Federal District Court in Utah voids release for bicycle racing because of public policy!

Plaintiff was injured pre-riding a race course when he struck a barrier closing a street. Although the release was determined to be valid under Utah’s law, the court determined the Utah legislature had created laws and regulations to protect people that voided the release.

What is confusing is, but for a race being held at that location at a later date, everyone would be immune from suit for a road closure. Meaning cities and transportation departments are hard if not impossible to sue. How then could a race sponsor be sued for an accident on a road before the race?

Finken v. USA Cycling, Inc., 2020 U.S. Dist. LEXIS 97928

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

Plaintiff: Gerald Finken

Defendant: USA Cycling, Inc.; Breakaway Promotions, LLC; Ogden/Weber Convention Visitors Bureau, and Does 1-10

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: For the Plaintiff

Year: 2020

Summary

Master bicycle racer training for race struck barricade on a closed road. Plaintiff was following race course map prior to race day. Court interpreted confusing Utah’s law on the subject of releases to hold the inherent risks of cycling did not cover barricades on the course and under Utah law, the release was void as against Utah Public Policy.

Facts

The 2014 USA Cycling Masters Road Championship race (“2014 Championship”) was held in Weber County, Utah on September 3-7, 2014. “USA Cycling is the national governing body for the sport of cycling in the United States of America and was responsible for conducting the 2014 Championships.” Amended Complaint, It entered into an Independent Contractor Agreement with Breakaway Promotions, LLC (“Breakaway”), where Breakaway agreed to perform multiple duties, including implementing the “course design and layout for each race course as well as start and finish areas.” Breakaway also agreed to be responsible for “[a]ll organization and course safety evaluations for each race venue.” Id. Breakaway further agreed to supply information “for the race Technical Guide” and contracted that such information would be “precise and accurate[].”USA Cycling retained the responsibility, however, to publish the Technical Guide “in a reproducible format that [could] be printed or sent digitally.” Id. The Technical Guide included maps and course route information.

Before publication, USA Cycling typically reviewed maps to ensure compliance with its rules. Once a map “was approved, [it] would post it online and make it part of the event materials.” “One of the purposes of posting” the map online was so “participants or prospective participants [could] see . . . where the course [was to be] located.” Chad Sperry, the owner of Breakaway, asserts Breakaway prepared “a preliminary map” for USA Cycling to review, and then “USA Cycling created their own map for the technical guide and to post online of this particular race course. USA Cycling disputes it prepared the map.

Part of the route for the race went along State Road 226, which is known as the Old Snowbasin Road. Prior to “submit[ing] the course layout to USA Cycling for the event,” Breakaway knew a portion of the road was closed near the Ard Nord Trailhead. A concrete barricade had been placed across the road due to the road’s condition beyond the barricade. The plan was to have the barricade removed after the road was repaired for the race. No warnings about the road closure were noted when the course map was posted for participants to view.

Sperry did a site visit in early August 2014, and saw the concrete barriers were still in place at that time. Additionally, Rachel Leif, USA Cycling’s National Events Manager, also learned prior to the race that a portion of the road was closed. “[A] concerned masters rider” sent an email to USA Cycling, which contained photographs of the route, including a picture of the concrete “barriers across the road and a ‘Road Closed’ sign.” The Vice President of National Events, Micah Rice, forwarded the email to Sperry on August 5, 2014, and copied Leif on it. “[B]y August 5th or 6th, 2014, [Leif] understood the road was closed.” Although she “was the point person,” and knew she was viewing pictures of the racecourse, she did not take action to notify participants of the road closure at that time. Her conversations with participants pertained only to potholes that needed to be fixed in the road. This is so even though Leif knew that “race participants will often pre-ride a course to prepare.” Similarly, Sperry took no action to notify participants about the closure.

On August 25, 2014, Finken did a pre-ride of the course using the map provided by USA Cycling. Finken alleges he rode the route cautiously during his pre-ride due to his lack of knowledge about the course and wet road conditions. Nevertheless, as he came around a turn and saw the concrete barriers across the road, he “locked up the brakes” but was not able to stop. He attempted to swerve onto a worn path beside the barrier, but his handlebars and left hand struck the barrier. Finken became airborne and landed on his right side. He was hospitalized for two days for serious neck and back injuries.

After the accident, USA Cycling modified the Technical Guide to warn participants doing a pre-ride that a portion of the route was closed and would remain closed until the day before the event.

Finken registered for the race on or about July 27, 2014. Part of that registration required Finken to sign the Waiver. Finken does not recall seeing or signing the Waiver, but for purposes of these summary judgment motions, it is undisputed that he signed it. The Waiver is broad. It notes “that cycling is an inherently dangerous sport” and includes dangers such as “collision with pedestrians, vehicles, other riders, and fixed or moving objects.” (emphasis omitted). It further notes “the possibility of serious physical and/or mental trauma or injury, or death associated with the event.” Finken agreed to “waive, release, discharge, hold harmless, and promise to indemnify and not to sue” USA Cycling and specified others for “any and all rights and claims including claims arising from [their] own negligence.” Finken also agreed to release “all damages which may be sustained by [him] directly or indirectly in connection with, or arising out of, [his] participation in or association with the event, or travel to or return from the event.”

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

The court first looked at Utah’s law on releases. The Supreme Court in Utah generally supported releases, but there were several exceptions to the law that made interpreting Utah’s law on releases difficult. See Utah Supreme Court Reverses long position on releases in a very short period of time.
The court found that three types of releases were void under Utah’s law.

Specifically, (1) releases that offend public policy are unenforceable; (2) releases for activities that fit within the public interest exception are unenforceable; and (3) releases that are unclear or ambiguous are unenforceable.

The court looked at the indemnification language in the release and found that most jurisdictions did not support indemnification, including Utah.

As to indemnification provisions, “[i]n general, the common law disfavors agreements that indemnify parties against their own negligence because one might be careless of another’s life and limb, if there is no penalty for carelessness.” “Because of this public safety concern,” Utah court’s “strictly construe indemnity agreements against negligence.”

For a release to be enforceable, the release must be communicated in a clear and unequivocal manner.

[Utah] Supreme Court has stated, “[t]o be effective, a release need not achieve perfection . . . . It suffices that a release be clear, unambiguous, and explicit, and that it express an agreement not to hold the released party liable for negligence.” Id. (quotations and citation omitted). Whether a contract is facially ambiguous is a question of law

If a release is not clear on its face, then it is unenforceable. The court found the release used by USA cycling was clear and released USA Cycling from claims of negligence. However, the court took issue with the language that was obviously intended to cover the race, and the accident occurred on a pre-race ride. The court found that this was a risk that was not inherent to a race on a public road.

But the plaintiff was not racing; he was riding, and closed roads are an inherent risk of cycling or driving or walking even!

After reviewing the language of the release, the court held the release was clear as to USA Cycling.

A co-defendant, Breakaway argued it was also covered by the release. The court found the language “Event Directors, Affiliates, Agents, and Officials” was not broad enough to cover Breakaway, which was an independent contractor. The court did not find that Breakaway was covered by that language and therefore, not protected by the release.

In addition, the agreement between Breakaway and USA Cycling stated that Breakaway would be “solely and entirely responsible for its acts….” Nowhere in the agreement “was Breakaway as an event director, or as an affiliate, agent, or official of USA Cycling.”

Having found the release was valid for USA Cycling the court then looked at whether or not the release was void for some other reasons, such as a violation of Utah Public Policy.

To determine whether a contract offends public policy,” a court must “first determine whether an established public policy has been expressed in either constitutional or statutory provisions or the common law.” The Utah Supreme Court also has stated, “for a contract to be void on the basis of public policy, there must be a showing free from doubt that the contract is against public policy.”

The court then reviewed two cases decided by the Utah Supreme Court. In both of those cases, one, an equine case and the other the Rothstein case (See Utah Supreme Court Reverses long position on releases in a very short period of time.) the court held that since the Utah Legislature had created statutes to protect the activities, the release was barred because the accidents that had happened to the plaintiffs in those cases were not an inherent risk of the activity.

Looking at the incident in this case, the court applied the inherent risks of bicycle racing to the facts, even though the plaintiff was not racing at the time. The court found that hitting a barricade closing a road was not an inherent risk of cycle racing.

The analysis for this was the requirement that the requirement that bicycle races have a special event permit and liability insurance. Since the liability insurance would not have to pay for a claim based on the inherent risk of cycling, but only those non-inherent risks, the State of Utah must believe that those non-inherent risks should not be precluded by a release.

Based on the Rothstein analysis and harmonization of the relevant statutes and regulations, the court concludes the Legislature and Department of Transportation allow bike races on public highways but recognize inherent risks associated with such races. Safety is paramount because a bike race can impact not only those in the race, but spectators, or motorists who have no association with it. Detailed maps and liability insurance are pre-requisites to obtaining a special event permit to help protect against risks. As the Utah Supreme Court noted in Hawkins, “one might be careless of another’s life and limb, if there is no penalty for carelessness.” Thus, the requirement for liability insurance helps ensure safety for participants, spectators, and the traveling public.

The court then made its stretch and found:

The court concludes, however, if an operator is allowed to obtain a waiver from participants even for risks that are not inherent in the sport, it would alter one of the elements for a special event permit. Liability insurance is meant to cover liabilities. If all liability has been waived for bike participants, then the purpose for carrying liability insurance is altered as to those participants. Because bike races on highways are prohibited unless the reasonable safety of participants, spectators, and the travelling public may be assured, a balance was struck and cannot be altered via a waiver of liability. Accordingly, the court concludes as a matter of public policy, the Waiver in this case is unenforceable because it attempts to waive liability even for non-inherent risks arising from or associated with the negligent acts of USA Cycling.

The court then denied the motion for summary judgment of both defendants USA Cycling and Breakaway Promotions, LLC.

So Now What?

Sometimes you are going to find a judge that is going to give the plaintiff’s money no matter what the law dictates. This appears to be one of those cases. However, this case is still going on and perhaps instead of settling the defendants will take the case to trial and win. At least appeal this decision so Utah is not stuck within an even worse decision.

In this case applying the risks of bicycle racing, which is sometimes done on a closed course with directors, smooth roads and no obstructions to everyday cycling. If you are riding along, and you come onto a closed road, you better be able to stop before you hit the barrier closing the road. That is a risk of cycling. That is not a risk of racing, and the plaintiff in this case was not racing. The plaintiff even admitted he was going.

There are going to be a lot more disclaimers on maps and information supplied to racers in the future from USA Cycling. The map will say this is the course ON RACE DAY. The release should be written to cover more than just the race, but all training and attendance at any USA Cycling event.

The USA Cycling release needs to be rewritten because as it was quoted by the court, the language limits the risks to the inherent risks of the sport, greatly reducing the value of the release. See Plaintiff argues that release was limited to the risks that were inherent in climbing walls. Inherent is a limiting term and does not expand the scope of the risks a release is written to include and Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release.

At the very least, it is going to be difficult if not impossible to hold an amateur bicycle race, possibly even a professional bicycle race in Utah in the future. The liability is too great. The judge commented several times about the economic value cycling brought to the state then wrote a decision to end that financial benefit.

What do you think? Leave a comment.

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Finken v. USA Cycling, Inc., 2020 U.S. Dist. LEXIS 97928

Finken v. USA Cycling, Inc., 2020 U.S. Dist. LEXIS 97928

United States District Court for the District of Utah

June 3, 2020, Decided; June 3, 2020, Filed

Civil No. 1:17-cv-79

Counsel:  [*1] For Gerald Finken, Plaintiff: P. Matthew Muir, LEAD ATTORNEY, Lesley A. Manley, JONES WALDO HOLBROOK & MCDONOUGH, SALT LAKE CITY, UT.

For USA
Cycling, Defendant: Robert L. Janicki, LEAD ATTORNEY, Lance H. Locke, STRONG & HANNI, SANDY, UT.

For Ogden Weber Convention Visitors Bureau, Ogden/Weber Convention & Visitors Bureau, Defendants: Lloyd R. Jones, LEAD ATTORNEY, LAW OFFICE OF LLOYD R JONES, OKLAHOMA CITY, OK.

For Breakaway Promotions, LLC, Defendant: Dennis R. James, LEAD ATTORNEY, MORGAN MINNOCK RICE & MINER, SALT LAKE CITY, UT.

Judges: Clark Waddoups, United States District Judge. Magistrate Judge Paul M. Warner.

Opinion by: Clark Waddoups

Opinion

MEMORANDUM DECISION AND ORDER

INTRODUCTION

Plaintiff Gerald Finken entered the 2014 USA
Cycling Masters Road Championship race. On August 25, 2014, Finken did a pre-ride of the course using the map published for the race. As he came around a turn on the route, he saw a concrete barrier blocking the road. Finken attempted to swerve around it, but crashed and suffered serious neck and back injuries. He has filed suit against USA Cycling, Inc. and Breakaway Promotions, LLC for negligently failing to warn riders about the barricade. Defendants have moved for summary judgment [*2]  on the ground that Finken signed a waiver of liability. For the reasons stated below, the court denies the motions for summary judgment.

FACTUAL BACKGROUND

The 2014 USA
Cycling Masters Road Championship race (“2014 Championship”) was held in Weber County, Utah on September 3-7, 2014. “USA
Cycling is the national governing body for the sport of cycling in the United States of America and was responsible for conducting the 2014 Championships.” Amended Complaint, ¶ 11 (ECF No. 20); USA
Cycling Answer, ¶ 11 (ECF No. 30). It entered into an Independent Contractor Agreement with Breakaway Promotions, LLC (“Breakaway”), where Breakaway agreed to perform multiple duties, including implementing the “course design and layout for each race course as well as start and finish areas.” Breakaway Agmt., ¶ 7 (ECF No. 56-7). Breakaway also agreed to be responsible for “[a]ll organization and course safety evaluations for each race venue.” Id. Breakaway further agreed to supply information “for the race Technical Guide” and contracted that such information would be “precise and accurate[].” Id.
USA
Cycling retained the responsibility, however, to publish the Technical Guide “in a reproducible format that [*3]  [could] be printed or sent digitally.” Id. The Technical Guide included maps and course route information.
1
USA
Cycling Depo., 33:19-35:1 (ECF No. 38-5) (given by Charles R. Hodge).

Before publication, USA
Cycling typically reviewed maps to ensure compliance with its rules. Leif Depo., 9:24-10:10 (ECF No. 45-1). Once a map “was approved, [it] would post it online and make it part of the event materials.” Id. 10:10-14. “One of the purposes of posting” the map online was so “participants or prospective participants [could] see . . . where the course [was to be] located.” Id. at 10:15-20. Chad Sperry, the owner of Breakaway, asserts Breakaway prepared “a preliminary map” for USA
Cycling to review, and then “USA
Cycling created their own map for the technical guide and to post online of this particular race course.” Sperry Depo., 30:4-17 (ECF No. 56-8). USA
Cycling disputes it prepared the map. Id. at 30:18-23; Leif Depo., 11:1-5 (ECF No. 45-1).

Part of the route for the race went along State Road 226, which is known as the Old Snowbasin Road. Prior to “submit[ing] the course layout to USA
Cycling for the event,” Breakaway knew a portion of the road was closed near the Ard Nord Trailhead. [*4]  Sperry Depo., 20:10-14, 23:1-3 (ECF No. 56-8). A concrete barricade had been placed across the road due to the road’s condition beyond the barricade. Id. at 21:2-6, 22:16-20. The plan was to have the barricade removed after the road was repaired for the race. Id. at 26:21-23. No warnings about the road closure were noted when the course map was posted for participants to view.

Sperry did a site visit in early August 2014, and saw the concrete barriers were still in place at that time. Id. at 22:9-15, 23:8-11. Additionally, Rachel Leif, USA
Cycling‘s National Events Manager, also learned prior to the race that a portion of the road was closed. Leif Depo., 12:22-24 (ECF No. 45-1). “[A] concerned masters rider” sent an email to USA
Cycling, which contained photographs of the route, including a picture of the concrete “barriers across the road and a ‘Road Closed’ sign.” Id. at 14:1-19, 15:3-5. The Vice President of National Events, Micah Rice, forwarded the email to Sperry on August 5, 2014, and copied Leif on it. Id. at 14:18-22, 39:24-40:2. “[B]y August 5th or 6th, 2014, [Leif] understood the road was closed.” Id. at 15:10-13. Although she “was the point person,” and knew she was viewing [*5]  pictures of the racecourse, she did not take action to notify participants of the road closure at that time. See id. at 13:11-17, 15:6-9, 16:13-22. Her conversations with participants pertained only to potholes that needed to be fixed in the road. Id. at 17:14-18. This is so even though Leif knew that “race participants will often pre-ride a course to prepare.” Id. at 30:3-10. Similarly, Sperry took no action to notify participants about the closure. Sperry Depo., at 40:10-25 (ECF No. 56-8).

On August 25, 2014, Finken did a pre-ride of the course using the map provided by USA
Cycling. Finken Depo., 60:5-7, 63:6-16 (ECF No. 38-3). Finken alleges he rode the route cautiously during his pre-ride due to his lack of knowledge about the course and wet road conditions. Id. at 68:8-25. Nevertheless, as he came around a turn and saw the concrete barriers across the road, he “locked up the brakes” but was not able to stop. Id. at 78:18-79:12. He attempted to swerve onto a worn path beside the barrier, but his handlebars and left hand struck the barrier. Id. at 77:10-16, 80:7-12, 82:24-83:21. Finken became airborne and landed on his right side. Id. at 82:4-5, 83:25-84:2. He was hospitalized for [*6]  two days for serious neck and back injuries. Id. at 107:16-108:25.

After the accident, USA
Cycling modified the Technical Guide to warn participants doing a pre-ride that a portion of the route was closed and would remain closed until the day before the event. Leif Depo., 24:23-25:3, 26:3-7, 27:9-21. Finken contends Breakaway and USA
Cycling were negligent in not giving that warning sooner. Both defendants contend, however, they cannot be liable for negligence because Finken signed a pre-injury waiver entitled, “Acknowledgment of Risk, Release of Liability, Indemnification Agreement and Covenant not to Sue” (the “Waiver”).

Finken registered for the race on or about July 27, 2014. Order Summary, at 4 (ECF No. 45-1). Part of that registration required Finken to sign the Waiver. Finken does not recall seeing or signing the Waiver, but for purposes of these summary judgment motions, it is undisputed that he signed it. The Waiver is broad. It notes “that cycling is an inherently dangerous sport” and includes dangers such as “collision with pedestrians, vehicles, other riders, and fixed or moving objects.” Waiver, 2 (ECF No. 56-6) (emphasis omitted). It further notes “the possibility of serious [*7]  physical and/or mental trauma or injury, or death associated with the event.” Id.
Finken agreed to “waive, release, discharge, hold harmless, and promise to indemnify and not to sue” USA
Cycling and specified others for “any and all rights and claims including claims arising from [their] own negligence.” Id. (emphasis omitted). Finken also agreed to release “all damages which may be sustained by [him] directly or indirectly in connection[] with, or arising out of, [his] participation in or association with the event, or travel to or return from the event.” Id.

ANALYSIS

I. SUMMARY JUDGMENT STANDARD

“Summary judgment is proper if the movant demonstrates that there is ‘no genuine issue as to any material fact’ and that it is ‘entitled to judgment as a matter of law.'” Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003) (quoting Fed. R. Civ. P. 56(c)). The defendants’ motions seek summary judgment based on the terms of a preinjury waiver. The parties have applied Utah law to address the claims in this case.

II. WAIVER AND INDEMNITY AGREEMENTS

In Utah, “[i]t is well settled that preinjury releases of claims for ordinary negligence can be valid and enforceable.” Penunuri v. Sundance Partners, Ltd., 2013 UT 22, ¶ 25, 301 P.3d 984 (citation omitted). “Indeed . . . the majority of jurisdictions” permit “people to surrender their rights [*8]  to recover in tort for the negligence of others.” Id. (citations omitted). This does not mean, however, that preinjury waivers are favored. Rather, “the shortcomings of exculpatory clauses . . . provide ample cause to approach preinjury releases with caution.” Berry v. Greater Park City Co., 2007 UT 87, ¶ 11, 171 P.3d 442, overruled in part by Penunuri, 2017 UT 54, ¶¶ 22, 27, 423 P.3d 1150. Thus, not all preinjury waivers are valid. “Specifically, (1) releases that offend public policy are unenforceable; (2) releases for activities that fit within the public interest exception are unenforceable; and (3) releases that are unclear or ambiguous are unenforceable.” Penunuri, 2013 UT 22, ¶ 25, 301 P.3d 984 (quotations and citations omitted).

As to indemnification provisions, “[i]n general, the common law disfavors agreements that indemnify parties against their own negligence because one might be careless of another’s life and limb, if there is no penalty for carelessness.” Hawkins v. Peart, 2001 UT 94, ¶ 14, 37 P.3d 1062 (quotations and citation omitted). “Because of this public safety concern,” Utah court’s “strictly construe indemnity agreements against negligence.” Id. (citation omitted).

A. Clarity of the Waiver

“Preinjury releases, to be enforceable, must be communicated in a clear and unequivocal manner.” Pearce v. Utah Athletic Found., 2008 UT 13, ¶ 22, 179 P.3d 760, 767, overruled in part by Penunuri v. Sundance Partners, Ltd., 2017 UT 54, ¶¶ 22, 27, 423 P.3d 1150, (quotations and citations omitted). The Utah [*9]  Supreme Court has stated, “[t]o be effective, a release need not achieve perfection . . . . It suffices that a release be clear, unambiguous, and explicit, and that it express an agreement not to hold the released party liable for negligence.” Id. (quotations and citation omitted). Whether a contract is facially ambiguous is a question of law. Daines v. Vincent, 2008 UT 51, ¶ 25, 190 P.3d 1269 (citation omitted). If there is ambiguity as to the intent of the parties, that is a question of fact requiring admission of parol evidence. Id. (citation omitted). In this case, however, the court only addresses facial ambiguity because if the Waiver is not clear on its face, it is unenforceable.

i. USA
Cycling

The Waiver has clear language releasing USA
Cycling from negligence. What is less clear is negligence from what activity? The Waiver notes “that cycling is an inherently dangerous sport” due to such dangers as “collision with pedestrians, vehicles, other riders, and fixed or moving objects.” Waiver, at 2 (ECF No. 56-6) (emphasis added). It further notes “the possibility of serious physical and/or mental trauma or injury, or death associated with the event.” Id. (emphasis added). These provisions appear to provide notice about the event itself and [*10]  the dangers that may arise from it. Finken‘s injuries, however, arose from a pre-ride. When a map is published of a racecourse on a public road, one reasonably anticipates that road is open to travel. Although both defendants knew the road was closed until the race, they did not inform participants of that fact. Thus, they exposed pre-riders to a risk that is not inherent in a race on a public road. See Rutherford v. Talisker Canyons Fin., Co., LLC, 2019 UT 27, ¶¶ 19, 79, 445 P.3d 474 (citation omitted) (noting inherent risks are those that are an essential characteristic of a sport and “cannot be alleviated by the use of reasonable care” by an operator).

The Waiver goes on to state, however, that it releases “all damages which may be sustained by [Finken] directly or indirectly in connection[] with, or arising out of, [his] participation in or association with the event, or travel to or return from the event.” Id. (emphasis added). The only reason Finken was on the Old Snowbasin Road was in preparation for the event. His pre-ride therefore was in connection with his participation in that 2014 Championship race. Accordingly, the court concludes the Waiver was clear as to USA
Cycling.

ii. Breakaway

Breakaway contends the waiver also applied to it because it releases [*11]  “USA
Cycling‘s Event Directors, Affiliates, Agents, and Officials.” Mem. in Supp., at 14 (ECF No. 56). While the Waiver does release those persons, Breakaway has not specified which of those it was. It has failed to show it was an event director, affiliate, agent, or official.

The Waiver was USA
Cycling‘s waiver, and it appears to protect those persons directly affiliated with USA
Cycling. Based on Leif’s title as National Event Manager and Rice’s title as Vice President of National Events, the “Event Directors” may reference them and not Breakaway. The term is not defined in the Waiver and is too ambiguous for the court to conclude the Waiver is sufficiently clear on its fact to apply to Breakaway.

Breakaway entered an Independent Contractor Agreement that specifies it was “not an employee, or servant of” USA
Cycling. Breakaway Agmt., ¶ 2 (ECF No. 56-7). The agreement further specifies that Breakaway would “be solely and entirely responsible for its acts, and for the acts of independent contractor’s agents, employees, servants and subcontractors during the performance of this agreement.” Id. ¶ 3 (emphasis omitted). Nowhere in the agreement does it identify Breakaway as an event director, [*12]  or as an affiliate, agent, or official of USA
Cycling.

Because the Waiver does not clearly and unambiguously extend to Breakaway as an independent contractor, the court concludes Finken‘s claim against Breakaway is not barred67 c x.

B. Public Interest Exception

The public interest exception invalidates a preinjury release when “it attempts to limit liability for activities in which there is a strong public interest.” Berry, 2007 UT 87, ¶ 12, 171 P.3d 442. The Utah Supreme Court has adopted the six factors stated in Tunkl v. Regents of the University of California, 60 Cal. 2d 92, 32 Cal. Rptr. 33, 383 P.2d 441, 445-46 (Cal. 1963) to determine if the public interest exception applies. Pearce, 2008 UT 13, ¶ 17, 179 P.3d 760 (citations omitted). For recreational activities, however, it has gone one step further. In Pearce, the Court “join[ed] other states in declaring, as a general rule, 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.” Id. at ¶¶ 18, 21.

As stated above, Finken‘s pre-ride was done in connection with his expected participation in the 2014 Championship. Because the event and the pre-ride were recreational activities, the court concludes the public interest exception is inapplicable in this case.

C. Public Policy Exception

Finken [*13]  further contends the Waiver is unenforceable because it is contrary to public policy. “To determine whether a contract offends public policy,” a court must “first determine whether an established public policy has been expressed in either constitutional or statutory provisions or the common law.” Penunuri, 2013 UT 22, ¶ 26, 301 P.3d 984. The Utah Supreme Court also has stated, “for a contract to be void on the basis of public policy, there must be a showing free from doubt that the contract is against public policy.” Id. (quotations, citation, and alteration omitted). Thus, this exception should be applied, “if at all, only with the utmost circumspection.” Id. (quotations and citation omitted).

i. Penunuri Analysis – Equine Act

In Penunuri, the Utah Supreme Court addressed whether Utah’s Equine and Livestock Activities Act made certain preinjury waivers unenforceable as a matter of public policy. The waiver at issue in Penunuri, noted “that horseback riding involves significant risk of serious personal injury, and that there are certain inherent risks associated with the activity . . . that may result in injury, harm, or death to persons on or around them.” Id. at ¶ 3 (quotations omitted).

Utah’s Equine Act specifies “equine [*14]  activity sponsors are not liable for injuries caused by the ‘inherent risks’ associated with equine activities.” Id. at ¶ 9 (citing Utah Code Ann. § 78B-4-202)). The same section also specifies, however, that a sponsor may be liable if an injury results from actions of the sponsor. Utah Code Ann. § 78B-4-202(2). The plaintiff argued the Legislature struck a balance as a matter of public policy by removing liability for inherent risks but keeping liability for negligent actions. She asserted the balancing of interests was similar to the Court’s analysis in Rothstein v. Snowbird Corp., 2007 UT 96, 175 P.3d 560. Thus, she argued any waiver barring recovery from a sponsor who was negligent was contrary to public policy. The Court disagreed.

It found the Equine Act did not have a public policy statement like Utah’s Inherent Risk of Skiing Act addressed in Rothstein. Id. at ¶ 24. When the Legislature eliminated liability for the inherent risks of horseback riding, it did “not explain the motivation behind” that decision. Id. at ¶ 32. Nor did the Equine Act note the economic importance of the activity for the State. Most importantly, it lacked the central purpose of the Skiing Act to “permit equine sponsors to purchase insurance at affordable rates.” Id. at ¶ 33 (quotations and citation omitted). [*15]  “[I]t was that ‘central purpose’ . . . that led [the Court] to infer that the Legislature had struck a ‘public policy bargain’ when it eliminated liability for the inherent risks of skiing.” Id. Without “a similar expression . . . in the Equine Act,” the Court “resist[ed] the temptation to add language or meaning to the Act where no hint of it exist[ed] in the text.” Id. (quotations and citation omitted). Thus, the Court concluded the waiver in Penunuri did not violate public policy. The Court reached a similar conclusion in Pearce, whereby “a preinjury release between a public bobsled ride operator and an adult bobsled rider” was deemed enforceable. Pearce, 2008 UT 13, ¶ 15, 179 P.3d 760.

ii. Rothstein Analysis – Skiing Act

The distinguishing factor between Rothstein and other cases is the combination of a public policy statement and a legislative balancing of risks between operators and participants. In Rothstein, a skier “collided with a retaining wall constructed of stacked railroad ties and embedded partially in the mountain.” Rothstein, 2007 UT 96, ¶ 3, 175 P.3d 560. “At the time of the accident, a light layer of snow camouflaged the retaining wall from [the skier’s] view. . . . [T]he retaining wall was unmarked and no measures had been taken to alert skiers [*16]  to its presence.” Id. Rather, the ski resort “had placed a rope line with orange flagging near the wall,” but the rope stopped short and created “a large gap between the end of the rope and a tree.” Id. The skier thought the gap “indicated an entrance to the Fluffy Bunny run.” Id. He suffered serious injuries when he collided with the retaining wall. Id.

When analyzing Utah’s Skiing Act, the Court observed that “[s]eldom does a statute address directly the public policy relevant to the precise legal issue confronting a court.” Id. ¶ 11. It nevertheless found a clear “public policy rationale” for the Skiing Act. Id. Within that statute, the Legislature found that skiing “‘significantly contribute[es] to the economy of this state.'” Id. ¶ 12 (quoting Utah Code Ann. § 78-27-51 renumbered at
§ 78B-4-401). The Legislature also found ski operators were having difficulty obtaining insurance at an affordable rate or at all. Id. (citing Utah Code Ann. § 78-27-51). Thus, it struck a balance where operators could not be held liable “‘for injuries resulting from those inherent risks.'” Id. (quoting Utah Code Ann. § 78-27-51).

The Court therefore found the following:

The bargain struck by the Act is both simple and obvious from its public policy provision: ski area operators would [*17]  be freed from liability for inherent risks of skiing so that they could continue to shoulder responsibility for noninherent risks by purchasing insurance. By extracting a preinjury release from [the skier] for liability due to their negligent acts, [the resort] breached this public policy bargain.

Id. ¶ 16. The distinguishing factor between the balance struck in the Equine Act and the balance struck in Skiing Act was the express public policy statement that the balance was necessary due to the economic benefit to the State and the ski resort’s inability to insure itself for the inherent risks associated with skiing.

iii. Bike Racing Analysis

The facts giving rise to Finken‘s injuries are closely analogous to the facts in Rothstein. In Rothstein, a wall was unmarked and where one did not expect it to be. In this case, a barricade was unmarked on the course map and where one did not expect it to be. Neither the wall nor the barricade was within the inherent risks of the relevant sport. Although the facts are similar between the two cases, the issue before the court is whether Utah has a public policy that precludes USA
Cycling from avoiding liability for risks that are not inherent in a [*18]  bike race.

The Utah Legislature has found there are inherent risks associated with bike riding. Utah Code Ann. § 78B-4-509(1)(a), (d). For injuries arising from inherent risks of participating in bike riding, the Legislature has afforded protection to “a county, municipality, local district, . . . or special service district.” Id.
§ 78B-4-509(2)(a). It also has afforded protection to “the owner of property that is leased, rented, or otherwise made available to” the government “for the purpose of providing or operating a recreational activity.” Id.
§ 78B-4-509(2)(b). The Legislature chose not to “relieve any other person from an obligation that the person would have in the absence of this section to exercise due care.” Id.
§ 78B-4-509(3)(b). That balance is different from the Equine Act and the Skiing Act because it leaves operators of biking events without any statutory protections.

In another section of statute, the Legislature more particularly addressed bike races. It stated bike racing is permitted on a highway only if approved by the highway authority of the relevant jurisdiction. Id.
§ 41-6a-1111. The State has a significant interest in ensuring safety on its public highways. Bike racing can impact not just the participants, but spectators or those in a motor vehicle trying [*19]  to navigate the same highway. Thus, the Legislature specified before approval may be granted, conditions must exist to “assure reasonable safety for all race participants, spectators, and other highway users.” Id.
§ 41-6a-1111(2)(b).

The Utah Department of Transportation instituted regulations to carry out the intent and purpose of the statute. The Department noted one purpose of its regulation was to “[e]ncourage and support special events such as . . . bicycle races” because it “recognize[d] their importance to Utah’s economy and to the well-being of residents of and visitors to Utah.” Utah Admin. Code R920-4-1(1)(b). Nevertheless, “to further . . . governmental interests,” it implemented safety protocols to ensure “[t]he safety of all participants in, and spectators of, special events,” as well as the travelling public. Id. at R920-4-1(2)(b), (c).

One protocol requires a person or entity to obtain a special event permit before holding a bike race on a highway. Id. at R920-4-1(4)(g), (i). To obtain a special event permit, the applicant must “provide a detailed map.” Id. at R920-4-13. The applicant also must have “liability insurance,” and such insurance must list the State of Utah “as an additional insured.” Id. at R920-4-9(1);  [*20] see also id. at R920-4-6. Consistent with statute, the applicant must obtain a waiver and release of liability from participants that releases the State and governmental personnel. Id. at R920-4-9(3)-(4). Although the statutory provision bars claims against the government for inherent risks, the regulatory waiver bars all claims. Similarly, though, there is no exclusion from liability for the operator of a bike race.

Based on the Rothstein analysis and harmonization of the relevant statutes and regulations, the court concludes the Legislature and Department of Transportation allow bike races on public highways but recognize inherent risks associated with such races. Safety is paramount because a bike race can impact not only those in the race, but spectators, or motorists who have no association with it. Detailed maps and liability insurance are pre-requisites to obtaining a special event permit to help protect against risks. As the Utah Supreme Court noted in Hawkins, “one might be careless of another’s life and limb, if there is no penalty for carelessness.” Hawkins, 2001 UT 94, ¶ 14, 37 P.3d 1062 (quotations and citation omitted). Thus, the requirement for liability insurance helps ensure safety for participants, spectators, [*21]  and the travelling public.

Utah has recognized, however, that if liability insurance must cover inherent and non-inherent risks of a sport, the cost may be prohibitive and thereby hinder holding events or activities that would provide an economic benefit to the state. Hindering such economic benefits would be contrary to one of the stated purposes of the regulation. Thus, one may reasonably conclude that liability for inherent risks may be waived by the bike race participants so as not to hinder the economic benefits to the State.

The court concludes, however, if an operator is allowed to obtain a waiver from participants even for risks that are not inherent in the sport, it would alter one of the elements for a special event permit. Liability insurance is meant to cover liabilities. If all liability has been waived for bike participants, then the purpose for carrying liability insurance is altered as to those participants. Because bike races on highways are prohibited unless the reasonable safety of participants, spectators, and the travelling public may be assured, a balance was struck and cannot be altered via a waiver of liability. Accordingly, the court concludes as a matter of [*22]  public policy, the Waiver in this case is unenforceable because it attempts to waive liability even for non-inherent risks arising from or associated with the negligent acts of USA
Cycling.
2

iv. Modification of the Utah’s Skiing Act

An additional issue has arisen since briefing on the motions. From 2007 until 2020, the Rothstein balance existed between operators and skiers whereby preinjury waivers were enforceable for risks inherent in skiing, but not for unforeseen risks arising from the negligent actions of the operator. See Rothstein, 2007 UT 96, ¶¶ 16, 19, 175 P.3d 560. In 2020, the Utah Legislature altered this balance by passing legislation that allows preinjury waivers without regard to whether the risk was unforeseen. Utah Code Ann. § 78B-4-405 (2020). Moreover, claims brought on or after May 12, 2020, if not otherwise barred, have a noneconomic damages cap of $1,000,000. Id. at § 78B-4-406. The Legislature’s actions have abrogated the ruling in Rothstein and will necessarily impact future preinjury waiver analyses for other recreational activities.

The question here is whether the Legislature’s change of public policy should be applied retroactively to the analysis in this case. The United States Supreme Court has stated “the principle that the legal effect [*23]  of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal appeal.” Landgraf v. USI Film Prods., 511 U.S. 244, 265, 114 S. Ct. 1483, 1497, 128 L. Ed. 2d 229 (1994) (quotations and citation omitted). Moreover, the Due Process Clause “protects the interests in fair notice and repose that may be compromised by retroactive legislation.” Id. at 266 (citation omitted).

Here, the legislation was approved on March 28, 2020, but made effective May 12, 2020. This shows a clear intent for future application of law. Accordingly, the public policy analysis applied in Rothstein was still applicable at the time of the events in this case and informs this court’s decision.

CONCLUSION

For the reasons stated above, the court DENIES the Motions for Summary Judgment filed by USA
Cycling and Breakaway (ECF Nos. 38, 56).

DATED this 3rd day of June, 2020.

BY THE COURT:

/s/ Clark Waddoups

Clark Waddoups

United States District Judge


Collecting accident reports without doing something with the reports guarantees you will lose a lawsuit and in this case possibly for gross negligence.

Climbing gym had a collection of accident reports that were based on the same set of facts. Failure to act on the reports and solve the problem was enough proof for the Utah appellate court to hold the actions of the defendant gym were possibly grossly negligent.

Howe v. Momentum LLC, 2020 UT App 5, 2020 Utah App. LEXIS 1, 2020 WL 34996

State: Utah; Court of Appeals of Utah

Plaintiff: Scott Howe

Defendant: Momentum LLC

Plaintiff Claims: Momentum was grossly negligent. He alleged that Momentum, “with a knowing and reckless indifference and disregard for the safety of [Howe] and other members of [Momentum], concealed, or caused to be concealed, the defects in their floor padding by placing mats over the defective area

Defendant Defenses: the actions of the defendant did not rise to the level of gross negligence.

Holding: For the Plaintiff

Year: 2020

Summary

Incident and Accident reports that have not been acted on and the issues that caused the accidents which had not been fixed, were proof that the defendant climbing gym possibly acted in a grossly negligent way.

Facts

Momentum is an indoor-climbing facility with a separate area for bouldering. The bouldering area’s concrete floor is covered by approximately twelve inches of foam padding overlain by thick vinyl, known as an “impact attenuation surface.” In the years after Momentum’s 2007 opening, some of the vinyl began to tear and separate. In late September 2011, Momentum had “[a]t least one” tear repaired with a welded vinyl patch.

But Momentum’s management team deemed these tear patches a hazard for tripping, so it placed modular one-inch-thick mats over certain areas of the bouldering area floor that were showing signs of wear or damage. The mats are not designed to be anchored to the underlying pad and they would sometimes move when people landed on them. Because the mats tended to move, Momentum staff “monitored the floor regularly to try to keep the [mats] in place.” In addition to this action, a Momentum employee altered the routes above those areas by reconfiguring and reducing the number of foot-and hand-holds to reduce customer use of the areas with worn and damaged padding.

Over the years—and prior to Howe’s injury—Momentum’s patrons had reported incidents, some of which involved injuries, which alerted Momentum to the fact that the padding in the bouldering area was worn and damaged in some places. Before Howe was injured, five incidents were reported before Momentum began using the mats and another eight were reported thereafter. Each of these injuries involved a climber dropping from the bouldering wall or “slab area” to the floor below and, upon landing, pushing a foot through the floor padding, making contact with the concrete floor below, either rolling or twisting an ankle in the process.

In March 2012, Howe was bouldering at Momentum. After finishing his bouldering route, Howe dropped off the wall to the floor below. As he made contact with the floor, his “left foot impacted the mat on top of the padded floor, causing the mat to move. As the mat moved, it exposed the padded floor beneath. Concealed under the mat, the cover of the pad was split in a straight line, exposing the abutting edges of pads below.” When Howe’s “right foot impacted the top of the two abutting pads, [his] foot passed between the two abutting pads to the floor beneath.” As a result of the contact with the concrete, Howe broke his right ankle.

Howe sued, asserting—among other things—that Momentum was grossly negligent. He alleged that Momentum, “with a knowing and reckless indifference and disregard for the safety of [Howe] and other members of [Momentum], concealed, or caused to be concealed, the defects in their floor padding by placing mats over the defective area.”

The defendant Momentum filed a motion for summary judgement to dismiss the gross negligence claims of the plaintiff. The trial court judge ruled the plaintiff had shown enough action and inaction on the part of the gym that the plaintiff could proceed to trial on a claim of gross negligence. The defendant appealed this ruling.

The decision also looks at the qualifications of the plaintiff’s expert witness. However, there is nothing in the decision that warrants review here.

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

The court’s analysis of the law was quite good and balanced. It’s application of the law to the facts was clear cut. The court defined gross negligence under Utah’s law as “…the failure to observe even slight care….

A broader definition was defined as:

“…the essential evidence needed to survive a defendant’s motion for summary judgment on a gross negligence claim” is “evidence that the defendant’s conduct dramatically magnified the risk of harm to the plaintiff….

The court concluded its review of gross negligence with this statement about the actions of the defendant. “…Momentum’s failure to take further action in the face of eight additional incidents creates questions of fact about whether it was grossly negligent….

The court then followed with this statement.

It is beyond question that a plaintiff who can demonstrate that a defendant has taken no action in response to injury incidents will have likely made out at least a prima facie case of gross negligence,….

At this point, in the opinion it is clear the court looked at Momentum’s failure to act after collecting more than 13 incident reports as gross negligence.

It is also clear that the court believes that failure to act on the defendant’s own incident reports is a major failure of the defendant. Why have accident and incident reports if you do nothing about them.

These acts arguably show that Momentum exercised slight care in the beginning and was therefore not completely indifferent to the consequences of allowing climbers to use the bouldering area given the condition of the padding.

The court gave the climbing gym some benefit because after the first five accidents, they placed additional padding over the torn spots. However, having eight additional incidents, with the torn padding was more than the court would allow.

The court then summed up the accident reports that the defendant compiled.

…onto the floor below, the mat moved, their feet were caught in the crack in the foam padding, and their ankles were injured. Under these circumstances, the question of whether Momentum’s continued use of the mats constituted gross negligence presents a disputed issue of material fact.

The court found that collecting injury reports, which almost identical fact situations and not doing anything about it were proof of gross negligence. The appellate court held the trial court was correct in denying the defendant climbing gym’s motion for summary judgment to dismiss the gross negligence claims.

So Now What?

Incident reports are legal explosives just waiting to go off when a plaintiff’s attorney gets them. If you collect them, then you MUST do something with them.

Each report MUST be analyzed. It must be compared with all other reports to see trends or to determine what the cause or problem is. Then something must be done to correct the problem.

If you decided the report is a rate instance or something outside of your ability to control it, then you must indicate that in your notes or on your response to the report. If a second accident occurs with the same fact situation, then it is not longer a rare case, it is something you must act on.

If not, like in this case, the reports prove foreseeability and in this case, prove that failing to act when the defendant knew a problem existed, was enough to support a claim of gross negligence.

What do you think? Leave a comment.

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Howe v. Momentum LLC, 2020 UT App 5, 2020 Utah App. LEXIS 1, 2020 WL 34996

Howe v. Momentum LLC, 2020 UT App 5, 2020 Utah App. LEXIS 1, 2020 WL 34996

Howe v. Momentum LLC

Court of Appeals of Utah

January 3, 2020, Filed

No. 20190187-CA

Opinion

APPLEBY, Judge:

[*P1]  Scott Howe sued Momentum LLC under a theory of gross negligence1 for injuries he sustained while “bouldering.”2 Momentum moved for summary judgment, which the district court denied because the disputed facts were sufficient to raise a jury question. The district court also ruled that Howe’s expert (Expert) was qualified to testify on the industry standard of care. The matter is before this court on an interlocutory appeal challenging the court’s denial of the summary judgment motion and its decision to permit Expert to testify. We affirm and remand for further proceedings.

BACKGROUND3

[*P2]  Momentum is an indoor-climbing facility with a separate area for bouldering. The bouldering area’s concrete floor is covered by approximately twelve inches of foam padding overlain by thick vinyl, known as an “impact attenuation surface.” In the years after Momentum’s 2007 opening, some of the vinyl [**2]  began to tear and separate. In late September 2011, Momentum had “[a]t least one” tear repaired with a welded vinyl patch.

[*P3]  But Momentum’s management team deemed these tear patches a hazard for tripping,4 so it placed modular one-inch-thick mats over certain areas of the bouldering area floor that were showing signs of wear or damage. The mats are not designed to be anchored to the underlying pad and they would sometimes move when people landed on them. Because the mats tended to move, Momentum staff “monitored the floor regularly to try to keep the [mats] in place.” In addition to this action, a Momentum employee altered the routes above those areas by reconfiguring and reducing the number of foot-and hand-holds to reduce customer use of the areas with worn and damaged padding.

[*P4]  Over the years—and prior to Howe’s injury—Momentum’s patrons had reported incidents, some of which involved injuries, which alerted Momentum to the fact that the padding in the bouldering area was worn and damaged in some places. Before Howe was injured, five incidents were reported before Momentum began using the mats and another eight were reported thereafter. Each of these injuries involved a climber dropping [**3]  from the bouldering wall or “slab area” to the floor below and, upon landing, pushing a foot through the floor padding, making contact with the concrete floor below, either rolling or twisting an ankle in the process.

[*P5]  In March 2012, Howe was bouldering at Momentum. After finishing his bouldering route, Howe dropped off the wall to the floor below. As he made contact with the floor, his “left foot impacted the mat on top of the padded floor, causing the mat to move. As the mat moved, it exposed the padded floor beneath. Concealed under the mat, the cover of the pad was split in a straight line, exposing the abutting edges of pads below.” When Howe’s “right foot impacted the top of the two abutting pads, [his] foot passed between the two abutting pads to the floor beneath.” As a result of the contact with the concrete, Howe broke his right ankle.

[*P6]  Howe sued, asserting—among other things—that Momentum was grossly negligent. He alleged that Momentum, “with a knowing and reckless indifference and disregard for the safety of [Howe] and other members of [Momentum], concealed, or caused to be concealed, the defects in their floor padding by placing mats over the defective area.”

[*P7]  Howe designated [**4]  a liability Expert. Expert has a bachelor’s degree in chemical engineering and petroleum refining, as well as a master’s degree in metallurgical and materials engineering. His professional experience includes research and development engineering as well as forensic engineering. Expert owns a forensic engineering company that specializes in “metallurgical, materials, and mechanical failure analysis”; “materials evaluation and testing”; “product liability and analysis”; “fire and explosion cause and origin”; “industrial, recreational, and construction accident analysis”; and “chemical and mechanical systems failure analysis.” Expert has been an expert witness in numerous cases, one of which involved a mechanical failure that caused an indoor climbing accident. He has also had professional experience with evaluating impact attenuation surfaces in the ski industry.

[*P8]  Expert opined that Momentum did not take appropriate steps to protect climbers in the bouldering area. Indeed, Expert concluded that

Momentum significantly elevated the risk of injury to climbers in the bouldering area by (1) failing to repair, restrict access, clearly mark, cordon off, close walls, or close areas around and [**5]  near the areas where the vinyl padding cover was damaged, and by (2) placing the [mats] over the damaged areas of the padding cover, thus concealing the hazard created by the damage.

In Expert’s opinion, appropriate steps to remedy the problem could have included using “warning signs, closing the sections of the floor or wall near damaged areas,” removing the hand-and foot-holds above the damaged padding, making inaccessible the damaged padding areas, or repairing the damaged padding. During deposition testimony, Expert explained that “those are ways to prevent the public from interacting with the obvious hazard created by the opening in the pads.” This approach was based on his “engineering background and experience in dealing with hazards.” In short, his opinion is that “gluing and adhering . . . a large patch of vinyl over the tear” would have been safer than using the mats.

[*P9]  Momentum moved for summary judgment, arguing the undisputed facts established that it exercised at least slight care to protect climbers using its facility, which meant Howe could not demonstrate gross negligence. Momentum also moved to exclude Expert, claiming he was unqualified to opine upon the standard of [**6]  care in the indoor-climbing industry. The district court denied these motions, and Momentum successfully petitioned this court for an interlocutory appeal.

ISSUES AND STANDARDS OF REVIEW

[*P10]  Momentum raises two issues on appeal. First, it claims the district court erred when it denied Momentum’s motion for summary judgment. HN1[] Denials of summary judgment are questions of law reviewed for correctness. Glenn v. Reese, 2009 UT 80, ¶ 6, 225 P.3d 185.

[*P11]  Second, Momentum claims the district court erred when it denied Momentum’s motion to exclude Expert. HN2[] A district court’s determination regarding the admissibility of expert testimony is reviewed for abuse of discretion. Gunn Hill Dairy Props., LLC v. Los Angeles Dep’t of Water & Power, 2012 UT App 20, ¶ 16, 269 P.3d 980.

ANALYSIS

I. Summary Judgment

[*P12]  HN3[] Summary judgment shall be granted “if the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.” Utah R. Civ. P. 56(a). In this case, the district court denied Momentum’s motion for summary judgment on Howe’s claim for gross negligence, based on its finding that there were “numerous genuine issues of disputed material fact.”

[*P13] 
HN4[] In reviewing a district court’s summary judgment decision, appellate courts “must evaluate all the evidence and all reasonable inferences fairly drawn from the evidence [**7]  in a light most favorable to the party opposing summary judgment to determine whether there is a material issue of fact to be tried.” Horgan v. Industrial Design Corp., 657 P.2d 751, 752 (Utah 1982). “Gross 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. Summary judgment is proper where reasonable minds could reach only one conclusion based on the applicable material facts.” Penunuri v. Sundance Partners, Ltd., 2017 UT 54, ¶ 35, 423 P.3d 1150 (quotation simplified).

[*P14]  Citing Penunuri and Blaisdell v. Dentrix Dental Systems, Inc., 2012 UT 37, 284 P.3d 616, Momentum argues that “the undisputed material facts of this case show that [it] exercised care, far more than even slight care, and was not careless or reckless, let alone to a degree that shows utter indifference,” and that therefore “the district court erred in denying Momentum’s motion for summary judgment.” (Quotation simplified.) Momentum points out that it “[u]ndisputedly . . . took steps to protect climbers from being injured by the wear and tear damage that had developed in its primary padding,” including using welded patches, “thinn[ing] out” the climbing routes, and, “[a]fter determining that the . . . patches created tripping hazards,” using the mats and monitoring their positioning. In Momentum’s view, these steps [**8]  demonstrate that it took at least slight care and was not utterly indifferent to the consequences that could result from a failure to take care.

[*P15]  Howe acknowledges that Momentum took these steps, but argues they were inadequate. He further asserts that Momentum’s use of the pads to cover the defective flooring concealed the risk and rendered the climbers “defenseless against the dangerous conditions known to Momentum,” and claims that his “inability to see the dangerous flooring over which he was climbing contributed to his injuries.” At oral argument before this court, Howe argued this concealment “dramatically magnified” the risk of harm.

[*P16]  We note the tension between our supreme court’s recent articulation of the elements of gross negligence as “the failure to observe even slight care,” Penunuri, 2017 UT 54, ¶ 35, 423 P.3d 1150 (quotation simplified), and the language of a subsequent paragraph suggesting that “the essential evidence needed to survive a defendant’s motion for summary judgment on a gross negligence claim” is “evidence that the defendant’s conduct dramatically magnified the risk of harm to the plaintiff,” id. ¶ 37. We can envision situations in which the straightforward application of the elements identified [**9]  in paragraph 35 might dictate a grant of summary judgment in favor of the defendant while the application of the elements identified in paragraph 37 might dictate the denial of summary judgment. But we need not explore this tension further here because Momentum’s failure to take further action in the face of eight additional incidents creates questions of fact about whether it was grossly negligent, even assuming that paragraph 35 sets forth the correct formulation of the elements of gross negligence.

[*P17]  Although Momentum took certain steps to remedy the problem created by the deterioration of the foam padding, injury incidents continued to occur even after implementation of Momentum’s injury-avoidance strategy. HN5[] It is beyond question that a plaintiff who can demonstrate that a defendant has taken no action in response to injury incidents will have likely made out at least a prima facie case of gross negligence, one sufficient to withstand summary judgment. See id. ¶ 16 (“Summary judgment dismissing a gross negligence claim is appropriate where reasonable minds could only conclude that the defendant was not grossly negligent under the circumstances . . . .”). We cannot see much of a distinction [**10]  between that situation and the case Howe brings here: a defendant takes some action in response to injury incidents, and therefore arguably demonstrates slight care in the beginning, but takes no additional action after injury incidents continue to occur following implementation of its original strategy. Stated another way, we are not persuaded that a defendant who simply relies on a repeatedly-failed strategy to avert injury from a known risk is entitled to judgment as a matter of law on the “slight care” question.

[*P18]  In this case, five incidents, some of which involved injuries, motivated Momentum to take steps to address the problem and ultimately to place mats over the cracked foam padding. These acts arguably show that Momentum exercised slight care in the beginning and was therefore not completely indifferent to the consequences of allowing climbers to use the bouldering area given the condition of the padding. But by the time Howe was injured, eight more injuries had been reported to Momentum, even after it had thinned the routes and put down the extra pads. These eight additional climbers were injured in roughly the same manner as Howe: when they dropped from the bouldering wall [**11]  onto the floor below, the mat moved, their feet were caught in the crack in the foam padding, and their ankles were injured. Under these circumstances, the question of whether Momentum’s continued use of the mats constituted gross negligence presents a disputed issue of material fact.

[*P19]  Because a reasonable finder of fact could determine, on this record, that Momentum was grossly negligent, the district court’s denial of summary judgment was appropriate.

II. Expert Testimony

[*P20]  HN6[] The Utah Rules of Evidence allow “a witness who is qualified as an expert by knowledge, skill, experience, training, or education” to “testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” Utah R. Evid. 702(a). Furthermore, “[s]cientific, technical, or other specialized knowledge may serve as the basis for expert testimony only if there is a threshold showing that the principles or methods that are underlying in the testimony (1) are reliable, (2) are based upon sufficient facts or data, and (3) have been reliably applied to the facts.” Id. R. 702(b).

[*P21]  Momentum argues the district court [**12]  abused its discretion in denying its motion to exclude Expert. First, it contends Expert’s experience as an engineer did not qualify him to testify as to the applicable standard of care in the indoor-climbing industry. Second, Momentum contends that, because Expert did not evaluate or test vinyl floor padding or the mats used to cover the damaged areas, Expert’s opinions did not meet the reliability standard imposed by rule 702 of the Utah Rules of Evidence.

[*P22]  But as Howe points out, Expert’s training as a professional engineer with experience in “forensic engineering and accident analysis in recreational settings,” “slip and fall accident analysis,” and “warnings, design, and standard of care issues” qualifies him to assist the finder of fact in making a determination of the standard of care in the indoor-climbing industry.

[*P23]  Expert’s proposed testimony is that Momentum acted with indifference toward the safety of its members when it placed mats over the damaged padding; Expert opines that Momentum could have and should have taken alternative steps to mitigate the effects of the worn padding. As Howe points out, and the district court agreed, this testimony “will be helpful to the jury to understand the options Momentum had [**13]  in addressing the damaged vinyl” and to avoid speculation regarding its options.

[*P24] 
HN7[] Further, as to reliability, Expert’s opinion is based “upon [his] engineering education, experience, and training” and “knowledge . . . gained from being a forensic engineer . . . and studying padding and other types of accidents.” In determining whether to allow an expert to offer an opinion, the district court’s role is that of a “gatekeeper,” meant “to screen out unreliable expert testimony.” Gunn Hill Dairy Props., LLC v. Los Angeles Dep’t of Water & Power, 2012 UT App 20, ¶ 28, 269 P.3d 980 (quotation simplified). The court is afforded “broad discretion” when making this determination, and we “will reverse its decision only when it exceeds the bounds of reasonability.” Id. ¶ 31 (quotation simplified). Here, the court’s determination that Expert’s opinion was sufficiently reliable does not “exceed[] the bounds of reasonability,” and we decline to reverse it. See id. (quotation simplified). Expert’s opinion meets the threshold showing of reliability and “will help the trier of fact to understand the evidence or to determine a fact in issue.” Utah R. Evid. 702(a). Therefore the district court did not abuse its discretion in denying Momentum’s motion to exclude his testimony.

CONCLUSION

[*P25]  Because there are material facts in [**14]  dispute, the district court properly denied Momentum’s summary judgment motion. Furthermore, the court did not abuse its discretion in denying Momentum’s motion to exclude Expert. We affirm the district court’s rulings on these points and remand for further proceedings.


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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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

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

Gary Ricci, Plaintiff and Appellant, v. Charles Schoultz, M.D., Defendant and Appellee.

Case No. 971189-CA

COURT OF APPEALS OF UTAH

963 P.2d 784; 348 Utah Adv. Rep. 24; 1998 Utah App. LEXIS 57; 75 A.L.R.5th 745

July 23, 1998, Filed

PRIOR HISTORY: [**1] Third District, Salt Lake Department. The Honorable Homer F. Wilkinson.

COUNSEL: Jeffrey D. Eisenberg, Alan W. Mortensen, and Paul M. Simmons, Salt Lake City, for Appellant.

Paul M. Belnap, Robert L. Janicki, and Darren K. Nelson, Salt Lake City, for Appellee.

JUDGES: Before Judith M. Billings, Judge. I CONCUR: Russell W. Bench, Judge. Gregory K. Orme, Judge, Dissenting.

OPINION BY: JUDITH M. BILLINGS

OPINION

[*785] OPINION

BILLINGS, Judge:

Appellant Gary Ricci appeals the trial court’s grant of a judgment notwithstanding the verdict (j.n.o.v.) to Dr. Charles Schoultz, dismissing Ricci’s negligence claims. We affirm.

FACTS

The parties had completely different versions of how the accident occurred. [HN1] “We must review the record and determine whether there is any basis in the evidence, including reasonable inferences which could be drawn therefrom, to support the jury’s determination that [Schoultz] was negligent.” Braithwaite v. West Valley City Corp., 921 P.2d 997, 999 (Utah 1996). Thus, we recite the facts in a light most favorable to Ricci.

On April 12, 1994, Ricci and Schoultz were skiing [**2] at Snowbird Ski Resort (Snowbird) in Salt Lake County, Utah. Both parties were advanced skiers. On the sunny morning of the accident they were skiing an “easy run” that was groomed and had only a few skiers on it. Schoultz was skiing down Anderson Hill when Ricci reached the top of the run. Ricci began to ski towards the bottom and in the direction of Schoultz. Schoultz was taking a ski lesson and was making a number of small controlled turns as he descended. Schoultz and Ricci were both skiing at the same speed and in control throughout their descent. However, Schoultz slowed as he approached a small crest on the ski run and Ricci closed to within a few feet behind Schoultz. Schoultz unexpectedly lost control of his skis, and within a few seconds he fell to the left, and into Ricci, who was unable to avoid Schoultz. The two skiers slid into a tree well, with Ricci striking the tree with some force. Ricci suffered significant injuries and was eventually life-flighted to a local hospital. Schoultz was merely bruised and skied down the mountain on his own.

At trial, Ricci argued that since Schoultz’s fall took place on one of the easiest runs at Snowbird under near perfect conditions, [**3] there was no possible reason for Schoultz to have fallen except for his own negligence. The jury found that Schoultz was negligent, and that his failure to ski in control was the cause of the accident. Schoultz moved for a j.n.o.v. on the grounds that Ricci failed to demonstrate that Schoultz, by falling unexpectedly in front of him, had breached any duty he owed to Ricci. The trial judge agreed: “There was a duty not to be negligent. But there was no negligence on the part of defendant in this case.” Thus, the trial judge granted Schoultz’s j.n.o.v. motion, or alternatively granted a new trial. Ricci now appeals.

STANDARD OF REVIEW

Our standard for reviewing a trial court’s grant of a j.n.o.v. is strict: [HN2] “‘In passing on a motion for a j.n.o.v., . . . a trial court has no latitude and must be correct.'” Braithwaite, 921 P.2d at 999 (quoting Crookston v. Fire Ins. Exch., 817 P.2d 789, 799 (Utah 1991)). Further,

“The trial court [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 [**4] a verdict in [the nonmoving party’s] favor.”

Id. (quoting Gold Standard, Inc. v. Getty Oil Co., 915 P.2d 1060, 1066 (Utah 1996)). “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 [*786] and evidence that tend to disprove its case.” Gold Standard, 915 P.2d at 1066 (citing Koer v. Mayfair Mkts., 19 Utah 2d 339, 340, 431 P.2d 566, 568-69 (1967) (additional citation omitted). 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.

ANALYSIS

Although there is no helpful Utah authority, other state and federal courts have dealt with similar ski collision cases.

In LaVine v. Clear Creek Skiing Corp., 557 F.2d 730, 735 (10th Cir. 1977), 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 [**5] the plaintiff and failed to alert plaintiff of his presence before they collided. See id. at 735. 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.” Id.

More recently, in Dillworth v. Gambardella, 970 F.2d 1113, 1114 (2d Cir. 1992), the Second Circuit Court of Appeals dealt with a similar issue: “Whether collisions between skiers require as a matter of law . . . a finding of negligence on the part of at least one skier.” In Dillworth, the parties had significantly different versions of the facts leading up to the mid-mountain collision, but the result was the same as this case–significant injuries to the party bringing the cause of action. See id. at 1114-15. The Dillworth court stated [HN3] 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 [**6] 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.

Id. at 1122 (citing LaVine, 557 F.2d 734-35) (additional citations omitted).

Cases that have supported a finding of negligence in a ski collision have required proof of some negligent conduct before the collision. For example, in Freeman v. Hale, 30 Cal. App. 4th 1388, 36 Cal. Rptr. 2d 418, 420 (Cal. Ct. App. 1994), two skiers collided while descending a ski slope and the plaintiff suffered severe injuries as a result of the accident. In Freeman, however, the defendant had consumed a large quantity of alcohol, and was inebriated when the collision occurred. See 36 Cal. Rptr. 2d at 420. The California Court of Appeals succinctly summarized its conclusion that a negligence regime was the proper way to analyze liability: “While Hale did not have a duty [**7] to avoid an inadvertent collision with Freeman, he did have a duty to avoid increasing the risk of such a collision.” Id. at 423-24 (citing Knight v. Jewett, 3 Cal. 4th 296, 834 P.2d 696, 710-11 (Cal. 1992)). The Freeman court concluded that alcohol consumption was not an integral aspect of skiing, and that by consuming alcohol prior to and during his skiing, defendant breached his duty to plaintiff “‘not to increase the risks to a participant over and above those inherent in the sport.'” 36 Cal. Rptr. 2d at 421 (quoting Knight, 834 P.2d at 710).

In sum, [HN4] 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. Schoultz’s [*787] loss of control and fall, by itself, does not establish his negligence.

Ricci’s [**8] evidence, including all reasonable inferences drawn from it, is simply insufficient for a jury to have concluded that Schoultz skied negligently. We conclude the trial court was correct in determining that Schoultz did not breach his duty of reasonable care to Ricci by accidentally falling into Ricci when there was no evidence that Schoultz was skiing negligently at the time of his fall. Because we agree with the trial court’s ruling, we do not reach the questions of whether a new trial should have been granted or whether the trial court’s decisions to exclude Schoultz’s expert witness testimony were proper.

CONCLUSION

Some collisions between skiers are an inherent risk of skiing and may occur absent negligence, as in this case. Thus, we affirm the trial court’s grant of a judgment notwithstanding the verdict.

Judith M. Billings, Judge

I CONCUR:

Russell W. Bench, Judge

DISSENT BY: GREGORY K. ORME

DISSENT

ORME, Judge (dissenting):

By focusing on the evidence plaintiff presented, rather than all evidence in the record and the reasonable inferences that can be drawn therefrom, my colleagues take a too narrow view of our role in reviewing a trial court’s reversal of a [**9] jury’s verdict. Simply stated, the question is not whether the evidence plaintiff presented supports the jury’s verdict; rather, it is whether any evidence from whatever source will support it. See Gold Standard, Inc. v. Getty Oil Co., 915 P.2d 1060, 1066 (Utah 1996) (“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.”). As the Fifth Circuit has noted,

on motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence– not just that evidence which supports the non-mover’s case–but in the light and with all reasonable inferences most favorable to the party opposed to the motion.Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969) (en banc), overruled on other grounds, Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 336, 339 (5th Cir. 1997). Accord Guilbeau v. W. W. Henry Co., 85 F.3d 1149, 1161 (5th Cir. 1996), cert. denied, 136 L. Ed. 2d 713, 117 S. Ct. 766 (1997); Lamb [**10] ex rel. Shepard v. Sears, Roebuck & Co., 1 F.3d 1184, 1187 (11th Cir. 1993); Epoch Producing Corp. v. Killiam Shows Inc., 522 F.2d 737, 743 (2d Cir. 1975), cert. denied, 424 U.S. 955, 47 L. Ed. 2d 360, 96 S. Ct. 1429 (1976); Anderson v. Lykes Pasco Packing Co., 503 So. 2d 1269, 1271-72 (Fla. Dist. Ct. App. 1986); Millet v. Cormier, 671 So. 2d 1101, 1107-08 (La. Ct. App.), cert. denied, 673 So. 2d 1036 (La. 1996).

In this case, the jury might well have believed defendant’s testimony that he was skiing in complete control until immediately before the accident, that his skis did not come apart, and that he did not fall. Rejecting defendant’s testimony that he was hit from behind by plaintiff, which was essentially impossible given where the two ended up after the collision, the jury was also free to disbelieve plaintiff’s recollection that defendant’s skis separated and defendant merely fell into plaintiff’s path. The jury could nonetheless have believed plaintiff’s testimony that, immediately prior to the collision, he was skiing in control and a safe distance from defendant and defendant’s apparently intended route. Mindful that plaintiff and defendant ended up [**11] in a heap well off the ski run, in a position consistent with defendant hitting into plaintiff at high speed, the jury might well have inferred that the only way the accident could have occurred was if defendant, fully in control, carelessly and precipitously turned sharply to the left, hitting the unsuspecting plaintiff, who had every reason to assume defendant was going to continue with his pattern of tight turns as plaintiff passed uneventfully on the left.

To be sure, this is not exactly the theory plaintiff developed at trial, but it is a scenario that emerges quite readily if one reviews all the evidence and all reasonable inferences that could be drawn therefrom in the light [*788] most favorable to the jury’s verdict. If that is what the jury concluded, then the accident was caused by defendant’s negligence, not an inadvertent fall. Accordingly, the trial court should not have disturbed the jury’s verdict, and we should reinstate it.

Gregory K. Orme, Judge


Retailers in a minority of states may have a defense to product liability claims when they have nothing to do with the manufacture of the product.

The Passive-Retailer doctrine provides a defense for companies in the supply chain who have no hand, influence or part of the manufacturing process. The key word in the defense is the word passive.

Mcquivey v. Fulmer Helmets, Inc., 2014 UT App 177; 335 P.3d 361; 766 Utah Adv. Rep. 32; 2014 Utah App. LEXIS 184; CCH Prod. Liab. Rep. P19,438

State: Utah, Court of Appeals of Utah

Plaintiff: Jamie Mcquivey

Defendant: Kim Yong Lung Industrial (KYL), which manufactured the helmet in Taiwan; Fulmer Helmets, which distributed the helmet throughout the American market; and White Knuckle Motor Sports, which sold the helmet

Plaintiff Claims: strict liability for defective design as well as negligence and failure to warn, Utah Product Liability Act

Defendant Defenses: Passive retailer defense

Holding: For the plaintiff

Year: 2014

The facts in this case are a little outside of the normal facts written about here. However, the defense in the case is rare and the opportunity to write about the case is important.

This case involves a helmet that failed during an ATV accident. The eight-year-old son of the plaintiff was riding an ATV when he crashed. His helmet cracked, and the helmet cut his face. The mother sued the Manufacturer, the importer distributor and the retailer.

The manufacturer and retailer were dismissed from the case leaving only the importer, Fulmer. The retailer was dismissed because “White Knuckle [retailer] had neither knowledge of potential defects nor influence over the helmet’s design, safety, or manufacturing.” The manufacturer was dismissed because it moved to dismiss for lack of personal jurisdiction.

The importer/defendant then moved to dismiss based on the theory that Fulmer was a passive retailer and could not be held liable for the defects in the helmet. The district court agreed and dismissed Fulmer. The plaintiff appealed that decision leading to this appeal.

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

The court first went through Utah Product liability law.

Under general principles of tort law, “as between an injured buyer of a product, and the seller of the product, the seller must bear the liability.”

Under Utah’s Product Liability Act, a “manufacturer or other initial seller” who sells an “unreasonably dangerous product” may be liable for resulting “personal injury, death, or property damage.”

Under Utah’s law, strict liability does not require proof of fault, only that the manufacturer sold a defective helmet.

The court then defined the Passive-Retailer Doctrine.

The passive-retailer doctrine creates an exception to strict liability under the Product Liability Act for “passive retailers”–sellers who do not “participate in the design, manufacture, engineering, testing, or assembly” of a product. Under this doctrine, “a passive retailer is not subject to a strict liability claim . . . where the manufacturer is a named party to the action.” The passive-retailer doctrine thus allows the trial court to dismiss a strict-liability claim against a codefendant when undisputed facts establish that no fact finder could, under principles of comparative fault, apportion fault to that codefendant. In this circumstance, “as long as [the actual manufacturer] is present in the suit, there remains no reason to require [a passive retailer] to incur the time and expense of defending” the action.

This is a defense for retailers, that has been adopted by a minority of states. It makes sense in today’s world of prepackaged products that are too complicated for the normal retailer to understand.

This decision found legislatures in Nebraska, Delaware, Idaho, Kansas, Iowa, Maryland, Minnesota, Missouri, North Dakota, Tennessee and Washington had adopted a variation of the doctrine. Courts in Texas, New York, and Oklahoma adopted  the doctrine.

In Utah, the doctrine only was used twice. However, in this case this court found the doctrine did not apply. The defendant Fulmer did more than merely import and sell the helmets.

The defendant’s name was on the helmets, and they were marketed as Fulmer’s helmets. Fulmer reviewed the design of the helmets, tested samples and made changes to the samples. Fulmer performed on-site visits to the manufacturing facility twice annually. Fulmer required the helmets to be manufactured to US DOT standards.

Finally, we note that Fulmer holds itself out to the public as the manufacturer of the helmets that bear its name. Under Second Restatement of Torts, “[o]ne who puts out as his own product a chattel manufactured by another is subject to the same liability, as though he were its manufacturer.” Restatement (Second) of Torts § 400 (1965). “[O]ne puts out a chattel as his own product when he puts it out under his name or affixes to it his trade name or trademark.”

This level of participation was found by the court to be more than passive. The court based on this review found the defendant importer did not qualify for the defense of the Passive Retailer doctrine and sent the case back for trial.

So Now What?

The product liability laws in the US were developed to protect people. That worked when everyone in the supply chain from the manufacturer to the retailer could identify a defect and stop the sale of a defective product. That time ended when we moved from a “general store” to the current marketing system we use today.

If you are a retailer, you should investigate if the Passive-Retailer Doctrine applies to you in your state. Find out what you need to do to make sure you understand the doctrine and how you must work to be afforded its protection.

If you are a manufacturer, you need to understand who in your supply chain may be subject to this defense and keep that in mind when dealing with everyone in your supply chain to keep the defense viable.

What do you think? Leave a comment.

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Mcquivey v. Fulmer Helmets, Inc., 2014 UT App 177; 335 P.3d 361; 766 Utah Adv. Rep. 32; 2014 Utah App. LEXIS 184; CCH Prod. Liab. Rep. P19,438

Mcquivey v. Fulmer Helmets, Inc., 2014 UT App 177; 335 P.3d 361; 766 Utah Adv. Rep. 32; 2014 Utah App. LEXIS 184; CCH Prod. Liab. Rep. P19,438

Jamie Mcquivey, Plaintiff and Appellant, v. Fulmer Helmets, Inc., Defendant and Appellee.

No. 20121056-CA

COURT OF APPEALS OF UTAH

2014 UT App 177; 335 P.3d 361; 766 Utah Adv. Rep. 32; 2014 Utah App. LEXIS 184; CCH Prod. Liab. Rep. P19,438

July 31, 2014, Filed

PRIOR HISTORY: [**1] Fourth District Court, Provo Department. The Honorable Claudia Laycock. No. 090403384.

COUNSEL: Mark R. Taylor, Henry N. Didier Jr., and P. Alexander Gillen, Attorneys for Appellant.

Julianne P. Blanch and Tsutomu L. Johnson, Attorneys for Appellee.

JUDGES: JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which JUDGE JOHN A. PEARCE concurred. JUDGE JAMES Z. DAVIS concurred in the result.

OPINION BY: J. FREDERIC VOROS JR.

OPINION

VOROS, Judge:

[*P1] Eight-year-old Conway Cook crashed an all-terrain vehicle while wearing a protective helmet. Instead of protecting him, the helmet cracked and injured his face. Conway’s mother sued various defendants on his behalf. The district court dismissed the claim against Fulmer Helmets, Inc. under the passive-retailer doctrine. We reverse and remand for further proceedings.

BACKGROUND 1

1 [HN1] When reviewing a district court’s rulings on a summary judgment motion, we recite all facts and fair inferences in the light most favorable to the nonmoving party. Poteet v. White, 2006 UT 63, ¶ 7, 147 P.3d 439.

[*P2] In 2008, Conway Cook drove his ATV down a dirt path, trailing his grandfather’s truck. Conway wore a Fulmer Blade AF-C1, a helmet designed for children. While driving along the path, Conway hit a shallow ditch. The impact ejected Conway and flipped [**2] the ATV. The helmet’s chinguard snapped on impact, and the sharp edge of the now-serrated plastic guard cut deeply into Conway’s face. His injuries were serious and will require lifelong care and future surgeries.

[*P3] On Conway’s behalf, his mother, Jamie McQuivey, sued three parties: Kim Yong Lung Industrial (KYL), which manufactured the helmet in Taiwan; Fulmer Helmets, which distributed the helmet throughout the American market; and White Knuckle Motor Sports, which sold the helmet to Conway’s father. Against Fulmer, McQuivey alleged strict liability for defective design as well as negligence and failure to warn.

[*P4] The district court dismissed McQuivey’s claims against both KYL and White Knuckle. McQuivey stipulated to White Knuckle’s dismissal because the evidence showed that White Knuckle had neither knowledge of potential defects nor influence over the helmet’s design, safety, or manufacturing. KYL moved to dismiss the claims against it for lack of personal jurisdiction. Fulmer and McQuivey did not oppose the motion, and the district court granted it, leaving Fulmer as the lone defendant.

[*P5] Fulmer moved for summary judgment. Fulmer argued that, as a passive retailer, it could not be [**3] held liable for defects in the helmet. The district court agreed and dismissed all claims against Fulmer, terminating the litigation.

ISSUE AND STANDARD OF REVIEW

[*P6] McQuivey contends that the district court erred in granting summary judgment for Fulmer on the ground that it qualifies as a passive retailer. [HN2] We review a district court’s “legal conclusions and ultimate grant or denial of summary judgment for correctness . . . and view[] the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.” Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600 (citation and internal quotation marks omitted). Furthermore, “[t]he determination of whether a passive seller of a product can be held strictly liable under the Utah Liability Reform Act . . . is based on the trial court’s interpretation of a statute, which we review for correctness without deference to the trial court’s conclusions.” Yirak v. Dan’s Super Mkts., Inc., 2008 UT App 210, ¶ 3, 188 P.3d 487 (citation and internal quotation marks omitted).

ANALYSIS

[*P7] McQuivey contends that the district court improperly applied the passive-retailer doctrine to Fulmer and thus erred in dismissing Fulmer from the case. She argues that Fulmer does not qualify as a passive retailer because “[Fulmer] is not passive in the design, manufacturing, [**4] and testing of the helmets bearing its name.” Fulmer responds that it qualifies as a passive retailer because it “does not design or manufacture helmets.”

[*P8] [HN3] Under general principles of tort law, “as between an injured buyer of a product, and the seller of the product, the seller must bear the liability.” Sanns v. Butterfield Ford, 2004 UT App 203, ¶ 15, 94 P.3d 301. Utah has long recognized a cause of action against the seller of defective products. Hahn v. Armco Steel Co., 601 P.2d 152, 158 (Utah 1979). Under Utah’s Product Liability Act, a “manufacturer or other initial seller” who sells an “unreasonably dangerous product” may be liable for resulting “personal injury, death, or property damage.” Utah Code Ann. § 78B-6-703(1) (LexisNexis 2008). And under the Second Restatement of Torts, section 402A, the commercial seller of a defective product may be held strictly liable–liable without proof of fault–for harm caused by the product:

One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

Restatement (Second) of Torts § 402A (1965) expressly [**5] adopted in Hahn, 601 P.2d at 158. Thus, because “strict liability does not require an examination of a party’s fault,” a manufacturer or other initial seller can be held liable for a defective product regardless of its degree of fault. Sanns, 2004 UT App 203, ¶ 14 n.5, 94 P.3d 301. However, these rules exist in tension with another feature of Utah tort law: comparative fault.

[*P9] Comparative fault became the law of Utah in 1986. Before that time, Utah applied the common-law rule of joint-and-several liability. Under joint-and-several liability, “a tortfeasor was potentially liable for the entire amount of a plaintiff’s damages, irrespective of what proportion of fault was actually attributable to that individual tortfeasor as opposed to another joint tortfeasor.” National Serv. Indus. v. B.W. Norton Mfg. Co., 937 P.2d 551, 554 (Utah Ct. App. 1997). In 1986, the Utah Legislature enacted the Liability Reform Act. See Utah Code Ann. § 78B-5-820(1) (LexisNexis 2008). [HN4] The Act replaced the rule of joint-and-several tort liability with a rule of comparative fault. A plaintiff’s “recovery of damages under the Product Liability Act is proportionate to the percentage of fault attributable to each defendant.” Yirak, 2008 UT App 210, ¶ 4, 188 P.3d 487. The Act defines “fault” to include strict liability. Utah Code Ann. § 78B-5-817(2) (LexisNexis 2008). Consequently, a plaintiff in a products-liability case may recover from each defendant only [**6] in proportion to that defendant’s fault (including strict liability).2

2 We previously noted that the legislature’s “inclusion of ‘strict liability’ in defining ‘fault’ is confusing and somewhat problematic because unlike negligence, strict liability does not require an examination of a party’s fault.” Sanns v. Butterfield Ford, 2004 UT App 203, ¶ 14 n.5, 94 P.3d 301. “The use of strict liability in this statutory definition should be viewed only as a cause of action subject to the [Liability Reform Act], rather than changing the traditional use of the term fault to somehow include strict liability, a liability concept that is unconcerned with fault in the usual sense of culpability.” Id.

[*P10] Tension inheres between the principles of Utah’s comparative-fault statute and Utah’s products-liability statute because together they require a finder of fact to apportion relative fault to a codefendant whose liability does not depend on fault as commonly understood in tort law. In response to this tension, this court devised the passive-retailer doctrine.

[*P11] [HN5] The passive-retailer doctrine creates an exception to strict liability under the Product Liability Act for “passive retailers”–sellers who do not “participate in the design, manufacture, engineering, testing, or [**7] assembly” of a product. Sanns, 2004 UT App 203, ¶ 21, 94 P.3d 301. Under this doctrine, “a passive retailer is not subject to a strict liability claim . . . where the manufacturer is a named party to the action.” Yirak v. Dan’s Super Mkts. Inc., 2008 UT App 210, ¶ 5, 188 P.3d 487. The passive-retailer doctrine thus allows the trial court to dismiss a strict-liability claim against a codefendant when undisputed facts establish that no fact finder could, under principles of comparative fault, apportion fault to that codefendant. In this circumstance, “as long as [the actual manufacturer] is present in the suit, there remains no reason to require [a passive retailer] to incur the time and expense of defending” the action. Sanns, 2004 UT App 203, ¶ 21, 94 P.3d 301.3

3 Other jurisdictions have sought to protect passive sellers from the effects of section 402A in other ways or left them unprotected. Some jurisdictions that adopted section 402A sought to protect passive sellers with legislation prohibiting a strict-liability suit against a seller unless the seller either manufactures the product or participates in the manufacture of the product. See, e.g., Ga. Code Ann. § 51-1-11.1 (2000); Ind. Code § 34-20-2-3 (2008); Neb. Rev. Stat. § 25-21,181 (2008). Other jurisdictions have enacted legislation prohibiting strict-liability suits against passive sellers unless no remedy exists against the manufacturer. See, e.g., Del. Code Ann. tit. 18, § 7001 (1999); Idaho Code Ann. § 6-1407(4) (2010); [**8] Iowa Code § 613.18 (West 1999); Kan. Stat. Ann. § 60-3306 (Supp. 2012); Ky. Rev. Stat. Ann. § 411.340 (LexisNexis 2005); Md. Code Ann., Cts. & Jud. Proc. § 5-405 (LexisNexis 2013); Minn. Stat. Ann. § 544.41 (West 2010); Mo. Ann. Stat. § 537.762 (West 2008); N.C. Gen. Stat. Ann. § 99B-2 (2013); N.D. Cent. Code § 28-01.3-04 (2006); Tenn. Code Ann. § 29-28-106 (Supp. 2013); Wash. Rev. Code Ann. § 7-72.040(2) (West 2007). And a significant number of jurisdictions that adopted section 402A have not enacted any legislation to protect passive sellers and continue to subject passive sellers to strict liability. See, e.g., Clark v. Williamson, 129 F. Supp. 2d 956, 959 (S.D. Miss. 2000) (applying Mississippi law and holding that a passive retailer could be strictly liable in products-liability suit); Oser v. Wal-Mart Stores, Inc., 951 F. Supp. 115, 119 (S.D. Tex. 1996) (holding that a plaintiff injured by a defective shopping bag can sue the passive retailer); Nichols v. Agway, Inc., 280 A.D.2d 889, 720 N.Y.S.2d 691, 692 (N.Y. App. Div. 1994) (confirming that retailers are subject to strict-liability suits but dismissing on other grounds); Honeywell v. GADA Builders, Inc., 2012 OK CIV APP 11, 271 P.3d 88, 95 (Okla. Civ. App. 2011) (“The rationale for imposing strict liability on retailers and distributors is founded upon the public interests in human safety. . . .”).

[*P12] This court has applied the passive-retailer doctrine only twice.4 In Sanns, a van in which Sanns was a passenger rolled several times. Id. ¶ 2. Sanns sued both the manufacturer–Ford Motor Company–and the retailer– Butterfield Ford. Id. ¶ 3. We held that Butterfield Ford qualified as a passive retailer because it “did not participate in the design, manufacture, engineering, testing, or assembly of the van.” Id. ¶ 21. [**9] As a result, we concluded, “The strict liability ‘fault’ in this case, if any, lies with the manufacturer, not with Butterfield Ford, the passive retailer.” Id. Consequently, we held that “the trial court was correct to dismiss Butterfield Ford.” Id.

4 The Utah Supreme Court has yet to address or apply the passive-retailer doctrine.

[*P13] This court again applied the passive-retailer doctrine in Yirak, 2008 UT App 210, 188 P.3d 487. After discovering a piece of glass in her prepackaged salad, Yirak sued both the seller–Dan’s Super Markets–and the manufacturer–Dole. Id. ¶¶ 2, 5 n.3. However, Dan’s submitted undisputed evidence that it did not “manufacture, design, repackage, label, or inspect the prepackaged salads supplied by Dole.” Id. ¶ 7. Consequently, we held that Dan’s qualified as a passive retailer. Id. ¶ 8.

[*P14] Notably, the passive retailers in Sanns and Yirak did not Participate in the creation of the defective or unreasonably dangerous products at issue in those cases–they did not participate in the products’ design, manufacture, or testing. See Sanns v. Butterfield Ford, 2004 UT App 203, ¶ 21, 94 P.3d 301; Yirak, 2008 UT App 210, ¶ 7, 188 P.3d 487. They were thus not “in a position to eliminate the unsafe character of the product and prevent the loss,” one of the rationales for imposing strict liability. See Hebel v. Sherman Equip., 92 Ill. 2d 368, 442 N.E.2d 199, 205, 65 Ill. Dec. 888 (Ill. 1982).

[*P15] In contrast, [**10] McQuivey presented evidence demonstrating that Fulmer did participate in the manufacture, design, and testing of the helmets that bear its name. First, Fulmer participates in helmet design. Fulmer receives sample helmets from KYL to ensure that they fit properly. One of Fulmer’s representatives stated, “[W]e might have to tell [KYL] this is tight here or loose here and they change something about the comfort padding perhaps to–to adjust the way it fits. But we work through that.” Fulmer also designs the helmets’ graphics and tags.5 Though relatively slight, this degree of involvement in helmet design distinguishes Fulmer from Dan’s and Butterfield Ford, who had no role in the design of the products they sold.

5 Fulmer’s tags contain explicit warnings, instructions for sizing, and a directive stating, “If helmet experiences a severe blow, return it to the manufacturer for competent inspection or destroy and replace it.” Below this direction, in all capital letters, the tag reads, “FULMER HELMETS, INC.”

[*P16] Fulmer also participates in the helmets’ manufacture. Fulmer performs on-site visits to KYL’s helmet factory twice annually. Fulmer examines KYL’s quality-control procedures. Furthermore, Fulmer [**11] requires that KYL manufacture its helmets in compliance with United States Department of Transportation standards, “100 percent, every helmet, all the time.” This level of involvement constitutes “participation” in the manufacturing process. See Sanns, 2004 UT App 203, ¶ 21, 94 P.3d 301.

[*P17] Fulmer also participates in the helmets’ testing. Fulmer requires that KYL test all Fulmer helmets, and Fulmer itself has the helmets tested “from time to time.” As mentioned above, Fulmer test-fits helmets and then instructs KYL to make changes accordingly. Furthermore, Fulmer has had helmets tested “both in KYL as well as in labs in the United States” to ensure that all helmets comply with U.S. standards.

[*P18] Finally, we note that Fulmer holds itself out to the public as the manufacturer of the helmets that bear its name. Under Second Restatement of Torts, “[o]ne who puts out as his own product a chattel manufactured by another is subject to the same liability as though he were its manufacturer.” Restatement (Second) of Torts § 400 (1965). “[O]ne puts out a chattel as his own product when he puts it out under his name or affixes to it his trade name or trademark.” Id., § 400 cmt. d. Courts typically refer to this as the “apparent-manufacturer doctrine.” Long v. United States Brass Corp., 333 F. Supp. 2d 999, 1002 (D. Colo. 2004) (citing Yoder v. Honeywell Inc., 104 F.3d 1215, 1223 (10th Cir. 1997)). “The primary rationale for imposing [**12] liability on the apparent manufacturer of a defective product is that it induced the purchasing public to believe that it is the actual manufacturer, and . . . [thus] to purchase the product in reliance on the apparent manufacturer’s reputation and skill in making it.” Hebel, 442 N.E.2d at 203 (emphasis omitted). Although Utah has not yet addressed the question, most jurisdictions to consider the apparent-manufacturer doctrine have adopted it.6

6 See, e.g., Carney v. Sears, Roebuck & Co., 309 F.2d 300, 304 (4th Cir. 1962) (citing Highland Pharmacy, Inc. v. White, 144 Va. 106, 131 S.E. 198 (Va. 1926)); Davis v. United States Gauge, 844 F. Supp. 1443, 1446 (D. Kan. 1994); Moody v. Sears, Roebuck & Co., 324 F. Supp. 844, 846 (S.D. Ga. 1971) superseded by statute as stated in Freeman v. United Cities Propane Gas, Inc., 807 F. Supp. 1533, 1539-40 (M.D. Ga. 1992); Sears, Roebuck & Co. v. Morris, 273 Ala. 218, 136 So. 2d 883, 885 (Ala. 1961); Cravens, Dargan & Co. v. Pacific Indem. Co., 29 Cal. App. 3d 594, 105 Cal. Rptr. 607, 611 (Ct. App. 1972); King v. Douglas Aircraft Co., 159 So.2d 108, 110 (Fla. Dist. Ct. App.1963); Dudley Sports Co. v. Schmitt, 151 Ind. App. 217, 279 N.E.2d 266, 273 (Ind. Ct. App. 1972); Tice v. Wilmington Chem. Corp., 259 Iowa 27, 141 N.W.2d 616, 628 (Iowa 1966); Penn v. Inferno Mfg. Corp., 199 So.2d 210, 215 (La. Ct. App. 1967); Coca Cola Bottling Co. v. Reeves, 486 So.2d 374, 378 (Miss. 1986) superseded by statute as stated in Turnage v. Ford Motor Co., 260 F. Supp. 2d 722, 727 (S.D. Ind. 2003)); Slavin v. Francis H. Leggett & Co., 114 N.J.L. 421, 177 A. 120, 121 (N.J. 1935) aff’d, 117 N.J.L. 101, 186 A. 832 (N.J. 1936)); Andujar v. Sears Roebuck & Co., 193 A.D.2d 415, 597 N.Y.S.2d 78, 78 (App. Div. 1993) (citing Commissioners of State Ins. Fund v. City Chem. Corp., 290 N.Y. 64, 48 N.E.2d 262, 265 (N.Y. 1943)); Warzynski v. Empire Comfort Sys., Inc., 102 N.C. App. 222, 401 S.E.2d 801, 803-04 (N.C. Ct. App. 1991); Forry v. Gulf Oil Corp., 428 Pa. 334, 237 A.2d 593, 599 (Pa. 1968); Sears, Roebuck & Co. v. Black, 708 S.W.2d 925, 928 (Tex. App. 1986); Wojciuk v. United States Rubber Co., 13 Wis. 2d 173, 108 N.W.2d 149, 152-53 (Wis. 1961).

[*P19] As McQuivey has not urged us to adopt the apparent manufacturer doctrine here, we reserve that question for another day. We note, however, that Fulmer distributed the Blade AF-C1 helmet under its own name; typically describes itself as the “manufacturer” of Fulmer helmets on equipment safety reports filed with the National Highway Traffic Safety Administration; and puts its name on tags inside its helmets, certifying that they meet the applicable safety standards.

[*P20] Even without resort to the apparent-manufacturer doctrine, we conclude that the district court erred in granting summary judgment for Fulmer as a passive retailer. See [**13] Sanns, 2004 UT App 203, ¶ 21, 94 P.3d 301. Although KYL principally conducted the manufacturing, design, and testing of the helmets, [HN6] the passive-retailer doctrine does not ask whose role in manufacturing a defective product was the greatest; rather it asks whether a party “participate[d] in the design, manufacture, engineering, testing, or assembly of” the product. Id. This follows from the passive-retailer doctrine’s rationale, which is to dismiss codefendants to whom the finder of fact will, should the matter go to trial, inevitably apportion no fault.7

7 McQuivey also argues that the court erred in granting summary judgment in Fulmer’s favor on two other grounds: first, that “the passive-retailer doctrine is inappropriate” here because “the alleged manufacturer was never a proper party to this case,” and second, that “even if the doctrine otherwise applied, only the strict-liability claims against Fulmer should be dismissed.” Because we determine that the court erred in ruling that Fulmer qualifies as a passive retailer, we do not address these arguments.

CONCLUSION

[*P21] We reverse the district court’s judgment of dismissal and remand the case for further proceedings.


Utah courts like giving money to injured kids. This decision does clarify somewhat murky prior decisions about the defenses provided to a ski area in Utah: there are none.

A minor was hurt during ski racing practice by hitting a mound of machine-made snow. The Utah Skier Safety Act is weak and Utah Supreme Court interpretations of the act do nothing but weaken it more. This act clarified those weaknesses and what a Utah ski area can do to protect itself from lawsuits, which is not much really. This court, not finding the act weak enough, agreed with the Utah Supreme Court and eliminated releases as a defense for ski areas in the state of Utah.

Rutherford v. Talisker Canyons Finance Co., LLC, 2014 UT App 190; 767 Utah Adv. Rep. 41; 2014 Utah App. LEXIS 201

State: Utah

Plaintiff: Philip Rutherford and Wendy Rutherford, on Behalf of Their Minor Child, Levi Rutherford

Defendant: Talisker Canyons Finance Co., LLC and ASC UTAH, LLC (The Canyons Ski Area) and the U.S. Ski and Snowboard Association

Plaintiff Claims: the machine that produced the snow mound was not functioning properly, that the Ski Resort could have warned patrons of the hazard by marking the mound or closing the trail, and that the Ski Resort did not adequately monitor the snowmaking taking place on the Retreat run that day

Defendant Defenses: release, Utah Ski Act,

Holding: For the Plaintiff

Year: 2014

Utah famously does not award money for adults who are injured; however, if a minor is injured, as a defendant, be prepared to write a big check. For such a conservative state, the judgments for a minor’s injuries can be massive. In this case, the trial court bent over backwards to allow a case by a minor to proceed even with numerous valid defenses. In all but one case, the appellate court agreed with the plaintiffs.

The minor was going to a race practice. He skied down the hill without changing his position and not turning. He hit a mound of man-made snow and was hurt. His parents sued.

The plaintiff’s sued the resort, Canyons which was identified in the case citation by two different names. The plaintiff also sued the US Ski and Snowboard Association, which were not part of the appeal, but mentioned frequently.

The defendants filed an interlocutory appeal after all of their motions of summary judgment were denied. An Interlocutory appeal is one that is made to a higher court before the lower court has issued a final ruling. The appeal is based on intermediary rulings of the trial court. The appeal can only be heard upon a limited set of rules, which are set out by each of the courts. Interlocutory appeals are rare, normally, when the decision of the lower court will force a new trial because of the rulings if the case goes to trial.

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

The first issue is the application of the Utah’s Inherent Risks of Skiing Act to the case. The trial court ruled the plaintiff was not a competitor as defined by the act. Like many state ski acts the act; a competitor assumes greater risks, and the ski area owes fewer duties to competitors. The trial court based this decision on its review of the facts and determined:

…skiing on an open run that any member of the public could ski on” and that his accident indisputably did not occur during a ski race, while skiing through gates, or while otherwise “negotiating for training purposes something that had been specifically designated as a race course

However, the plaintiffs in their motions and pleadings as well as the plaintiff’s expert witness report stated the minor plaintiff was engaged in race training and practice. The appellate court reversed the trial court’s decision on this. However, instead of holding the plaintiff was a competitor and assumed more risk; the appellate court required the trial court to determine if plaintiff’s “engagement in race training at the time of his injury is truly undisputed by the parties.”

The next issue was whether the phrase machine-made snow in the act was an inherent risk or an exemption from the risks assumed. The plaintiff’s argued the snow machine was malfunctioning and because of that the resort was negligent. The statute states:

§ 78B-4-402.  Definitions

    (b) snow or ice conditions as they exist or may change, such as hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, or machine-made snow;

The appellate court agreed with the trial court because the supreme court of Utah had found the Utah act:

…does not purport to grant ski area operators complete immunity from all negligence claims initiated by skiers” but protects ski-area operators “from suits to recover for injuries caused by one or more of the dangers listed [in the Act] only to the extent those dangers, under the facts of each case, are integral aspects of the sport of skiing.

This interpretation of the act is the exact opposite of how statutes are normally interpreted and how all other courts have interpreted other state skier safety acts. Instead of providing protection, the act simply lists items the act may protect from litigation. The act is to be interpreted every time by the trial court to determine if the risk encountered by the skier in Utah was something the act my say the skier assumed.

This means most injuries will receive some money from the ski area. The injured skier can sue and the resort and its insurance company will settle for a nominal amount rather than pay the cost of going to trial to prove the injury was something that was an inherent risk as defined by the Utah’s Inherent Risks of Skiing Act.

The court as part of this analysis then looked at the phrase “inherent risk.”

The term ‘inherent risk of skiing,’ using the ordinary and accepted meaning of the term ‘inherent,’ refers to those risks that are essential characteristics of skiing–risks that are so integrally related to skiing that the sport cannot be undertaken without confronting these risks.

This is a normal definition applied to inherent risk. However, the court then went on and quoted the Utah Supreme court as stating.

The court divided these risks into two categories, the first of which represents “those risks, such as steep grades, powder, and mogul runs, which skiers wish to confront as an essential characteristic of skiing.” Under the Act, “a ski area operator is under no duty to make all of its runs as safe as possible by eliminating the type of dangers that skiers wish to confront as an integral part of skiing.”

The second category of risks consists of those hazards which no one wishes to confront but cannot be alleviated by the use of reasonable care on the part of a ski resort,” such as weather and snow conditions that may “suddenly change and, without warning, create new hazards where no hazard previously existed. For this category of risks, “[t]he only duty ski area operators have . . . is the requirement set out in [the Act] that they warn their patrons, in the manner prescribed in the statute, of the general dangers patrons must confront when participating in the sport of skiing.

Then the interpretation of the Supreme Court decision goes off the chart.

However, this does not exonerate a ski-area operator from any “duty to use ordinary care to protect its patrons”; “if an injury was caused by an unnecessary hazard that could have been eliminated by the use of ordinary care, such a hazard is not, in the ordinary sense of the term, an inherent risk of skiing and would fall outside of [the Act].”

Instead of the act providing protection from a list of risks that are part and parcel of skiing, the act in Utah only provides of hazards that if not eliminated will still allow litigation. That is any injury is worth filing suit over because the cost of defending the case will exceed the cost of settling.

How does this apply in this case? The act refers to machine made snow. The complaint states the plaintiff was injured because the snow making machine was not functioning properly. There was no allegation that the snow was at issue, which is protected by the act, just the machine that makes the snow. However, this was enough for the trial court and the appellate court to say the act did not provide immunity for the ski area.

That is the defense of the tree on the side of the road scared me, so I opened the passenger-side door and knocked down the pedestrian. If the snow making machine was malfunctioning, unless it is making “bad” snow that has nothing to do with hitting a mound of snow.

The next issue is the defense of release. This part of the decision actually makes sense.

The US Ski and Snowboard Association has members sign releases. The majority of racing members of the USSA are minors, hoping to become major racers for the US. The USSA is based in Park City, Utah. Utah has always held that a parent cannot sign away a minor’s right to sue. So the USSA made its choice of law provision Colorado in an attempt to take advantage of Colorado’s laws on releases and minors and releases. (See States that allow a parent to sign away a minor’s right to sue.)

However, courts won’t and this court did not, let you get away with such a stretch. The venue and jurisdiction clause in a release must have a basis with where the defendant is located, where the activity (and as such accident) happens or where the plaintiff lives. Here the USSA is based in Park City Utah, the plaintiff lives in Utah and the accident happened in Utah; the Utah trial court and Appellate court properly held the jurisdiction and venue clause in the release was not valid.

On top of that, you need to justify why you are using a foreign state for venue and jurisdiction, in the jurisdiction and venue clause in the release. You need to state with a reasonable degree of plausibility why you are putting the venue in a certain place if it is not the location where the parties are located or the accident occurred. State in the release that in order to control litigation, the jurisdiction and venue of any action will be in the state where the defendant is located.

The release was thrown out before getting to whether a parent can sign away a minor’s right to sue, which the Utah Supreme Court has never upheld. (See States that allow a parent to sign away a minor’s right to sue.) However, the appellate court reviewed this issue and also threw the release out because Utah does not allow a parent to sign away a minor’s right to sue. (The Utah Equine and Livestock Activities Act has been amended to allow a parent to sign away a minor’s right to sue for Equine injuries.)

The court then looked at what releases are viable in the ski industry in Utah. In 90 days, the Utah Supreme Court voided a release in a ski case and then upheld a release in a ski case. (See Utah Supreme Court Reverses long position on releases in a very short period of time.) This court stated the differences where a release is void under Utah’s law for recreational skiers. “Our supreme court has interpreted this public policy statement as prohibiting pre-injury releases of liability for negligence obtained by ski-area operators from recreational skiers.”

The public policy statement is the preamble of the Utah’s Inherent Risks of Skiing Act.

The Legislature finds that the sport of skiing is practiced by a large number of residents of Utah and attracts a large number of nonresidents, significantly contributing to the economy of this state. It further finds that few insurance carriers are willing to provide liability insurance protection to ski area operators and that the premiums charged by those carriers have risen sharply in recent years due to confusion as to whether a skier assumes the risks inherent in the sport of skiing. It is the purpose of this act; therefore, to clarify the law in relation to skiing injuries and the risks inherent in that sport, to establish as a matter of law that certain risks are inherent in that sport, and to provide that, as a matter of public policy, no person engaged in that sport shall recover from a ski operator for injuries resulting from those inherent risks.

Simply put this is an analysis of the action of the legislature, by the court, to say, the legislature gave you this, so we, the court, are going to take away releases.

In other words, the Act prohibits pre-injury releases of liability for negligence entirely, regardless of the age of the skier who signed the release or whether the release was signed by a parent on behalf of a child.

The court explained that the Act was designed to strike a “bargain” with ski-area operators by freeing them “from liability for inherent risks of skiing so that they could continue to shoulder responsibility for noninherent risks by purchasing insurance.

The court then looked at whether this release could be applied if the plaintiff was a competitive skier? (Yeah, confusing to me also.)

Following that confusing analysis this court then determined the release by a competitive skier was also invalid, contrary to what the Supreme Court had decided in Berry v. Greater Park City Co., 2007 UT 87, ¶ 17, 171 P.3d 442. However, the court rationalized the analysis by saying the amendment to the ski act, which occurred before the Berry decision, but after the accident giving rise to Berry, made a competitive skier the same as a recreational skier for the purposes of the act therefore no releases were valid in Utah for skiing.

Here is the conclusion of the case.

The trial court’s determination that Levi was not engaged in race training at the time of his injury, especially in the face of the fact, apparently undisputed by the parties, that he was injured during racing practice, was improper in the context of the Ski Resort’s motions for summary judgment. The trial court correctly denied the Ski Resort’s joinder in the Ski Team’s motion for summary judgment based on the Act and correctly granted the Rutherfords’ related partial motion for summary judgment, based on the court’s determination that there were disputed issues of material fact regarding the applicability of the machine-made snow exemption. We affirm the trial court’s denial of the Ski Resort’s motion for summary judgment based on the USSA release and the court’s determination that the Colorado choice-of-law provision in the USSA release is inapplicable here. We agree with the trial court that the release, as it pertains to the Ski Resort, is unenforceable under Utah law, but base this conclusion on different grounds than the trial court.

It almost reads like it is a normal case. The court sent the issue back to the lower court, basically handing the plaintiff the decision. The only thing left to do is determine the amount.

So Now What?

It’s a kid thing in Utah. Kids get hurt the courts’ hand out money. Even the ski industry is not big enough, or organized enough, to do anything about it.

I don’t know of any other reason why this decision would come out this way.

This decision which eliminates releases as a defense for the ski area may trickle down to other recreational activities. Let’s hope not.

So we know the following about Utah and ski areas.

1.       Releases are not a valid defense unless you are racing, actually on the course for a race or practice.

2.      A competitor under the Utah’s Inherent Risks of Skiing Act is only a competitor when racing or running gates.

3.      The Utah’s Inherent Risks of Skiing Act only sets out the defenses available to a ski area if they ski area was not negligent and could not have prevented the accident or risk which caused the accident.

4.      Minor’s in Utah always win.

What do you think? Leave a comment.

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Rothstein v. Snowbird Corporation, 2007 UT 96; 175 P.3d 560; 593 Utah Adv. Rep. 26; 2007 Utah LEXIS 219

Rothstein v. Snowbird Corporation, 2007 UT 96; 175 P.3d 560; 593 Utah Adv. Rep. 26; 2007 Utah LEXIS 219

William Rothstein, Plaintiff and Appellant, v. Snowbird Corporation, a Utah corporation, Defendant and Appellee.

No. 20060158

SUPREME COURT OF UTAH

2007 UT 96; 175 P.3d 560; 593 Utah Adv. Rep. 26; 2007 Utah LEXIS 219

December 18, 2007, Filed

February 6, 2008, Released for Publication

PRIOR HISTORY: [***1]

Third District, Salt Lake. The Honorable Anthony B. Quinn. No. 040925852.

COUNSEL: Jesse C. Trentadue, Salt Lake City, for plaintiff.

Gordon Strachan, Kevin J. Simon, Park City, for defendant.

JUDGES: NEHRING, Justice. Chief Justice Durham and Justice Parrish concur in Justice Nehring’s opinion. Justice Durrant concurs in Associate Chief Justice Wilkins’s dissenting opinion.

OPINION BY: NEHRING

OPINION

[**560] NEHRING, Justice:

[*P1] William Rothstein, an expert skier, sustained injuries when he collided with a retaining wall while skiing at Snowbird Ski Resort. He sued Snowbird, claiming the resort’s [**561] negligence caused his injuries. The district court granted Snowbird’s motion for summary judgment and dismissed Mr. Rothstein’s ordinary negligence claim. The district court agreed with Snowbird that Mr. Rothstein had surrendered his right to recover damages for Snowbird’s ordinary negligence when he became a party to two agreements releasing Snowbird from liability for its acts of negligence. In this appeal, Mr. Rothstein challenges the enforceability of the releases and the district court’s summary judgment based on them. We hold that the releases are contrary to the public policy of this state and are, therefore, unenforceable. Accordingly, [***2] we vacate the district court’s grant of summary judgment in favor of Snowbird.

BACKGROUND

[*P2] [HN1] When we review a district court’s grant of summary judgment, as in this case, we review the facts and their reasonable inferences in a manner most favorable to the nonmoving party. See, e.g., Progressive Cas. Ins. Co. v. Ewart, 2007 UT 52, P 2, 167 P.3d 1011. We present the facts surrounding Mr. Rothstein’s injury in this light.

[*P3] As he was descending Snowbird’s Fluffy Bunny run, Mr. Rothstein collided with a retaining wall constructed of stacked railroad ties and embedded partially in the mountain. The collision left Mr. Rothstein with broken ribs, an injured kidney, a bruised heart, a damaged liver, and a collapsed lung. At the time of the accident, a light layer of snow camouflaged the retaining wall from Mr. Rothstein’s view. As photographs and the alleged admission of a resort official suggest, the retaining wall was unmarked and no measures had been taken to alert skiers to its presence. Although Snowbird had placed a rope line with orange flagging near the wall, there remained a large gap between the end of the rope and a tree, which Mr. Rothstein incorrectly understood indicated an entrance [***3] to the Fluffy Bunny run. Mr. Rothstein filed suit against Snowbird for its ordinary and gross negligence. 1 Snowbird defended itself by asserting that Mr. Rothstein had waived his ability to sue Snowbird for its ordinary negligence when he purchased two resort passes that released the resort from liability for its ordinary negligence.

1 Mr. Rothstein’s initial complaint alleged only ordinary negligence. The district court permitted him to amend his complaint to incorporate a gross negligence claim after it had granted Snowbird’s motion for summary judgment on Mr. Rothstein’s ordinary negligence cause of action.

[*P4] At the time he was injured, Mr. Rothstein held a season pass to Snowbird and a Seven Summits Club membership which entitled him to bypass lift lines for faster access to the slopes. In order to obtain these benefits, Mr. Rothstein signed two release and indemnify agreements. The first agreement provided:

I hereby waive all of my claims, including claims for personal injury, death and property damage, against Alta and Snowbird, their agents and employees. I agree to assume all risks of personal injury, death or property damage associated with skiing . . . or resulting from the [***4] fault of Alta or Snowbird, their agents or employees. I agree to hold harmless and indemnify Alta and Snowbird . . . from all of my claims, including those caused by the negligence or other fault of Alta or Snowbird, their agents and employees

(emphasis in original). The second agreement stated:

In consideration of my use of the Snowbird Corporation (Snowbird) ski area and facilities, I agree to assume and accept all risks of injury to myself and my guests, including the inherent risk of skiing, the risks associated with the operation of the ski area and risks caused by the negligence of Snowbird, its employees, or agents. I release and agree to indemnify Snowbird, all landowners of the ski area, and their employees and agents from all claims for injury or damage arising out of the operation of the ski area or my activities at Snowbird, whether such injury or damage arises from the risks of skiing or from any [**562] other cause including the negligence of Snowbird, its employees and agents

(emphasis in original).

[*P5] Citing the agreements, the district court granted summary judgment in favor of Snowbird on Mr. Rothstein’s ordinary negligence claim. (Mr. Rothstein later voluntarily moved to dismiss [***5] his gross negligence claim without prejudice.) The issue before us is whether the district court correctly granted Snowbird summary judgment on Mr. Rothstein’s ordinary negligence claim on the basis of the existence of the release and indemnify agreements.

DISCUSSION

[*P6] [HN2] Preinjury releases from liability for one’s negligence pit two bedrock legal concepts against one another: the right to order one’s relationship with another by contract and the obligation to answer in damages when one injures another by breaching a duty of care. E.g., Berry v. Greater Park City Co., 2007 UT 87, P 12, 171 P.3d 442. We have joined the majority of jurisdictions in permitting people to surrender their rights to recover in tort for the negligence of others. Id. P 15. We have made it clear throughout our preinjury release jurisprudence, however, that contract cannot claim victory over tort in every instance. We have indicated that releases that are not sufficiently clear and unambiguous cannot be enforced. Hawkins v. Peart, 2001 UT 94, P 9 n.3, 37 P.3d 1062. We have also indicated that we would refuse to enforce releases that offend public policy. Id. P 9. We do not explore the clarity with which Snowbird communicated [***6] to Mr. Rothstein its intention to release itself of liability for its negligence because we conclude that the releases offend the public policy of this state as articulated by the Legislature.

[*P7] We first insisted that preinjury releases be compatible with public policy a century ago when we affirmed Christine Pugmire’s jury verdict awarding her damages for injuries she sustained when a locomotive ran into the railroad car in which she lived and worked as a cook. 2 Pugmire v. Or. Short Line R.R. Co., 33 Utah 27, 92 P. 762, 763, 767 (Utah 1907). Mrs. Pugmire had signed a release absolving the railroad from liability for any injuries she might sustain. We affirmed the trial court’s refusal to instruct the jury that Mrs. Pugmire could be bound by the release, noting that such master-servant agreements “are held to be void . . . [because] they are against public policy.” Id. at 765.

2 Mrs. Pugmire worked in the railroad car with her husband. The defendant railroad attempted to escape liability by claiming that only Mr. Pugmire was its employee. (Of course, this case predated the enactment of Utah’s Workers’ Compensation Act by a decade.) In testimony that stands out as an artifact of a bygone era of gender [***7] roles, a railroad witness sabotaged this defense when he told the jury that Mr. Pugmire’s duties included cooking for the train crew. As it happened, Mr. Pugmire could not cook, but “it was taken for granted that [Mrs. Pugmire] could cook and would assist in the work; and that was why the wife was permitted to go.” Pugmire v. Or. Short Line R.R. Co., 33 Utah 27, 92 P. 762, 764 (Utah 1907) (internal quotation marks omitted).

[*P8] By the time it was adopted within the Restatement of Torts in 1965, the principle that the interests of public policy could supplant the interests of contract had acquired universal acceptance. See, e.g., Bisso v. Inland Waterways Corp., 349 U.S. 85, 90, 75 S. Ct. 629, 99 L. Ed. 911 (1955); Am. S.S. Co. v. Great Lakes Towing Co., 333 F.2d 426, 428-29 (7th Cir. 1964); Mohawk Drilling Co. v. McCullough Tool Co., 271 F.2d 627, 633 (10th Cir. 1959); Gilpin v. Abraham, 218 F. Supp. 414, 415 (E.D. Pa. 1963). Section 496B of the Restatement (Second) of Torts states, [HN3] “A plaintiff who by contract or otherwise expressly agrees to accept a risk of harm arising from the defendant’s negligent or reckless conduct cannot recover for such harm, unless the agreement is invalid as contrary to public policy.” 3 Restatement (Second) of Torts § 496B [***8] (1965).

3 This section of the Restatement is titled “Express Assumption of the Risk.” Courts are wise to exercise caution whenever they encounter the term assumption of the risk. To many, it is a concept that had been wholly discredited with the arrival of comparative negligence. We spoke to the perils of falling prey to this overgeneralization in Fordham v. Oldroyd, 2007 UT 74, PP 9-14, 171 P.3d 411. Express assumption of the risk of the type addressed in section 496B is another species of the doctrine that coexists with comparative negligence. In Jacobsen Construction Co. v. Structo-Lite Engineering, Inc., we noted,

An express assumption of risk involves a contractual provision in which a party expressly contracts not to sue for injury or loss which may thereafter be occasioned by the acts of another. We not only follow suit by refraining to include this form of assumption of risk in our discussion, but furthermore fail to see a necessity for including this form within assumption of risk terminology.

619 P.2d 306, 310 (Utah 1980).

[**563] [*P9] Our recent encounters with preinjury releases have uniformly reaffirmed the public policy exception to the general rule that preinjury releases are enforceable. [***9] See, e.g., Hawkins, 2001 UT 94, P 1, 37 P.3d 1062 (holding invalid as contrary to public policy a waiver of liability and an indemnity provision that an equestrian group required individuals to sign before riding horses).

[*P10] Despite our willingness to invoke public policy as the justification for refusing to enforce certain preinjury releases, we are mindful of the caution with which we must proceed when contemplating this analytic approach. Ascertaining when a preinjury release sufficiently offends public policy to warrant stripping the release of its enforceability can be difficult. As the example of preinjury releases for negligence amply illustrates, the quest to identify good public policy in a particular instance often requires a court to account for two or more conflicting policies, each laudable, but none of whose claims on the good can be fully honored. Extracting public policy from statutes can be no less challenging. Moreover, in most instances, our proper role when confronted with a statute should be restricted to interpreting its meaning and application as revealed through its text. To pluck a principle of public policy from the text of a statute and to ground a decision of this court [***10] on that principle is to invite judicial mischief. Like its cousin legislative history, public policy is a protean substance that is too often easily shaped to satisfy the preferences of a judge rather than the will of the people or the intentions of the Legislature. We aptly noted the risks of relying on public policy rationales when we stated that [HN4] “‘the theory of public policy embodies a doctrine of vague and variable quality, and, unless deducible in the given circumstances from constitutional or statutory provisions, should be accepted as a basis for judicial determinations, if at all, only with the utmost circumspection.'” Berube v. Fashion Centre, Ltd., 771 P.2d 1033, 1043 (Utah 1989) (quoting Patton v. United States, 281 U.S. 276, 306, 50 S. Ct. 253, 74 L. Ed. 854 (1930)). When, however, the Legislature clearly articulates public policy, and the implications of that public policy are unmistakable, we have the duty to honor those expressions of policy in our rulings. Such is the case here.

[*P11] Seldom does a statute address directly the public policy relevant to the precise legal issue confronting a court. Here, no statute or other legislative pronouncement of public policy answers squarely the question of whether [***11] a preinjury release of a ski resort operator’s negligence executed by a recreational skier is enforceable. Few legislative expressions of public policy speak more clearly to an issue, however, than the public policy rationale for Utah’s Inherent Risks of Skiing Act, Utah Code Ann. §§ 78-27-51 to -54 (2002 & Supp. 2007), speaks to preinjury releases for negligence.

[*P12] Our confidence in defining the public policy that the Act was created to serve is enhanced by the fortuitous fact that the Utah Legislature introduced the substantive text of the Act with a statement of public policy. Section 78-27-51 states:

[HN5] The Legislature finds that the sport of skiing is practiced by a large number of residents of Utah and attracts a large number of nonresidents, significantly contributing to the economy of this state. It further finds that few insurance carriers are willing to provide liability insurance protection to ski area operators and that the premiums charged by those carriers have risen sharply in recent years due to confusion as to whether a skier assumes the risks inherent in the sport of skiing. It is the purpose of this act, therefore, to clarify the law in relation to skiing injuries and [***12] the risks inherent in that sport, to establish as a matter of law that certain risks are inherent in that sport, and to provide that, as a matter of public policy, [**564] no person engaged in that sport shall recover from a ski operator for injuries resulting from those inherent risks.

[*P13] [HN6] Read in its most restrictive sense, section 78-27-51 simply announces that it is the public policy of Utah to bar skiers from recovering from ski area operators for injuries resulting from the inherent risks of skiing, as enumerated in the Act. So limited, this pronouncement explains nothing that one could not deduce from the text of the Act itself which by its terms codifies this policy. Of equal or greater significance are legislative findings and expressions of public policy that bear on why it is important to identify the inherent risks of skiing and insulate ski area operators from liability for injury caused by them.

[*P14] According to the Legislature, it was necessary to immunize ski area operators from liability for injuries caused by inherent risks because they were otherwise being denied insurance coverage or finding coverage too expensive to purchase. See id. The Legislature found that the ski industry [***13] insurance crisis imperiling the economic viability of ski area operators was more than an inconvenient product of market forces. It had become a matter of public policy concern meriting the intervention of public policy because, in the words of the Legislature, “the sport of skiing is practiced by a large number of residents of Utah and attracts a large number of nonresidents, significantly contributing to the economy of this state.” Id. Thus, the ski industry’s prominent role in Utah’s economy justified, in the view of the Legislature, governmental intervention to ameliorate the untoward effects of the free market.

[*P15] The central purpose of the Act, then, was to permit ski area operators to purchase insurance at affordable rates. The insulation of ski area operators from liability for injuries caused by inherent risks of skiing was a means to that end. There is no evidence that, in the absence of a perceived insurance crisis, the Legislature would have interceded on behalf of ski area operators merely to clarify the scope of duties owed skiers who used the ski facilities. [HN7] The Act is most clearly not, as Snowbird contends, intended to protect ski area operators by limiting their liability [***14] exposure generally. It is rather a statute that is intended to clarify those inherent risks of skiing to which liability will not attach so that ski resort operators may obtain insurance coverage to protect them from those risks that are not inherent to skiing.

[*P16] By expressly designating a ski area operator’s ability to acquire insurance at reasonable rates as the sole reason for bringing the Act into being, the Legislature authoritatively put to rest the question of whether ski area operators are at liberty to use preinjury releases to significantly pare back or even eliminate their need to purchase the very liability insurance the Act was designed to make affordable. They are not. The premise underlying legislative action to make insurance accessible to ski area operators is that once the Act made liability insurance affordable, ski areas would buy it to blunt the economic effects brought on by standing accountable for their negligent acts. The bargain struck by the Act is both simple and obvious from its public policy provision: ski area operators would be freed from liability for inherent risks of skiing so that they could continue to shoulder responsibility for noninherent risks [***15] by purchasing insurance. By extracting a preinjury release from Mr. Rothstein for liability due to their negligent acts, Snowbird breached this public policy bargain.

[*P17] There is little to recommend Snowbird’s rejoinder to this interpretation of the public policy provision of the Act. Snowbird contends that the purpose of the Act is to immunize ski area operators from liability generally. Since releases of liability also serve this end, Snowbird argues such releases are wholly compatible with the Act. This reasoning fails to account for the Legislature’s inescapable public policy focus on insurance and ignores the reality that the Act’s core purpose is not to advance the cause of insulating ski area operators from their negligence, but rather to make them better able to insure themselves against the risk of loss occasioned by their negligence.

[*P18] The cases cited by Snowbird from other states that statutorily insulate the providers [**565] of recreational activities from liability for inherent risks and permit preinjury releases lose their persuasive appeal on close examination. Street v. Darwin Ranch, Inc., 75 F. Supp. 2d 1296 (D. Wyo. 1999); Clanton v. United Skates, 686 N.E.2d 896 (Ind. Ct. App. 1997). [***16] Neither Wyoming’s Recreation Safety Act, Wyo. Stat. Ann. §§ 1-1-121 to -123 (1995), nor the relevant Indiana statute, Ind. Code § 14-22-10-2 (1995), that inform these cases contain public policy sections or discuss the issue of insurance. Although both statutes contemplate the lack of liability associated with a variety of recreational activities, neither contains the kind of resounding public policy pronouncement present in Utah’s Act.

[*P19] Likewise unavailing is Snowbird’s assertion that the freedom to enter into a preinjury release must be preserved in the absence of express legislative disapproval. Were we to adopt this reasoning, we would call into question the legitimacy of the entire body of our preinjury release jurisprudence inasmuch as we have never declared a preinjury release unenforceable with the aid of an express statutory mandate to do so. Nor would we be likely to encounter such an occasion. In the face of an express legislative prohibition of a preinjury release, a public policy analysis would hardly be necessary. Moreover, the Act’s expression of public policy does not lend itself to the need for an additional statement concerning the status of preinjury releases. The [***17] legislative goal expressed in the Act of easing the task of ski area operators to insure themselves against noninherent risks creates the presumption that ski area operators will confront those risks through insurance and not by extracting contractual releases from skiers. In this setting, the burden shifts to ski area operators to persuade the Legislature to expressly preserve their rights to obtain and enforce preinjury releases.

CONCLUSION

[*P20] Consistent with our duty to honor the Legislature’s unambiguous expressions of public policy, we hold that the release and indemnify agreements Mr. Rothstein signed per Snowbird’s request are contrary to the public policy of this state and are, therefore, unenforceable. We vacate the district court’s grant of summary judgment and remand for proceedings consistent with this opinion.

[*P21] Chief Justice Durham and Justice Parrish concur in Justice Nehring’s opinion.

DISSENT BY: WILKINS

DISSENT

WILKINS, Associate Chief Justice, dissenting:

[*P22] I conclude that the preinjury releases at issue in this appeal are not, in and of themselves, contrary to the public policy of this state. Accordingly, I respectfully dissent from the majority opinion.

[*P23] I agree with the majority that the central [***18] purpose of Utah’s Inherent Risks of Skiing Act is to facilitate affordable insurance rates for ski area operators because of their direct impact on and contribution to the Utah economy. See Utah Code Ann. § 78-27-51 (2002 & Supp. 2007). I also agree that, in drafting the public policy statement that precedes the substantive text of the Act, the Legislature clearly intended to clarify the law and proscribe lawsuits against ski area operators for those risks that are inherent in skiing. My conformity with the majority opinion, however, ends thee.

[*P24] Grounding their reasoning in the “legislative findings and expressions of public policy [in the Act],” supra P 13, the majority ultimately concludes that the Legislature has “authoritatively put to rest the question of whether ski area operators [may] use preinjury releases to significantly pare back or . . . eliminate their need to purchase . . . liability insurance . . . . They [may] not.” Supra P 16. In other words, the majority reasons that because encouraging affordable insurance rates is the primary objective of the Act, once ski area operators obtain that insurance they may do no more to protect themselves. Consequently, my colleagues [***19] conclude, it violates this express public policy for ski area operators to attempt to limit their liability by seeking preinjury releases from patrons. Extracting such releases, according to the majority, “breache[s the] public policy bargain” made by the Act. Supra P 16. I disagree.

[**566] [*P25] When deciding questions of statutory interpretation, we customarily look first to the plain language of a statute. It is also usual that we take note of words and phrases the Legislature did not include. See Biddle v. Washington Terrace City, 1999 UT 110, P 14, 993 P.2d 875 (“[O]missions in statutory language should be taken note of and given effect.” (citation and internal quotation marks omitted)). Similarly, we have previously expressed the view that “[this] court has no power to rewrite a statute to make it conform to an intention not expressed.” Mountain States Tel. & Tel. Co. v. Pub. Serv. Comm’n, 107 Utah 502, 155 P.2d 184, 185 (Utah 1945) (emphasis added).

[*P26] In my view, the majority’s interpretation improperly expands the plain language of the Act and infuses it with “intention not expressed” by the Legislature. Id. Section 78-27-51 simply proscribes lawsuits against ski area operators for those risks that are [***20] inherent to skiing. See Utah Code Ann. § 78-27-51. Nowhere does the text suggest that ski area operators may not contractually further limit their liability for risks that are not inherent to skiing. In fact, the text is silent about whether an individual may or may not sue a ski area operator on some other basis. Accordingly, this court should resist the temptation to add language or meaning to the Act where no hint of it exists in the text.

[*P27] When the Legislature clearly identifies a public policy objective, we have a duty to honor it. We also have a duty, however, not to stray beyond the plain language of a statute, as I believe the majority has done here. I conclude that preinjury releases do not automatically violate the public policy of this state and that releases must be examined on an individual basis to determine whether they are enforceable under the applicable law. Where, as here, neither preinjury release executed by the plaintiff was a requirement to using the ski area but instead granted additional benefits and privileges to the skier, both parties should be free to enter into the agreement, or not, and expect it to be enforced by our courts as agreed. Accordingly, I would [***21] affirm the district court’s grant of summary judgment in favor of Snowbird.

[*P28] Justice Durrant concurs in Associate Chief Justice Wilkins’s dissenting opinion.


Berry v. Greater Park City Company, 2007 UT 87; 171 P.3d 442; 590 Utah Adv. Rep. 3; 2007 Utah LEXIS 192

Berry v. Greater Park City Company, 2007 UT 87; 171 P.3d 442; 590 Utah Adv. Rep. 3; 2007 Utah LEXIS 192

James Gordon Berry V, Plaintiff and Appellant, v. Greater Park City Company dba Park City Mountain Resort, a Utah corporation; CRE Management, Inc., dba Milosport; and International Ski Federation, Defendants and Appellee.

No. 20051057

SUPREME COURT OF UTAH

2007 UT 87; 171 P.3d 442; 590 Utah Adv. Rep. 3; 2007 Utah LEXIS 192

October 30, 2007, Filed

December 6, 2007, Released for Publication

PRIOR HISTORY: [***1]

Third District, Salt Lake. The Honorable J. Dennis Frederick. No. 030904411.

COUNSEL: Harold G. Christensen, Richard A. Van Wagoner, Julianne Blanch, Ryan B. Bell, Salt Lake City, for appellant.

Gordon Strachan, Kevin J. Simon, Park City, for appellee.

JUDGES: NEHRING, Justice. Chief Justice Durham, Associate Chief Justice Wilkins, Justice Durrant, and Justice Parrish concur in Justice Nehring’s opinion.

OPINION BY: NEHRING

OPINION

[**444] NEHRING, Justice:

[*P1] James Gordon “V.J.” Berry was seriously injured while competing in a ski race. He sued the parties connected with the event, including Park City Mountain Resort (PCMR), the site where the race was held. The district court granted PCMR’s motions for summary judgment and dismissed Mr. Berry’s claims for ordinary negligence, gross negligence, and common law strict liability. We affirm in part and hold that Mr. Berry’s preinjury release of PCMR is enforceable and that the district court properly determined that Mr. Berry’s strict liability claim fails as a matter of law. We further hold that the district court improperly awarded PCMR summary judgment on Mr. Berry’s gross negligence claim and therefore reverse and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

[*P2] In February [***2] 2001, Mr. Berry, an expert skier then twenty-six years of age, entered a skiercross race promoted as the King of the Wasatch, which was constructed on one of PCMR’s ski runs. In the skiercross race format, four racers simultaneously descend a course that features difficult turns and tabletop jumps. The racers compete against each other as they ski down the mountain to complete the course first. A series of elimination heats determines the race winner. On Mr. Berry’s fourth trip over the course, he attempted to negotiate the course’s first tabletop jump. Upon landing from the jump, Mr. Berry fell and fractured his neck, an injury that resulted in permanent paralysis.

[*P3] Before being allowed to participate in the contest, competitors like Mr. Berry were required to sign a Release of Liability and Indemnity Agreement. Although Mr. Berry did not read the agreement, he signed it twelve days before the race. The agreement purported to release PCMR from claims arising from its negligence, stating:

In consideration for being permitted to participate in the Event, I agree to release from any legal liability, agree not to sue and further agree to defend, indemnify and hold harmless Park City Mountain [***3] Resort . . . the race organizers, sponsors and all of their officers, agents and employees for injury or death resulting from participation in the Event, regardless of the cause, including the negligence of the above referenced parties and their employees or agents.

[*P4] PCMR introduced several measures aimed at enhancing the safety of contest participants like Mr. Berry. Blue paint marked the take-off point of the tabletop jumps. The course was built with speed gates and berms uphill of the jump in order to slow and control the speed of racers on their approach. Safety barriers enclosed the racecourse and closed it to noncompetitors. Racers were required to wear helmets and familiarize themselves with the course by inspecting its features while twice “slipping” its length. Competitors were also permitted to take practice runs of the course on the day of the race.

[*P5] Naturally occurring conditions compromised these measures on the day of the race. The light was “flat,” which hindered depth perception and made it difficult for participants to make out aspects of the course. The snow-covered surface of the course was packed particularly hard.

[*P6] Mr. Berry offered expert opinion that pointed to [***4] significant design flaws in the tabletop jump that was the site of his fall. For example, the left side of the jump, from which Mr. Berry was forced to ascend due to his competitors’ positioning in the heat, was built in a manner to launch skiers at a dangerously steep angle, causing them to be propelled beyond the landing area. Expert opinion also faulted the landing area as being too small and not steep enough to accommodate safe landings.

[*P7] Relevant to our purposes, Mr. Berry brought suit against PCMR and alleged claims of ordinary negligence, gross negligence, and common law strict liability. The district court granted PCMR’s motions to summarily dismiss each of Mr. Berry’s claims. The district court concluded that Mr. Berry was bound by the “clear and unequivocal” language of the agreement and could not therefore pursue a claim against [**445] PCMR based on the resort’s alleged negligence. The district court held that Mr. Berry’s strict liability claim was invalid because the King of the Wasatch race was not as a matter of law an abnormally dangerous activity. Finally, the district court concluded that as a matter of law Mr. Berry failed to present evidence sufficient to place in dispute [***5] the issue of whether PCMR had designed and built the skiercross course with “utter indifference to the consequences that may result” or gross negligence. This appeal followed.

STANDARD OF REVIEW

[*P8] [HN1] Summary judgment is appropriate only when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Utah R. Civ. P. 56(c). [HN2] Because a grant of summary judgment by definition involves conclusions of law, we afford no deference to the district court’s decision and review it for correctness. See Peterson v. Sunrider Corp., 2002 UT 43, P 13, 48 P.3d 918.

ANALYSIS

I. MR. BERRY’S AGREEMENT TO RELEASE PCMR FROM LIABILITY FOR ITS NEGLIGENT ACTS IS ENFORCEABLE

[*P9] [HN3] Preinjury exculpatory releases turn against one another the freedom of persons to regulate their affairs by contract and the social bargain at the heart of tort law that persons who fail to exercise reasonable care should be accountable in damages to those injured by negligent acts. We have not previously had occasion to consider whether the sponsor of a competitive ski race may shield itself from negligence by obtaining prospective exculpatory agreements from participants. This appeal is not, however, [***6] our introduction to preinjury releases.

[*P10] In our most recent encounter, we held that a preinjury release could not foreclose claims of negligence brought by the parent of a minor child who was injured during a guided equestrian trail ride. Hawkins v. Peart, 2001 UT 94, 37 P.3d 1062. Mr. Berry interprets Hawkins as a case containing sufficient kinetic energy to move it beyond its facts to guide the outcome of this appeal. According to Mr. Berry, Hawkins signaled that we had found common cause with a “growing consensus” of jurisdictions that rejected as contrary to public policy preinjury releases generally and those releasing ski areas particularly. To support his interpretation, Mr. Berry drew on our statement in Hawkins that

[a]n exculpatory clause that relieves a party from future liability may remove an important incentive to act with reasonable care. These clauses are also routinely imposed in a unilateral manner without any genuine bargaining or opportunity to pay a fee for insurance. The party demanding adherence to an exculpatory clause simply evades the necessity of liability coverage and then shifts the full burden of risk of harm to the other party.

Id. P 13.

[*P11] We made observations [***7] critical of preinjury releases in the context of the point that sound reasons exist for the law to treat preinjury releases with greater suspicion than postinjury releases. Regardless of the context in which they appear, we readily acknowledge that the shortcomings of exculpatory clauses cited in Hawkins provide ample cause to approach preinjury releases with caution. Indeed, the reasoning used by courts to reject as contrary to public policy preinjury releases is persuasive. See Hiett v. Lake Barcroft Cmty. Ass’n, 244 Va. 191, 418 S.E.2d 894, 8 Va. Law Rep. 3381 (Va. 1992); see also Jaffe v. Pallotta TeamWorks, 362 U.S. App. D.C. 398, 374 F.3d 1223, 1226 (D.C. Cir. 2004); Coughlin v. T.M.H. Int’l Attractions Inc., 895 F. Supp. 159 (W.D. Ky. 1995); Dalury v. S-K-I, Ltd., 164 Vt. 329, 670 A.2d 795, 799 (Vt. 1995); cf. N.Y. Gen. Oblig. §§ 5-321 to -326 (2007). In the Commonwealth of Virginia, for example, public policy forbids exculpatory agreements because “‘to hold that it was competent for one party to put the other parties to the contract at the mercy of its own misconduct . . . can never be lawfully done where an enlightened system of jurisprudence prevails.'” Hiett, 418 S.E.2d at 896 (quoting Johnson’s Adm’x v. Richmond & Danville R.R. Co., 11 S.E. 829, 829, 86 Va. 975 (Va. 1890)). [***8] This approach is certainly defensible both as a statement of legal and social philosophy–the right to con [**446] tract is always subordinate to the obligation to stand accountable for one’s negligent acts–and on an operational level inasmuch as such a clear statement eliminates any ambiguity over whether a court would later deem a particular preinjury release enforceable. Our recognition of the undesirable features of preinjury releases and of the merits of arguments that we should brand all preinjury releases unenforceable falls short of convincing us that freedom to contract should always yield to the right to recover damages on the basis of another’s fault. See, e.g., Jones v. Dressel, 623 P.2d 370 (Colo. 1981); Porubiansky v. Emory Univ., 156 Ga. App. 602, 275 S.E.2d 163, 167-68 (Ga. Ct. App. 1980); Olson v. Molzen, 558 S.W.2d 429, 431 (Tenn. 1977); Wagenblast v. Odessa Sch. Dist., 110 Wn.2d 845, 758 P.2d 968 (Wash. 1988); Kyriazis v. Univ. of W. Va., 192 W. Va. 60, 450 S.E.2d 649 (W. Va. 1994).

[*P12] Our analysis in Hawkins disclosed both our conviction that [HN4] a person should retain the power to contract away the right to recover damages for the negligence of another and our understanding that the authority to exercise the right was subject [***9] to many conditions and limitations. 1 We began that analysis by acknowledging, uncritically, the “general principle of common law” that [HN5] “‘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.'” Hawkins, 2001 UT 94, P 9, 37 P.3d 1062 (quoting 6A Arthur Linton Corbin, Corbin on Contracts § 1472 (1962)). After canvassing the legal landscape for perspective on how courts have received and interpreted the Corbin principle, we noted that most of the cases from jurisdictions that were not among the minority rejecting all preinjury releases focused their analytical energy on ascertaining how to know who is and who is not “engaged in public service.” Id. P 9. Because it was not necessary to do so, we did not delve into this question in Hawkins and instead limited ourselves to the observation that most jurisdictions that permit prospective releases draw the line at attempts to limit liability for activities in which there is a strong public interest. These cases did not, however, aid us in making progress toward a proper outcome because Hawkins concerned the unique circumstance of the release of a [***10] minor’s prospective claim for negligence and did not implicate the public service exception. Our analysis in Hawkins relied, then, on a public policy exception to the Corbin principle “specifically relating to releases of a minor’s claims.” Id. P 10.

1 For example, parents in many jurisdictions lack the authority to release a minor’s claims against a negligent party. E.g., Hawkins, 2001 UT 94, P 10, 37 P.3d 1062. When Hawkins was decided, Utah was such a jurisdiction; the state afforded parents no “general unilateral right to compromise or release a child’s existing causes of action without court approval or appointment to that effect.” Id. P 11. Although Hawkins involved a mother’s preinjury release of her minor daughter’s claims, we reasoned that it would be inconsistent for the court to allow parents to do preinjury what they were prohibited from doing postinjury. Id.

[*P13] The lesson of Hawkins is that all of the analytical approaches we discussed were exceptions to the general principle that preinjury releases are enforceable. The viability of the principle itself was never challenged. We assumed its controlling force then and make explicit our adoption of the principle now.

[*P14] Had we intended our observations [***11] concerning the deleterious effects of preinjury releases to be our final expression of views on the proper place of such releases in our law, little reason would have existed for us to have refrained from using Hawkins to declare categorically that such releases offend public policy and are unenforceable. The proper inference to draw from Hawkins is that this general rule is well embedded in our common law despite its flaws. Our position on this matter can coexist with our endorsement of the prevailing view that [HN6] the law disfavors preinjury exculpatory agreements. See Hanks v. Powder Ridge Rest. Corp., 276 Conn. 314, 885 A.2d 734, 739 (Conn. 2005).

[*P15] Having determined that our public policy does not foreclose the opportunity of parties to bargain for the waiver of tort claims based on ordinary negligence, we confront the issues we stopped short of resolving in Hawkins: selecting and applying a standard [**447] relating to the public interest exception to the general rule recognizing the enforceability of preinjury releases. 2 2001 UT 94, P 10, 37 P.3d 1062. This is an inquiry that directs our attention to the nature of the activity seeking to be shielded from liability for its negligence and away from Hawkins’ focus on the [***12] status of the person from whom the release is sought. 3 In Hawkins, we stated that many states had come to rely on the guidelines for evaluating the applicability of the public interest exception to preinjury releases set out in Tunkl v. Regents of The University of California, 60 Cal. 2d 92, 32 Cal. Rptr. 33, 383 P.2d 441, 445-46 (Cal. 1963). The Tunkl guidelines have retained their vitality over the years since Utah, through Hawkins, became one of many jurisdictions to permit preinjury releases. See, e.g., Omni Corp. v. Sonitrol Corp., 476 F. Supp. 2d 125, 128 (D. Conn. 2007); Am. Structural Composites, Inc. v. Int’l Conference of Bldg. Officials, 325 F. Supp. 2d 1148, 1151 (D. Nev. 2004); Moore v. Hartley Motors, Inc., 36 P.3d 628, 632 (Alaska 2001); Brown v. Soh, 280 Conn. 494, 909 A.2d 43, 48-51 (Conn. 2006); Courbat v. Dahana Ranch, Inc., 111 Haw. 254, 141 P.3d 427, 437-39 (Haw. 2006); Berlangieri v. Running Elk Corp., 2003 NMSC 24, 134 N.M. 341, 76 P.3d 1098, 1109-10 (N.M. 2003). [HN7] The Tunkl standard, which identifies the traits of an activity in which an exculpatory provision may be invalid, is as follows:

“[1] [The transaction] concerns a business of a type generally thought suitable for public regulation. [2] The party seeking exculpation is engaged in performing [***13] a service of great importance to the public, which is often a matter of practical necessity for some members of the public. [3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. [4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. [5] In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. [6] Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.”

Hawkins, 2001 UT 94, P 9 n.3, 37 P.3d 1062 (quoting Tunkl, 383 P.2d at 445-46).

2 [HN8] The law’s wariness of preinjury releases is reflected in the requirement that to be enforceable, such agreements must be communicated in a clear [***14] and unequivocal manner. See Paralift, Inc. v. Superior Court, 23 Cal. App. 4th 748, 29 Cal. Rptr. 2d 177, 180 (Ct. App. 1993); Cain v. Banka, 932 So. 2d 575, 578 (Fla. Dist. Ct. App. 2006); Hawkins, 2001 UT 94, P 5, 37 P.3d 1062. Mr. Berry has not claimed that PCMR’s release failed to meet this standard. We therefore limit our discussion of the public interest exception to the general rule that exculpatory agreements are enforceable.

3 Of course, the status of the person giving a preinjury release is an omnipresent consideration insofar as status relates to the relative bargaining power of the parties to the release.

[*P16] [HN9] Consideration of these traits is a flexible endeavor; the activity at issue need exhibit only a sufficient number of Tunkl characteristics such that one may be convinced of the activity’s affinity to the public interest. When a preinjury release is contrary to the public interest, it is invalid. Applying this approach, we test the King of the Wasatch race against each of the six Tunkl guidelines.

[*P17] First, while as an academic matter it may be debatable whether the sport of skiing is of a type generally thought to be suitable for public regulation, in Utah there can be no debate. [HN10] In Utah, skiing is regulated [***15] by the Inherent Risk of Skiing Act, Utah Code Ann. §§ 78-27-51 to -54 (2002 & Supp. 2007). Although the parties assume that the Act applies to skiercross events like the King of the Wasatch race, it is less clear that the applicability of the Act to skiercross racing would qualify the competition as suitable for public regulation. The Act was animated by a legislative finding that “the sport of skiing is practiced by a large number of residents of [**448] Utah and attracts a large number of nonresidents.” Id. § 78-27-51. The same cannot be said for skiercross racing. This form of competition has simply not generated sufficient public interest either through its popularity or because of hazards associated with it to generate a call for intervention of state regulatory authority. Skiercross racing is but one of an almost countless number of competitive sporting events occurring at any particular time in Utah. Among these, Utah law regulates only competitive boxing and equestrian events. See id. §§ 63C-11-301 to -318; id. §§ 63C-11-320 to -325; id. §§ 78-27b-101 to -102 (Supp. 2007).

[*P18] Thus, [HN11] while the reach of the Act may extend to ski-related activities that fall outside the public policy considerations [***16] underlying the adoption of the Act, those activities, like skiercross racing, are nevertheless subject to a separate analysis for the purpose of evaluating the enforceability of preinjury releases. Put another way, while the services provided by a business operating a recreational ski area and the services provided by a business sponsoring a competitive ski race may be covered by the provisions of the Act, the differences between recreational and competitive skiing are substantial enough to warrant the application of a separate analysis concerning their suitability for public regulation. In our view, skiercross racing is not generally thought suitable for public regulation.

[*P19] Second, for all the benefits that the King of the Wasatch race may have bestowed on its competitors, sponsors, and spectators, the race sponsors were in no way performing a service of great importance to the public, nor was race participation a matter of practical necessity for anyone.

[*P20] Third, the record suggests that PCMR made race participation available to anyone who sought to enter. Based on the description of the King of the Wasatch race in the record, a clear inference exists that competitors came from a limited [***17] group of expert, competitive skiers.

[*P21] The fourth Tunkl guideline diminishes the likelihood that we might find a preinjury release enforceable considering that the essential nature of the activity or service results in endowing the party seeking exculpation with a decisive advantage of bargaining strength. We have little doubt that Mr. Berry possessed no bargaining strength whatsoever. If he wanted to compete in the King of the Wasatch race, he was required to sign the preprinted release form. In this setting, however, PCMR’s decisive advantage in bargaining strength was of little consequence since the race was a nonessential activity.

[*P22] Fifth, PCMR’s superior bargaining power, its use of a contract of adhesion, and its failure to provide Mr. Berry an option to purchase protection against PCMR’s negligence is similarly of little consequence because of the nonessential nature of the race.

[*P23] The final Tunkl factor, that Mr. Berry was placed under PCMR’s control as a result of signing the release and made subject to the risk of PCMR’s carelessness, is of questionable application. PCMR appears to have been capable of exercising a negligible degree of control over the manner in which Mr. Berry [***18] traversed the racecourse or whether he elected to complete the course at all after inspecting its features.

[*P24] After considering the facts of Mr. Berry’s case with the Tunkl guidelines in mind, we are convinced that the release Mr. Berry executed in favor of PCMR is enforceable.

II. THE DISTRICT COURT ERRED WHEN IT AWARDED PCMR SUMMARY JUDGMENT ON MR. BERRY’S GROSS NEGLIGENCE CLAIM

[*P25] PCMR does not claim that its release insulates it from liability for gross negligence. It argues instead that the precautions the sponsors of the King of the Wasatch race took, designed to minimize the risk of injury to participants without unduly compromising the competitive challenges, without which the contest would have little allure, were sufficient to overcome Mr. Berry’s gross negligence claim as a matter of law. Without guidance anywhere in the record as to the applicable standard of care, we cannot conclude that PCMR was not grossly negligent as a matter of law.

[**449] [*P26] We must initially return to the topic of the standard of review because its proper form and application largely determine the outcome of Mr. Berry’s challenge to the district court’s summary dismissal of his gross negligence claim. [HN12] In securing [***19] recovery, the task 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. We have characterized gross negligence as “‘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.'” Atkin Wright & Miles v. Mountain States Tel. & Tel. Co., 709 P.2d 330, 335 (Utah 1985) (quoting Robinson Ins. & Real Estate, Inc. v. Sw. Bell Tel. Co., 366 F. Supp. 307, 311 (W.D. Ark. 1973)).

[*P27] [HN13] When reviewing appeals from grants of summary judgment in cases of ordinary negligence, we have consistently followed the principle that “summary judgment is generally inappropriate to resolve negligence claims and should be employed ‘only in the most clear-cut case.'” White v. Deseelhorst, 879 P.2d 1371, 1374 (Utah 1994) (quoting Ingram v. Salt Lake City, 733 P.2d 126, 126 (Utah 1987) (per curiam)). Moreover, summary judgment is “‘inappropriate unless the applicable standard [***20] of care is fixed by law, and reasonable minds could reach but one conclusion as to the defendant’s negligence under the circumstances.'” White, 879 P.2d at 1374 (quoting Wycalis v. Guardian Title of Utah, 780 P.2d 821, 825 (Utah Ct. App. 1989) (internal quotation marks omitted)).

[*P28] Were we evaluating this case as one of ordinary negligence, we would have little difficulty discerning the presence of genuine issues of material fact sufficient to overcome a motion for summary judgment. Mr. Berry presented testimony of an experienced ski racer, coach, and jumper who witnessed Mr. Berry’s accident and faulted the jump’s design. A second expert in ski racecourse design and safety was likewise critical of the configuration of the accident site.

[*P29] According to PCMR, this testimony is insufficient to overcome summary dismissal of Mr. Berry’s gross negligence claim because evidence that would be adequate to take an ordinary negligence case to a jury cannot withstand uncontroverted evidence that PCMR exercised enough care to avoid a finding of gross negligence. PCMR urges that its production of evidence indicating that it used “even slight care” or displayed something more than “complete and absolute [***21] indifference” to the consequences that might have resulted from an improper design or construction of the tabletop jump and landing area is sufficient to remove Mr. Berry’s gross negligence claim from the jury. We disagree.

[*P30] The parties have not directed us to, nor have we been able to discover, a location in the record where the appropriate standard of care applicable to the design and construction of skiercross courses appears. We have held that [HN14] where a standard of care is not “fixed by law,” the determination of the appropriate standard is a factual issue to be resolved by the finder of fact. Wycalis, 780 P.2d at 825. Identification 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. Absent the presence of an identified, applicable standard of care to ground the analysis, we hold that the district court improperly granted PCMR summary judgment and dismissed Mr. Berry’s gross negligence claim.

III. THE DISTRICT COURT’S SUMMARY DISMISSAL OF MR. BERRY’S STRICT LIABILITY CLAIM WAS PROPER

[*P31] Mr. Berry contends that the district court erred when it [***22] summarily dismissed his claim that PCMR was strictly liable for damages for his injuries because skiercross racing is an abnormally dangerous activity as defined by the factors set out in section 520 of the Restatement (Second) of Torts. In aid of his argument, Mr. Berry points to numerous [**450] articles in popular ski publications, describing in dramatic terms the injuries sustained, seemingly as a matter of routine, by racers in skiercross competitions. These aspects of the record may indeed advance Mr. Berry’s cause regarding the degree of peril that skiercross races pose. To us, they establish convincingly alternative grounds upon which to affirm the district court’s rejection of Mr. Berry’s strict liability claim. See, e.g., State v. Robison, 2006 UT 65, P 19, 147 P.3d 448 (allowing affirmance of the judgment appealed from based “‘on any legal ground or theory apparent on the record'” (quoting Bailey v. Bayles, 2002 UT 58, P 10, 52 P.3d 1158)).

[*P32] [HN15] Assuming the skiercross racing is an abnormally dangerous activity, Mr. Berry’s role as a participant excludes him from eligibility to recover under a theory of strict liability. See, e.g., Pullen v. West, 278 Kan. 183, 92 P.3d 584 (Kan. 2004) (holding that [***23] an individual who lit fireworks while a guest at an Independence Day party was a participant in an abnormally dangerous activity and therefore barred from recovery on a strict liability theory). As a general principle, the Restatement’s protections extend to those individuals who are injured as the result of an activity that carries “the existence of a high degree of risk of some harm to the person, land or chattels of others.” Restatement (Second) of Torts § 520 (1977). Like the Pullen court and others, we agree that the scope of section 520 excludes participants, like Mr. Berry, who engage in the very activity for which they seek to recover damages based on strict liability. See, e.g., Whitlock v. Duke Univ., 637 F. Supp. 1463, 1475 (M.D.N.C. 1986); Gaston v. Hunter, 121 Ariz. 33, 588 P.2d 326, 341 (Ariz. Ct. App. 1978); Trull v. Carolina-Virginia Well Co., 264 N.C. 687, 142 S.E.2d 622, 622-26 (N.C. 1965). This conclusion is not undermined by the principles upon which Mr. Berry rests his claim to strict liability recovery.

[*P33] Section 520 generally states that [HN16] a court should consider the following factors in determining whether an activity is abnormally dangerous:

(a) existence of a high degree of risk of some harm [***24] to the person, land or chattels of others;

(b) likelihood that the harm that results from it will be great;

(c) inability to eliminate the risk by the exercise of reasonable care;

(d) extent to which the activity is not a matter of common usage;

(e) inappropriateness of the activity to the place where it is carried on; and

(f) extent to which its value to the community is outweighed by its dangerous attributes.

Mr. Berry argues the eligibility of skiercross racing under several of these. Although we fully recognize that all of these factors may aid a court in evaluating whether an activity is abnormally dangerous, we view the first factor as qualitatively different than the rest and therefore worthy of separate consideration. See, e.g., Restatement (Second) of Torts § 520 cmt. f (“Any one of them is not necessarily sufficient of itself . . . for strict liability. On the other hand, it is not necessary that each of them be present, especially if others weigh heavily.”). Unlike its five colleagues, the first factor targets the very nature of the strict liability protection–who is eligible. Section 520 exposes landowners who conduct abnormally dangerous activities on their land–harboring [***25] dangerous animals has of particular concern to the drafters of the Restatement–to strict liability for injury suffered by those who come onto the land under color of privilege, but not for injury suffered by those who participated in the abnormally dangerous activity. We accordingly affirm the district court’s dismissal of Mr. Berry’s strict liability claim.

CONCLUSION

[*P34] Because our public policy does not foreclose Mr. Berry from waiving PCMR’s liability, we hold that Mr. Berry’s preinjury release is enforceable. We further hold that Mr. Berry’s strict liability claim fails as a matter of law considering his participation in the skiercross race. Finally, we hold that the district court erred in awarding summary judgment on Mr. Berry’s gross negligence claim without reference to the applicable [**451] standard of care. We therefore reverse and remand to the district court for proceedings consistent with this opinion.

[*P35] Chief Justice Durham, Associate Chief Justice Wilkins, Justice Durrant, and Justice Parrish concur in Justice Nehring’s opinion.


Utah Equine Liability Statutes

Utah Code Annotated

Title 78B  Judicial Code 

Chapter 4  Limitations on Liability 

Part 2  Limitations on Liability for Equine and Livestock Activities

Utah Code Ann. § 78B-4-201  (2014)

78B-4-201.  Definitions.

As used in this part:

(1) “Equine” means any member of the equidae family.

(2) “Equine activity” means:

      (a) equine shows, fairs, competitions, performances, racing, sales, or parades that involve any breeds of equines and any equine disciplines, including dressage, hunter and jumper horse shows, grand prix jumping, multiple-day events, combined training, rodeos, driving, pulling, cutting, polo, steeple chasing, hunting, endurance trail riding, and western games;

      (b) boarding or training equines;

      (c) teaching persons equestrian skills;

      (d) riding, inspecting, or evaluating an equine owned by another person regardless of whether the owner receives monetary or other valuable consideration;

      (e) riding, inspecting, or evaluating an equine by a prospective purchaser; or

      (f) other equine activities of any type including rides, trips, hunts, or informal or spontaneous activities sponsored by an equine activity sponsor.

(3) “Equine activity sponsor” means an individual, group, governmental entity, club, partnership, or corporation, whether operating for profit or as a nonprofit entity, which sponsors, organizes, or provides facilities for an equine activity, including:

      (a) pony clubs, hunt clubs, riding clubs, 4-H programs, therapeutic riding programs, and public and private schools and postsecondary educational institutions that sponsor equine activities; and

      (b) operators, instructors, and promoters of equine facilities, stables, clubhouses, ponyride strings, fairs, and arenas.

(4) “Equine professional” means a person compensated for an equine activity by:

      (a) instructing a participant;

      (b) renting to a participant an equine to ride, drive, or be a passenger upon the equine; or

      (c) renting equine equipment or tack to a participant.

(5) “Inherent risk” with regard to equine or livestock activities means those dangers or conditions which are an integral part of equine or livestock activities, which may include:

      (a) the propensity of the animal to behave in ways that may result in injury, harm, or death to persons on or around them;

      (b) the unpredictability of the animal’s reaction to outside stimulation such as sounds, sudden movement, and unfamiliar objects, persons, or other animals;

      (c) collisions with other animals or objects; or

      (d) the potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the animal or not acting within his or her ability.

(6) “Livestock” means all domesticated animals used in the production of food, fiber, or livestock activities.

(7) “Livestock activity” means:

      (a) livestock shows, fairs, competitions, performances, packing events, or parades or rodeos that involve any or all breeds of livestock;

      (b) using livestock to pull carts or to carry packs or other items;

      (c) using livestock to pull travois-type carriers during rescue or emergency situations;

      (d) livestock training or teaching activities or both;

      (e) taking livestock on public relations trips or visits to schools or nursing homes;

      (f) boarding livestock;

      (g) riding, inspecting, or evaluating any livestock belonging to another, whether or not the owner has received some monetary consideration or other thing of value for the use of the livestock or is permitting a prospective purchaser of the livestock to ride, inspect, or evaluate the livestock;

      (h) using livestock in wool production;

      (i) rides, trips, or other livestock activities of any type however informal or impromptu that are sponsored by a livestock activity sponsor; and

      (j) trimming the feet of any livestock.

(8) “Livestock activity sponsor” means an individual, group, governmental entity, club, partnership, or corporation, whether operating for profit or as a nonprofit entity, which sponsors, organizes, or provides facilities for a livestock activity, including:

      (a) livestock clubs, 4-H programs, therapeutic riding programs, and public and private schools and postsecondary educational institutions that sponsor livestock activities; and

      (b) operators, instructors, and promoters of livestock facilities, stables, clubhouses, fairs, and arenas.

(9) “Livestock professional” means a person compensated for a livestock activity by:

      (a) instructing a participant;

      (b) renting to a participant any livestock for the purpose of riding, driving, or being a passenger upon the livestock; or

      (c) renting livestock equipment or tack to a participant.

      (10) “Participant” means any person, whether amateur or professional, who directly engages in an equine activity or livestock activity, regardless of whether a fee has been paid to participate.

(11)  (a) “Person engaged in an equine or livestock activity” means a person who rides, trains, leads, drives, or works with an equine or livestock, respectively.

      (b) Subsection (11)(a) does not include a spectator at an equine or livestock activity or a participant at an equine or livestock activity who does not ride, train, lead, or drive an equine or any livestock.

78B-4-202.  Equine and livestock activity liability limitations.

(1) It shall be presumed that participants in equine or livestock activities are aware of and understand that there are inherent risks associated with these activities.

(2) An equine activity sponsor, equine professional, livestock activity sponsor, or livestock professional is not liable for an injury to or the death of a participant due to the inherent risks associated with these activities, unless the sponsor or professional:

(a)  (i) provided the equipment or tack;

      (ii) the equipment or tack caused the injury; and

      (iii) the equipment failure was due to the sponsor’s or professional’s negligence;

(b) failed to make reasonable efforts to determine whether the equine or livestock could behave in a manner consistent with the activity with the participant;

(c) owns, leases, rents, or is in legal possession and control of land or facilities upon which the participant sustained injuries because of a dangerous condition which was known to or should have been known to the sponsor or professional and for which warning signs have not been conspicuously posted;

(d)  (i) commits an act or omission that constitutes negligence, gross negligence, or willful or wanton disregard for the safety of the participant; and

      (ii) that act or omission causes the injury; or

(e) intentionally injures or causes the injury to the participant.

(3) This chapter does not prevent or limit the liability of an equine activity sponsor, an equine professional, a livestock activity sponsor, or a livestock professional who is:

(a) a veterinarian licensed under Title 58, Chapter 28, Veterinary Practice Act, in an action to recover for damages incurred in the course of providing professional treatment of an equine;

(b) liable under Title 4, Chapter 25, Estrays and Trespassing Animals; or

(c) liable under Title 78B, Chapter 7, Utah Product Liability Act.

78B-4-203.  Signs to be posted listing inherent risks and liability limitations.

(1) An equine or livestock activity sponsor shall provide notice to participants of the equine or livestock activity that there are inherent risks of participating and that the sponsor is not liable for certain of those risks.

(2) Notice shall be provided by:

            (a) posting a sign in a prominent location within the area being used for the activity; or

            (b) providing a document or release for the participant, or the participant’s legal guardian if the participant is a minor, to sign.

(3) The notice provided by the sign or document shall be sufficient if it includes the definition of inherent risk in Section 78B-4-201 and states that the sponsor is not liable for those inherent risks.

(4) Notwithstanding Subsection (1), signs are not required to be posted for parades and activities that fall within Subsections 78B-4-201(2)(f) and (7)(c), (e), (g), (h), and (j).

 


Rutherfordv. Talisker Canyons Finance Co., LLC, 2014 UT App 190; 767 Utah Adv. Rep. 41; 2014 Utah App. LEXIS 201

Rutherfordv. Talisker Canyons Finance Co., LLC, 2014 UT App 190; 767 Utah Adv. Rep. 41; 2014 Utah App. LEXIS 201

Philip Rutherford and Wendy Rutherford, on Behalf of Their Minor Child, Levi Rutherford, Plaintiffs and Appellees, v. Talisker Canyons Finance Co., LLC and ASC UTAH, LLC, Defendants and Appellants.

No. 20120990-CA

COURT OF APPEALS OF UTAH

2014 UT App 190; 767 Utah Adv. Rep. 41; 2014 Utah App. LEXIS 201

August 14, 2014, Filed

NOTICE:

THIS OPINION IS SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTER.

PRIOR HISTORY: [**1] Third District Court, Silver Summit Department. The Honorable Todd M. Shaughnessy. No. 100500564.

COUNSEL: Eric P. Lee, M. Alex Natt, Elizabeth Butler, and Timothy C. Houpt, Attorneys, for Appellants.

David A. Cutt, Attorney, for Appellees.

JUDGES: JUDGE JAMES Z. DAVIS authored this Opinion, in which JUDGE GREGORY K. ORME and SENIOR JUDGEPAMELA T. GREENWOOD concurred.1 DAVIS, Judge.

1 The Honorable Pamela T. Greenwood, Senior Judge, sat by special assignment as authorized by law. See generally Utah Code Jud. Admin. R. 11-201(6).

OPINION BY: JAMES Z. DAVIS

OPINION

DAVIS, Judge:

[*P1] Talisker Canyons Finance Co., LLC and ASC Utah, LLC (collectively, the Ski Resort) bring this interlocutory appeal challenging the trial court’s denial of their motion for summary judgment and the trial court’s grant of partial summary judgment in favor of Philip and Wendy Rutherford, on behalf of their minor child, Levi Rutherford (collectively, the Rutherfords). We affirm in part, vacate in part, and remand for further proceedings in accordance with this decision.

BACKGROUND

[*P2] In 2010, ten-year-old Levi Rutherford was a member of the Summit Ski Team, a ski racing club that is affiliated with the United States Ski and Snowboard Association (the USSA). The Ski [**2] Team trained primarily at the Canyons, a ski resort near Park City, Utah, with the resort’s permission and subject to the resort’s requirement that the Ski Team carry liability insurance. The Ski Team’s liability insurance was provided through its affiliation with USSA. All Summit Ski Team participants were required to become USSA members, and USSA membership required applicants to execute a release indemnifying USSA from any injury the individual may suffer in connection with his participation in USSA-associated activities, regardless of USSA’s negligence. Because of Levi’s age, his father, Philip Rutherford, executed the release on Levi’s behalf. In that agreement, the term “USSA” is defined as including, inter alia, local ski clubs and ski and snowboard facility operators.

[*P3] On January 15, 2010, Levi and his seven-year-old brother were at the Canyons to attend a Ski Team race-training session. The brothers rode a chairlift that carried them along the length of the “Retreat” ski run where the Ski Team was setting up for practice. Snowmaking machines along the Retreat run were actively making snow at this time. After exiting the chairlift, Levi and his brother skied down Retreat.2 Levi [**3] skied down the slope maintaining a racing stance and without making any turns. Near the bottom of the run, Levi fell when he collided with a mound of man-made snow that was of a different and wetter consistency than other snow on the run. Levi sustained injuries as a result of his fall.

2 It is unclear whether the Ski Team coaches instructed Levi and his brother to take a warm-up run down Retreat or whether the brothers did so of their own accord. See infra note 7.

[*P4] The Rutherfords filed a complaint against the Ski Resort and the Ski Team, seeking damages for Levi’s injuries, which they claim were caused by the defendants’ negligence. As against the Ski Resort specifically, the Rutherfords alleged that the machine that produced the snow mound was not functioning properly, that the Ski Resort could have warned patrons of the hazard by marking the mound or closing the trail, and that the Ski Resort did not adequately monitor the snowmaking taking place on the Retreat run that day.

[*P5] The parties filed several motions for summary judgment. The Ski Team submitted motions for summary judgment on the basis that Utah’s Inherent Risks of Skiing Act (the Act) precluded the Rutherfords’ claims against [**4] it because Levi was indisputably injured when he crashed into a mound of machine-made snow, an inherent risk of skiing for which ski-area operators are exempted from liability under the Act. See generally Utah Code Ann. §§ 78B-4-401 to -404 (LexisNexis 2012) (Inherent Risks of Skiing Act); id. § 78B-4-402(1)(b) (machine-made snow exemption). The Ski Team also contended that it had no duty to protect Levi from a risk inherent to skiing and that it otherwise did not owe him a general duty of care as alleged by the Rutherfords. The Ski Resort joined in the Ski Team’s motions, specifically arguing that the Act exempts the Ski Resort, as a ski-area operator, from any duty to protect Levi from the inherent risk of skiing posed by the mound of machine-made snow. The Ski Resort did not argue that any of the Act’s exemptions other than the machine-made snow exemption applied in this case. The Rutherfords moved for partial summary judgment, arguing that the Act did not bar their claims against the Ski Resort.

[*P6] The trial court rejected the Ski Team’s argument that it is entitled to protection under the Act but granted the Ski Team’s motion for summary judgment on the negligence issue, dismissing with prejudice the Rutherfords’ negligence [**5] claim against it. The trial court concluded that “the Ski Team did not owe Levi a general duty of reasonable care to protect him from harm as alleged by [the Rutherfords]” and that even assuming that it did, “given the undisputed facts in this case, no reasonable jury could find that the Ski Team breached such a duty.”3 The trial court denied the Ski Resorts’ joinder in the Ski Team’s motion for summary judgment based on the Act, ruling that the applicability of the Act and the machine-made snow exemption to the Ski Resort depended on the resolution of disputed facts, namely, whether the snowmaking equipment along Retreat was functioning properly. The trial court granted the Rutherfords’ motion for partial summary judgment based on their argument that the Act did not bar their claims against the Ski Resort.

3 The Ski Team is not a party to this interlocutory appeal.

[*P7] The Ski Resort also filed a motion for summary judgment on the basis that the USSA release that Mr. Rutherford signed on behalf of his son barred Levi’s claims. The court denied the motion based on its determinations (1) that the waiver’s Colorado choice-of- law provision “is unenforceable and . . . Utah law applies to the [**6] USSA release”; (2) that the release is unenforceable under Utah law based on the Utah Supreme Court’s decision in Hawkins ex rel. Hawkins v. Peart, 2001 UT 94, 37 P.3d 1062; and (3) that even if the release was enforceable under Utah or Colorado law, Levi was not racing at the time of his injury or otherwise engaged in the activities covered by the release because the Ski Team’s practice had not yet begun. The Ski Resort petitioned for interlocutory review, which was granted by our supreme court and assigned to this court.

ISSUES AND STANDARD OF REVIEW

[*P8] The Ski Resort contends that the trial court erroneously granted the Rutherfords’ motion for partial summary judgment after finding that Levi was not engaged in race training at the time of his injury and that an exemption in the Act regarding competitive skiing did not bar the Rutherfords’ claims. See Utah Code Ann. § 78B-4-402(1)(g) (competitive-skiing exemption). The Ski Resort also asserts that the trial court’s interpretation of the Act’s machine-made snow exemption was incorrect and that, as a matter of law, summary judgment should be entered for the Ski Resort based on either the machine-made snow exemption or the competitive-skiing exemption. Last, the Ski Resort argues that the trial court erred in determining that [**7] the Colorado choice-of-law provision in the USSA release was not enforceable, that the release was not enforceable under Utah law, and that the release was nevertheless inapplicable here, where Levi was engaged in an activity not covered by the release when he was injured.

[*P9] [HN1] Summary judgment is appropriate “only when all the facts entitling the moving party to a judgment are clearly established or admitted” and the “undisputed facts provided by the moving party . . . preclude[], as a matter of law, the awarding of any relief to the losing party.” Smith v. Four Corners Mental Health Ctr., Inc., 2003 UT 23, ¶ 24, 70 P.3d 904 (alteration in original) (citations and internal quotation marks omitted); see also Utah R. Civ. P. 56(c). “We also note that summary judgment is generally inappropriate to resolve negligence claims and should be employed only in the most clear-cut case.” White v. Deseelhorst, 879 P.2d 1371, 1374 (Utah 1994) (citation and internal quotation marks omitted). “An appellate court reviews a trial court’s legal conclusions and ultimate grant or denial of summary judgment for correctness, and views the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.” Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600 (citations and internal quotation marks omitted).

ANALYSIS

I. The Distinction Between Competitive Skiing and Recreational [**8] Skiing

[*P10] [HN2] The Act exempts ski resorts from liability for injuries sustained by individuals engaged in “competitive” skiing, including injuries sustained as a result of an individual’s “participation in, or practicing or training for, competitions or special events.” See Utah Code Ann. § 78B-4-402(1)(g) (LexisNexis 2012).4 Here, a determination that Levi was injured while engaged in competitive, as opposed to recreational, skiing under the Act could be case-determinative.5

4 Except where otherwise noted, we cite the most recent version of the Utah Code for the convenience of the reader.

5 The applicability of the USSA release could also turn on whether Levi was injured while engaged in one of the activities specifically enumerated in the release; if he was not, then the release cannot apply, rendering irrelevant the question of the release’s enforceability under Utah or Colorado law. The release defines the covered activities as “skiing and snowboarding in their various forms, as well as preparation for, participation in, coaching, volunteering, officiating and related activities in alpine, nordic, freestyle, disabled, and snowboarding competitions and clinics” “in which USSA is involved in any way.” Because USSA employs different [**9] terminology to describe the competitive skiing activities covered by the release, a determination that Levi was not injured while competitively skiing under the terms of the Act would not necessarily foreclose a finding that he was engaged in an activity covered by the release. However, because we determine that the release is unenforceable for other reasons, see infra ¶ 30, we need not address whether Levi was injured while engaging in an activity covered by the release.

[*P11] In their complaint, the Rutherfords allege that Levi was injured during Ski Team practice, stating, “[T]he Summit Ski Team instructed Levi to ski down the Retreat run. . . . As Levi was skiing down Retreat, he crashed into [a mound of snow] and sustained serious injuries . . . .” Similarly, in the Rutherfords’ motions for partial summary judgment as to the enforceability of the Act and the USSA release, they state, “Levi was injured while participating in racing practice as a member of [the Ski Team].”6 Further, the Rutherfords’ expert witness, whose statement was submitted with the Rutherfords’ summary judgment filings, based his expert report and evaluation on the premise that Levi was engaged in race training and practice. [**10] In its response to the Rutherfords’ motions, the Ski Resort agreed that it was an undisputed fact that “Levi was injured while participating in racing practice as a member of the [Ski Team].”7

6 On appeal, the Rutherfords assert that they “never alleged that Levi was injured while ski racing” but only that he “was injured in connection with Ski Team practice,” and that it was through discovery that they learned that Levi was injured before practice started. To the extent this sentiment is contradictory to the allegations contained in the Rutherfords’ complaint, we note that [HN3] “[a]n admission of fact in a pleading is a judicial admission and is normally conclusive on the party making it.” See Baldwin v. Vantage Corp., 676 P.2d 413, 415 (Utah 1984); see also Amgen Inc. v. Connecticut Ret. Plans & Trust Funds, 133 S. Ct. 1184, 1197 n.6, 185 L. Ed. 2d 308 (2013) (holding that a party was bound by an admission in its answer); Belnap v. Fox, 69 Utah 15, 251 P. 1073, 1074 (Utah 1926) (overturning a finding entered by the trial court because the finding was “against and in conflict with the admission in the answer of the principal defendant”). But see Baldwin, 676 P.2d at 415 (recognizing “that an admission may be waived where the parties treat the admitted fact as an issue”).

7 The Ski Team, although not a party to this appeal, disputed in part the Rutherfords’ assertion that Levi was injured during practice, stating, “[A]lthough Levi was injured [**11] during a practice in which the [Ski Team] had intended to conduct race training, he was injured while free skiing and not while running gates.” The Ski Team’s summary judgment filings imply that there is a factual dispute as to whether a “warm-up” run can constitute part of the Ski Team’s race training. See supra note 2.

[*P12] The trial court, however, likened Levi to a recreational skier, rather than a competitive skier, and determined that Levi’s accident occurred while he was “skiing on an open run that any member of the public could ski on” and that his accident indisputably did not occur during a ski race, while skiing through gates, or while otherwise “negotiating for training purposes something that had been specifically designated as a race course.” The trial court made this ruling in the context of rejecting the Ski Resort’s argument that the USSA release is enforceable under Utah law. Thus, while the specific details in the trial court’s ruling are not entirely in conflict with the parties’ undisputed statement of fact that Levi was injured during race training, the court’s comparison of Levi to a recreational skier amounts to a rejection of the parties’ undisputed statement of [**12] fact. This ruling also implies a distinction between injuries sustained during a competition and injuries sustained during training for competition that is not made in the Act’s provision that “participation in, or practicing or training for, competitions” are all inherent risks of skiing. See Utah Code Ann. § 78B-4-402(1)(g). We conclude that the trial court improperly made a finding in the summary judgment context and that its finding is contrary to what appear to be undisputed facts. We vacate this ruling and direct the trial court to reconsider the parties’ arguments in light of the undisputed statements of fact as set forth in the Rutherfords’ and the Ski Resort’s pleadings and motion filings.8 See Staker v. Ainsworth, 785 P.2d 417, 419 (Utah 1990) ( [HN4] “Where a triable issue of material fact exists, the cause will be remanded for determination of that issue.”). We likewise leave for the trial court’s determination the question of whether Levi’s engagement in race training at the time of his injury is truly undisputed by the parties.

8 Although we often provide guidance for the trial court on remand by addressing “[i]ssues that are fully briefed on appeal and are likely to be presented on remand,” State v. James, 819 P.2d 781, 795 (Utah 1991), we do not address whether the competitive-skiing exemption precludes the Rutherfords’ [**13] claims against the Ski Resort based on the parties’ agreement that Levi was injured while engaged in race training. That argument was not presented below, nor was it sufficiently briefed on appeal. See McCleve Props., LLC v. D. Ray Hult Family Ltd. P’ship, 2013 UT App 185, ¶ 19, 307 P.3d 650 (determining that [HN5] “it is better to leave” a legal issue that was not addressed by the parties in briefing “for the district court to address in the first instance based on appropriate briefing by the parties” than to “endeavor to provide the district court with guidance”); cf. Medley v. Medley, 2004 UT App 179, ¶ 11 n.6, 93 P.3d 847 (declining to provide the trial court with guidance on a legal issue likely to arise on remand where the court of appeals had “no consensus on whether [it] should offer guidance . . . and, if so, what any such guidance should be”).

II. The Machine-Made Snow Exemption

[*P13] The Ski Resort next argues that the trial court erroneously denied its motion for summary judgment based on the machine-made snow exemption under the Act, particularly where the machine that produced the snow mound that Levi skied into “was indisputably making snow.” (Emphasis omitted.) [HN6] The Act identifies as an inherent risk of skiing “snow or ice conditions as they exist or may change, such as hard pack, powder, packed powder, wind pack, corn, crust, [**14] slush, cut-up snow, or machine-made snow.” Utah Code Ann. § 78B-4-402(1)(b); see also id. § 78B-4-402(1)(d) (immunizing ski-area operators from injuries caused by “variations or steepness in terrain, whether natural or as a result of slope design, snowmaking or grooming operations”).

[*P14] The Ski Resort contends that the Rutherfords’ “allegations fall squarely into” the machine-made snow exemption given the Rutherfords’ own assertion that Levi was injured when he came into contact with a patch of wet, machine-made snow. As a result, the Ski Resort argues, the trial court “erred in ruling that a mere allegation of malfunctioning snowmaking equipment was sufficient to force a jury trial.”9

9 Because we ultimately reject the Ski Resort’s interpretation of the Act, we do not address the Rutherfords’ argument that the Ski Resort’s interpretation renders the Act unconstitutional.

[*P15] The trial court ruled,

Solely for purposes of this Motion, the existence of ongoing snowmaking is an inherent risk of skiing and a type of danger that skiers wish to confront. Among other things, plaintiff claims that the snowmaking equipment in this particular case was not functioning properly. That claim creates a question of fact as to whether skiers wish to confront [**15] this type of risk and whether that risk could be eliminated through the exercise of reasonable care.

The trial court’s ruling recognizes the principles explained in Clover v. Snowbird Ski Resort, 808 P.2d 1037 (Utah 1991). In that case, our supreme court expressly rejected Snowbird Ski Resort’s argument that recovery from the resort for “any injury occasioned by one or more of the dangers listed in [the Act] is barred by the statute because, as a matter of law, such an accident is caused by an inherent risk of skiing.” Id. at 1044–45. Instead, the court held that [HN7] the Act “does not purport to grant ski area operators complete immunity from all negligence claims initiated by skiers” but protects ski-area operators “from suits to recover for injuries caused by one or more of the dangers listed [in the Act] only to the extent those dangers, under the facts of each case, are integral aspects of the sport of skiing.” Id. at 1044 (emphasis added). The court interpreted the Act as providing a non-exclusive list of dangers that must be analyzed on a case-by-case basis to determine whether a given danger is “inherent” in the sport. Id. at 1044–45 (alteration in original) (quoting Utah Code Ann. § 78-27-52(1) (current version at id. § 78B-4-402(1) (LexisNexis 2012))).

[*P16] The court explained, [HN8] “The term ‘inherent risk of skiing,’ using [**16] the ordinary and accepted meaning of the term ‘inherent,’ refers to those risks that are essential characteristics of skiing–risks that are so integrally related to skiing that the sport cannot be undertaken without confronting these risks.” Id. at 1047. The court divided these risks into two categories, the first of which represents “those risks, such as steep grades, powder, and mogul runs, which skiers wish to confront as an essential characteristic of skiing.” Id. Under the Act, “a ski area operator is under no duty to make all of its runs as safe as possible by eliminating the type of dangers that skiers wish to confront as an integral part of skiing.” Id.

[*P17] [HN9] “The second category of risks consists of those hazards which no one wishes to confront but cannot be alleviated by the use of reasonable care on the part of a ski resort,” such as weather and snow conditions that may “suddenly change and, without warning, create new hazards where no hazard previously existed.” Id. For this category of risks, “[t]he only duty ski area operators have . . . is the requirement set out in [the Act] that they warn their patrons, in the manner prescribed in the statute, of the general dangers patrons must confront [**17] when participating in the sport of skiing.” Id. However, this does not exonerate a ski-area operator from any “duty to use ordinary care to protect its patrons”; “if an injury was caused by an unnecessary hazard that could have been eliminated by the use of ordinary care, such a hazard is not, in the ordinary sense of the term, an inherent risk of skiing and would fall outside of [the Act].” Id. The Clover court then applied its interpretation of the Act to the facts before it, stating that because “the existence of a blind jump with a landing area located at a point where skiers enter the run is not an essential characteristic of an intermediate run,” the plaintiff could “recover if she [could] prove that [the ski resort] could have prevented the accident through the use of ordinary care.” Id. at 1048; see also White v. Deseelhorst, 879 P.2d 1371, 1374–75 (Utah 1994) (reaffirming the approach taken by the court in Clover and concluding that summary judgment was precluded by the question of fact as to whether “an unmarked cat track on the blind side of a ridge” was a risk that the ski resort “could have alleviated . . . through the exercise of ordinary care”).

[*P18] In light of how narrowly the Clover court’s ruling suggests the inherent risk determination [**18] ought to be framed, we agree with the trial court here that summary judgment in favor of the Ski Resort is not appropriate on this claim. The trial court recognized that under the facts of this case, “the existence of ongoing snowmaking is an inherent risk of skiing and a type of danger that skiers wish to confront” but that the Rutherfords’ allegations that the equipment “was not functioning properly,” “[a]mong other things,” created questions of fact as to “whether skiers wish to confront [the] type of risk” created by malfunctioning snowmaking equipment and “whether that risk could be eliminated through the exercise of reasonable care.” Cf. Moradian v. Deer Valley Resort Co., No. 2:10-CV-00615-DN, 2012 U.S. Dist. LEXIS 116075, 2012 WL 3544820, at *4 (D. Utah Aug. 16, 2012) (affirming summary judgment in favor of a ski resort based on a provision in Utah’s Inherent Risks of Skiing Act that immunizes ski-area operators from injuries sustained by a patron’s collision with other patrons because “[t]his type of collision cannot be completely prevented even with the exercise of reasonable care, and is an inherent risk in the sport of skiing,” and rejecting the plaintiff’s speculation that the individual that collided with him was a Deer Valley employee as insufficient “to create [**19] a genuine issue of material fact necessary to defeat summary judgment”). Accordingly, we affirm the trial court’s ruling that questions of fact regarding the applicability of the machine-made snow exemption preclude summary judgment on this issue, and we likewise reject the Ski Resort’s argument that the inclusion of machine-made snow as an inherent risk of skiing in the Act is, by itself, sufficient to immunize the resort from liability in this case.10 See White, 879 P.2d at 1374 ( [HN10] “Courts cannot determine that a risk is inherent in skiing simply by asking whether it happens to be one of those listed in [the Act].”).

10 It is notable, as the Ski Resort points out in its opening brief, that the language of the Act has broadened since the issuance of Clover. See Clover v. Snowbird Ski Resort, 808 P.2d 1037, 1044 (Utah 1991). At the time Clover was decided, the Act listed “snow or ice conditions” as inherent risks. Id. [HN11] In the current version of the Act, those same risks are described as “snow or ice conditions, as they exist or may change, such as hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, or machine-made snow.” See Act of March 1, 2006, ch. 126, § 1, 2006 Utah Laws 549, 549 (codified at Utah Code Ann. § 78B-4-402(1)(b) (LexisNexis 2012)). The Ski Resort contends that this expansion [**20] supports the “practical” necessity of interpreting “the Act broadly when allegations regarding the consistency of snow are in issue” because “the consistency of the snow cannot be objectively tested, measured, retained, analyzed, photographed, or reliably documented.” That this element may be hard to prove, however, is not a persuasive reason to otherwise repudiate our supreme court’s precedent rebuffing the notion that the presence of a risk on the list in the Act is necessarily the end of the inquiry. See White v. Deseelhorst, 879 P.2d 1371, 1374 (Utah 1994); Clover, 808 P.2d at 1044. We likewise reject the Ski Resort’s argument that the post-Clover amendment to the statute adding the competitive-skiing exemption conflicts with the Clover analysis in a manner that “would render the statutory language nonsensical.”

III. Enforceability of the USSA Release

[*P19] To the extent our analysis of the issues raised under the Act may not be dispositive of this case on remand, we next address the parties’ arguments related to the USSA release. See State v. James, 819 P.2d 781, 795 (Utah 1991) ( [HN12] “Issues that are fully briefed on appeal and are likely to be presented on remand should be addressed by [the appellate] court.”). The Ski Resort challenges the trial court’s determination that the Colorado choice-of-law provision [**21] in the USSA release was not enforceable in this case and the court’s subsequent application of Utah law. The Ski Resort contends that the USSA release is enforceable under both Utah and Colorado law and that as a result, the release immunizes it from the Rutherfords’ claims.11 We address each argument in turn.

11 Because of the manner in which we resolve the issues under this heading, we decline to address what impact, if any, the fact that the Ski Resort is not a signatory to the USSA release may have on the applicability of the release to the Ski Resort.

A. The Colorado Choice-of-Law Provision

[*P20] The Ski Resort contends that the trial court erred in ruling that the Colorado choice-of-law provision in the USSA release was not enforceable based on the court’s determination that “Utah is the only state that has an interest in the outcome of the case.” The Ski Resort explains that USSA’s operation as a national organization justifies the need for the choice-of-law provision. It also explains that the USSA designated Colorado law because the USSA holds “more major events in Colorado than any other state” and “more USSA athletes compete in Colorado than any other state,” thereby giving Colorado [**22] “a particular interest in the outcome of this case.” [HN13] We review the trial court’s choice-of-law analysis for correctness. See One Beacon Am. Ins. Co. v. Huntsman Polymers Corp., 2012 UT App 100, ¶ 24, 276 P.3d 1156.

[*P21] [HN14] “Since Utah is the forum state, Utah’s choice of law rules determine the outcome of” whether Utah law or Colorado law applies. See Waddoups v. Amalgamated Sugar Co., 2002 UT 69, ¶ 14, 54 P.3d 1054. To determine whether the choice of Colorado law will govern our substantive interpretation of the USSA release, we must determine first whether “‘two or more states have an interest in the determination of the particular issue'” in this case and, if so, we then analyze whether Colorado has a “‘substantial relationship to the parties or the transaction'” or there is a “‘reasonable basis for the parties[‘] choice.'” Prows v. Pinpoint Retail Sys., Inc., 868 P.2d 809, 811 (Utah 1993) (quoting Restatement (Second) of Conflict of Laws § 187(2)(a) & cmt. d (Supp. 1988)).

[*P22] In Prows v. Pinpoint Retail Systems, Inc., 868 P.2d 809 (Utah 1993), a Canadian company that conducted business throughout the United States sought to enforce a New York choice-of-law provision contained in a contract it entered into with a Utah-based business. Id. at 810–11. The Utah Supreme Court recognized that although “New York has no substantial relationship to the parties or the transaction, there is a reasonable basis for [the Canadian company’s] choosing New York law to govern the [contract]”–“to limit the number of forums in which it may be required to bring [**23] or defend an action.” Id. at 811 (internal quotation marks omitted). Nonetheless, the court concluded that “[t]he existence of that ‘reasonable basis,’ . . . [was] without effect” because “New York [had] no interest in the determination of [the] case.” Id. The court identified various “relevant contacts” that Utah had with the case and concluded that Utah was “the only state with an interest in the action.” Id. (internal quotation marks omitted). Specifically, the court noted that a “Utah plaintiff brought this suit against a Utah defendant and a Canadian defendant,” that the contract “was to be performed in Utah,” that the contract “was signed in Utah, and [that] the alleged breach and tortious conduct occurred [in Utah].” Id. In other words, without any similar relevant contacts, New York had no interest in the case for the choice-of-law provision to be enforceable. Id.

[*P23] Besides analyzing what contacts a state may have with the case, Prows does not provide much guidance for our analysis of whether Colorado has an interest in this case. Indeed, Prows appears to use the terms “interest in,” “substantial relationship,” and “relevant contacts” interchangeably. Accordingly, we look to the Restatement [**24] for guidance. See American Nat’l Fire Ins. Co. v. Farmers Ins. Exch., 927 P.2d 186, 190 (Utah 1996) (noting that [HN15] Utah courts should apply the test “explained in Restatement of Conflict section 188” to resolve “a conflict of laws question in a contract dispute”). The Restatement lists several factors a court might consider in analyzing the significance of a state’s relationship to the parties and transaction at issue, including, “(a) the place of contracting, (b) the place of negotiation of the contract, (c) the place of performance, (d) the location of the subject matter of the contract, and (e) the domicil, residence, nationality, place of incorporation and place of business of the parties.” Restatement (Second) of Conflict of Laws § 188(2) (1971).

[*P24] Here, any interest the state of Colorado may have in this case arises out of the possibility that Levi could have competed in Colorado at some point during the relevant ski season as a USSA member because USSA holds most of its competitions in Colorado and that is where most USSA athletes compete. According to the Ski Resort, “at the time they entered the contract, the parties did not know and could not have known the full geographic scope of where the [USSA] contract was to be performed.” All of these factors, however, relate to the reasonableness of USSA’s choice of Colorado law, not Colorado’s interest [**25] in or substantial relationship with the parties in this case or the transaction at issue. As dictated by Prows, USSA’s interest in having one state’s laws apply to its contracts with its members located throughout the country, and the logic behind its choice of Colorado law specifically, does not vest in the state of Colorado a “substantial relationship” or “interest in” the parties or the transaction before us. See Prows, 868 P.2d at 811. And, as in Prows, the state of Utah clearly has an interest in the determination of this case; the Rutherfords entered into the USSA release while domiciled in Utah, they remained domiciled in Utah at the time of Levi’s injury, Levi’s injury occurred in Utah, USSA is a Utah entity, and the Ski Resort’s principal place of business is in Utah. See id. Accordingly, the choice-of-law provision does not control in this case and we rely on Utah law to determine the enforceability of the release.

B. Enforceability of the USSA Release under Utah Law

[*P25] The Ski Resort argues that even if the Colorado law provision does not apply here, the USSA release is enforceable under Utah law. The trial court determined that the release was unenforceable under Utah law based on case law describing [**26] a general policy in Utah rejecting pre-injury releases signed by parents on behalf of minors and, alternatively, based on its determination that Levi was a recreational skier and pre-injury releases executed by recreational skiers are not valid under the Act. We agree with the trial court that the release, as it may apply to the Ski Resort, is unenforceable under Utah law, but we reach this conclusion based on somewhat different reasoning. See Bailey v. Bayles, 2002 UT 58, ¶ 13, 52 P.3d 1158 ( [HN16] “[A]n appellate court may affirm the judgment appealed from if it is sustainable on any legal ground or theory apparent on the record.” (emphasis, citation, and internal quotation marks omitted)).

1. Enforceability of the USSA Release Based on Levi’s Status as a Minor

[*P26] The trial court ruled that Utah law rejects pre-injury releases signed by a parent on behalf of a minor, rendering the USSA release invalid in Utah. The trial court interpreted Utah case law as “prevent[ing] enforcement of the USSA release,” relying specifically on one Utah Supreme Court case in which the court rejected as against public policy a pre-injury release signed by a parent on behalf of a minor as a prerequisite to the minor’s participation in a recreational horseback ride. See Hawkins ex rel. Hawkins v. Peart, 2001 UT 94, ¶¶ 2, 13-14, 37 P.3d 1062, superseded [**27] by statute, Utah Code Ann. § 78B-4-203(2)(b) (LexisNexis 2012), as recognized in Penunuri v. Sundance Partners, Ltd., 2013 UT 22, ¶ 21 n.43, 301 P.3d 984.

[*P27] In Hawkins, a minor was injured when she was thrown off of a horse during a guided trail ride. Id. ¶ 3. She filed suit against the company that provided the horses and trail guides based on various claims of negligence. Id. The guide company argued that a release signed by the minor’s mother prior to the horseback ride precluded her suit. Id. In addressing the parties’ arguments, the supreme court recognized that releases for liability are, in general, permitted in most jurisdictions “for prospective negligence, except where there is a strong public interest in the services provided.” Id. ¶ 9. The court recognized various standards and criteria employed in other jurisdictions to aid in “determining public policy limitations on releases” but declined to specifically adopt any one standard. Id. ¶¶ 9-10. Instead, the Hawkins court held that “[i]n the absence of controlling statutes or case law,” “general statements of policy found in statutes detailing the rights of minors and the responsibilities of guardians” demonstrate a public policy in Utah disfavoring “contracts releasing individuals or entities from liability for future injuries to [**28] minors.” Id. ¶¶ 7, 11-13. The court was also persuaded by the “clear majority of courts treating the issue” that “have held that a parent may not release a minor’s prospective claim for negligence.” Id. ¶ 10 (collecting cases). Most notably, the court adopted the holding expressed by the Washington Supreme Court that “‘[s]ince a parent generally may not release a child’s cause of action after injury, it makes little, if any, sense to conclude a parent has authority to release a child’s cause of action prior to an injury.'” Id. ¶¶ 10, 13 (alteration in original) (quoting Scott ex rel. Scott v. Pacific W. Mountain Resort, 119 Wn.2d 484, 834 P.2d 6, 11-12 (Wash. 1992)). The Hawkins court affirmed the trial court’s ruling that because “the general rule permitting release of liability did not apply where a parent signs the contract on behalf of a minor,” the release signed by Hawkins’s mother on her behalf was unenforceable. Id. ¶¶ 6, 13.

[*P28] Since the Utah Supreme Court’s decision in Hawkins, the statute applicable in that case–the Limitations on Liability for Equine and Livestock Activities Act (the Equine Act)–has been amended to specifically “permit[] a parent to sign a release on behalf of a minor.” See Penunuri, 2013 UT 22, ¶ 21 n.43, 301 P.3d 984; see also Utah Code Ann. §§ 78B-4-201 to -203 (LexisNexis 2012) (Equine Act); id. § 78B-4-203(2)(b) (permitting a parent to sign a release). [**29] [HN17] Our supreme court recently recognized that Hawkins remains a valid example of how to determine whether a contract offends public policy when the public policy is not clearly discernible in the applicable statutes or case law. See Penunuri, 2013 UT 22, ¶ 28, 301 P.3d 984 & n.43. The court also explained that a public policy statement arrived at in the manner undertaken in Hawkins does not take precedence over express policy language in a controlling statute. See id. (indicating that, to the extent Hawkins conflicts with the amended Equine Act, the Equine Act controls and the conclusion in Hawkins is overruled).

[*P29] Here, the Act includes a clear “legislative expression[] of public policy” regarding the specific industry and activities at issue; thus, we need not undertake a Hawkins-like public policy analysis. See Rothstein v. Snowbird Corp., 2007 UT 96, ¶¶ 11, 19, 175 P.3d 560. The public policy statement in the Act provides,

[HN18] The Legislature finds that the sport of skiing is practiced by a large number of residents of Utah and attracts a large number of nonresidents, significantly contributing to the economy of this state. It further finds that few insurance carriers are willing to provide liability insurance protection to ski area operators and that the premiums charged by those carriers [**30] have risen sharply in recent years due to confusion as to whether a skier assumes the risks inherent in the sport of skiing. It is the purpose of this act, therefore, to clarify the law in relation to skiing injuries and the risks inherent in that sport, to establish as a matter of law that certain risks are inherent in that sport, and to provide that, as a matter of public policy, no person engaged in that sport shall recover from a ski operator for injuries resulting from those inherent risks.

Utah Code Ann. § 78B-4-401 (LexisNexis 2012). [HN19] Our supreme court has interpreted this public policy statement as prohibiting pre-injury releases of liability for negligence obtained by ski-area operators from recreational skiers. Rothstein, 2007 UT 96, ¶¶ 16-17, 175 P.3d 560. And the court has outright rejected the notion that releases of liability serve the purpose of the Act–to immunize ski-area operators from liability generally–stating,

This reasoning fails to account for the Legislature’s inescapable public policy focus on insurance and ignores the reality that the Act’s core purpose is not to advance the cause of insulating ski area operators from their negligence, but rather to make them better able to insure themselves against the risk of loss occasioned [**31] by their negligence.

Id. ¶ 17.

[*P30] In other words, [HN20] the Act prohibits pre-injury releases of liability for negligence entirely, regardless of the age of the skier that signed the release or whether the release was signed by a parent on behalf of a child. The Act does not differentiate among the “large number” of residents and nonresidents engaged in the sport of skiing that “significantly contribut[e] to the economy of this state” based on the participant’s age. Accordingly, we reject the trial court’s determination that the USSA release is unenforceable because it was signed by a parent on behalf of a minor; rather, the release is unenforceable based on the Act’s policy statement.

2. Enforceability of the USSA Release Based on Levi’s Status as a Competitive or Recreational Skier

[*P31] The trial court also determined that the USSA release was unenforceable in this case based on its determination that Levi was injured while engaging in recreational skiing, rather than competitive skiing. Utah courts have interpreted the Act’s policy statement as prohibiting pre-injury releases signed by recreational skiers, see Rothstein, 2007 UT 96, ¶¶ 3, 16, 175 P.3d 560, while permitting pre-injury releases signed by competitive skiers, see Berry v. Greater Park City Corp., 2007 UT 87, ¶¶ 18, 24, 171 P.3d 442. Here, the trial court [**32] rejected the release’s enforceability by likening Levi to the recreational skier in Rothstein.

[*P32] As previously discussed, our supreme court in Rothstein v. Snowbird Corp., 2007 UT 96, 175 P.3d 560, explained that [HN21] the Act was enacted in recognition that the ski industry, which plays a “prominent role in Utah’s economy,” was in the midst of an “insurance crisis.” Id. ¶ 14. To achieve the Act’s goal of ensuring that ski-area operators had access to “insurance at affordable rates,” the Act prohibited “skiers from recovering from ski area operators for injuries resulting from the inherent risks of skiing.” Id. ¶¶ 13, 15. The court explained that the Act was designed to strike a “bargain” with ski-area operators by freeing them “from liability for inherent risks of skiing so that they could continue to shoulder responsibility for noninherent risks by purchasing insurance.” Id. ¶ 16. Accordingly, the Rothstein court concluded that “[b]y extracting a preinjury release from Mr. Rothstein for liability due to [the ski resort’s] negligent acts, [the resort] breached [the Act’s] public policy bargain.” Id.

[*P33] However, not long before Rothstein, our supreme court in Berry v. Greater Park City Corp., 2007 UT 87, 171 P.3d 442, deemed a pre-injury release enforceable based on the type of skiing involved in that case. [**33] Id. ¶¶ 18, 24. The pre-injury release in that case was signed in favor of a ski resort by an adult prior to, and as prerequisite for, his participation in a skiercross race. Id. ¶¶ 2-3. The Berry court recognized that the vitality of Utah’s ski industry is a matter of public interest, as evidenced by the enactment of the Act, and “that most jurisdictions that permit [pre-injury] releases draw the line [of enforceability of those releases] at attempts to limit liability for activities in which there is a strong public interest.” Id. ¶¶ 12, 17. The court then applied a six-part test to determine whether skiercross racing is an activity “in which there is strong public interest.” Id. ¶¶ 12, 15 (citing Tunkl v. Regents of the Univ. of Cal., 60 Cal. 2d 92, 32 Cal. Rptr. 33, 383 P.2d 441, 445-46 (Cal. 1963) (in bank)). The Berry court determined that “skiercross racing” “has simply not generated sufficient public interest either through its popularity or because of hazards associated with it to generate a call for intervention of state regulatory authority” and that it is therefore “subject to a separate analysis for the purpose of evaluating the enforceability of preinjury releases,” even though “the services provided by a business operating a recreational ski area and the services provided [**34] by a business sponsoring a competitive ski race may be covered by the provisions of the Act.” Id. ¶¶ 17-18. Accordingly, the supreme court held “that the release Mr. Berry executed in favor of [the ski resort was] enforceable.” Id. ¶ 24.

[*P34] Here, the Ski Resort asserted, and the trial court agreed, “that the critical distinction between Berry and Rothstein is that the plaintiff in Berry signed a release as a condition of participating in a competitive skiercross racing event, while the plaintiff in Rothstein was simply a recreational skier who signed a release when he purchased a ski pass.” Based on that distinction and the seemingly undisputed fact as between the Ski Resort and the Rutherfords that Levi was injured during race training, the Ski Resort argued that the USSA release was enforceable under Utah law because this case “more closely resembles Berry than Rothstein.”

[*P35] However, [HN22] the Act was amended in 2006 to expand the definition of “the sport of skiing to include participation in, or practicing or training for, competitions or special events.”12 See Act of March 1, 2006, ch. 126, § 1, 2006 Utah Laws 549, 549 (codified at Utah Code Ann. § 78B-4-402(1)(g) (LexisNexis 2012)). This amendment indicates the legislature’s intent [**35] that competitive skiing, including practicing and training for competitions, should be treated the same way as recreational skiing.13 Cf. Collins v. Schweitzer, Inc., 21 F.3d 1491, 1493-94 (9th Cir. 1994) (holding that Idaho’s similar act precludes claims brought by competitive skiers against ski resorts, particularly in light of the fact that the statute “does not distinguish between injuries suffered during racing and injuries suffered during other types of skiing”); Brush v. Jiminy Peak Mountain Resort, Inc., 626 F. Supp. 2d 139, 148–49 (D. Mass. 2009) (determining that a USSA waiver was valid under Colorado law and also concluding that a Massachusetts statute requiring ski-area operators to operate their ski areas “in a reasonably safe manner” does not impose on ski-area operators a “greater duty to racing skiers than to other, perhaps less experienced, recreational skiers” because [c]ompetitive skiers . . . have the same responsibility to avoid collisions with objects off the trail as other skiers”); Rowan v. Vail Holdings, Inc., 31 F. Supp. 2d 889, 901 (D. Colo. 1998) (explaining that Colorado law defines “[c]ompetitor” as “a skier actually engaged in competition or in practice therefor with the permission of the ski area operator on any slope or trail or portion thereof designated by the ski area operator for the purpose of competition” (citation and internal quotation marks omitted)); Lackner v. North, 135 Cal. App. 4th 1188, 37 Cal. Rptr. 3d 863, 869, 875 (Cal. Ct. App. 2006) (holding that a ski resort has no [**36] duty to eliminate or protect a recreational skier from a collision with a participant in a snowboarding race and that the resort had no duty to supervise the race participants as they warmed up on a designated training run prior to a competition). In conjunction with Rothstein, the amendment supports the conclusion that pre-injury releases extracted by ski-area operators from competitive skiers are also contrary to public policy.

12 Although both Rothstein and Berry were decided in 2007, long after the May 1, 2006 effective date of the amendment to the Act, neither case acknowledges the amended text; the only reference to the amendment was in the Berry court’s inclusion of the 2007 supplement as part of its general citation to where the Act was codified. See Berry v. Greater Park City Co., 2007 UT 87, ¶ 17, 171 P.3d 442.

13 During the Senate floor debates on the 2006 amendment to the Act, Senator Lyle Hillyard, the sponsor of the bill amending the Act, explained that the “dramatic change[s] of our skiing” industry since the Act’s initial passage required that the Act be updated to “also include[] the sports of recreational, competitive, or professional skiing so that we cover not just the sport, but also the competitive and professional part.” Recording of Utah [**37] Senate Floor Debates, 56th Leg., Gen. Sess. (Feb. 13, 2006) (statements of Sen. Lyle Hillyard). This and other proposed changes were intended “to make [the Act] more compatible with what the ski industry is now doing.” Id. (Feb. 14, 2006). Senator Hillyard also noted that “there is no intention in [the proposed 2006 amendment] to exempt the negligence of the ski resort,” clarifying, “We are just talking about the inherent risks when people go skiing. . . . It’s just bringing the statute . . . up to date and clarify[ing its] policy and so that’s what we’ve done is taken those words and given better definitions and more specificity.” Id. (Feb. 13, 2006).

[*P36] To the extent our interpretation of the Act and its 2006 amendment may seem to be in conflict with the holding in Berry, we note that the plaintiff in that case was injured in February 2001, long before the Act contained the competitive-skiing exemption. Accordingly, [HN23] because the Act does not contain a specific provision permitting the retroactive application of the 2006 amendment, we presume the Berry court abided by “[t]he well-established general rule . . . that statutes not expressly retroactive should only be applied prospectively.” In re J.P., 648 P.2d 1364, 1369 n.4 (Utah 1982) [**38] ; see also Utah Code Ann. § 68-3-3 (LexisNexis 2011) (“A provision of the Utah Code is not retroactive, unless the provision is expressly declared to be retroactive.”). Therefore, we construe Berry as applying an older version of the Act and interpreting the Act as it existed prior to the insertion of the competitive-skiing exemption at issue in this case. As it applies to the Ski Resort, we determine that the USSA release is unenforceable because it is contrary to the holding in Rothstein, to the purpose of the Act’s 2006 amendment, and to the public policy statement in the Act, all of which reject pre-injury releases executed by competitive and recreational skiers of all ages in favor of ski-area operators.

CONCLUSION

[*P37] The trial court’s determination that Levi was not engaged in race training at the time of his injury, especially in the face of the fact, apparently undisputed by the parties, that he was injured during racing practice, was improper in the context of the Ski Resort’s motions for summary judgment. The trial court correctly denied the Ski Resort’s joinder in the Ski Team’s motion for summary judgment based on the Act and correctly granted the Rutherfords’ related partial motion for summary judgment, based on the court’s determination that there were disputed issues of material fact regarding the applicability of the machine-made snow exemption. We affirm the trial court’s denial of the Ski Resort’s motion for summary judgment based on the USSA release and the court’s determination that the Colorado choice-of-law provision in the USSA release is inapplicable here. We agree with the trial court that the release, as it pertains to the [**39] Ski Resort, is unenforceable under Utah law, but base this conclusion on different grounds than the trial court. We remand this case for further proceedings consistent with this decision.


What is the basis for the snowboarder’s lawsuit against ALTA & the USFS? Number 1 question I’ve been asked the last 2 weeks, so I asked

I met the attorney representing the four snowboarders and two of the plaintiff’s in their suit to open ALTA to snowboarding. They are committed and not just 20 something losers in Colorado to check out the lawns…..

Here was the statement on how and why I got from their attorney Jonathan R. Schofield.

Although Alta was one of the first resorts to allow snowboarding, Alta began banning snowboarders from its public land in the 1980s with the approval of the U.S. Forest Service.  Meanwhile, Alta invites “skiers” of all ages and ability levels on this same land regardless of, among other things, the size, shape, or type of “ski” actually used.  For instance, a variety of skis, mono-skis, and even tele-boards are all allowed at Alta, even though they are nearly identical to snowboards in many respects.  On its face, Alta’s no-snowboarding policy treats snowboarders differently than skiers by excluding snowboarders from equal access to public land.

The Constitution guarantees fairness of the laws, and the Equal Protection Clause of the Fourteenth Amendment guarantees that similarly-situated persons will be treated alike unless governmental discrimination is, at a minimum, rationally related to a legitimate interest.  Because Alta operates under a government permit on public land and the Forest Service approves Alta’s actions, Alta and the Forest Service are government actors and their conduct must be lawful under the Equal Protection Clause.  Arguably, Alta has a legitimate interest in safely and effectively operating a ski resort under its permit.  However, as alleged in the lawsuit, there is no rational relationship between Alta’s snowboarding ban and Alta’s interest in operating its resort.  The lawsuit further alleges that the reasons offered to justify the snowboarding ban are mere pretext for animus (dislike) of the type of people believed to be “snowboarders.”  Animus is inherently irrational and can never justify governmental discrimination.

The lawsuit is available in its entirety by clicking here.

If you want to stay on top of the suit, the group has a non-profit called Wasatch Equality, with a website here.

I don’t know if they are going to win, but I bought a t-shirt. J

What do you think? Leave a comment.

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Utah Skier Safety Act

Utah Skier Safety Act

UTAH CODE ANNOTATED

TITLE 78B.  JUDICIAL CODE 

CHAPTER 4.  LIMITATIONS ON LIABILITY 

PART 4.  INHERENT RISKS OF SKIING

Go to the Utah Code Archive Directory

Utah Code Ann. § 78B-4-401  (2012)

§ 78B-4-401.  Public policy

   The Legislature finds that the sport of skiing is practiced by a large number of residents of Utah and attracts a large number of nonresidents, significantly contributing to the economy of this state. It further finds that few insurance carriers are willing to provide liability insurance protection to ski area operators and that the premiums charged by those carriers have risen sharply in recent years due to confusion as to whether a skier assumes the risks inherent in the sport of skiing. It is the purpose of this act, therefore, to clarify the law in relation to skiing injuries and the risks inherent in that sport, to establish as a matter of law that certain risks are inherent in that sport, and to provide that, as a matter of public policy, no person engaged in that sport shall recover from a ski operator for injuries resulting from those inherent risks.

§ 78B-4-402.  Definitions

   As used in this part:

   (1) “Inherent risks of skiing” means those dangers or conditions which are an integral part of the sport of recreational, competitive, or professional skiing, including, but not limited to:

      (a) changing weather conditions;

      (b) snow or ice conditions as they exist or may change, such as hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, or machine-made snow;

      (c) surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, trees, and other natural objects;

      (d) variations or steepness in terrain, whether natural or as a result of slope design, snowmaking or grooming operations, and other terrain modifications such as terrain parks, and terrain features such as jumps, rails, fun boxes, and all other constructed and natural features such as half pipes, quarter pipes, or freestyle-bump terrain;

      (e) impact with lift towers and other structures and their components such as signs, posts, fences or enclosures, hydrants, or water pipes;

      (f) collisions with other skiers;

      (g) participation in, or practicing or training for, competitions or special events; and

      (h) the failure of a skier to ski within the skier’s own ability.

   (2) “Injury” means any personal injury or property damage or loss.

   (3) “Skier” means any person present in a ski area for the purpose of engaging in the sport of skiing, nordic, freestyle, or other types of ski jumping, using skis, sled, tube, snowboard, or any other device.

   (4) “Ski area” means any area designated by a ski area operator to be used for skiing, nordic, freestyle, or other type of ski jumping, and snowboarding.

   (5) “Ski area operator” means those persons, and their agents, officers, employees or representatives, who operate a ski area.

§ 78B-4-403.  Bar against claim or recovery from operator for injury from risks inherent in sport

   Notwithstanding anything in Sections 78B-5-817 through 78B-5-823 to the contrary, no skier may make any claim against, or recover from, any ski area operator for injury resulting from any of the inherent risks of skiing.

§ 78B-4-404.  Trail boards listing inherent risks and limitations on liability

   Ski area operators shall post trail boards at one or more prominent locations within each ski area which shall include a list of the inherent risks of skiing, and the limitations on liability of ski area operators, as defined in this part.

§ 72-11-201.  Passenger ropeways — Purpose and scope

   (1) In order to safeguard the life, health, property, and welfare of citizens while using passenger ropeways, it is the policy of the state to:

   (a) protect citizens and visitors from unnecessary mechanical hazards in the design, construction, and operation of passenger ropeways, but not from the hazards inherent in the sports of mountaineering, skiing, snowboarding, mountain biking, and hiking, or from the hazards of the area served by passenger ropeways, all of which hazards are assumed by the sportsman; and

   (b) require periodic inspections of passenger ropeways to ensure that each passenger ropeway meets “The United States of America Standard Institute Safety Code for Aerial Passenger Tramways,” or an equivalent standard established by rule under Section 72-11-210.

(2) (a) Except as provided in Subsection (2)(b), the committee, through the Department of Transportation, shall:

      (i) register all passenger ropeways in the state;

      (ii) establish reasonable standards of design, construction, and operational practices; and

      (iii) make inspections as necessary to implement this section.

   (b) The committee has no jurisdiction over the construction, modification, registration, or inspection of a private residence passenger ropeway.

 


Utah Rental Release void because the product was subject to recall

Jozewicz v. GGT Enterprises, LLC; 2010 U.S. Dist. LEXIS 53937

The public policy exception allows the release to be void when the recalled product was not pulled from the rental fleet.

This is a Utah ski rental case. The plaintiff rented skis from the defendant. While skiing, the plaintiff fell injuring her neck. She claimed she fell because the bindings prematurely released. The bindings were manufactured by K2 a subsidiary of the Jarden Corporation.

Prior to the plaintiff’s injury, K2 had notified the Consumer Product Safety Commission and issued a recall for the bindings the plaintiff was using. The recall was based due to a tendency for the bindings to unexpectedly release. The recall was issued by the CPSC and K2 had sent notice of the recall to retail and rental shops.

The plaintiff filed this suit in federal court against the defendant rental shop and the binding manufacture K2. The defendant rental shop filed this motion to dismiss because the plaintiff had signed a release when she rented the recalled skis and bindings.

Summary of the case

The defendant rental shop filed a motion for summary judgment because the plaintiff had signed a release upon renting the skis and bindings. The court first looked at releases and Utah’s law and found Utah allows people to “contract away their rights to recover in tort for damages caused by the ordinary negligence of others.” Under Utah’s law, there are three exceptions that can void a release when:

(1) the release offends public policy,

(2) the release is for activities that fit within the public interest exception, or

(3) the release is unclear or ambiguous.

The court found that the second and third exceptions were not at issue here. The first issue, that releases must be compatible with public policy under Utah’s law. The court looked at the public policy exception to the rule slightly different in Utah than in most other states that allow a release to be voided due to public policy issues.

The court looked at the federal law that created the Consumer Products Safety Commission and created the requirement that products be recalled.

Under 15 U.S.C. § 2064(b), manufacturers, distributors, and retailers are required to notify the United States Consumer Product Safety Commission when they become aware a product (1) fails to comply with applicable safety standards, (2) fails to comply with other rules, regulations, standards, or bans under any acts enforced by the Commission, (3) “contains a defect which could create a substantial product hazard,” or (4) “creates unreasonable risk of serious injury or death.”

The court then stated: “The law requires distributors and retailers to heed recall alerts issued by the Commission and ensure defective products are either fixed or not sold.” Finding this requirement puts an extreme burden on shops, retail or rental when dealing with recalled products.

The rental shop argued that the federal law cannot preempt state law, and state law allows releases. The court agreed, however, the court stated the law did not conflict or preempt the Utah law.

The court went on to say.

The rental of the ski bindings at issue in this case became unlawful once the recall notice became effective. Public policy should not favor allowing a party to insulate itself from harms caused to others arising from unlawful acts.

The said that if a release relieved the retailer of the duty to recall products, then the effect of the law would be nullified and would violate the value of the law. Public policy issues should encourage compliance with laws designed to make products safer not void them.

The court held the rental companies arguments were not valid and denied the motion for summary judgment.

So Now What?

If you get a recall notice, and you are in a retail store, rental shop, or distributor, remove the product from the shelves and/or the rental fleet. Period. The judge in his final sentence stated: “GGT’s preinjury release is unenforceable and invalid as a matter of public policy.” There is no leeway in that statement.

This may create disaster in a small rental shop. Most times the shop has one binding on all of its skis. It makes setting the bindings easier and makes training the employees on setting the bindings much easier also.

It can be a scary situation when you open an email and find you have no rental fleet. You should contact the company immediately and tell them that you are out of business effectively unless they respond and assist you in correcting the entire recalled product or replacing it.

This may be an issue you want to discuss with someone when you are negotiating bindings for your rental fleet.

Product recalls are not minor matter. Any product you have in your store that is subject to a recall is no longer available for sale until after the product has been fixed according to the manufacture’s requirements.

What do you think? Leave a comment.

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Jozewicz v. GGT Enterprises, LLC; 2010 U.S. Dist. LEXIS 53937

Jozewicz v. GGT Enterprises, LLC; 2010 U.S. Dist. LEXIS 53937

Laura Jozewicz, Plaintiff, vs. GGT Enterprises, Llc; K2 Corporation; and Jarden Corporation, Defendants.

Case No. 2:09-cv-00215-CW

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

2010 U.S. Dist. LEXIS 53937

June 2, 2010, Decided

June 2, 2010, Filed

CORE TERMS: public policy concern, preinjury, binding, alert, distributor, rental, consumer products, consumer, retailer, citation omitted, ski, risks of injury, skiing, sports, skis, serious injury, manufacturer, recreational, invalidated, safety standards, public policy, unreasonable risk, manufacture, notice, hazard, release agreement, unenforceable, collectively, inventory, rented

COUNSEL: [*1] For Laura Jozewicz, an individual, Plaintiff: Jordan P. Kendell, Robert G. Gilchrist, LEAD ATTORNEYS, EISENBERG & GILCHRIST, SALT LAKE CITY, UT.

For K2, a Delaware corporation, Defendant: Cobie W. Spevak, Gainer M. Waldbillig, LEAD ATTORNEYS, FORD & HUFF LC (SLC), SALT LAKE CITY, UT.

For Jarden, a Delaware corporation, Defendant: Gainer M. Waldbillig, LEAD ATTORNEY, Cobie W. Spevak, FORD & HUFF LC (SLC), SALT LAKE CITY, UT.

For GGT Enterprises, a Utah corporation, Defendant: Adam Strachan, LEAD ATTORNEY, STRACHAN STRACHAN & SIMON, LITIGATION, PARK CITY, UT.

JUDGES: Clark Waddoups, United States District Judge.

OPINION BY: Clark Waddoups

OPINION

MEMORANDUM DECISION AND ORDER

INTRODUCTION

While skiing at Alta ski area, Plaintiff Laura Jozewicz (“Jozewicz”) fell and injured her neck. Jozewicz contends she fell because the binding on her skis unexpectedly released due to a product defect. Jozewicz rented the skis from Defendant GGT Enterprises, LLC (“GGT”). At the time of rental, a recall notice was in effect for the binding, but GGT did not remove the product from its rental inventory. Nevertheless, GGT seeks dismissal of Jozewicz’s negligence claim on the basis that she signed a release from liability at the time she rented [*2] the skis. For the reasons discussed below, the court denies GGT’s motion to dismiss.

FACTUAL BACKGROUND

On March 17, 2008, GGT rented skis to Jozewicz. On March 18, 2008, Jozewicz fell and injured her neck while skiing at Alta ski area. Jozewicz claims her fall occurred when the Marker MI Demo binding on her rental ski released unexpectedly. Jozewicz alleges that Defendants K2 Corporation and Jarden Corporation (collectively “K2/Jarden”) manufactured the ski binding. Prior to Jozewicz’s fall, K2/Jarden notified the United States Consumer Product Safety Commission (“Commission”) regarding the binding, and the Commission subsequently issued a recall alert on May 30, 2007, due to “Unexpected Release, Fall Hazard.” 1 The recall alert stated that “[s]ki shops with these bindings in their rental inventory should not rent this equipment to consumers until it has been upgraded.” 2 The recall further stated that “[s]kiers can unitentionally displace a lever at the rear of the binding,” which “[i]f it is fully displaced, . . . can result in the unexpected release of the binding and possibly cause the user to fall.” 3

1 Recall Alert (May 30, 2007) (Docket No. 29, Ex. A).

2 Id.

3 Id.

Prior to renting her [*3] skis from GGT, Jozewicz signed an “Equipment Rental and Liability Release Agreement,” which states in relevant part:

I understand that the binding system cannot guarantee the user’s safety. In downhill skiing, the binding systems will not release at all times or under all circumstances where release may prevent injury or death, nor is it possible to predict every situation in which it will release. . . .

I understand that the sports of skiing, snowboarding, skiboarding, snowshoeing and other sports (collectively “RECREATIONAL SNOW SPORTS”) involve inherent risks of INJURY and DEATH. I voluntarily agree to expressly assume all risks of injury or death that may result from these RECREATIONAL SNOW SPORTS, or which relate in any way to the use of this equipment. . . .

I AGREE TO RELEASE AND HOLD HARMLESS the equipment rental facility, its employees, owner, affiliates, agents, officers, directors and the equipment manufacturers and distributors and their successors in interest (collectively “PROVIDERS”), from all liability for injury, death, property loss and damage which results from the equipment user’s participation in the RECREATIONAL SNOW SPORTS for which the equipment is provided, or [*4] which is related in any way to the use of this equipment, including all liability which results from the NEGLIGENCE of PROVIDERS, or any other person or cause.

I further agree to defend and indemnify PROVIDERS for any loss or damage, including any that results from claims or lawsuits for personal injury, death, and property loss and damage related in any way to the use of this equipment. 4

GGT claims the release agreement bars Jozewicz’s negligence claim.

4 Equipment Rental & Liability Release Agreement (Docket No. 13, Ex. 2) (emphasis in original).

ANALYSIS

I. STANDARD FOR REVIEW

Defendant GGT brings this motion under Federal Rule of Civil Procedure 12(b)(6). When considering a 12(b)(6) motion, “a court must accept as true all well-pleaded facts, as distinguished from conclusory allegations, and those facts must be viewed in the light most favorable to the nonmoving party.” 5 The complaint must include “enough facts to state a claim to relief that is plausible on its face.” 6 “The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff’s complaint alone is legally sufficient to state a claim [*5] for which relief may be granted.” 7 Consequently, a court does not look at evidence outside of a pleading to determine such motions. 8 If a court does rely “on material from outside the pleadings, the court converts the motion to dismiss into a motion for summary judgment.” 9 Because the court relies on material outside of the pleadings in this case, the court converts this motion into a motion for summary judgment.

5 Shero v. City of Grove, 510 F.3d 1196, 1200 (10th Cir. 2007) (citation omitted).

6 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007).

7 Peterson v. Grisham, 594 F.3d 723, 727 (10th Cir. 2010) (citation omitted).

8 Dobsen v. Anderson, No. 08-7018, 2008 U.S. App. LEXIS 22820, at *8-9 (10th Cir. Nov. 4, 2008).

9 Id. at *9 (quotations and citation omitted).

II. PREINJURY RELEASES

A. Limitations on Preinjury Releases

Without question, individuals “may contract away their rights to recover in tort for damages caused by the ordinary negligence of others.” 10 The Utah Supreme Court has recognized, however, “that preinjury releases are not unlimited in power and can be invalidated in certain circumstances,” including when (1) the release offends public policy, (2) the release is for activities [*6] that fit within the public interest exception, or (3) the release is unclear or ambiguous. 11 The second limitation is not at issue here because “preinjury releases for recreational activities,” such as skiing, “cannot be invalidated under the public interest exception.” 12 Likewise, the third limitation is not at issue because Jozewicz conceded during oral argument that the release is not unclear or ambiguous. Thus, the prevailing issue in this case is whether a public policy concern overwhelms the effect of the preinjury release that Jozewicz signed.

10 Pearce v. Utah Athletic Found., 2008 UT 13, P 14, 179 P.3d 760, 765 (citations omitted).

11 Id. (citations omitted).

12 Id. P 18.

B. Public Policy Considerations

Preinjury releases must be compatible with public policy to be enforceable. 13 Previously, the Utah Supreme Court has invalidated preinjury releases when they were contrary to public policy set forth in statutory provisions. The court has recognized that “[w]hen . . . the Legislature clearly articulates public policy, and the implications of that public policy are unmistakable, we have the duty to honor those expressions of policy in our rulings.” 14 Thus, in Hawkins v. Peart, the [*7] Utah Supreme Court held that public policy invalidated a preinjury release signed by a parent on behalf of a minor child. 15 The court looked to Utah statute and found that it “provides various checks on parental authority to ensure a child’s interests are protected.” 16 In particular, it found that when a child is injured, statutory law precludes a parent from settling a claim, unless the parent is appointed as conservator for the child. 17 Based on this clear legislative intent to protect a minor’s interest post injury, the court concluded that a preinjury release for a minor child likewise was unenforceable. 18

13 Id. P 15 (citing Rothstein v. Snowbird Corp., 2007 UT 96, P 7, 175 P.3d 560).

14 Rothstein v. Snowbird Corp., 2007 UT 96, P 20, 175 P.3d 560.

15 Hawkins v. Peart, 2001 UT 94, PP 12-13, 37 P.3d 1062.

16 Id. P 11.

17 Id. (citing Utah Code Ann. § 75-5-404 (1993)).

18 Id. PP 12-13.

As applicable to this case, Congress has expressed its concern about product defects that pose a significant risk of injury or death. In an effort to protect the public from such defects, it enacted the Consumer Product Safety Act (the “Act”). The stated purpose of the Act is:

(1) to protect the public against unreasonable [*8] risks of injury associated with consumer products; (2) to assist consumers in evaluating the comparative safety of consumer products; (3) to develop uniform safety standards for consumer products and to minimize conflicting State and local regulations; and (4) to promote research and investigation into the causes and prevention of product-related deaths, illnesses, and injuries. 19

Through this legislation, Congress has stated its intent to create laws that protect the public from unreasonable risk of harm from defective products and to provide a uniform regulatory scheme to promote product safety.

19 15 U.S.C. § 2051(b) (2010).

Under 15 U.S.C. § 2064(b), manufacturers, distributors, and retailers are required to notify the United States Consumer Product Safety Commission when they become aware a product (1) fails to comply with applicable safety standards, (2) fails to comply with other rules, regulations, standards, or bans under any acts enforced by the Commission, (3) “contains a defect which could create a substantial product hazard,” or (4) “creates unreasonable risk of serious injury or death.” 20 Recall alerts arising from such notices are specifically designed to prevent serious [*9] injuries. Under 15 U.S.C. § 2068, manufacturers and distributors are charged with honoring the recall alerts issued by the Commission. The law in effect at the time of Jozewicz’s accident stated:

It shall be unlawful for any person to —

(1) manufacture for sale, offer for sale, distribute in commerce, or import into the United States any consumer product which is not in conformity with an applicable consumer product safety standard under this chapter;

(2) manufacture for sale, offer for sale, distribute in commerce, or import into the United States any consumer product which has been declared a banned hazardous product by a rule under this chapter. 21

20 Id. § 2064(b).

21 Id. § 2068(a)(1)-(2) (2006). This Section was amended on August 14, 2008, after Jozewicz’s injury occurred. Section 2068(a) now prohibits the sale, manufacture for sale, distribution, or importation of any product (1) “that is not in conformity with an applicable consumer product safety rule,” (2) that is subject to a voluntary corrective action, (3) that is an imminent hazard and subject to a Commission’s order, or (4) that is a banned hazardous substance. Id. § 2068(a)(1)-(2) (2010).

Congress enacted the statute to ensure [*10] safe products are provided to the public and to limit the risk of injury. Once a manufacturer, distributor, or retailer reports a defect to the Commission and a recall alert is published, the alert would have no effect if other retailers were not required to take action to correct the defect or remove the product from their inventory. The law requires distributors and retailers to heed recall alerts issued by the Commission and ensure defective products are either fixed or not sold.

Jozewicz argues that Congress’s public policy concern to prevent unreasonable risk of serious injury or death to the public meets the public policy standard set forth by the Utah Supreme Court, and therefore invalidates her release of GGT’s negligence. GGT contends, however, that Congress did not intend for the Consumer Product Safety Act to preempt state law, and no private cause of action exists under 15 U.S.C. § 2064(b). While this is true, this does not nullify the stated public policy concerns that override the right of parties to contract away tort liability. The rental of the ski bindings at issue in this case became unlawful once the recall notice became effective. Public policy should not favor [*11] allowing a party to insulate itself from harms caused to others arising from unlawful acts. Moreover, a decision that public policy causes a preinjury release to be invalid in this case does not cause GGT to be held liable under the Act, nor does it preempt state law. It merely recognizes Congress’s concern to minimize unreasonable risk to the public of serious injury or death. Such a concern is particularly relevant when a latent defect exists of which distributors and retailers are or should be aware, but not a consumer.

The implication of allowing distributors and retailers to contract away liability for noncompliance with established safety standards would increase the risk of injury and would be contrary to Congress’s express public policy concerns. Furthermore, validating the release of liability for noncompliance with Federal law would effectively reduce or eliminate the responsibility that distributors and retailers have to make sure the products they sell or rent are safe. Public policy should encourage compliance with safety laws, not disregard for such laws. Due to a strong public interest in ensuring adherence to recall alerts, the court concludes that GGT’s release is unenforceable [*12] as a matter of public policy.

CONCLUSION

GGT’s preinjury release is unenforceable and invalid as a matter of public policy. For this reason, GGT’s motion is DENIED. 22

22 Docket No. 12.

DATED this 2nd day of June, 2010.

BY THE COURT:

/s/ Clark Waddoups

Clark Waddoups

United States District Judge

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WMS Trailblazer – January 2012

[Wilderness Medical Society (WMS) Updates]

5.jpg?a=1102933063419Leading the worldwide community of Wilderness Medicine
Trailblazer – January 2012
The WMS Staff would like to wish each of you a happy and healthy new year!Remember, we’re here for you. So, if there’s anything we can do to help you, please let us know.Loren Greenway | <a href=”mailto:teri | Jonna Barry | <a href=”mailto:jim
Announcements

Wilderness & Mountain Medicine ConferenceAmphu_laptse.jpgFebruary 4-8, 2012

Park City, Utah

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ShmoozaPalooza Job Fair – At Outdoor Retailer trade show, Saturday, January 21, 2012

Malakye.com - Action Sports, Outdoor & Lifestyle Industry Jobs
There's an opportunity in your area!
7059.jpgShmoozaPalooza Job Fair – At Outdoor Retailer trade show, Saturday, January 21, 2012

This is your official invitation to participate in the ShmoozaPalooza which will take place at the Outdoor Retailer Show. The Shmooz is a one-of-a-kind gathering and opportunity for employers and prospective employees to connect in-person. It’s FREE to everyone – companies and job seekers!

Saturday, January 21, 2012
Outdoor Retailer Winter Market
At Marriott Downtown
Salt Lake City, Utah.

Meet With These Great Companies:

Petzl | Backcountry.com | Specialized Bicycle Components | ENVE Composites | GU Energy | Amer Sports | Black Diamond Equipment | Ogio

**HIRING? WANT TO GET YOUR COMPANY INVOLVED? Send an email to shmooz

For information on specific job opportunities, and to learn more, click here, or follow this link:

http://www.malakye.com/asp/front/CMSPage.asp?TYP_ID=4&ID=3970

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WHO?
YOU! The amazing people and companies that make up the Outdoor industry.

WHAT: The Shmooz:
11am – 4pm – Job Fair – come out and connect with great employers. Great employers, come out and connect with great employees.

WHY
It’s an IN-PERSON event! It brings a resume to life! It’s the the best way to connect with employment opportunities in the action sports and lifestyle-driven industries!

WHEN
Saturday January 21, 2012 – 11am – 4pm
(The trade show IS NOT OPEN to the public, only the Shmooz is open to the public.)

WHERE
Salt Palace Convention Center (Go To Site)
100 S. West Temple Salt Lake City, UT 84101 (View on Google Maps)

Location – accross the street at the Marriott Downtown

Parking – information on parking rates / location for the convention center.

HOW
Remember, it’s FREE! Simply click the button below to submit your resume and confirm your attendance as a candidate. (Employers – get in touch with us by emailing shmooz or get in touch with your account manager.)

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