, the conditions of a road race on paved streets with clearly marked center lines differ significantly from [**37] the conditions of the open-course portion of the TOC, which took place on a dirt road with no clearly marked center line. Given the differences between road races and mountain bike races, we conclude that the district court’s finding that Mr. Collinsworth was unqualified to offer expert testimony on the standard of care for mountain bike races was not “arbitrary, capricious, whimsical, or manifestly unreasonable.” Atlantic Richfield Co., 226 F.3d at 1163; cf. Ralston, 275 F.3d at 970-71 (upholding district court’s determination that a board certified orthopaedic surgeon was not qualified to testify about an orthopaedic device that she had never worked with or studied); Bertotti v. Charlotte Motor Speedway, Inc., 893 F. Supp. 565, 569-70 (W.D.N.C. 1995) (striking expert testimony regarding design of go-kart track where expert had experience in automobile racing, but not go-kart racing).

Even if Mr. Collinsworth was qualified to offer an expert opinion on the standard of care for mountain bike races, the district court correctly determined that his testimony in this case was unreliable. [HN19] “To determine whether an expert opinion is admissible, the district court performs a two-step analysis. [**38] First, the court must determine whether the expert is qualified by ‘knowledge, skill, experience, training, or education’ to render an opinion. See Fed. R. Evid. 702. Second, if the expert is sufficiently qualified, the court must determine whether the expert’s opinion is reliable . . . .” 103 Investors I, L.P. v. Square D Co., 470 F.3d 985, 990 (10th Cir. 2006). “In reviewing whether an expert’s testimony is reliable, the trial court must assess the reasoning and methodology underlying the expert’s opinion.” United States v. Rodriguez-Felix, 450 F.3d 1117, 1123 (10th Cir. 2006) (citations and quotations omitted). Mr. Collinsworth’s opinions in this case were not based on a study of other similar races, an analysis of precautionary measures used in mountain bike races and the risks and benefits of such measures, or any other empirical or quantitative studies. Instead, he relied almost exclusively on his experience in paved road racing–experience that the district court reasonably determined was inapplicable to the context of mountain bike racing–to form his conclusions about the standard of care that should have been used in this case. Mr. Collinsworth’s conclusions about the safety [**39] precautions that should have been taken in this case are, therefore, mere speculation, and [HN20] “[i]t is axiomatic that an expert, no matter how good his credentials, is not permitted to speculate.” Goebel v. Denver and Rio Grande Western R.R. Co., 215 F.3d 1083, 1088 (10th Cir. 2000). Without their expert’s testimony, the plaintiffs’ claims fall apart. See Bertotti, 893 F. Supp. at 570 (granting summary judgment for defendants on plaintiffs’ claim that defendants were grossly negligent in designing and maintaining a go-kart track where the only evidence plaintiffs provided in support of their claims of gross negligence was inadmissible expert testimony). 8

8 The district court’s holding on this matter was limited to Mr. Collinsworth’s second affidavit because the defendants did not also move to strike plaintiffs’ expert’s initial report or his deposition testimony. However, the district court’s ruling clearly indicated that it would not allow this expert to testify as an expert on any of the issues in this case. Therefore, we do not consider either of Mr. Collinsworth’s affidavits or his deposition testimony in deciding the merits of plaintiffs’ claims.

[*1135] III. Conclusion

For the foregoing reasons, [**40] we AFFIRM the district court’s decisions to strike the plaintiff’s expert’s second affidavit and to grant summary judgment for the defendants.

CONCUR BY: GORSUCH (In Part)

CONCUR

GORSUCH, Circuit Judge, concurring in part and concurring in the judgment.

I join all but Section II.C of Judge Ebel’s fine opinion. That section concerns the admissibility of testimony by the plaintiffs’ expert, Sean Collinsworth. The majority upholds the district court’s decision to exclude Mr. Collinsworth’s testimony on the ground that he wasn’t an expert in the relevant field. I have my doubts. Mr. Collinsworth may not be a professional mountain bike racer, but he does have substantial experience in organizing and conducting traffic control operations for bicycle racing and similar events — and the adequacy of the defendants’ traffic control operations lie at the heart of this case.

Still, I would affirm the district court’s exclusion of Mr. Collinsworth for a different reason. The only question in this case is gross negligence — namely, whether defendants took any precautions against the accident that took place. See, e.g., Pearce v. Utah Athletic Found., 2008 UT 13, 179 P.3d 760, 767 (Utah 2008) (Gross negligence is “the failure to [**41] observe even slight care; it is carelessness or recklessness to a degree that shows utter indifference to the consequences that may result.”) (emphasis added); cf. Berry v. Greater Park City Co., 2007 UT 87, 171 P.3d 442, 449 (Utah 2007) (“Gross negligence requires proof of conduct substantially more distant from the appropriate standard of care than does ordinary negligence.”). Mr. Collinsworth’s proffered testimony faults the sufficiency of the defendants’ precautions, but doesn’t dispute that the defendants did exercise some degree of care, however slight, in preparing for and managing this race. His testimony, thus, might well have been relevant to a negligence claim, but it doesn’t illuminate the plaintiffs’ gross negligence claim. And a district court is not obliged to entertain evidence, expert or otherwise, irrelevant to the claims before it. See Fed. R. Evid. 402 (“Evidence which is not relevant is not admissible.”). With this minor caveat, I am pleased to join.


Utah Court reaches to find a boat renter liable when a boat sinks on Lake Powell due to high winds

The Federal District Court found the boat rental operation was negligent to defeat damages defenses provided by admiralty law. Causation, the relationship between what the defendant did and the accident giving rise to the claim seems to be stretched in this case.

In re Aramark Sports and Entertainment Services, LLC, 2014 U.S. Dist. LEXIS 121565

State: Utah, United States District Court for the District of Utah, Central Division

Defendant: In re Aramark Sports and Entertainment Services, LLC, a Delaware limited liability company, as owner of a certain 20′ 2007 Baja Islander 202 for exoneration from or limitation of liability

Plaintiff Claims: Negligence

Defendant Defenses: Limitation of Liability Act, 46 U.S.C. §§ 30501-30512

Holding: for the Plaintiff

Year: 2014

This case is a little out of the unusual for me because it concerns a powerboat. However, the legal issues could apply to any boat; whitewater raft, sea kayak, kayak or whatever. More importantly, it could affect canoe liveries or boat rentals if the decision is accepted by other courts.

One way of defending against claims due to boating accidents is by using federal law. If a river or body of water is determined to be navigable as defined under federal law, then a defendant can use a federal statute and admiralty law to limit any possible claims. The reason you would want to do this is the maximum that can be recovered against someone using this section of admiralty law, is the value of the vessel after the accident plus the value of the cargo. So most cases, when there has been a catastrophic loss the value of the raft zero, as the boat is destroyed or sunk. Even a raft that is recovered with all of its gear would still be limited to $10 to $20,000.00 in value.

The first issue you have to overcome when using admiralty law limits is to establish jurisdiction. The body of water or river has to qualify as being a navigable river under a specific section of the law. The problem is there are 17 different definitions of navigable under federal law, plus who knows how many more under state law. You must apply the correct definition of navigable to the case.

In this case, the accident occurred on Lake Powell. Because Lake Powell spans two states and is used for commercial traffic it was declared to be navigable under the law.

The basis for this claim is three couples rented a boat from the concessionaire at the marina. Eventually, the boat sank with four of them drowning. The winds picked up and exceeded the maximum wind speed the boat should have been operated at. The defendant filed this action in federal court claiming the value the vessel after the accident was zero and therefore, there was no recovery available to the plaintiffs. The court disagreed.

The boat that sunk was only rated to be workable at wind speeds of 31 miles an hour or less. At 31 miles an hour the boat manual stated the driver should have had a lot of boating skills. The boat was also not positively buoyant; meeting that if the boat filled with water, it would sink and would not stay on the surface. There was also no law or requirement that the boat be buoyant.

One of the main issues facing the defendant in this case was they normally handed out a weather report both at the time of the rental of the boat and the time the boat left the dock. The plaintiffs received a weather report when they completed the paperwork but not in the day they left. However, they did leave the docks a half-hour earlier than when the rental operations normally open.

One risk of using admiralty law to avoid liability in a boating accident is admiralty law does not allow the defendant to use a release. I suspect that a release might’ve been used in this case because the paperwork and renting a boat usually go hand in hand.

The plaintiffs were three couples from Florida, who came to Arizona to vacation. They rented a boat from the marina the intention of going up to see natural bridges and coming back on the same day. They rented the boat before the day they left on their trip. That day they received a weather forecast from the boat rental agent. The forecast changed in the middle of the night and when they picked up the boat, they did not receive a new forecast. On the way back from visiting the Natural Bridges Arch they had to stop at another marina to refill. After leaving that marina they went out into the Lake Powell and on the way back the boat sunk due to high winds.

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

One of the first main issues the court looked at was who could determine if boat rentals should stop because of the weather. Several employees of the defendant testified that wind speeds from 25 to 30 miles an hour, boat rentals were stopped. However, there was no written policy on when boat rentals were stopped and each employee answered with a slightly different answer. More importantly nothing in the transcript indicated that there is any reliable way to determine what the weather forecast was for the wind speed was at the rental operations.

A sub argument of this was not reviewed by the court or raised by the defendant was, whether or not there was a duty on the part of the rental operation to contact the other marina and warn the people not to go back out on the lake. No phone call was made by the rental operation to the other marina.

This argument was futile though because the only way to contact the boat drivers before, or after they left the second marina was by radio. The plaintiff’s never turned the radio turned on.

Ms. Ambrosius did not attempt to call Dangling Rope Marina to have personnel there warn the Prescott Party of the high winds although she knew that the Prescott Party would stop there to refuel. She did not notify any of the tour captains to watch for Boat 647 and alert them of the danger. She did not attempt to call the Prescott Party on the marine radio. (Although that would have been futile because Mr. Brady did not turn on Boat 647’s radio.) In sum, the court finds that Ms. Ambrosius did nothing to locate Boat 647.

The federal statute that the defendant relied upon was the Limitation of Liability Act, 40 6U. S. §§ 30501 – 30512. This statute provides exoneration of liability for the boat owner up to the value of the vessel and freight after the accident. There is an exception to the rule if there is knowledge or is in the law states privity with the owner of the vessel to the possibility of the damage.

The Act does, however, create an exception to that general rule by defining “claim, debt, or liability”: “claims, debts, and liabilities subject to limitation under subsection (a) are those arising from any embezzlement, loss, or destruction of any property, goods, or merchandise shipped or put on board the vessel, any loss, damages, or injury by collision, or any act, matter, or thing, loss, damage, or forfeiture, done, occasioned, or incurred, without the privity or knowledge of the owner.”

It is this knowledge or privity that allows the plaintiff to argue that the plaintiff defendant could have stopped them and save their lives.

Admiralty law was created for the transportation of goods and people across the oceans. It was adopted as uniform laws among countries with interests in shipping. As such, many parts of admiralty law make more sense when viewed in this light a boat on the high seas.

There’s a two-step inquiry to determine whether the act shall apply based on the privity or knowledge of the owner of the boat.

Courts use a two-step inquiry to determine whether a petitioner is entitled to exoneration or limitation of liability when sued for negligence. “First, the court must determine what acts of negligence . . . caused the accident. Second, the court must determine whether the shipowner had knowledge [of] or privity [with the person who committed] those same acts of negligence . . . The claimant bears the burden of proving negligence and if successful, the burden shifts to the shipowner to prove lack of knowledge or privity.

In this case, the court held that negligence on the land is similar to negligence in the water. The plaintiffs had to prove that there was a connection between the defendant’s conduct and the plaintiff’s injury.

Torts occurring on navigable waters are governed by maritime law. “The elements of a maritime negligence cause of action are essentially the same as land-based negligence under the common law.” A claimant must prove “a duty owed by the defendant to the plaintiff, breach of that duty, injury sustained by [the] plaintiff, and a causal connection between [the] defendant’s conduct and the plain-tiff’s injury.”

The ship owner owes a duty of reasonable care to all passengers on his ship. Or, in this case, the court held the rental operation owes a duty of reasonable care to the people renting his boat.

“Under Maritime law, a plaintiff is owed a duty of ordinary care under the circumstances.” “We hold that the owner of a ship in navigable waters owes to all who are on board for purposes not inimical to his legitimate interests the duty of exercising reasonable care under the circumstances of each case.”

The court found that the defendant breached his duty of reasonable care when it allowed plaintiffs to leave the morning of the accident. “Here, the court concludes that Aramark breached its duty of reasonable care when it allowed the Prescott Party to leave the morning of April 25, 2009.”

This conclusion was reached because the defendant had a duty to warn the renters of the weather issues. This is where this case takes on some concerns that exceed those of the normal rental situation. Hertz never gives your weather forecast when you leave its rental operation with their car.

I suspect that duty was created by the defendant normally providing all renters of its boats with a copy of the weather forecast because that was not done, then it created a duty.

Aramark, primarily Ms. Ambrosius, had a duty to be advised of the current weather forecasts and wind advisories before allowing any party to leave the marina in an Aramark power boat. This is particularly true because, as Aramark knew, in the spring, the weather changed constantly. Phyllis Coon testified that in the spring, shutting down rentals was considered almost on “an hourly basis” because of the erratic weather. And “[s]pringtime is al-ways windy on the lake.”

The second issue the court found or had an issue with, was the boat owner’s manual cautioned that when the winds exceeded 31 miles an hour, the boat should not be driven. Aramark’s only requirement when renting a boat was to make sure that the person was 18 years or older and had a valid driver’s license. Again, the same requirements to rent a car as Hertz used. The court held that a person’s prior ability and experience were important.

The boat owner’s manual cautioned that when wind speeds reached 31 miles an hour, only experienced operators might be able to safely operate the boat. Yet Aramark rented to anyone eighteen years or older, with a valid driver’s license, without regard to that person’s previous boating experience.

All these facts allow the court to conclude that Aramark could possibly be negligent.

The court, when it considers these facts, concludes that Aramark had frequently in the past recognized that high winds could be dangerous to boaters. Aramark should have been aware, if it was not, that high winds were forecast for April 25, 2009. And it was foreseeable to Aramark that if those who had rented Baja 202 Islanders for a trip on Lake Powell the morning of April 25, 2009, were allowed to depart, the boats could sink because of the high winds. It was further foreseeable to Aramark that if the boats sank, particularly in the cold April water, the passengers could suffer injury and even death. Aramark breached that duty when it allowed the Prescott Party to leave.

The next issue is whether or not breach of the duty of the boat renter/defendant was the cause of the injury. Here the court found that by allowing the boating party to leave the other marina that was a factor in the sinking of the boat. “Here, the court concludes that Aramark’s failure to stop the Prescott Party from leaving was a substantial factor in the sinking of Boat 647 and the resulting harm.”

(Which begs the questions, how were you going to stop someone from leaving a marina when their car and lodging were at their destination?)

Both marinas were owned and operated by the same defendant.

The final issue the court was, whether or not there was privity between the defendant and what happened. Privity in admiralty law is a weird definition of the word. In this case, the defendant must prove that they did not have any knowledge of the negligence. Normally, this would make sense when the owner of the boat is sitting on shore thousands of miles away and the captain or a member of the crew does something that was negligent causing the sinking of the boat.

In this case because the boat was a rental and owned by a defendant Corporation the court held all the employees had a duty or had privity to the negligent acts. “When a corporation owns the vessel, the test is whether culpable participation or neglect of duty can be attributed to an officer, managing agent, supervisor, or other high-level employee of the corporation.”

Because the general manager and several employees of the defendant could stop the rental, the court said the discretionary authority to close the boat rentals, was held to have been a negligent act.

Finding this the court held that Aramark could not exonerate or limit its liability in this case. The case would then proceed to trial for the full amount of damages claimed by the plaintiffs. This decision is not a finding of negligence against the defendant only that there was enough negligent for the court to conclude Aramark could be liable.

So Now What?

Here’s a situation whereby trying to be good and help people renting your boats you created your own liability.

The experience of the person running the boat also creates its own nightmares as you well know someone is going to lie to you when they fill out a form asking for experience. The will tell you they have plenty experience when want to rent a boat. The experience issue is a nightmare.  no way you can test someone’s experience or trust them. If they say they can rent a boat, and it sinks, the rental operation is liable for not testing them. If they don’t test now, they are liable.

All six people were from Florida, which is surrounded by water and has thousands of boat able canals, rivers and lakes, and only one person of the six had any boating experience.

The causation issue is another issue that is disturbing. Normally, causation is defined as a closer or more direct relationship between what the defendant does in creating the injury of the plaintiff. Here causation was found by allowing them to leave the marina.

However, that was not the cause of the sinking of the boat. The boat sunk because it was driven improperly in high winds. However, the court then came back and said earlier, that because they didn’t check the boating experience and didn’t hand out the weather report that was also part of the accident. The court created circuitous routes to get to the fact that they wanted the defendant liable in this case.

It is disturbing when it can quickly become a nightmare for any program or business in attempting to help the people coming to its business. Probably in the future the weather forecasts will be in a stack on the desk with a little sign that says weather forecasts take one if you want one. There will be a sign that says the boat should not be operated if the wind speed is above XX miles an hour and there will be a wind gauge nearby.

None of which will do anything save anyone’s life. Boats are rented for weeks and the weather changes. The wind in on a cove could be calm, and you hit the open part of the lake, and the wind is catastrophic. The information you obtained earlier, a day or a week will have no value where you are when trouble starts.

Besides, how many people can effectively guess the wind speed?

I think another issue here, but not written in the opinion is the boat operation’s manual had a specific wind speed where the boat should not be used. Consequently, since the manufacturer suggested the boat not be used at that speed, probably the court thought the rental operation should not rent boats when speeds exceeded the manufacturer’s recommendations.

I also suspect that some type of wind meter will be installed on the marina property so that the rental people can look at the wind and see if it should be rented. But again then who has the ability to make that call to the wind meter when the person rents the boat says the winds find, but by the time they go back to the car get their items they want to take with them and walk out the winds kicked up does the 18-year-old summer intern holding the boat for the people as they enter it have the ability to say hey it’s too windy can’t go. How’s he going to know at the end of the dock? In the future, more people may become injured because they didn’t pick up a weather forecast and didn’t understand what they’re getting into because nobody the defendant is going to stick their neck that is to tell them.

In the past rental, operations have had no liability once the equipment rented leaves the renter’s operation.

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In re Aramark Sports and Entertainment Services, LLC, 2014 U.S. Dist. LEXIS 121565

In re Aramark Sports and Entertainment Services, LLC, a Delaware limited liability company, as owner of a certain 20′ 2007 Baja Islander 202 for exoneration from or limitation of liability, Plaintiff.

Case No. 2:09-CV-637-TC-PMW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

2014 U.S. Dist. LEXIS 121565

August 29, 2014, Decided

August 29, 2014, Filed

PRIOR HISTORY: In re Aramark Sports & Entm’t Servs., LLC, 289 F.R.D. 662, 2013 U.S. Dist. LEXIS 42692 (D. Utah, 2013)

CORE TERMS: boat, wind, weather, lake, mile, rental, weather forecast, advisory, marina, forecast, zone, morning, bridge, rope, vessel, life jackets, gusts, mph, claimant, privity, high winds, channel, radio, rent, foreseeable, allision, mooring, rig, boating, manager

 

COUNSEL:  [*1] For Aramark Sports and Entertainment Services, a Delaware limited liability company, as owner of a certain 20″ 2007 Baja Islander 202 for exoneration from or limitation of liability, In Re, Counter Defendant: John R. Lund, LEAD ATTORNEY, SNOW CHRISTENSEN & MARTINEAU, SALT LAKE CITY, UT; Matthew W. Starley, LEAD ATTORNEY, SNOW CHRISTENSEN & MARTINEAU (ST GEORGE), ST GEORGE, UT; Terence S. Cox, LEAD ATTORNEY, PRO HAC VICE, Marc A. Centor, PRO HAC VICE, COX WOOTTON GRIFFIN HANSEN & POULOS LLP, SAN FRANCISCO, CA.

For Taranto, Terry The Estate and Heirs of, Taranto, Maryanne The Estate and Heirs of, Defendants, Counter Claimants: Daniel Thomas Benchoff, Marvel Eugene Rake, Jr., LEAD ATTORNEYS, PRO HAC VICE, RAKE PETTI PC, PHOENIX, AZ; Robert S. Prince, LEAD ATTORNEY, KIRTON MCCONKIE, SALT LAKE CITY, UT.

For Prescott, Robert The Estate and Heirs of, Prescott, Katherine The Estate and Heirs of, Defendants, Counter Claimants, Counter Defendants: Casey W. Stevens, LEAD ATTORNEY, PRO HAC VICE, STEVENS & WILLIAMSON PC, ALPHARETTA, GA; Daniel Thomas Benchoff, Marvel Eugene Rake , Jr., LEAD ATTORNEYS, PRO HAC VICE, RAKE PETTI PC, PHOENIX, AZ; Robert S. Prince, LEAD ATTORNEY, KIRTON MCCONKIE, SALT [*2]  LAKE CITY, UT.

For James Brady, Heather Brady, Defendants: Jeffery Scott Williams, LEAD ATTORNEY, Jeffrie L. Hollingworth, NELSON CHRISTENSEN HOLLINGWORTH & WILLIAMS, SALT LAKE CITY, UT; William D. Holm, LEAD ATTORNEY, John T. Masterson, PRO HAC VICE, JONES SKELTON & HOCHULI PLC, PHOENIX, AZ.

For Baja Marine, Defendant: Alex B. Marconi, Craig A. Logsdon, LEAD ATTORNEY, Patrick X. Fowler, PRO HAC VICE, SNELL & WILMER (AZ) ONE ARIZONA CTR, PHOENIX, AZ; Elisabeth M. McOmber, LEAD ATTORNEY, SNELL & WILMER (UT), SALT LAKE CITY, UT.

JUDGES: TENA CAMPBELL, United States District Judge.

OPINION BY: TENA CAMPBELL

OPINION

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Aramark Sports and Entertainment Services, LLC (Aramark) owns a fleet of boats on Lake Powell that it rents to the public. On April 25, 2009, one of the Aramark power boats sank with six people on board. Four people, Terry and Maryanne Taranto, and Robert and Katherine Prescott, died in the accident. Two people, James and Heather Brady, survived.

Aramark filed a petition in this court to limit its liability under the Limitation of Liability Act, 46 U.S.C. §§ 30501-30512, from claims made by the Taranto Estates, the Prescott Estates and James and Heather Brady (the Claimants). The court held a [*3]  five-day bench trial to resolve the questions of whether any negligent conduct by Aramark employees caused the injury and whether Aramark had privity with the negligent actor or knew of the negligent conduct.

Because the court concludes that negligent conduct by Aramark employees was a cause of the injuries and also concludes that Aramark had privity and/or knew of the negligent conduct, the court denies Aramark’s petition to limit its liability.

FINDINGS OF FACT

  1. THE PARTIES
  1. Aramark

Aramark is a concessionaire for the National Park Service (NPS) in the Glen Canyon National Recreation Area. As concessionaire, Aramark operates the Wahweap Marina, located on Lake Powell just south of the Utah-Arizona border. Aramark operates other marinas on Lake Powell north of the Utah-Arizona border: Dangling Rope, Halls Crossing and Bullfrog.

Aramark will rent a power boat to anyone who is eighteen years or older and has a valid driver’s license. No previous boating experience is required.

Lake Powell’s main channel is 186 miles long when the lake is at high water. In the spring, the water is cold and the weather is frequently windy. The weather is erratic and can quickly change. In April, wind speeds [*4]  often exceed thirty miles an hour and can even reach fifty miles an hour. The weather can be calm at one part of the lake but have high winds and waves at another.

  1. The Claimants

James Brady, Robert Prescott, and Terry Taranto were retired police officers with the St. Petersburg, Florida Police Department. From time to time, they got together socially with their wives. Heather Brady, James Brady’s wife, had recently retired from the St. Petersburg Fire Department after twenty-six years as a firefighter and EMT.

In April 2009, the three couples (the Prescott Party) went on vacation together to Lake Powell. Robert Prescott had previously visited Arizona and Lake Powell and, in Heather Brady’s words, “Bob [Prescott] was familiar with the area so he just lined up all of the places we would go.” (Trial Transcript dated March 4, 2014 (“March 4 Tr.”) at 392 (Dkt. No. 310).)

  1. FRIDAY APRIL 24
  1. Arrival at Wahweap Marina

Members of the Prescott Party arrived at Lake Powell on Friday, April 24, 2009, and checked in at the resort at the Wahweap Marina area. The Bradys and the Prescotts, who arrived at Wahweap Marina on Friday before the Tarantos, went to Aramark’s boat rental office to rent a [*5]  boat for the next day. Phyllis Coon, a rental agent for Aramark, and Karen Ambrosius, Wahweap Marina general manager and the person in charge of boat rentals, were in the office. Mr. Brady, Mr. Prescott, and Ms. Coon discussed Mr. Brady’s previous boating experience,1 the Prescott Party’s plans to travel to Rainbow Bridge, which would take a full day, and the weather forecast for Saturday, April 25, the day the Prescott Party would be on the lake. The weather forecast, which was based on National Weather Service data collected at 3:44 a.m. that Friday morning, predicted the weather on Saturday, April 25 as “Breezy, with a south southwest wind, between 15 and 23 mph, with gusts as high as 37 mph.” (National Weather Service 7-Day Forecast, Ex. J-7.) Given the weather forecast, Ms. Coon suggested that they “might be more comfortable” on one of the tour boats that was available “because it was chilly on the lake and that going in the power boat they would need to go straight up to Rainbow Bridge just to ensure that they get up there, and then stop at Dangling Rope on the way back to fuel up.” (March 4 Tr. at 360 (Dkt. No. 310).) Mr. Brady and Mr. Prescott declined Ms. Coon’s suggestion [*6]  of a tour boat trip, and Mr. Prescott signed the rental contract for a Baja 202 Islander, number 647 (Boat 647). Mr. Prescott was given a copy of the weather forecast (Ex. J-7). Ms. Coon told Mr. Prescott that he would be given an updated weather report the next day before the Prescott Party departed on the boat. But this did not happen.

1 James Brady has some boating experience. He began boating as a young boy, “maybe as early as 10 riding on the boat. Dad and I would fish. From there, high school years running up and down the beach. A friend of mine had a boat. Running up and down the beach. And then my brother, who is now a licensed captain, he went into the fishing scene, so I [rode] on boats with him before, mullet boat.” (Id. at 465 (Dkt. No. 310-1).) Mr. Brady has owned several boats, including a 17-foot Mitchell, a 21-foot Mako, and “a couple Voyagers” (a Voyager is sport fishing boat). (Id.) When asked what percentage of his boating experience was in a lake and what percentage was in an ocean, Mr. Brady answered, “95 gulf or bay inland intercoastal and 5 percent lake.” (Id. at 472-73.) He estimated that the coldest water he had been in was “70, I believe 70, 72 degrees, [in] Florida.” (Id. at 473.)

  1. Boat 647

Boat 647 is just [*7]  over twenty feet in length and can hold eight passengers. U.S. Coast Guard regulations do not require boats over twenty feet in length to have positive flotation, and Boat 647 did not. (A boat with positive flotation has the ability to float and not sink for a period of time even if filled with water.) Boat 647 had a marine band radio that could receive and monitor both the hailing channel (channel 16) and the weather channel. Type II PFDs (life jackets) were on Boat 647.

The Baja 202 Islander is identified as a design category “C” boat that can withstand an upper limit wind speed of 31 miles per hour. (Baja Marine Owner’s Manual, Ex. C at 1.8.) The manual warns: “It is only the most experienced operators and crew that may be able to operate a boat safely under these conditions.” (Id.)

III. SATURDAY APRIL 25

  1. The Weather Forecasts

The National Weather Service maintains a website that is available to the public. Phyllis Coon testified that employees in Aramark’s boat rental office accessed the National Weather Service site for weather information. Moreover, it was Aramark employees’ general practice to keep the marine band radio on at the boat rental office during working hours to monitor [*8]  the weather.

The court reviewed several exhibits that showed the National Weather Service’s forecasts and advisories for April 24 and April 25, 2009. One of those exhibits included the National Weather Service 7-day forecast given to the Prescott Party, which read, “Breezy, with a south southwest wind, between 15 and 23 mph, with gusts as high as 37 mph.” (Ex. J-7.) That forecast, which was the only weather forecast given to the Prescott Party, was last updated at 3:44 a.m. on April 24. At various times after that, on April 24 and April 25, the National Weather Service updated the weather information that, if accessed through the website, would have been incorporated into a 7-day weather forecast similar to the one the Prescott Party received.

In its forecasting system, the National Weather Service divides the United States into geographical areas called “zones” and then issues forecasts for each zone. Two zones relevant to this case are (i) the Arizona Zone 5, which is a fairly small area, just below Lake Powell, and it includes Page, Arizona; and (ii) Utah Zone 21, which covers most of Lake Powell. Zone 21 forecasts give a more accurate prediction of weather conditions on Lake Powell, [*9]  but a comparison of the two zones’ forecasts for the relevant days showed that the forecasts contained similar data. (See Ex. A-120.)

Significantly, the National Weather Service updated the weather forecast at 3:18 p.m. on April 24 (almost twelve hours after issuance of the forecast data given to the Prescott Party) for Zone 5. That update announced a wind advisory in effect from 8 a.m. to 7:00 p.m. on Saturday, April 25, predicting 20 to 35 mile an hour winds and gusts around 45 miles an hour in the late morning and afternoon. (Trial Transcript dated March 7, 2014 (“March 7 Tr.”) at 907 (Dkt. No. 313-1).) A new 7-day forecast, if generated for the Prescott Party when they arrived to pick up Boat 647, would have reflected these changes (i.e., increases in wind speed) and a new wind advisory.2 And shortly before 3 a.m. for Zone 21 the National Weather Service issued a wind advisory for Lake Powell effective from noon on Saturday until 6 p.m. that evening, predicting sustained winds increasing to 25 to 35 miles an hour and gusts to around 55 miles an hour late in the afternoon. (Id. at 902.) A few minutes later, at 3:10 a.m., the National Weather Service issued a wind advisory for Zone 5, Glen Canyon [*10]  and Page, that would be in effect from 8 a.m. until 7 p.m. on Saturday, April 25. (Ex. K. at 40.) That forecast predicted “South winds 15 to 20 mph with gusts to around 35 mph shifting to the southwest 20 to 30 mph with gusts to around 45 mph in the late morning and afternoon.” (Id.)

2 The National Weather Service issues advisories to inform the public about potentially hazardous situations. (March 7 Tr. at 885.)

Alton Ketchersid, Aramark’s resident district manager for water operations at Lake Powell, testified that it was his general practice to print the weather forecast at his home each morning at about 6 a.m. so he could distribute it to the administrative office and to the lodge. In his absence, Carrie Markus, an Aramark employee, would distribute it. Both Mr. Ketchersid and Ms. Markus were gone on April 24 and April 25, 2009.

  1. Pre-Departure Briefing

Because the Prescott Party had asked to leave early the morning of September 25, Bob Graham, a boat rental instructor for Aramark, met them on the dock at about 7:30 a.m. that morning (the boat rental office opened at 8 a.m.). Mr. Graham, who was not a witness at trial but testified through deposition, testified that he gave the Prescott [*11]  Party instructions about the use of the radio, the location of the PFDs, the route to Rainbow Bridge, and the weather forecast (the same one given to the Prescott Party the day before (Ex. J-7)).

According to Mr. Graham, before he met the Prescott Party that morning, he had gone to the rental office before it opened and looked at the weather forecast on the computer. But he testified that the weather forecast he viewed was the same one the Prescott Party had been given the day before.

Mr. Graham testified that he told Mr. Prescott that wind gusts around 37 to 40 miles an hour could be dangerous and that he recommended that the Prescott Party go directly to Rainbow Bridge and return. He told them, “You don’t have time to go sightseeing, to do anything else except go up there and get back before the weather turns bad on you.” (Dep. of Robert Graham at 21.) The Bradys do not remember this discussion.

  1. Stopping Boat Rentals

Aramark did not have a written policy addressing when it would stop renting boats because of weather conditions. But Alton Ketchersid testified that “if we were standing on the dock and the wind was blowing 31 miles an hour, we would not rent the boat, no.” (Trial Transcript [*12]  dated March 3, 2014 (“March 3 Tr.”) at 101 (Dkt. No. 312).) He explained that “it was not a good practice” to do so. (Id. at 102.) He acknowledged that if the wind speed exceeded 31 miles an hour on the lake, it could be “dangerous” for those on the boats. (Id. at 103.) Mr. Ketchersid testified that the decision whether to stop boats from leaving the marina was “mainly based on the safety of the guests.” (Id. at 105.)

Phyllis Coon believed that Aramark had “a general practice” of “shut[ting] down all rentals” if there were sustained winds of thirty miles an hour. (March 4 Tr. at 336 (Dkt. No. 310).) Aramark also would not rent boats if wind or weather advisories were issued.

Jon Maris, who was the former Aramark Director of Operations, testified that if he read a wind advisory predicting gusts of 55 miles an hour, he would shut down rentals. (Dep. of Jon Maris at 47.)

Karen Ambrosius, in her deposition testimony, testified that “[w]here we had sustained winds, . . . meaning constant winds of 30 miles per hour we would not send a boat out.” (March 3 Tr. at 226 (Dkt. No. 312-1) (quoting deposition testimony).) Ms. Ambrosius had the authority and discretion to decide if boat rentals should be shut down. She had previously exercised that [*13]  authority, shutting down boat rentals if sustained winds reached thirty miles an hour or if the National Weather Service had issued a wind advisory.

Robert Grippentog, who with other family members, runs Las Vegas Boat Harbor on Lake Mead, testified in his deposition that his business does not rent power boats if the sustained wind speeds are 25 miles an hour. (Dep. of Robert Grippentog, Jr. at 43.)

According to Horace Schuler, the general manager of Lake Mohave Resort outside of Bullhead City, Arizona, if the weather forecast was for sustained winds of 25 to 35 miles an hour, gusting to 55 miles an hour, the resort would not rent ski boats. (Dep. of Horace Schuler at 105.)

  1. Karen Ambrosius Stops Boat Rentals

Ms. Ambrosius testified that she was unaware of either the updated weather forecasts or the wind advisories. Ms. Ambrosius claimed that it was not until approximately 10:30 a.m., when she heard the National Weather Service wind advisory on Channel 16, that she knew that high winds were predicted. According to Ms. Ambrosius, she then walked outside and looked at the lake. Only then did she decide to end boat rentals.

Ms. Ambrosius also testified that the Prescott Party had told her [*14]  that they would be gone for only half a day. This testimony is contrary to the testimony of Ms. Coon, James Brady, Heather Brady and Robert Graham.

When asked what steps she had taken to alert the Prescott Party of the high winds, Ms. Ambrosius testified that both she and her office manager called the dispatch at the National Park Service and told them that the boat was late. But there is no record of any calls being made to the National Park Service until after Boat 647 had sunk. (Ex. J-39 at BAJA00036, Ex. J-40.) According to Steve Luckesen of the National Park Service, if calls had been made to the National Park Service, they would be reflected in the National Park Service log. (Dep. of Steve Luckesen at 517.)

She also claimed that she called the Aramark parts room, asked that if there was a chase boat available, and said “let them know that we have a boat that is late.” (March 3 Tr. at 250-51 (Dkt. No. 312-1).) Nothing in the record supports this claim, and Ms. Ambrosius admitted that she could not testify that she sent a chase boat to search for Boat 647.

Ms. Ambrosius did not attempt to call Dangling Rope Marina to have personnel there warn the Prescott Party of the high winds although [*15]  she knew that the Prescott Party would stop there to refuel. She did not notify any of the tour captains to watch for Boat 647 and alert them of the danger. She did not attempt to call the Prescott Party on the marine radio. (Although that would have been futile because Mr. Brady did not turn on Boat 647’s radio.) In sum, the court finds that Ms. Ambrosius did nothing to locate Boat 647.

  1. The Prescott Party’s Trip

The Prescott Party left the marina at about 8 a.m. James Brady was operating the boat because he had the most experience. During the trip to Rainbow Bridge, Heather Brady took photographs. Once they arrived at Rainbow Bridge, the party (with the exception of Katherine Taranto) hiked to the Rainbow Bridge monument. When they returned to the dock, they met some hikers who were waiting for a boat to arrive. James Brady tried to call Dangling Rope Marina to tell someone there about the hikers, but he could not contact the marina. He again turned off the radio.

The Prescott Party began the return trip to Wahweap Marina. They stopped, as they had been instructed to do, at Dangling Rope Marina to refuel. Once the boat had been refueled, the Prescott Party left. As they were leaving [*16]  Dangling Rope, Heather Brady saw both a tour boat and a National Park Service boat apparently headed toward Dangling Rope Marina.

  1. Boat 647 Sinks

After the Prescott Party left Dangling Rope, the channel became more open and the water was choppier. Heather Brady moved to the back seat to be more comfortable. No one in the Prescott Party was wearing a life jacket.

When they reached an area of the lake called Padre Bay (on the Utah side of the state line), the water grew rougher and spray came over the bow. Heather Brady felt water at her feet and she called to her husband. She heard him calling “mayday, mayday, mayday, vessel 647” over the radio. (March 4 Tr. at 411 (Dkt. No. 310).) She jumped out of the boat and grabbed one of the life jackets that floated by her. She swam with the life jacket to Terry Taranto and gave it to him. She grabbed another life jacket and swam to her husband. Then Terry Taranto “came over a wave and said, ‘I need a life jacket. I need a life jacket.'” (Id. at 414.) She found an extra life jacket and gave it to him. She and Jim Brady, using the life jackets they found floating in the water and a blue canvas bag that was also in the water, were able to reach a rock pile. [*17]  They climbed on the rock pile and waited until they were rescued by a National Park Service boat. The other members of the Prescott Party did not survive.

When Boat 647 was recovered, it did not have a breached hull. The boat had no value.

CONCLUSIONS OF LAW

Aramark has filed a petition under the Limitation of Liability Act, 46 U.S.C. §§ 30501-30512, seeking exoneration or limitation of liability under 46 U.S.C. § 30505 (titled “General limit of liability”). Section 30505 provides that “the liability of the owner of a vessel for any claim, debt, or liability described in subsection (b) shall not exceed the value of the vessel and pending freight.” 46 U.S.C. § 30505(a) (emphasis added). The Act does, however, create an exception to that general rule by defining “claim, debt, or liability”: “claims, debts, and liabilities subject to limitation under subsection (a) are those arising from any embezzlement, loss, or destruction of any property, goods, or merchandise shipped or put on board the vessel, any loss, damages, or injury by collision, or any act, matter, or thing, loss, damage, or forfeiture, done, occasioned, or incurred, without the privity or knowledge of the owner.” 46 U.S.C. § 30505(b) (emphasis added).

Courts use a two-step inquiry to determine whether a petitioner is entitled to exoneration or [*18]  limitation of liability when sued for negligence. “First, the court must determine what acts of negligence . . . caused the accident. Second, the court must determine whether the shipowner had knowledge [of] or privity [with the person who committed] those same acts of negligence . . . .” Farrell Lines, Inc. v. Jones, 530 F.2d 7, 10 (5th Cir. 1976). The claimant bears the burden of proving negligence and if successful, the burden shifts to the shipowner to prove lack of knowledge or privity. Id.

  1. ARAMARK’S NEGLIGENCE

Torts occurring on navigable waters are governed by maritime law. “The elements of a maritime negligence cause of action are essentially the same as land-based negligence under the common law.” Withhart v. Otto Candies, L.L.C., 431 F.3d 840, 842 (5th Cir. 2005) (citations omitted). A claimant must prove “a duty owed by the defendant to the plaintiff, breach of that duty, injury sustained by [the] plaintiff, and a causal connection between [the] defendant’s conduct and the plaintiff’s injury.” In re Cooper/T. Smith, 929 F.2d 1073, 1077 (5th Cir. 1991).

  1. Duty/Breach

“Under Maritime law, a plaintiff is owed a duty of ordinary care under the circumstances.” In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 211 (5th Cir. 2010). “We hold that the owner of a ship in navigable waters owes to all who are on board for purposes not inimical to his legitimate interests the duty of exercising reasonable care under the circumstances [*19]  of each case.” Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 632, 79 S. Ct. 406, 3 L. Ed. 2d 550 (1959).

The court in In re Signal Int’l, LLC, 579 F.3d 478 (5th Cir. 2009), gave a thorough analysis of duty in a maritime negligence action. In Signal, the owner of two barges named the MISS TIFF and the JACK KING filed a petition under the Limitation of Liability Act, when the two barges broke loose from their moorings during Hurricane Katrina and allided3 with a bridge located approximately 4.7 miles away on Interstate 10 in Mississippi. The Mississippi Department of Transportation (MDOT) repaired the bridge and opposed Signal’s petition. The Fifth Circuit affirmed the order of the trial court denying, after a bench trial, exoneration but granting limitation of liability.

3 “An allision is a collision between a moving vessel and a stationary object.” Signal, 579 F.3d at 484 n.4 (internal quotation marks and citations omitted).

The trial court found that Signal had used “an improvised, untested method” of securing the two vessels and that Signal’s negligence caused the allision. Id. at 486. Signal argued that it was entitled to exoneration because the damage to the bridge was not a foreseeable consequence of its negligent mooring of the two vessels. The Fifth Circuit rejected Signal’s argument:

The critical question in this case is whether the allision with the Interstate [*20]  10 bridge was a harm of the general sort to an entity of a general class that a reasonably thoughtful person might have anticipated to result from Signal’s negligent mooring of the MISS TIFF and the JACK KING in light of the anticipated natural forces wrought by Hurricane Katrina. As the question makes clear, our analysis does not focus on the particular allision site, but the general risk of allision; it does not focus on MDOT, but on the class of property owners in the paths available to the runaway barges.

Id. at 492. The court cautioned: “The test of foreseeability is not measured against normal conditions, but those that were anticipated or reasonably should have been anticipated.” Id. at 493. Looking at the facts of the case, the court concluded that “the approaching hurricane, the expected height and predicted movement of the storm surge, and the topology of the Pascagoula River basin gave rise to the need to moor the barges and made this allision a foreseeable consequence of negligence in that mooring.” Id.

Here, the court concludes that Aramark breached its duty of reasonable care when it allowed the Prescott Party to leave the morning of April 25, 2009. The court bases this conclusion on the following: [*21]

  1. The weather forecasts and wind advisories

As detailed above, the forecast at 3:18 in the afternoon on April 24 for Zone 5 showed that a wind advisory was in effect from 8 a.m. to 7 p.m. on April 25. Then, around 3 a.m., April 25, the National Weather Service issued wind advisories for both Zone 5 and Zone 21. Yet Ms. Ambrosius denied having seen or heard any forecast that contained that information. According to Ms. Ambrosius, the first she was aware of the wind advisory was when she heard the information on Channel 16 around 10 a.m. the morning of the 25th. But throughout Ms. Ambrosius’ testimony, as the court has noted above, her recounting of the events of April 24 and 25 differed significantly from other evidence. For that reason, the court concludes that Ms. Ambrosius did not have an accurate memory about those events and the court cannot rely on her testimony.

Aramark, primarily Ms. Ambrosius, had a duty to be advised of the current weather forecasts and wind advisories before allowing any party to leave the marina in an Aramark power boat. This is particularly true because, as Aramark knew, in the spring, the weather changed constantly. Phyllis Coon testified that in the spring, [*22]  shutting down rentals was considered almost on “an hourly basis” because of the erratic weather. (March 4 Tr. at 337 (Dkt. No. 310).) And “[s]pringtime is always windy on the lake.” (Dep. of Donald Scott Bergantz at 107.)

Moreover, the water could be very cold in April which could lead to hypothermia if boat passengers were in the water.

  1. Boat 647

The boat owner’s manual cautioned that when wind speeds reached 31 miles an hour, only experienced operators might be able to safely operate the boat. Yet Aramark rented to anyone eighteen years or older, with a valid driver’s license, without regard to that person’s previous boating experience.

Because Boat 647’s length exceeded twenty feet, the boat did not have positive flotation and could not remain afloat when filled with water.

The court, when it considers these facts, concludes that Aramark had frequently in the past recognized that high winds could be dangerous to boaters. Aramark should have been aware, if it was not, that high winds were forecast for April 25, 2009. And it was foreseeable to Aramark that if those who had rented Baja 202 Islanders for a trip on Lake Powell the morning of April 25, 2009, were allowed to depart, the boats could sink [*23]  because of the high winds. It was further foreseeable to Aramark that if the boats sank, particularly in the cold April water, the passengers could suffer injury and even death. Aramark breached that duty when it allowed the Prescott Party to leave.

  1. Causation

Aramark’s negligence is actionable only if its action was the legal cause of the Claimants’ injuries, which is “something more than ‘but for’ causation, and the negligence must be a ‘substantial factor’ in the injury.'” Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992), quoting Thomas v. Express Boat Co., Inc., 759 F.2d 444, 448 (5th Cir. 1985).

Here, the court concludes that Aramark’s failure to stop the Prescott Party from leaving was a substantial factor in the sinking of Boat 647 and the resulting harm. Even though Aramark argues that Boat 647 sank because of the actions of the Prescott Party, the court concludes that the failure to stop the boat from leaving was a substantial factor in the sinking of the boat.

In Thomas v. Express Boat Co., Inc., 759 F.2d 444 (5th Cir. 1985), Lance Thomas, a crewman aboard a rig supply boat, sued the operator of the boat, Express Boat, for injuries he sustained while mooring the rig supply boat to an offshore drilling rig. The rig was owned and operated by Penrod Drilling Company (Penrod). The lower court decided that Penrod was negligent because as part of the mooring [*24]  procedure, it had presented a frayed line to the rig supply boat. (A jury had previously found that Express Boat was negligent and returned a verdict in favor of Mr. Thomas.) The court allocated one-third of the responsibility to Penrod. On appeal, Penrod (and Mr. Thomas, whose damage award was effectively reduced by the allocation of fault) argued that the evidence was insufficient to prove that Penrod’s negligence was a legal cause of Mr. Thomas’ injuries. The appellate court affirmed the trial court’s decision holding that Penrod’s negligence in presenting the frayed rope was more than “but for” causation of Mr. Thomas’ injury and was a “substantial factor in the injury.” Id. at 448. In response to appellants’ argument that the captain of the rig supply boat was negligent and caused the injury because he made the decision to bring in the frayed line, the court stated: “The danger in sending a frayed line to a vessel in such poor weather was certainly foreseeable. Although [Captain] Peterson also may have been negligent in deciding to bring in the line, this does [not] excuse Penrod’s negligence.” Id. The court noted that, “because Penrod’s negligence [in presenting the frayed rope] made [Captain [*25]  Peterson’s] decision necessary, the district court properly concluded that Penrod bears some responsibility for the accident.” Id.

Here, similar to the facts in Thomas, as this order details above, the danger of allowing the Prescott Party to depart the morning of April 25, 2009, certainly was foreseeable to Aramark.4 Regardless of whether the members of the Prescott Party made wrong choices while on the boat, the harm was, at least in part, the result of Aramark’s initial negligence and so Aramark “bears some responsibility for the accident.” Id.

4 See In re: Signal Int’l, LLC, 579 F.3d 478 (5th Cir. 2009), for a discussion of the role of foreseeability in both duty and causation: “We have historically considered foreseeability relevant to both the duty and proximate cause determinations.” Id. at 490 n.12 (citations omitted).

Whether the Prescott Party’s actions contributed to the loss must be resolved in another proceeding.

  1. PRIVITY

Because Claimants have proven negligence, the burden shifts to Aramark to show that it did not have knowledge of the acts of negligence and was not in privity with the negligent actor. Farrell Lines, Inc. v. Jones, 530 F.2d 7, 10 (5th Cir. 1976). “When a corporation owns the vessel, the test is whether culpable participation or neglect of duty can be attributed to an officer, managing [*26]  agent, supervisor, or other high-level employee of the corporation.” Carr v. PMS Fishing Corp., 191 F.3d 1, 4 (1st Cir. 1999) (citations omitted).

Aramark has not met its burden. The testimony, including that of the general manager, Karen Ambrosius, was clear that the general manager had the discretion and authority to close boat rentals. In fact, it was Ms. Ambrosius who belatedly made the decision to close rentals on April 25, 2009.

III. CONCLUSION

The court denies Aramark’s petition to exonerate it or limit its liability. The court does not make any findings or reach any other conclusion regarding the other allegations of negligence asserted by the Claimants. It also makes no findings or conclusions concerning whether anyone in the Prescott Party was also negligent. These questions are to be resolved in another proceeding. The court ORDERS that all pending motions are denied as moot.

DATED this 29th day of August, 2014.

BY THE COURT:

/s/ Tena Campbell

TENA CAMPBELL

U.S. District Court Judge

 


Defendants awarded attorney fees in California cycling race. One unique argument was raised; the plaintiff signed the release on the wrong line

Plaintiff sued for her injuries she occurred when she crashed with male rider in the race. The release she signed was upheld including the provision that the plaintiff pay the defendant’s costs and fees if they won the case.

Kendall v. USA Cycling, Inc. et al., 2005 Cal. App. Unpub. LEXIS 5025

State: California; Court of Appeal of California, Second Appellate District, Division Eight

Plaintiff: Judith Kendall

Defendant: for USA Cycling, Inc. and Huntsman World Senior Games

Plaintiff Claims: Release not valid

Defendant Defenses: Release

Holding: for the defendants

Year: 2005

The legal issues in this case are not ground breaking, except for where the plaintiff signed the release. The court did a good job of explaining the reasoning for opposing the plaintiff’s arguments on why the release should be thrown out. However, the court did award attorney fees to the defendant for having to defend this case as per the release.

The plaintiff was cycling in the defendant Huntsman World Senior Games. The race was in Utah, and the plaintiff lived in California. To enter the race, the plaintiff signed a release for USA Cycling, and one for the Huntsman race.

The race was started at different starting times for the different categories and sexes of racers. Senior female racers started first with senior male racers starting five minutes later. During the race, a male racer overtook the plaintiff, and they tangled with the plaintiff falling and receiving injuries.

The plaintiff sued for her injuries and the two defendants, USA Cycling and the Huntsman filed motions for summary judgment based on the releases the plaintiff had signed. The trial court granted the defendant’s motion. One of the releases, the USA Cycling release included a provision that said the plaintiff if she sued would pay the defendant’s attorney fees and costs. The judge awarded $32,000 in fees against the plaintiff also.

The plaintiff appealed the dismissal and the award of attorney fees.

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

The first issue the plaintiff argued was the court should have applied Utah’s law to the case because that is where the accident occurred. (Remember the plaintiff started the lawsuit in California.) In order to determine what law that is to be applied to a case, the court must first look at whether or not there is a difference between the laws of the two states, California and Utah.

The plaintiff argued that Utah’s law was different because it prohibited cycling road races. However, the court investigated this claim and found that bicycle races were not prohibited; they only had to have the requisite permits. The permit process did not affect the facts in this case according to the judge, only traffic control so this issue had no effect on the outcome of the case.

Outside of traffic effects, and the concomitant general safety concerns whenever bicycles and motor vehicles are in close proximity, nothing within the permitting scheme suggests Utah authorities concerned themselves with a race’s details beyond its being “reasonably safe” for all concerned. Nothing hints that the approval of Utah authorities depended on the number of riders, their gender, or their starting times

The plaintiff also brought up that Utah treats releases differently. However, the court found although that may be true, the release in question would pass muster both in Utah and California so this issue was also not going to affect the outcome of the case.

But even if suspicion of preinjury releases existed in Utah law, the releases here would pass muster. Hawkins noted that Utah permits preinjury releases except when the activity affects the public interest. The Hawkins court explained, “It is generally held that those who are not engaged in public service may properly bargain against liability for harm caused by their ordinary negligence in performance of contractual duty . . . . Thus, most courts allow release of liability for prospective negligence, except where there is a strong public interest in the services provided.”

The court then looked into the requirements for a release to be valid.

The elements of a valid release are well established. First, it must be clear and unambiguous. Second, it must not violate public policy-an element we can quickly pass over here because a release covering recreational sports is not against public policy or the public interest. [bicycle racing does not involve public interest].) And third, the injury at issue must be reasonably related to the release’s object and purpose.

The plaintiff then argued the USA Cycling release was ambiguous because it had two signature lines. One line was for racers, and one line was for the parents of racers if the racer was a minor. The plaintiff signed the wrong line, signing as a parent for a racer.

Kendall’s assertion that the USA Cycling release was ambiguous turns on its placement of two signature lines: a signature line for the entrant, and, if the entrant were a minor, a signature line for the minor’s parent or guardian. Kendall signed on the parent’s line, not, as one might suppose, the entrant’s line. She argues her signature’s placement makes the release ambiguous.

This is a unique and new argument I’ve never seen before in arguing the validity of a release. It may be something to look for in the future, as some states may not rule the same as this court.

This argument did not matter also because the plaintiff could not argue that signing at the wrong place on a contract invalidated the release. Nor could she argue that she intended to sign the release to enter the event.

She offers no explanation to challenge the obvious inference that she simply misplaced her signature. She does not deny that she wanted to enter the race, and does not dispute that she needed to sign the form to be allowed in. Never does she claim she was signing on a minor’s behalf. In short, she offers no interpretation of her signature’s placement on the parental consent line other than her innocent mistake. As such, her signature is not susceptible to more than one interpretation.

The plaintiff then argued that the release should be viewed based on her intent, not the subjective intent. Again, the court rejected this argument finding that her intent was to sign the release to enter the race which required her to sign the release to do so.

Kendall notes that we must interpret the release by objective manifestations of her intent, not her subjective intent. Hence, according to her, it does not matter what she subjectively intended when she signed the release; what matters is the objective manifestation of her signature on the parental release line, which she argues compels us to find the release did not bind her (or at best was ambiguous) because she did not sign it as an entrant.

This argument rarely, if ever, works because the intent of a contract that is signed is evidenced by the contract. No other intent or even testimony on the intent can be taken except for what is found “within the four corners of the document.”

We conclude that the objective manifestation of Kendall’s intent cuts the other way. Although the face of the release shows she signed as a parent, she offers no explanation for her signature being there other than her desire to join the race. The objective manifestation of her intent, therefore, is she signed as an entrant-albeit on the wrong line.

In another interesting argument, actually a more interesting response the plaintiff argued the Huntsman release should be thrown out because it was ambiguous. (And possibly was.) However, the court said it did not matter because the USA Cycling release was enough.

We need not address possible drafting errors in the Huntsman release because the USA Cycling release covered all organizations involved in the race. The USA Cycling release stated it covered the “organizations . . . and their respective agents, officials, and employees through or by which the events will be held . . . .” Such language encompassed Huntsman, making Huntsman’s own release superfluous as to this point.

The plaintiff then argued she thought she would be in a women’s only race and by allowing men into the race the organizers substantially increased the risk. The court found this argument to miss the mark because the foreseeability issue was not whether it was foreseeable men would be in the race but whether or not it was foreseeable that she could crash.

Kendall contends the releases did not apply to her because she did not know or reasonably foresee she would be sharing the road with male racers in what she believed was a women-only race. She argues respondents thus wrongfully increased the risk she had assumed in entering an all-female race. Kendall’s focus on whether she could have foreseen colliding with a male racer misses the mark because foreseeability is irrelevant when a tortfeasor relies on an express, written release.

The court found this argument to miss the mark because the foreseeability issue was not whether it was foreseeable men would be in the race but whether or not it was foreseeable that she could crash.

For a written release, the focus instead is whether Kendall’s injuries related to the release’s object and purpose. When a risk is expressly assumed, the assumption is a complete defense against a negligence claim. Here, the release covered anyone participating in the Huntsman World Senior Games and included collisions with “other racers,” not just female racers. The release’s language thus covered Kendall’s accident.

On top of this, the plaintiff knew she would be on the same course as male racers. Additionally, being hit by another racer is inherent in bicycle racing.

Kendall received a race map and brochure when she submitted her race application. Those documents showed men and women would be using the same road course, and would be segregated by age, but not sex. That Kendall apparently chose not to read the documents (an inference we draw from her professed ignorance that men would be on the same course) does not make male racers unforeseeable or the scope of the release narrower. Moreover, the court here found the risk of being hit by another racer is inherent to bicycle racing.

The final issue was the award of attorney fees to the defendants as based on the language in the release.

The plaintiff argued that the award of attorney fees should be denied because only the USA Cycling release that the attorney fee award language in it, therefore, the issue should be thrown out. “Kendall notes that only the USA Cycling release had an attorney’s fee provision. She contends that even if USA Cycling is entitled to its fees, the motion should have been denied as to Huntsman.”

The plaintiff also argued the attorney fees should be thrown out because the award was for two releases and only one awarded attorney fees. The amount should be reduced for the work down for the release that did not have the language in the release.

Neither argument prevailed. The same law firm defended both motions and the work to defend both motions was indistinguishable from one motion to the other. The legal and factual issues in defending both releases overlapped legally and factually. It would be impossible to separate out the work, and the law does not require it.

Kendall filed one complaint against respondents, to which they replied with a shared answer and defeated with a shared motion for summary judgment. The evidence and legal arguments in support of respondents’ motion for summary judgment overlapped substantively and procedurally. The record does not show that respondents’ counsel would have spent any less time or that its arguments would have been any different if only USA Cycling had been a defendant. Because it is not fatal to a fee award if apportionment between issues and arguments is difficult, or even impossible, the court did not abuse its discretion in awarding fees for counsel’s work representing USA Cycling and Huntsman.

The dismissal of the complaint based on a release, the USA Cycling release, and the award of attorney fees and costs was upheld by the California Appellate Court.

So Now What?

There were some interesting issues in this case. Two releases are always a possible way to lose a case, as well as win one in this case. (See Too many contracts can void each other out; two releases signed at different times can render both releases void.) In fact, the race organizer should be happy his race was a USA Cycling release, or he may have been writing a check.

The award of attorney fees is rare, and arises occasionally. (Federal Court in Texas upholds clause in release requiring the plaintiff to pay defendants costs of defending against plaintiff’s claims.) Only California does not quibble about the specific language in the release. Most courts discourage the award of legal fees in release cases and examine the language in the document to find anyway not to award the fees.

At the same time, but for the USA Cycling release, this case would have gone the other direction.

What do you think? Leave a comment.

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Kendall v. USA Cycling, Inc. et al., 2005 Cal. App. Unpub. LEXIS 5025

Kendall v. USA Cycling, Inc. et al., 2005 Cal. App. Unpub. LEXIS 5025

Judith Kendall, Plaintiff and Appellant, v. USA Cycling, Inc. et al., Defendants and Respondents.

B168004

COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION EIGHT

2005 Cal. App. Unpub. LEXIS 5025

June 8, 2005, Filed

NOTICE: [*1] NOT TO BE PUBLISHED IN OFFICIAL REPORTS. CALIFORNIA RULES OF COURT, RULE 977(a), PROHIBIT COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 977(B). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 977.

PRIOR HISTORY: APPEAL from judgments of the Superior Court of Los Angeles County, No. BC 259296. Jon M. Mayeda, Judge.

COUNSEL: Gelfand and Gelfand, Robert E. Fisher, Gary B. Gelfand, and Raymond J. Feinberg for Plaintiff and Appellant.

Manning & Marder, Kass, Ellrod, Ramirez, Anthony J. Ellrod and Sylvia Havens for Defendants and Respondents.

JUDGES: RUBIN, J.; COOPER, P.J., FLIER, J. concurred.

OPINION BY: RUBIN

OPINION

Judith Kendall appeals from the summary judgment and attorney’s fee award entered for USA Cycling, Inc. and Huntsman World Senior Games in her negligence lawsuit against them. We affirm.

FACTS AND PROCEDURAL HISTORY

In October 2000, Judith Kendall was 59 years old and living in California when she entered a bicycle road race in Utah. The race was part of the Huntsman World Senior Games (Huntsman), organized and sponsored by Huntsman and USA [*2] Cycling, Inc. To participate in the race, Kendall, who had in the previous ten years ridden in about 30 bicycle races, tours, and endurance events, signed two release and waiver forms. The Huntsman release stated:

Recitals [P] I, the undersigned, acknowledge and fully understand that by participating in the World Senior Games, Inc. I will be engaging in activities or competition that may involve serious risks including bodily injury, permanent disability and death . . . which might result not only from my own actions, inactions or negligence, but the actions, inactions or negligence of others . . .; and that there may be other risks not known or not reasonably foreseeable. [P] . . . [P] Assumption of Risks. Except as otherwise specifically agreed herein, I assume all of the risks described in the Recitals section above and accept personal responsibility for any and all damages of any kind resulting from any injury, permanent disability and/or death. [P] Release of Liability. I hereby release, waive all claims of liability against, discharge and hold harmless the World Senior Games, Inc., its affiliated organizations, [and] its sponsors, including [*3] but not limited to Huntsman Corporation . . . from any and all liability of the undersigned, my heirs and next of kin, for any claims, demands, causes of action, losses or damages, on account of bodily injury [or] death . . . caused or alleged to be caused in whole or in part by the negligence of the persons or entities hereby released, and/or by the negligence of other participants . . . in connection with my participation in the World Senior Games events or activities.”

The USA Cycling release stated:

“I acknowledge that cycling is an inherently dangerous sport and fully realize the dangers of participating in a bicycle race and FULLY ASSUME THE RISKS ASSOCIATED WITH SUCH PARTICIPATION INCLUDING, by way of example, and not limitation, the following: the dangers of collision with . . . other racers . . .; THE RELEASEES’ OWN NEGLIGENCE; . . . and the possibility of serious physical and/or mental trauma or injury associated with athletic cycling competition. [P] . . . I HEREBY WAIVE, RELEASE, DISCHARGE, HOLD HARMLESS, AND PROMISE TO INDEMNIFY AND NOT SUE organizations . . . and their respective agents, officials, and employees through or by which the events will be [*4] held, (the foregoing are also collectively deemed to be Releasees), FROM ANY and all rights and CLAIMS INCLUDING CLAIMS ARISING FROM THE RELEASEES’ OWN NEGLIGENCE, which I have or which may hereafter accrue to me and from any and all damages which may be sustained by me directly or indirectly in connection with, or arising out of, my participation in or association with the event . . . .”

The race began at the appointed time, with Kendall and her female competitors starting first, followed five minutes later by the senior male racers. During the race, a male racer overtook Kendall and, in passing her, their bike wheels tangled. Kendall vainly struggled to keep her balance, but fell and suffered severe injuries.

Kendall sued USA Cycling Inc. and Huntsman for negligence in starting the men’s race on the same road five minutes after the women’s race began. Huntsman and USA Cycling moved for summary judgment, arguing that even if they had been negligent, the waiver and releases were a complete defense barring Kendall’s complaint. The court agreed, and entered judgment for respondents.

Respondents moved under the attorney’s fee clause of the USA Cycling release to recover more [*5] than $ 32,000 in attorney’s fees. 1 Kendall opposed the motion, claiming respondents had not supported it with sufficient admissible evidence. She also opposed any fee award for Huntsman in particular because the Huntsman release did not have an attorney’s fee clause. In response, the court ordered respondents to support their motion with detailed billing statements. After respondents filed their billing statements, the court overruled Kendall’s evidentiary objections and awarded respondents slightly less than $ 32,000 in fees. Kendall appeals from the judgment and the fee award.

1 Respondents also sought and recovered their costs, but those costs are not at issue in this appeal.

DISCUSSION

Kendall contends the court erred when it enforced the releases. She attacks the releases on several grounds. None is persuasive.

1. Utah Law Did Not Apply

Kendall contends the court erred by not applying Utah law to reject the releases. Her contention raises the question of which state’s laws apply: [*6] Utah-where the injury occurred-or California-where Kendall lives and filed suit. Under governing choice of law principles which weigh Utah’s and California’s governmental interests in seeing their laws enforced, we first consider whether a material difference exists between the two states’ laws. If their laws do not differ, we need not address whether Utah law applies, and may instead look solely to California law. (Washington Mutual Bank v. Superior Court (2001) 24 Cal.4th 906, 919-920; Reich v. Purcell (1967) 67 Cal.2d 551, 555, 63 Cal. Rptr. 31; Tucci v. Club Mediterranee (2001) 89 Cal.App.4th 180, 189.)

Kendall asserts two material differences exist between Utah and California law that are important to her lawsuit against respondents. The central difference, according to her, is Utah prohibits bicycle road races. It follows, she argues, that Utah would not enforce the releases because they violate public policy by waiving liability for an unlawful activity. Kendall’s contention fails, however, because she mischaracterizes Utah law. Utah does not ban bicycle road races outright; instead, it merely requires that organizers of a [*7] road race get permission from state or local highway officials for the race. The pertinent Utah statute states, “(1) Bicycle racing on highways is prohibited . . . except as authorized in this section. [P] (2) Bicycle racing on a highway is permitted when a racing event is approved by state or local authorities on any highway under their respective jurisdictions. . . .” (Utah Code Annotated (1953) 41-6-87.9.) Kendall cites no evidence that respondents did not get permission for the race, and indeed all the evidence in the record which touches on the subject points the other way.

But, even if the absence of a permit in the record means the race was unpermitted, the result would not change. The permit’s purpose is traffic control, not micromanaging the particulars of how the race is conducted. In its entirety, the statute states,

“(1) Bicycle racing on highways is prohibited under Section 41-6-51, except as authorized in this section. [P] (2) Bicycle racing on a highway is permitted when a racing event is approved by state or local authorities on any highway under their respective jurisdictions. Approval of bicycle highway racing events may be granted only under conditions which [*8] assure reasonable safety for all race participants, spectators, and other highway users, and which prevent unreasonable interference with traffic flow which would seriously inconvenience other highway users. [P] (3) By agreement with the approving authority, participants in an approved bicycle highway racing event may be exempted from compliance with any traffic laws otherwise applicable, if traffic control is adequate to assure the safety of all highway users.”

Emphasizing the focus on traffic, the statute cross-references only one section in the Utah Administrative Code. That regulation, entitled “Permit Required for Special Road Use or Event: Special Road Use,” states in its entirety that the Utah Department of Transportation:

“. . . shall promote safe utilization of highways for parades, marathons, and bicycle races. Special Road Use permits shall be required for any use of state routes other than normal traffic movement. Permits may be obtained by fulfilling requirements of DOT [Department of Transportation] form ‘Special Road Use Permit’. Policy applies to all routes under jurisdiction of DOT. Permittee shall hold DOT harmless in event of litigation. A traffic control plan, [*9] in accordance with latest edition of the Manual on Uniform Traffic Control Devices and Barricading and Construction Standard Drawings, shall be provided to, and approved by Dept. District Traffic Engineer or Permittee shall restore the particular road segment to its original condition, free from litter, etc. All applications for permits shall be made a minimum of 15 days prior to the specified activity.” (UT ADC R920-4-1)

Outside of traffic effects, and the concomitant general safety concerns whenever bicycles and motor vehicles are in close proximity, nothing within the permitting scheme suggests Utah authorities concerned themselves with a race’s details beyond its being “reasonably safe” for all concerned. Nothing hints that the approval of Utah authorities depended on the number of riders, their gender, or their starting times. Thus, Kendall’s injuries were not within the scope of the permitting statute’s purpose. Consequently, there was no legal nexus between the statutory violation of an unpermitted race (assuming that occurred) and Kendall’s damages.

A second difference, according to Kendall, between Utah and California law is Utah views preinjury liability releases more [*10] skeptically than does California. In support, she cites Hawkins ex rel. Hawkins v. Peart (Utah 2001) 2001 UT 94, 37 P.3d 1062 (Hawkins). That decision refused to enforce a preinjury release signed by a parent for her child because Utah expressly prohibits parents from signing away their children’s rights. (Id. at pp. 1065-1066.) In its discussion, Hawkins noted courts must scrutinize preinjury releases to make sure they are fairly bargained. (Id. at p. 1066.) Hawkins does not, however, as Kendall states, prohibit preinjury releases.

But even if suspicion of preinjury releases existed in Utah law, the releases here would pass muster. Hawkins noted that Utah permits preinjury releases except when the activity affects the public interest. The Hawkins court explained, “It is generally held that those who are not engaged in public service may properly bargain against liability for harm caused by their ordinary negligence in performance of contractual duty . . . . Thus, most courts allow release of liability for prospective negligence, except where there is a strong public interest in the services provided.” (Hawkins, supra, 37 P.3d at p. 1065, [*11] fn. omitted; see also Russ v. Woodside Homes, Inc. (Utah App. 1995) 905 P.2d 901, 905 [preinjury releases lawful in Utah].) Kendall cites no authority, and we know of none, that a voluntary recreational activity such as a bike race implicates the public interest.

In sum, Kendall’s two examples of differences between Utah and California law are unavailing. Accordingly, the trial court did not err when it applied California law below. (Washington Mutual Bank v. Superior Court (2001) 24 Cal.4th 906, 919-920; Reich v. Purcell, supra, 67 Cal.2d at p. 555; Tucci v. Club Mediterranee, supra, 89 Cal.App.4th at p. 189.)

2. The Releases Are Enforceable

The elements of a valid release are well established. First, it must be clear and unambiguous. Second, it must not violate public policy-an element we can quickly pass over here because a release covering recreational sports is not against public policy or the public interest. (Lund v. Bally’s Aerobic Plus, Inc. (2000) 78 Cal.App.4th 733, 739 (Lund); Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1373 (Allan); Buchan v. United States Cycling Federation, Inc. (1991) 227 Cal. App. 3d 134, 277 Cal. Rptr. 887 [*12] [bicycle racing does not involve public interest].) And third, the injury at issue must be reasonably related to the release’s object and purpose. (Lund, at pp. 738-739; Paralift, Inc. v. Superior Court (1993) 23 Cal.App.4th 748, 757.) Kendall contends the USA Cycling and Huntsman releases are unenforceable because (1) they are ambiguous, and (2) did not cover the risk of her sharing the road with male racers.

a. Not Ambiguous

Kendall’s assertion that the USA Cycling release was ambiguous turns on its placement of two signature lines: a signature line for the entrant, and, if the entrant were a minor, a signature line for the minor’s parent or guardian. Kendall signed on the parent’s line, not, as one might suppose, the entrant’s line. She argues her signature’s placement makes the release ambiguous.

The test for ambiguity is whether Kendall’s placement of her signature is reasonably susceptible to more than one interpretation. (Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354, 360.) She offers no explanation to challenge the obvious inference that she simply misplaced her signature. She does not deny that she wanted to enter [*13] the race, and does not dispute that she needed to sign the form to be allowed in. Never does she claim she was signing on a minor’s behalf. In short, she offers no interpretation of her signature’s placement on the parental consent line other than her innocent mistake. As such, her signature is not susceptible to more than one interpretation.

Kendall notes that we must interpret the release by objective manifestations of her intent, not her subjective intent. Hence, according to her, it does not matter what she subjectively intended when she signed the release; what matters is the objective manifestation of her signature on the parental release line, which she argues compels us to find the release did not bind her (or at best was ambiguous) because she did not sign it as an entrant.

We conclude that the objective manifestation of Kendall’s intent cuts the other way. Although the face of the release shows she signed as a parent, she offers no explanation for her signature being there other than her desire to join the race. The objective manifestation of her intent, therefore, is she signed as an entrant-albeit on the wrong line. (Lopez v. Charles Schwab & Co., Inc. (2004) 118 Cal.App.4th 1224, 1233-1234 [*14] [“The test is ‘what the outward manifestations of consent would lead a reasonable person to believe.’ [Citation.]”].)

Kendall’s reliance on Roth v. Malson (1998) 67 Cal.App.4th 552 (Roth), does not change the result because the facts are distinguishable. Roth involved a real estate sale agreement with two signature lines: one to accept the agreement and one to make a counteroffer. The real estate buyer signed on the counteroffer line and returned the agreement to the seller. The seller rejected the ostensible “counteroffer” and sold the property to someone else. The buyer sued to enforce the agreement, claiming he had signed on the counteroffer line by mistake, and had intended to sign on the acceptance line. He argued his signature was subject to no reasonable interpretation other than an acceptance because he did not add any new conditions to the counteroffer, meaning the counteroffer was not truly a counter. The Roth court rejected that argument, noting that divining the buyer’s intent as an acceptance with no new conditions would have required a time consuming comparison of the offers and counteroffers exchanged between the parties, a comparison [*15] no one was obligated to make. The court therefore refused to enforce the agreement because it was plausible the buyer intended to counter, instead of accept, the seller’s offer. (Id. at pp. 558-559.) Here, in contrast, Kendall offers no plausible explanation for her signature on the parental release line-in a senior’s race no less-than that she intended her signature to show her acceptance of the release’s terms.

Kendall contends the Huntsman release is also ambiguous, and therefore cannot be enforced against her. In support, she notes language in the release suggests she was releasing herself as the release’s “undersigned” from any liability: “I hereby release, waive all claims of liability against, discharge and hold harmless the World Senior Games, Inc. [and others], . . . from any and all liability of the undersigned, my heirs and next of kin, for any claims, demands, causes of action, losses or damages . . . .” (Italics added.) We need not address possible drafting errors in the Huntsman release because the USA Cycling release covered all organizations involved in the race. The USA Cycling release stated it covered the “organizations . . . and their [*16] respective agents, officials, and employees through or by which the events will be held . . . .” Such language encompassed Huntsman, making Huntsman’s own release superfluous as to this point.

b. Injury Within Scope of Release

Kendall contends the releases did not apply to her because she did not know or reasonably foresee she would be sharing the road with male racers in what she believed was a women-only race. She argues respondents thus wrongfully increased the risk she had assumed in entering an all-female race. Kendall’s focus on whether she could have foreseen colliding with a male racer misses the mark because foreseeability is irrelevant when a tortfeasor relies on an express, written release. (Allan, supra, 51 Cal.App.4th at p. 1372.) For a written release, the focus instead is whether Kendall’s injuries related to the release’s object and purpose. (Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1357.) When a risk is expressly assumed, the assumption is a complete defense to a negligence claim. (Allan, at p. 1372.) Here, the release covered anyone participating in the Huntsman World Senior Games and included collisions [*17] with “other racers,” not just female racers. The release’s language thus covered Kendall’s accident.

In support of limiting an express waiver to foreseeable risks, Kendall cites Bennett v. United States Cycling Federation (1987) 193 Cal. App. 3d 1485, 239 Cal. Rptr. 55 (Bennett), a case involving a release in a bicycle race on closed roads where a car struck the plaintiff. Finding that the release applied only to obvious or foreseeable hazards, the Bennett court held it was a triable issue whether an automobile on the race course was a reasonably foreseeable risk within the scope of the release. (Id. at pp. 1490-1491.) Likening her collision with a male racer in what she thought was a female only race to a collision with a car on closed roads, Kendall argues she could not have reasonably foreseen respondents would permit male racers on the same course only five minutes after she started. We conclude that even if one accepts Bennett’s injection of foreseeability into an express written release (but see Madison v. Superior Court (1988) 203 Cal. App. 3d 589, 601, fn. 9, 250 Cal. Rptr. 299 [criticizing Bennett for confusing [*18] foreseeability with scope of release]), the result would not change here. Kendall received a race map and brochure when she submitted her race application. Those documents showed men and women would be using the same road course, and would be segregated by age, but not sex. That Kendall apparently chose not to read the documents (an inference we draw from her professed ignorance that men would be on the same course) does not make male racers unforeseeable or the scope of the release narrower. Moreover, the court here found the risk of being hit by another racer is inherent to bicycle racing. The Bennett court itself notes the foreseeability of such collisions. It stated: “There is little doubt that a subscriber of the bicycle release at issue here must be held to have waived any hazards relating to bicycle racing that are obvious or that might reasonably have been foreseen. . . . these hazards include ‘collisions with other riders . . . .’ ” (Bennett, supra, 193 Cal. App. 3d at 1490; see also Buchan v. United States Cycling Federation, Inc., supra, 227 Cal. App. 3d at pp. 148, 151-152 [collisions and falls are foreseeable risk in bike racing]. [*19] ) The trial court thus did not err in concluding Kendall’s accident was legally foreseeable.

3. Attorney’s Fees

The trial court awarded respondents $ 31,978.50 in attorney’s fees. We review the award for abuse of discretion. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095; Avikian v. WTC Financial Corp. (2002) 98 Cal.App.4th 1108, 1119.)

Respondents supported their motion for fees with billing statements and a declaration by a partner in their counsel’s firm. The billing statements showed the hours worked, the rates charged, and the work done (with privileged information redacted). The partner stated he was familiar with how his firm generated its bills and that the fees stated on the bills had been incurred. Kendall contends the bills and declaration were inadmissible hearsay. Courts have held otherwise. The trial court is best placed to assess the appropriateness of the work done and the fees incurred. A verified bill on which the items appear proper is sufficient to support a fee award. (Melnyk v. Robledo (1976) 64 Cal. App. 3d 618, 624, 134 Cal. Rptr. 602.) Indeed, given a trial court’s first-hand familiarity [*20] with the work done by counsel, billing statements themselves can be superfluous. (Steiny & Co. v. California Electric Supply Co. (2000) 79 Cal.App.4th 285, 293 [“there is no legal requirement that [billing ] statements be offered in evidence. An attorney’s testimony as to the number of hours worked is sufficient evidence to support an award of attorney fees, even in the absence of detailed time records.”].)

Kendall notes that only the USA Cycling release had an attorney’s fee provision. She contends that even if USA Cycling is entitled to its fees, the motion should have been denied as to Huntsman. In support, she cites Super 7 Motel Associates v. Wang (1993) 16 Cal.App.4th 541 (Super 7 Motel), for the proposition that a party in a multiple contract transaction involving several parties cannot recover its attorney’s fees unless its particular contract has a fee provision. (Id. at pp. 545-547.) Super 7 Motel is distinguishable, however, because its facts permitted allocation of the legal work and fees to the various parties. Super 7 Motel did not address fee awards when the legal work and fees cannot be allocated. Here, [*21] allocation appears difficult, if not impossible. Kendall filed one complaint against respondents, to which they replied with a shared answer and defeated with a shared motion for summary judgment. The evidence and legal arguments in support of respondents’ motion for summary judgment overlapped substantively and procedurally. The record does not show that respondents’ counsel would have spent any less time or that its arguments would have been any different if only USA Cycling had been a defendant. Because it is not fatal to a fee award if apportionment between issues and arguments is difficult, or even impossible, the court did not abuse its discretion in awarding fees for counsel’s work representing USA Cycling and Huntsman. (Liton Gen. Engineering Contractor, Inc. v. United Pacific Insurance (1993) 16 Cal.App.4th 577, 588 [no allocation of two parties’ liability required]; accord Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 129-130, 158 Cal. Rptr. 1 [“Attorney’s fees need not be apportioned when incurred for representation on an issue common to both a cause of action in which fees are proper and one in which they are not allowed.”); [*22] Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1111 [multiple causes of action may be so intertwined that it would be “impracticable, if not impossible, to separate the multitude of conjoined activities into compensable or noncompensable time units.”].)

DISPOSITION

The judgment and fee award are affirmed. Each side to bear its own costs on appeal.

RUBIN, J.

We concur:

COOPER, P.J.

FLIER, J.


Skiing collision in Utah where the collision was caused by one skier falling down in front of the other skier

Is that a collision, an obstacle, a reason for a lawsuit? Skiers fall all the time.

Ricci v. Schoultz, M.D., 963 P.2d 784; 348 Utah Adv. Rep. 24; 1998 Utah App. LEXIS 57; 75 A.L.R.5th 745

State: Utah, Court of Appeals of Utah

Plaintiff: Gary Ricci

Defendant: Charles Schoultz, M.D.

Plaintiff Claims: Negligence

Defendant Defenses: no negligence

Holding: for the defendant

Year: 1998

Sometimes you stumble across a case that catches your eye from the way the facts are described by the court. This is one of them.

The two skiers were advanced skiers skiing on an easy run. Both were skiing under control. The defendant was part of a ski school class. The defendant was taking small easy turns as part of his class. Just as he was being passed by the plaintiff, he reached the top of a crest and slowed down, lost control and fell into the path of the plaintiff.

The two collided and slid into a tree at a high rate of speed. The plaintiff hit the tree suffering injuries. The defendant was able to ski away on his own.

At trial, the plaintiff argued that the defendant was negligent because he fell on an easy run.

At trial, Ricci argued that since Schoultz’s fall took place on one of the easiest runs at Snowbird under near perfect conditions, there was no possible reason for Schoultz to have fallen except for his own negligence.

The jury found the defendant was negligent and returned a verdict in favor of the plaintiff. The trial judge then granted the defendant’s j.n.o.v. (judgment notwithstanding the verdict). This was based on the court’s opinion that there was no negligence on the part of the defendant. “There was a duty not to be negligent. However, there was no negligence on the part of the defendant in this case.” Thus, the trial judge granted Schoultz’s j.n.o.v. motion, or alternatively granted a new trial.”

A JNOV is a fantasy. They never occur because as long as there is some evidence of negligence and a decision by the jury a trial judge is not going to overturn a jury verdict. To overturn a judgment by a jury the trial judge:

…[is] justified in granting a j.n.o.v. only if, after looking at the evidence and all of its reasonable inferences in a light most favorable to [the nonmoving party], the trial court concludes that there [is] no competent evidence to support a verdict in [the nonmoving party’s] favor.

Consequently, the burden to grant a JNOV and overturn the jury’s verdict is very high and never done.

The appellate court has the same standard in reviewing a JNOV granted by the trial court.

“On appeal, we apply the same standard. In determining whether competent evidence supports the verdict, we accept as true all testimony and reasonable inferences flowing therefrom that tend to prove [the nonmoving party’s] case, and we disregard all conflicts  and evidence that tend to disprove its case. Thus, if we determine that there was competent evidence supporting the jury’s verdict, we must reverse the trial court’s grant of the j.n.o.v.

The plaintiff appealed the JNOV which granted a judgment for the defendant.

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

The appellate court looked at other collision cases were the cases rested on whether or not the defendant was negligent. Something was required to support the idea that the plaintiff was negligent in those cases that had found negligence, such as the defendant drinking a large quantity of alcohol.

The court found several cases where collisions on the slopes had occurred, but the defendant was found not to be liable because there was no evidence of negligence on the part of the defendant.

…the Tenth Circuit Court of Appeals affirmed the trial court’s ruling that the plaintiff could not recover from defendant for injuries sustained in a mid-mountain ski collision. Similar to the case at bar, the defendant was skiing behind the plaintiff and failed to alert plaintiff of his presence before they collided. The LaVine court specifically rejected the appellant’s claim of negligence: “Appellant contends that the collision itself conclusively establishes the defendant’s negligence and the plaintiff’s right to recover. We disagree.”

In another decision the court reviewed, there was the same statement that care was owed by the defendant. The defendant is not the insurer of the plaintiff and not responsible for everything that happens to a skier on the slopes.

The Dillworth court stated some collisions between skiers may be as a result of the obvious and necessary risks inherent in skiing, and accidents might occur despite the exercise of ordinary and reasonable care and without negligence by either skier. . . . Like all others, skiers owe that degree of care an ordinary prudent person would exercise under like or similar circumstances. One skier is not the insurer of another skier’s safety nor, absent negligence, is one skier liable to another for inadvertent or accidental contact. . . . Thus . . . skiers who lose control even while exercising due care–that is, have breached no duty owed to other skiers–may pose a danger which is inherent, obvious and necessary to participate in the sport of skiing.

The court found that falling down on the slope is not proof of negligence. Without something to indicate that the defendant was negligent, a plaintiff cannot recover.

In sum, a skier does have a duty to other skiers to ski reasonably and within control. However, an inadvertent fall on a ski slope, alone, does not constitute a breach of this duty. We conclude, after a careful review of the trial record, that Ricci failed to introduce any competent evidence that Schoultz was skiing negligently before his sudden and unexpected fall in front of Ricci. Ricci himself testified about the conditions and events just before the accident, noting that up to one second before the collision, Schoultz was skiing in control.

Ricci’s evidence, including all reasonable inferences drawn from it, is simply insufficient for a jury to have concluded that Schoultz skied negligently.

The appellate court upheld the trial court’s granting of the JNOV and did not look at the other issues raised by the plaintiff on appeal.

There was a dissent in the opinion that argued there was enough evidence based on his analysis of the facts to support the jury finding. However, the facts presented were circumstantial based on the dissenting judge’s review of the evidence.

So Now What?

This was a rare case. There seems to be an assumption in all ski collision cases that if two people are on a slope together, and they collide with one person must have been negligent. This decision and the two other decisions the court pointed out show that is not the case. Not every collision on a ski slope is a negligent act.

At the same time, this is fairly easy to see and understand the issues because the party causing the collision, even though the “downhill” skier was the party that probably generated the issues to start the collision.

However, falling down is not negligence on a ski slope, at least in Utah.

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