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Your Jurisdiction and Venue clause must be relevant to the possible location of the accident. Screw this up and you can void your release as occurred in this ski racing case.

This is not the first decision I’ve read where the United States Ski Association (USSA) had its release laughed out of court. The court found ZERO legal arguments for the jurisdiction and venue clause in the release used.

Kearney, v. Okemo Limited Liability Company, 2016 U.S. Dist. LEXIS 106011

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

Plaintiff: Brian J Tierney

Defendant: Okemo Limited Liability Company, d/b/a Okemo Mountain Resort, and The United States Ski and Snowboard Association,

Plaintiff Claims: alleging negligent installation of safety netting during a downhill alpine ski race

Defendant Defenses: Release

Holding: for the plaintiff

Year: 2016

The United States Ski Association (USSA) has members sign a release online before they can participate in any USSA as a ski race. Ski areas rely on this release when holding USSA sanctioned races. The USSA release, however, is a poorly written document and time after time the ski areas, and the USSA lose a lawsuit by a plaintiff because they relied on the USSA release.

The number-one  reason why the USSA as a release is thrown out by the courts is the jurisdiction and venue clause. Jurisdiction is the law that will be applied case and venue is the actual location of where the trial will be held. The USSA release says the jurisdiction for any case is Colorado. The problem is unless the accident occurred in Colorado; no other relationship exists between Colorado and the parties to the lawsuit.

The USSA is based, located, in Utah. In this case, the defendant ski area was located in Vermont. There were zero relationships between the USSA in Utah the ski area in Vermont and the injured plaintiff who was from New York, and the state of Colorado.

Consequently, the court throughout the jurisdiction and venue clause and found as 99% of most courts would that the location of the lawsuit should be Vermont, the place where the accident happened.

Vermont, however, does not recognize releases. (See States that do not Support the Use of a Release.).

The plaintiff argued the release was invalid because a copy with his signature could not be produced. The plaintiff signed and agreed to the documentation, including the release when he became a member of the USSA. The plaintiff argued in court that he did not remember signing or agreeing to the release. However, the USSA could  show through their IT expert the only way that the plaintiff could have become a member of the USSA was by signing the release. You either had to click on and accept the release, or you could go no further in signing up to be a member of the USSA.

The plaintiff was injured while competing in amateur downhill ski race at the defendant ski area at Okemo Mountain resort. The USSA sanctioned the race. To be eligible to participate in the race a person had to be a USSA member, had to have conducted a visual inspection of course, and had to have taken at least two official training runs prior to the race.

The defendant filed a motion for summary judgment based on the release. This ruling denied the motion for summary judgment.

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

The court first commented on the jurisdiction and venue issue.

The release also contained a choice-of-law provision, which stated that it would be “construed in accordance with, and governed by the substantive laws of the State of Colorado, without reference to principles governing choice or conflict of laws.”

The court then went through the various arguments of the plaintiff and defendant concerning the motion to dismiss, first off, with the plaintiff’s argument that he never remembered signing the release could not have signed release. The court termed the online release as a clip wrap release. This means that the release could not have been rejected by the plaintiff because the website only allows you to go forward after clicking yes to the release.

Because the click-wrap technology does not permit the customer to continue to use the website, unless he or she clicks on the required box on the screen, courts have accepted proof of use at the site as evidence of the customer’s agreement.

The court stated that generally clip wrap releases are upheld. The court went through several different decisions where clip-wrap releases had been decided. The court concluded that the plaintiff had to have signed the release because the plaintiff admitted that he had been charged for his USSA membership on his credit card and received an email about his membership from the USSA. “Plaintiff admits that he received a confirmation email from USSA and that his credit card statement reflects a payment for his USSA membership.

The court then went into the choice of law clause. That means the jurisdiction and venue clause. A choice of law clause is not a clause that is controlled strictly by the contract.

Whenever there is a decision based on what law shall apply the law where the accident happened or where the court is sitting is the law that is applied to determine what law will apply. In many cases, such as this one, the choice of law decision leans toward granting the choice of law to the place where the test is being determined.

“The validity of a contractual choice-of-law clause is a threshold question that must be decided not under the law specified in the clause, but under the relevant forum’s choice-of-law rules governing the effectiveness of such clauses.” As this is a diversity action, the court looks to Vermont’s choice-of-law rules to determine which law applies.

A jurisdiction and venue clause is also not solely determined based on the four corners of the document. Meaning, just because you have a jurisdiction and venue clause in the document does not mean that is what is going to be upheld by the court. Here the court applied the choice of laws test as set forth in Vermont to determine what law should apply in governing where the suit in the law to be applied is suit to take place.

Simply put the court found there was no relationship between the choice of law clause in the release and the parties or where the accident occurred. The test for what choice of law applies a substantial relationship test. That means that the law that should be applied should be the one that has the greatest relationship to the parties and or the location of the incident giving rise to the lawsuit. In this case the court found, there was no relationship to the parties of the transaction. Plaintiff was a resident of New York the USSA was a Utah corporation, and the defendant ski area was a defendant was a Vermont location.

The arguments made by the USSA as an aid to justify Colorado’s choice of law clause were just plain weak. They argued that the majority of their races occurred in Colorado and that there was a good chance that the plaintiff would race in Colorado. The court found neither of those arguments to be persuasive.

The chosen state of Colorado has no “substantial relationship” to the parties or the transaction. Plaintiff is a resident of New York. USSA is a Utah corporation and Okemo is a Vermont entity. The incident in question did not occur in Colorado. The only facts Defendants have offered in sup-port of applying Colorado law to this case are: (1) Colorado is home to more USSA member clubs than any other state and hosts the majority of USSA’s major events, and (2) there was a possibility that Plaintiff could have competed in Colorado at some point during the relevant ski season. The court finds that such a tenuous and hypothetical connection does not vest in the state of Colorado a substantial relationship to the parties or specific transaction at issue in this case.

The court did find that Vermont had a substantial and significant interest in the transaction. The defendant was based in Vermont. The accident occurred in Vermont. The plaintiff was issued a lift ticket by the defendant ski area that required all disputes to be litigated in Vermont. The plaintiff participated in the inspection and training runs as well as the race in Vermont.

In contrast, Vermont’s relationship to the parties and transaction is significant. Okemo is a Vermont corporation, the competition was held in Vermont, Plaintiff was issued a lift ticket by Okemo requiring all disputes to be litigated in Vermont, Plaintiff participated in inspection and training runs in Vermont, and Plaintiff’s injury occurred in Vermont.

(Of note is the fact the court looked at the writing on the lift ticket as a quasi-contract. Rarely are lift tickets anything more than simple “signs” providing warnings rather than contracts or quasi contracts. See Lift tickets are not contracts and rarely work as a release in most states.)

The court then took apart the choice of law provision in the USSA release. It found no substantial relationship of the parties to the transaction in Colorado. The minimal facts offered by the USSA to support Colorado did not establish a reasonable basis for choosing Colorado.

The court also reasoned that finding Colorado as the applicable choice of law would violate a fundamental policy of Vermont law, which is releases for skiing or void under Vermont law.

First, applying Colorado law would undoubtedly produce a result contrary to a fundamental policy of Vermont. Whereas exculpatory clauses in ski contracts have been held to be enforceable under Colorado law, courts applying Vermont law consistently hold such re-leases to be void as contrary to important public policies of the state.

The court also found the Vermont had a materially greater interest in case then Colorado. Colorado’s interest in the case is minimal. Vermont had a great interest in applying Vermont law to issues, transactions and accidents that occur in Vermont. Skiing is a significant and important recreational activity in Vermont, and the Vermont Supreme Court has repeatedly stated that they have a significant interest in holding ski resorts responsible for skier safety in Vermont.

Second, Vermont has a “materially greater interest” than Colorado in the determination of this issue.4 Colorado’s interest in this case is minimal. The fact that Plaintiff may have competed there in the course of the relevant ski season and that USSA hosts many events in that state does not create a significant interest in a case concerning a Vermont ski race. Conversely, Vermont’s interest is plain. Vermont has a general interest in having its laws apply to contracts governing transactions taking place within the state. Vermont also has a significant interest in the conduct at issue here. Skiing is an important recreational activity for Vermonters and those visiting the state, and the Vermont Supreme Court has repeatedly noted its interest in holding ski resorts responsible for skier safety.

The court then held the choice of law provision in the USSA release did not control, and the Vermont law would apply to this case.

Under Vermont law releases for skiing activities are unenforceable. (See Federal court voids release in Vermont based on Vermont’s unique view of release law). The Vermont Supreme Court had determined that it was a violation of public policy under Vermont law to allow ski area to use a release to avoid liability for its own negligence. The court used a totality of the circumstances test to make the determination that the ski areas had the greater responsibility and the greater ability to keep its patrons out of harm’s way.

The Court concluded that “ultimately the determination of what constitutes the public interest must be made considering the totality of the circumstances of any given case against the backdrop of current societal expectations.” It then went on to make its public policy determination largely on the basis of two factors derived from the seminal case of Tunkl v. Regents of University of California, 383 P.2d 441 (Cal. 1963): (1) ski areas are open to the general public without regard to special training or ability, and (2) the longstanding rule that premises owners are in the best position to assure for the safety of their visitors.

(Using Tunkl to void a release seems to be an extremely odd reading of Tunkl. The Tunkl decision is a California case setting forth requirements for Assumption of the Risk.)

The court also looked at the difference between skiing in Vermont participating in a ski race. Here too though, the Vermont Supreme Court already ruled. The Vermont Supreme Court found that there was really no difference between ski racing and skiing in Vermont, and the releases would be void in both cases.

There had been Vermont decisions upholding release law based on restricted access to the race or because total control for the majority the control for the welfare of the racers was in the racer’s hands. These decisions concerned motorcycle racing.

The defendant argued that ski racing was much like motorcycle racing in Vermont. However, the court found that although membership in the motorcycle racing was restricted, it was not restricted in the ski racing case. Any person could become a member of the USSA, and any person could race, as long as they inspected the course and made two runs and. That effectively was not a bar to anyone participating in the race.

The Court saw “no salient distinctions between [its case] and making clear that, under Vermont law, ski areas and sport event organizers will not be absolved from liability by virtue of an exculpatory clause even in the context of amateur racing.

The court in evaluating the release law and ski areas in Vermont determined that the cases were based on a premise’s liability argument. Premise’s liability says that the owner of the land has a duty to inform guests of the risks on the land. This responsibility included eliminating any known risks or risk the by the landowner should discover. It did not find in the motorcycle cases that a premise’s liability relationship existed because the risk was largely in control of the racer on the motorcycle.

Consequently, the court ruled that the release was invalid under Vermont law, and dismissed the defendant’s motion for summary judgment.

So Now What?

I suspect that USSA wanted to take advantage of the Colorado Statute that allows a parent to sign away a minor’s right to sue: Colorado Revised Statutes 13-22-107. Colorado’s release law is clearer and there is no issue with a release stopping suits by ski areas. Utah has mixed issues with releases and ski areas. However, to use Colorado as the site of the lawsuit, there must be a nexus to the state of Colorado, not just one created on paper.

Not only must the language stating the jurisdiction and venue be correct; the clause must also contain the reasoning why the jurisdiction and venue should be in a location other than location where the accident happened. In this case that would mean that there was an agreement between the parties that outlined all the reasons why the lawsuit should be brought back to Utah would be the only state, based on the contractual law of Utah.

I doubt there is any way that you could really write a release based on the law of a state that had no relationship, no nexus, to the accident or the parties in the case.

Vermont was the obvious answer, and that is what the court found. They might’ve been able also argued New York law, which would’ve been better than Vermont law. However, that would require them to litigate a case wherever the people who are racing in their events are located.

To be effective the jurisdiction and venue claw must have a nexus to either the parties in the case of the place of the accident occurred. USSA could move to Colorado, and that would provide a much better argument that Colorado law could apply. The USSA could argue that since they’re facing litigation from across the United States that they need to have one law apply to their releases and lawsuits, and that law should be the law where the located.

Whenever you’re stretching the jurisdiction and venue clause, you need to make sure that you incorporate in the clause all the legal reasons for picking the venue where the clause says the accident or location will occur. You just can’t state venue, and jurisdiction will be here.

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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Author: Outdoor Recreation Insurance, Risk Management and Law

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By Recreation Law           Rec-law@recreation-law.com     James H. Moss

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Kearney, v. Okemo Limited Liability Company, 2016 U.S. Dist. LEXIS 106011

Kearney, v. Okemo Limited Liability Company, 2016 U.S. Dist. LEXIS 106011

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Skier is unable to hold ski area liable in Vermont for injuries received in an unknown way from an unknown person.

Second Circuit bends over backwards to assist pro se plaintiff who fails to prove his case.

Gemmink v. Jay Peak Inc., 807 F.3d 46; 2015 U.S. App. LEXIS 20768

State: Vermont, United States Court of Appeals for the Second Circuit

Plaintiff: Paul A. Gemmink,

Defendant: Jay Peak Inc.

Plaintiff Claims: negligently permitted dangerous jumps on its ski trails and that, in consequence of such a constructed jump at the Kokomo-Northwest Passage intersection, Gemmink suffered a collision with another skier resulting in harm to his left side

Defendant Defenses: No Duty and No Negligence

Holding: For the Defendant

Year: 2015

This case is a rarity; it is a decision by the Second Circuit Court of Appeals. That court is one step below the US Supreme Court and one of the highest courts in the land. Consequently, to have any of the federal appellate courts issue an opinion about a skiing case is very rare. The Second Circuit Court of Appeals hears appeals from federal courts in New York, Connecticut, and Vermont.

The second issue making this case rare but sort of explains the reason why the Second Circuit heard the case, is the case is Pro Se. That means the Plaintiff was representing himself without an attorney. Pro Se cases are rarely successful and are very difficult for all the parties involved because of the procedural issues a litigant must follow to stay in court. Lawyers take a yearlong class on civil procedure in law school and work overtime not to miss procedural deadlines.

At the same time, judges bend over backwards and here the Second Circuit did too, to make sure the Pro Se litigant has the best opportunity to have his or her day in court.

Consequently, when the plaintiff, Gemmink, who was pro se lost at the trial level and successfully filed an appeal to the Second Circuit, the court based on the decision bent over backwards to respond to the plaintiff’s claims.

The plaintiff and his daughter were skiing at the defendant ski area Jay Peak. The plaintiff was following his daughter down the hill. The daughter reached the bottom of the hill and realized her father was not with her.

The plaintiff was found unconscious or regaining consciousness and combative up on the hill by the ski patrol. The plaintiff had no memory of what happened.

The plaintiff was found near trees. The daughter had seen a ski jump close to the location of where her father was found “leading her and her father to surmise that another patron “fl[ew] of[f] the jump” and collided with Gemmink.” The plaintiff’s injuries were such that he attributed them to someone coming from the right and were consistent with the theory that someone going over the jump hit him.

Gemmink suffered fractures to his left ribs and left transverse processes in the incident, injuries that, according to Gemmink, are usually attributable to a significant impact coming from right to left, and are therefore, at least consistent with the theory that a skier jumped from the right of the intersection into Gemmink.

The trial court dismissed the claims of the plaintiff for failing to establish that the defendant’s alleged negligence was the cause of his injuries. The plaintiff successfully filed this appealed to the Second Circuit Court of Appeals.

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

The court, as usual started its decision with the requirements for a party to defeat a motion for summary judgment.

Where, as here, the party opposing summary judgment bears the burden of proof at trial, summary judgment should be granted if the moving party can “point to an absence of evidence to support an essential element of the nonmoving party’s claim.” The court draws all inferences in favor of the nonmoving party, but the opposing party “must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.”

The court adopted the theory relied upon by the trial court, that the structure and maintenance of the alleged ski jump was sufficient to cause the injuries the plaintiff claimed based on the facts the plaintiff alleged. Again, this is rarely done when all parties are represented by attorneys. The attorney relying on this assumption would have to prove it using evidence.

The court then summarized its requirements in this case to determine whether the plaintiff presented enough evidence for a jury to rule in his favor.

The issue before us, then, is a not-infrequent one in tort cases: whether the plaintiff proffered sufficient evidence for a jury to find, more probably than not, that the ground for liability (here, the assumed negligence) was the cause of the plaintiff’s injury.

Thus the issue was explained to require a showing of evidence sufficient to prove that the defendant was the reason why the plaintiff was injured, and that injury was based on a breach of duty to the plaintiff by the defendant ski area.

Thus, in considering whether a plaintiff has proven causation, a trier of fact asks whether it is likely that the harm that occurred resulted from the negligence (or from another basis of liability) attributed to the defendant. In other words, is the reason that the defendant’s behavior is deemed risky, and the defendant deemed potentially liable, the harm that, in fact, occurred?

Here the court obviously looked at the issue as to whether the plaintiff assumed the risk, not based on what the defendant had done or failed to do, but based on whether the sport or the actions of the plaintiff were the cause for his injuries.

In essence, the greater the risk that the defendant’s conduct will result in the harm the plaintiff suffered, the more likely that a jury will be allowed to find that such conduct was the cause of that harm.

Here the evidence was solely circumstantial. There was no video, no witnesses, and no pictures, nothing to assist the plaintiff in proving his case other than the plaintiff and his daughter’s opinion and the injuries which could be been occurred as the plaintiff surmised. When only circumstantial evidence is available at trial, then the burden to prove the facts falls on the party using the evidence, but that burden is greater because of the nature of the evidence.

First, where one party has knowledge or access to information that renders that party better able than his adversary to explain what actually transpired, courts have tended to put the onus on that party to do so. This principle–that the party with superior knowledge bears the burden of coming forward with evidence–has always served as a basis of finding negligence under the doctrine of res ipsa loquitur.

In this case, the only party with any knowledge or access to the information was the plaintiff, thus the plaintiff had the sole burden to prove his circumstantial evidence.

Thus, the requirement that the plaintiff be able circumstantially to show a link between the expected risk of defendant’s conduct and what actually occurred tends to be greater when the plaintiff is better able to explain what happened, and is considerably less when, instead, it is the defendant who can better or more easily proffer evidence of what, in fact, occurred.

The court then brought in another issue, whether the circumstantial evidence offered by the plaintiff under the law of the state that is being applied, Vermont, allows for an error in determining the value or likelihood of the evidence. Meaning if there is a gray area in valuing the evidence does state law fall one way or the other, in making the final determination on its value.

If an erroneous finding of causation is, in the law of the jurisdiction, more harmful than an erroneous finding of no causation, the requirements of circumstantial evidence and knowledge grow stronger. Conversely, where the law of the jurisdiction makes clear that an erroneous finding of no causation is more harmful, the requirements are diminished.

The court then applied the three factors to this case. The first was whether there was a legal link between the maintenance of the ski jump and the injuries of the plaintiff. Maintenance in this case does not mean creation or grooming of the jump as in a terrain park, but whether the jump was allowed to exist by the defendant. The court found that any link was too tenuous to allow.

The first factor favors the defendant. The causal link between Jay Peak’s assumed negligence in its maintenance of ski jumps and the injury incurred by the plaintiff is far too attenuated to sustain Gemmink’s claim. Our common experience does not tell us that this kind of lack of maintenance results in accidents of this sort with any frequency.

This, the first argument, went in favor of the defendant. The court added in reaching this decision, that the plaintiff offered no additional evidence or expert witness to show a stronger link.

Generally, expert . . . testimony is required to support a finding of causation where the link is obscure and abstruse such that a layperson can have no well-founded knowledge and can do no more than indulge in mere speculation.

The second issue, who had evidence on what happened, the court found neither side won or actually it was a neutral result based on an analysis. “The second is, at most, neutral. Neither Gemmink nor Jay Peak has greater knowledge or access to information concerning what actually happened on the Kokomo trail.”

The third factor was interesting. Applying the test of how the state wanted the court to decide when faced with an issue that was “close call” or in a very small gray area. Here the court found that under Vermont law, the liability of a ski area is almost strict liability. That means liability with no room for error or limited if any defenses. Own a ski area and you own the safety of the people you invite to ski on the mountain.

We turn, then, to the third factor: Is this an area where, in Vermont, liability of ski operators to skiers is close to strict, so that whether negligence was the cause of the alleged injury is a matter that, in uncertainty, should be decided in favor of the skier? Or is this an area where the risk of injury, even in the presence of negligence on the part of the ski operator, is assumed primarily by the skier, so that the requirement of causation is fairly placed on the skier (unless either (a) the evidentiary link between the evidence of negligence and causation of the kind of harm that occurred is particularly strong, or (b) the defendant is in a distinctly better position to tell us what happened)? Or, finally, is Vermont relatively indifferent to error in one direction or the other, offering no reason to favor either the plaintiff or defendant?

The court determined that Vermont follows the approach of symmetrical indifference. Vermont still allowed the defense of assumption of the risk for injuries caused by engaging in a sport. The court then found that Vermont prefers to err on the side of finding no causation. Meaning any cause of the injury must be proven not just alleged. If there was a gray area after analysis by the court, meaning if there was no clear decision, then Vermont law held there was not caused, thus no negligence.

By statute, although assumption of risk has generally been subsumed in comparative negligence, 12 V.S.A. § 1036, it has been expressly retained as to sporting events, 12 V.S.A. § 1037. This would suggest that Vermont prefers to err on the side of finding no causation with respect to sport injuries like the one that here occurred.

The Vermont law concerning ski areas was proof of that issue. (See Vermont Skier Safety Act.)  Vermont law was interpreted by Vermont courts to offer a symmetrical approach how Vermont wants a court to consider the facts.

The court then applying the factors controlling how Vermont law was to be applied and found it could not find a link between the defendant ski area Jay Peak and the plaintiff’s injuries. There was no causation or link between the two that could be upheld legally.

Consequently, we are left to infer causation, then, from only the placement of the ski jumps and the nature of Gemmink’s injuries. We cannot infer a causal link between Jay Peak’s assumed negligence in its maintenance of ski jumps and the injury incurred on the facts presented, and the plaintiff does not provide sufficient evidence to support a link between his injuries and alleged theory of causation. Under these circumstances, the district court was clearly correct in its holding that the evidence adduced by Gemmink was not sufficient to raise a question for the jury.

For negligence to exist, there must be a duty, a breach of that duty and injury and proximate causation. Here the court did not look at whether or not there was a duty, but just focused on whether there is a legal relationship, causation, between the injuries and anything the defendant had done.

The Second Circuit Court of Appeals upheld the trial court decision and affirmed the dismissal of the plaintiff’s case.

So Now What?

As you can tell the court jumped through narrow hoops to provide a way to say to the plaintiff you did not prove your case and based on what you have provided cannot prove your case. I seriously doubt the court has ever created such a difficult to write and understand, yet reasoned decision before.

When confronted with a pro se plaintiff, I constantly begged them to find an attorney. I wanted someone other than the opposing attorney to explain what was going on and why. I copied and sent the law, sent notices of deadlines and requirements all in an attempt to allow the court to rule in my favor. Not because of what I did, but because the opposing side had no case and the court did not need to extend the case any longer than necessary before ruling to make sure the opposing party received a fair and just hearing.

This decision also would have been much different in most other states that allow skiing. Vermont, the largest ski state in the East has always held that ski resorts are liable for the injuries of its patrons. (See The very first lawsuit against a ski area reviewing Wright et al. v. Mt. Mansfield Lift, Inc., et al. 96 F. Supp. 786; 1951 U.S. Dist. LEXIS 2524) Because of Vermont’s unique view of the responsibility of a ski area, to dismiss a case against a ski resort creates a difficult decision when explaining a case clearly without any evidence of fault against the defendant ski area.

clip_image002What do you think? Leave a comment.

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Author: Outdoor Recreation Insurance, Risk Management and Law

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Copyright 2016 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

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By Recreation Law           Rec-law@recreation-law.com     James H. Moss

 

 

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Gemmink v. Jay Peak Inc., 807 F.3d 46; 2015 U.S. App. LEXIS 20768

Gemmink v. Jay Peak Inc., 807 F.3d 46; 2015 U.S. App. LEXIS 20768

Paul A. Gemmink, Plaintiff-Appellant, — v. — Jay Peak Inc., Defendant-Appellee.

Docket No. 14-2725-cv

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

807 F.3d 46; 2015 U.S. App. LEXIS 20768

August 19, 2015, Argued

November 30, 2015, Decided

PRIOR HISTORY: [**1] Pro se plaintiff Paul Gemmink was injured while skiing at defendant Jay Peak’s ski resort. Although Gemmink could not recall the circumstances of his injury, he came to believe that he had been injured in a collision with another skier as a result of Jay Peak’s negligent maintenance of ski jumps on its property. As a result, Gemmink brought an action to recover against Jay Peak for his injuries. The District Court granted summary judgment to Jay Peak, finding that Gemmink had failed to establish that any negligence on the part of Jay Peak was the cause of Gemmink’s injuries. We affirm the judgment of the District Court.

Gemmink v. Jay Peak, Inc., 2014 U.S. Dist. LEXIS 87912 (D. Vt., June 23, 2014)

CASE SUMMARY:

OVERVIEW: HOLDINGS: [1]-The district court properly granted a ski resort summary judgment dismissing plaintiff’s negligence suit because the causal link between the resort’s assumed negligence in its maintenance of ski jumps and the injuries incurred by plaintiff was far too attenuated to sustain his claim, as there was no evidence as to how he sustained those injuries.

OUTCOME: The judgment was affirmed.

CORE TERMS: causation, ski, summary judgment, trail, skier, jump, sporting events, happened, intersection, ski jump, circumstantial evidence, coming, stairs, evidence to support, access to information, inter alia, expert testimony, assumption of risk, indifferent, nonmoving, proffered, opposing, stronger, proffer, harmful, causal, skiing, dark, infer

LexisNexis(R) Headnotes

Civil Procedure > Summary Judgment > Appellate Review > Standards of Review

[HN1] An appellate court reviews a grant of summary judgment de novo.

Civil Procedure > Summary Judgment > Burdens of Production & Proof > Movants

Civil Procedure > Summary Judgment > Burdens of Production & Proof > Absence of Essential Element of Claim

Evidence > Procedural Considerations > Burdens of Proof > Allocation

[HN2] Where the party opposing summary judgment bears the burden of proof at trial, summary judgment should be granted if the moving party can point to an absence of evidence to support an essential element of the nonmoving party’s claim.

Civil Procedure > Summary Judgment > Burdens of Production & Proof > Nonmovants

Civil Procedure > Summary Judgment > Evidence

[HN3] In ruling on a motion for summary judgment, the court draws all inferences in favor of the nonmoving party, but the opposing party must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.

Evidence > Relevance > Circumstantial & Direct Evidence

Torts > Negligence > Causation > Cause in Fact

Evidence > Procedural Considerations > Burdens of Proof > Allocation

Evidence > Procedural Considerations > Burdens of Proof > Burden Shifting

[HN4] A showing of cause-in-fact almost always involves circumstantial evidence. Thus, in considering whether a plaintiff has proven causation, a trier of fact asks whether it is likely that the harm that occurred resulted from the negligence (or from another basis of liability) attributed to the defendant. Is the reason that the defendant’s behavior is deemed risky, and the defendant deemed potentially liable, the harm that in fact occurred? In such circumstances, a jury can assume that the injury occurred as the expected or ordinary result of the defendant’s conduct. If for some reason it was not the ordinary result of the defendant’s conduct, that the “extraordinary” had occurred must be shown by the party wishing to counter causation. For example, if a defendant proprietor has failed to install lights on its stairways after dark, and a person coming down the stairs in the dark of night falls and injures himself, one can fairly assume that the failure to illuminate the stairs caused the injury. And it will be up to the defendant to show that something extraordinary happened, say, that an animal scampered up the stairs and tripped the injured person instead. In essence, the greater the risk that the defendant’s conduct will result in the harm the plaintiff suffered, the more likely that a jury will be allowed to find that such conduct was the cause of that harm.

Torts > Negligence > Causation > Cause in Fact

Evidence > Procedural Considerations > Burdens of Proof > Allocation

Evidence > Relevance > Circumstantial & Direct Evidence

[HN5] In addition to considering the strength of the circumstantial evidence linking injury and harm, the cases dealing with questions of causation take into account two other factors. First, where one party has knowledge or access to information that renders that party better able than his adversary to explain what actually transpired, courts have tended to put the onus on that party to do so. This principle–that the party with superior knowledge bears the burden of coming forward with evidence–has always served as a basis of finding negligence under the doctrine of res ipsa loquitur. But it also serves as a basis for finding causation. Thus, the requirement that the plaintiff be able circumstantially to show a link between the expected risk of defendant’s conduct and what actually occurred tends to be greater when the plaintiff is better able to explain what happened, and is considerably less when, instead, it is the defendant who can better or more easily proffer evidence of what, in fact, occurred.

Torts > Negligence > Causation > Cause in Fact

Evidence > Relevance > Circumstantial & Direct Evidence

[HN6] In deciding whether sufficient proof of causation has been proffered to get to a jury, courts consider whether the law of the jurisdiction is indifferent as to error in one direction or the other. If an erroneous finding of causation is, in the law of the jurisdiction, more harmful than an erroneous finding of no causation, the requirements of circumstantial evidence and knowledge grow stronger. Conversely, where the law of the jurisdiction makes clear that an erroneous finding of no causation is more harmful, the requirements are diminished.

Torts > Negligence > Causation > Cause in Fact

Torts > Negligence > Defenses > Assumption of Risk > Athletic & Recreational Activities

Torts > Negligence > Defenses > Assumption of Risk > Procedure

[HN7] By statute, although assumption of risk has generally been subsumed in comparative negligence, Vt. Stat. Ann. tit. 12, § 1036, it has been expressly retained as to sporting events, Vt. Stat. Ann. tit. 12, § 1037. This would suggest that Vermont prefers to err on the side of finding no causation with respect to sport injuries. At the same time, however, the decision of whether the risk borne by the plaintiff in the sporting event was sufficiently “obvious and necessary” as to be assumed generally forms a jury question under Vermont law. Vermont wants courts to treat errors in this area pretty much symmetrically.

COUNSEL: PAUL A. GEMMINK, Pro se.

THOMAS P. AICHER, Cleary Shahi & Aicher, P.C., Rutland, VT, for Defendant-Appellee.

JUDGES: Before: CALABRESI, STRAUB, POOLER, Circuit Judges. Judge POOLER joins only Parts I and II(B) of the opinion.

OPINION BY: CALABRESI

OPINION

[*47] CALABRESI, Circuit Judge:

I. BACKGROUND

On February 21, 2011, Paul Gemmink and his daughter, Christine, visited the [*48] Jay Peak ski resort in Jay, Vermont. The two skied down the Northwest Passage trail, with Christine preceding her father as she turned onto the Kokomo trail, which intersected the Northwest Passage trail. When Christine reached the base [**2] of the ski lift at the end of the trail, she noticed that her father had failed to follow her descent. Instead, a Jay Peak ski patroller would find Gemmink “combative and in obvious pain,” lying on his back by a tree on the left side of the Kokomo trail, near the Kokomo-Northwest Passage intersection. App’x at 31. Gemmink had been rendered unconscious and, though argumentative, could not recall or provide an account of the incident. Christine, however, had observed a ski jump situated near the trees on the right side of the intersection, leading her and her father to surmise that another patron “fl[ew] of[f] the jump” and collided with Gemmink. Id. at 30, 32. Gemmink suffered fractures to his left ribs and left transverse processes in the incident, injuries that, according to Gemmink, are usually attributable to a significant impact coming from right to left, and are therefore at least consistent with the theory that a skier jumped from the right of the intersection into Gemmink.

Proceeding pro se, Gemmink brought this action against Jay Peak to recover for injuries that he claims were sustained as a result of Jay Peak’s negligence. Specifically, Gemmink asserts that Jay Peak negligently permitted dangerous jumps on [**3] its ski trails and that, in consequence of such a constructed jump at the Kokomo-Northwest Passage intersection, Gemmink suffered a collision with another skier resulting in harm to his left side. The District Court (Murtha, J.) granted Jay Peak’s motion for summary judgment, finding that Gemmink had failed to establish that Jay Peak’s alleged negligence was the cause of his injuries. Gemmink now appeals.

II. DISCUSSION

A.

[HN1] This Court reviews a grant of summary judgment de novo. Amerex Group, Inc. v. Lexington Ins. Co., 678 F.3d 193, 199 (2d Cir. 2012). [HN2] Where, as here, the party opposing summary judgment bears the burden of proof at trial, summary judgment should be granted if the moving party can “point to an absence of evidence to support an essential element of the nonmoving party’s claim.” Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). [HN3] The court draws all inferences in favor of the nonmoving party, but the opposing party “must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.” Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 44 (2d Cir. 2015).

Before the district court, it was assumed that the negligence of Jay Peak in the structure and maintenance of the jumps was sufficiently made out to survive summary judgment. Accordingly, for purposes of this opinion, we will assume arguendo that Gemmink has established such [**4] a potential basis for liability on the part of Jay Peak. The issue before us, then, is a not-infrequent one in torts cases: whether the plaintiff proffered sufficient evidence for a jury to find, more probably than not, that the ground for liability (here, the assumed negligence) was the cause of the plaintiff’s injury.

As Professor Abraham has demonstrated in his recent article, [HN4] a showing of cause-in-fact almost always involves circumstantial evidence. See Kenneth S. Abraham, Self-Proving Causation, 99 Va. L. Rev. 1811, 1815-16 (2013). Thus, in considering whether a plaintiff has proven causation, a trier of fact asks whether it is [*49] likely that the harm that occurred resulted from the negligence (or from another basis of liability) attributed to the defendant. In other words, is the reason that the defendant’s behavior is deemed risky, and the defendant deemed potentially liable, the harm that in fact occurred?

In such circumstances, as then-Chief Judge Cardozo set out in Martin v. Herzog, 228 N.Y. 164, 126 N.E. 814 (N.Y. 1920), a jury can assume that the injury occurred as the expected or ordinary result of the defendant’s conduct. Id. at 816. If for some reason it was not the ordinary result of the defendant’s conduct, that the “extraordinary” had occurred must be shown by the party [**5] wishing to counter causation. For example, if a defendant proprietor has failed to install lights on its stairways after dark, and a person coming down the stairs in the dark of night falls and injures himself, one can fairly assume that the failure to illuminate the stairs caused the injury. And it will be up to the defendant to show that something extraordinary happened, say, that an animal scampered up the stairs and tripped the injured person instead. In essence, the greater the risk that the defendant’s conduct will result in the harm the plaintiff suffered, the more likely that a jury will be allowed to find that such conduct was the cause of that harm.

[HN5] In addition to considering the strength of the circumstantial evidence linking injury and harm, however, the cases dealing with questions of causation take into account two other factors. First, where one party has knowledge or access to information that renders that party better able than his adversary to explain what actually transpired, courts have tended to put the onus on that party to do so. This principle–that the party with superior knowledge bears the burden of coming forward with evidence–has always served as a basis [**6] of finding negligence under the doctrine of res ipsa loquitur. See, e.g., Griffen v. Manice, 166 N.Y. 188, 194-96, 59 N.E. 925 (1901). But it also serves as a basis for finding causation. See Williams v. Utica Coll. Of Syracuse Univ., 453 F.3d 112, 120-21 (2d Cir. 2006); Williams v. KFC Nat. Mgmt. Co., 391 F.3d 411, 431-32 (2d Cir. 2004) (Calabresi, J., concurring). Thus, the requirement that the plaintiff be able circumstantially to show a link between the expected risk of defendant’s conduct and what actually occurred tends to be greater when the plaintiff is better able to explain what happened, and is considerably less when, instead, it is the defendant who can better or more easily proffer evidence of what, in fact, occurred.

But cases of this sort also involve a third factor. Thus, [HN6] in deciding whether sufficient proof of causation has been proffered to get to a jury, courts consider whether the law of the jurisdiction is indifferent as to error in one direction or the other. If an erroneous finding of causation is, in the law of the jurisdiction, more harmful than an erroneous finding of no causation, the requirements of circumstantial evidence and knowledge grow stronger. Conversely, where the law of the jurisdiction makes clear that an erroneous finding of no causation is more harmful, the requirements are diminished. Compare Williams v. Utica Coll. Of Syracuse Univ., 453 F.3d at 121 (finding summary judgment against plaintiff appropriate [**7] because, inter alia, New York courts placed only a minimal duty on the defendant to avert the type of harm incurred, which is “close to saying that if an error is to be made in this context, it is better made in favor of the defendant“) (emphasis added), with Williams v. KFC Nat. Mgmt. Co., 391 F.3d at 432 (finding summary judgment against plaintiff inappropriate because, inter alia, of “the absence of any reason to [*50] prefer erring in favor of [the defendant] rather than the plaintiff”).

B.

With these three factors in mind, we turn to the case before us. The first factor favors the defendant. The causal link between Jay Peak’s assumed negligence in its maintenance of ski jumps and the injury incurred by the plaintiff is far too attenuated to sustain Gemmink’s claim. Our common experience does not tell us that this kind of lack of maintenance results in accidents of this sort with any frequency. And plaintiff has failed to proffer expert testimony suggesting a stronger link. See Human Rights Comm’n v. LaBrie, Inc., 164 Vt. 237, 668 A.2d 659, 667 (Vt. 1995) (“Generally, expert . . . testimony is required to support a finding of causation where the link is obscure and abstruse such that a layperson can have no well founded knowledge and can do no more than indulge in mere speculation.”) (internal quotation marks [**8] omitted).

The second is, at most, neutral. Neither Gemmink nor Jay Peak has greater knowledge or access to information concerning what actually happened on the Kokomo trail.

We turn, then, to the third factor: Is this an area where, in Vermont, liability of ski operators to skiers is close to strict, so that whether negligence was the cause of the alleged injury is a matter that, in uncertainty, should be decided in favor of the skier? Or is this an area where the risk of injury, even in the presence of negligence on the part of the ski operator, is assumed primarily by the skier, so that the requirement of causation is fairly placed on the skier (unless either (a) the evidentiary link between the evidence of negligence and causation of the kind of harm that occurred is particularly strong, or (b) the defendant is in a distinctly better position to tell us what happened)? Or, finally, is Vermont relatively indifferent to error in one direction or the other, offering no reason to favor either the plaintiff or defendant?

A review of Vermont law suggests that it follows the approach of symmetrical indifference. [HN7] By statute, although assumption of risk has generally been subsumed in comparative [**9] negligence, 12 V.S.A. § 1036, it has been expressly retained as to sporting events, 12 V.S.A. § 1037. This would suggest that Vermont prefers to err on the side of finding no causation with respect to sport injuries like the one that here occurred. At the same time, however, the decision of whether the risk borne by the plaintiff in the sporting event was sufficiently “obvious and necessary” as to be assumed generally forms a jury question under Vermont law. See Estate of Frant v. Haystack Grp., Inc., 162 Vt. 11, 641 A.2d 765, 770-71 (Vt. 1994) (rejecting the conclusion that “by enacting § 1037, the legislature intended to provide more protection from liability for ski areas” and stating that “§ 1037 is broad enough . . . [that s]kiers should be deemed to assume only those skiing risks that the skiing industry is not reasonably required to prevent,” as determined by “a jury [applying] a contemporary sense of what constitutes an obvious or necessary risk”). Vermont’s approach stands in notable contrast both to Connecticut, where participants in sporting events rarely assume the risk of that participation, see, e.g., Jagger v. Mohawk Mt. Ski Area, Inc., 269 Conn. 672, 849 A.2d 813, 827 (2004), and to New York, where assumption of risk is powerfully applied by courts to bar recovery by participants in sporting events, see, e.g., Martin v. New York, 64 A.D.3d 62, 878 N.Y.S.2d 823, 825-26 (App. Div. 3rd Dept. 2009); N.Y. Gen. Obl. Law § 18-106. This contrast reinforces [*51] our conclusion that Vermont [**10] wants us to treat errors in this area pretty much symmetrically.

Consequently, we are left to infer causation, then, from only the placement of the ski jumps and the nature of Gemmink’s injuries. We cannot infer a causal link between Jay Peak’s assumed negligence in its maintenance of ski jumps and the injury incurred on the facts presented, and the plaintiff does not provide sufficient evidence to support a link between his injuries and alleged theory of causation. Under these circumstances, the district court was clearly correct in its holding that the evidence adduced by Gemmink was not sufficient to raise a question for the jury.

III. CONCLUSION

The judgment of the District Court is, therefore, AFFIRMED.


Federal court voids release in Vermont based on Vermont’s unique view of release law

Release is thrown out and arbitration clause is deemed unconscionable and modified by the court. The defendant was left with a one sentence assumption of the risk clause.

Littlejohn v. Timberquest Park at Magic, LLC, et. al., 2015 U.S. Dist. LEXIS 96443

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

Plaintiff: Joseph P. Littlejohn

Defendant: Timberquest Park at Magic, LLC, and Corporate Challenge, Inc., d/b/a Adventure Más

Plaintiff Claims: negligently designed, constructed, and operated the course

Defendant Defenses: Release

Holding: For the Plaintiff

Year: 2015

This is an interesting group of facts about how something simple and easily over looked in building and operating a challenge (ropes) course and a zip line can lead to an accident and then a lawsuit. Combine those facts with the Vermont Supreme Court’s decisions on releases and the defendants lose in this case.

The plaintiff was a 76 year old man. A friend of the plaintiffs purchased tickets online to go to the defendant challenge course at the ski area. The park is a self-guided aerial adventure park where the guest is taught how to clip in and then ascends through the course to the top where they then descend through a series of zip lines.

This is a commercial course purchased for amusement rather than a normal challenge or ropes course which is built for team building or other goals for the benefit of the guests. Meaning the sole purpose of this course is entertainment.

The belay system is called a “smart belay” is attached to the system and the guest at all times.

The trees and poles used to create the course are supported by guy cables or wires. While descending, the course the plaintiff clipped into a guy wire rather than a zip line. He rode the zip line down hitting a tree.

The first issue was the claim by the plaintiff that he was not notified until he arrived at the course that he would be required to sign a release. However it was later agreed that as you started to pay for the course tickets it notified you a release was required.

Upon arrival the plaintiff signed a release on a tablet. The release included a clause that stated any claim for more than $75,000 had to be arbitrated. The arbitration clause required the plaintiff and the defendant to choose one arbitrator who then chose the third arbitrator. The third arbitrator had to be “an officer or director of another company that operates a zip-line course.”

The plaintiff (or his insurance company) sued.

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

The first issue the court looked at was whether the release was valid under Vermont law. The court looked at four decisions from the Vermont Supreme Court concerning releases and determined the factors needed for a release to be valid in Vermont. In Vermont the factors are not only how the release is written but what the release is attempting to shield from liability.

In Vermont the question is, is “the business is open to the general public without regard to special training or ability and the premises owner is in the best position to assure the safety of visitors.” That means if the defendant is “in control of the location were the injury occurred and whether the premises were open to the general public.”

The court then examined the zip line course and compared it to a ski area. “As this discussion indicates, the court is satisfied that attending a zip-line program is more like visiting a ski area than like taking part in a specialized high-risk sport which requires skill and experience.”

The court found the course was not going to be protected by a release.

The course is designed and controlled by defendants. There is no indication in the record that anyone needs to learn to use the course beyond an initial training class offered at the park. It is even more open to the public than skiing, which typically involves beginner’s lessons and some degree of acquired skill. The zip-line course requires no such training or skill.

The release was void as a release. The court then looked at whether a document would survive as proof the plaintiff assumed the risk. The agreement contained the following clause:

“[t]he Participant … understand[s] that there are inherent risks of participating in the Programs and using the Equipment, which may be both foreseen and unforeseen and include serious physical injury and death.”

This clause survived the agreement and the court was going to allow the clause to be used at trial to show the plaintiff assumed the risk.

The arbitration clause was the next clause in the document, (since it is no longer a release).

As drafted, the clause works in the following way: a claimant seeking damages in excess of $75,000 is required to proceed to binding arbitration. Claims of $75,000 or less are not subject to arbitration. The arbitration panel is composed of three members. Each side chooses one member. The two members then select the third, who must be “an officer or director of any entity that operates an aerial adventure park with zip lines in the United States.” If the first two panel members cannot agree on a third, a judge within the District of Vermont shall appoint the third member “utilizing the selection criteria for the neutral as set forth above.”

The plaintiff argued the arbitration clause was unconscionable.

First, he argues that the provision is procedurally unconscionable because it is contained in small print in a contract of adhesion that was presented to him well after he paid for his tickets. Second, he maintains that the arbitration clause is substantively unconscionable because the third arbitrator is required to be an officer or director of another company that operates a zip-line course, thus tilting the arbitration panel in favor of TimberQuest. Finally, he argues that the arbitration clause lacks mutuality because it has no application to a claim by TimberQuest against a customer.

The first argument was small print. This argument is still raised if for no other purpose then to put in the judge and/or juries mind that the contract is a bad thing. However the court found the print size was the same as the rest of the document and had a “conspicuous header.”

The customer’s signature line is on the second page, giving him an opportunity to read the text before signing. Although the agreement was presented to Littlejohn as a preprinted contract with no real opportunity to negotiate the terms, he could have declined to participate in the course and requested his money back if he objected to the arbitration provision.

As the Vermont Supreme Court has repeatedly pointed out, “unequal bargaining power alone will not nullify a contract.”

The plaintiff then argued that because he was not notified he was required to sign a release until he arrived at the site the arbitration clause should be void. However his friend who purchased the tickets was informed of the requirement and because the plaintiff had not objected when presented with the release this argument failed.

The court looked at the arbitration provisions that the arbitrator had to be picked from the zip line industry was unfair. “Courts have long refused to enforce arbitration clauses which call for the appointment of panel members who are likely to harbor a bias in favor of one side or another.”

The agreement did contain a severability clause. This clause states that if one part of the agreement is void then the void section is thrown out but the rest of the agreement is still valid. Here the severability clause saved what defense was left for the defendant.

The contract between the parties includes a severability clause: “To the extent that any portion of this Agreement is deemed to be invalid under the law of the applicable jurisdiction, the remaining portions of the Agreement shall remain binding and available for use by the Host and its counsel in any proceeding.”

This gave the court the power to enforce the arbitration clause by reforming it altering it to fit the law. “The court will enforce the severability clause to strike the provision requiring the choice of a “neutral” arbitrator who is likely to hold a bias in favor of the zip-line industry. The remaining question is the issue of mutuality.”

The plaintiff then argued that the entire agreement was void because it lacked consideration. He paid for the tickets one day and three weeks later had to sign the release. However this failed. Consideration is does not have a time requirement.

Littlejohn argues that the agreement was unsupported by consideration because he was forced to sign it weeks after he had paid for the tickets. This argument is without merit. “[A]ny performance which is bargained for is consideration.” TimberQuest’s performance in this case was allowing Littlejohn to use its adventure zip-line course. In exchange, Littlejohn’s friend paid for their tickets. Upon arrival at the park, he promised that he would submit his claims to arbitration or agree to limit his recovery in court to $75,000.

The court then set the requirements for the parties to proceed.

As reformed by the court, the arbitration provision is valid. Under the agreement, there is no cap on damages if the participant chooses to go to arbitration. If the participant chooses to go to court, he or she agrees to seek $75,000 or less in damages. This court only has jurisdiction over a diversity case if the amount in controversy “exceeds the sum or value of $75,000.” This provision is strictly construed, and does not extend jurisdiction to a claim for an even $75,000. Thus, Littlejohn may not bring suit in this court. The court accordingly dismisses plaintiff’s negligence claims for lack of subject matter jurisdiction and without prejudice to plaintiff’s right to demand arbitration.

So Now What?

This case is similar to Geographic Expeditions, Inc., v. The Estate Of Jason Lhotka, 599 F.3d 1102; 2010 U.S. App. LEXIS 6606 discussed in Complicated serious of cases created to defend against a mountaineering death. There the release was thrown out because it was so onerous that the court could not stand it.

Under the rational the court determined from the Vermont Supreme Court cases any recreational based activities on land owned by the defendant that is open for business a release will not be valid. Whether nor not a guided operation on federal or state land be subject to this restriction is unknown, however the amount of federal land in Vermont is minimal and not used for recreation.

If the guest is taking the property as in a rental program then the release maybe valid. Renting a car, renting skis or renting a canoe is probably covered by a release in Vermont. However a ski rental shop that is owned by the ski area and incorporates into its release protection for the ski area will probably be void in Vermont.

The next issue is the assumption of risk clause that survived the release.

“[t]he Participant … understand[s] that there are inherent risks of participating in the Programs and using the Equipment, which may be both foreseen and unforeseen and include serious physical injury and death.”

If the courts in Vermont see the word “inherent” as a limiting term, the assumption of the risk clause may fail. Inherent has been defined to mean the risk associated with the sports that are part of the sport. Removal of the inherent risk removes the nature of the sport or activity. Risk would mean all aspects of the activity, not just the inherent ones.

This is a class example where a word has become associated to create a phrase because it “feels good.” However the word either has a different meaning when legally defined than its not legal definition or the definition of the word is not understood. If under Vermont law inherent is a limiting term the actual risks the plaintiff assumes could be very narrowly construed.

Small print is just stupid now days. Courts are still voiding releases if your release or release language is in small print. More importantly if the judge can’t read the document because the print is so small the court will always through the document out. Always make sure the print in any legal document is all the same size and no smaller than the font size required for pleadings in the court.

This case points out two major issues. The first is releases in Vermont as difficult if at all possible to use for outdoor recreation programs and businesses. The exception may be if you are someone not open to the public such as a college or university.

The second issue is whatever document you use, release or acknowledgement of risk agreement it has to be fair. If it is going to stop a lawsuit then it must inform your guests that is the purpose of the agreement. If you are going to assume the risk with the agreement the risks must be identified and the possible injuries must be pointed out. If you require arbitration the arbitration clause must conform to the laws controlling arbitration and the arbitration rules itself which is based on a neutral arbitrator.

Here arbitration was a good idea. However arbitration is not necessarily so. Arbitration has general come to mean you are deciding how much money to pay to the other side. Arbitration is usually quick and a lot less costly. Arbitration in many states limits the damages and in some states arbitrators cannot award punitive damages.

However a well written release in a state that supports release law is better than arbitration. It does not allow for any payment. A motion for summary judgment is fairly quick and easy to file after limited discovery and can be cheaper over all with a better long term effect than arbitration.

If you operate on a state listed here: States that do not Support the Use of a Release you may want to look or may only have the ability to use an assumption of the risk document and arbitration. If you are providing program to minors and your state does not support the use of a release to prevent minor’s claims, arbitration and assumption of the risk is probably best for you. See States that allow a parent to sign away a minor’s right to sue.

Either way you go the agreement must be clear, easily understood, written in English, with print large enough to read and an agreement that court will look at and determine is fair.

The final issue is the court itself. You MUST evaluate your business or program from your guest’s point of view. You know and understand how your course works. Your guest does not have that knowledge. Here a guest could not see the difference between the zip line and a guy line. It is easy enough to attach warning signs on the guy lines.  Rap red tape around the guy lines and tell guest don’t touch anything red.

Look through your program from your guests inexperienced eyes, not your battle worn glasses.

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Littlejohn v. Timberquest Park at Magic, LLC, et. al., 2015 U.S. Dist. LEXIS 96443

Littlejohn v. Timberquest Park at Magic, LLC, et. al., 2015 U.S. Dist. LEXIS 96443

Joseph P. Littlejohn, Plaintiff, v. Timberquest Park at Magic, LLC, and Corporate Challenge, Inc., d/b/a Adventure Más, Defendants.

Case No. 5:14-cv-200

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT

July 20, 2015, Decided

July 21, 2015, Filed

SUBSEQUENT HISTORY: Amended by Littlejohn v. Timberquest Park at Magic, LLC, 2015 U.S. Dist. LEXIS 94592 (D. Vt., July 21, 2015)

CORE TERMS: arbitration, customer, ticket, adventure, arbitration clause, motorcycle, mutuality, summary judgment, exculpatory, zip-line, participating, wire, zip, guy, ski area–, arbitration provision, public policy, general public, ski, website, unconscionability, enforceability, unconscionable, recreational, arbitrate, sport, void, cable, enforceable, adhesion

COUNSEL: [*1] For Joseph P. Littlejohn, Plaintiff: Daniel L. Burchard, Esq., Thomas E. McCormick, McCormick, Fitzpatrick, Kasper & Burchard, P.C., Burlington, VT.

For Timberquest Park at Magic, LLC, Defendant: Andrew A. Beerworth, Esq., Robert G. Cain, Paul Frank Collins PC, Burlington, VT.

For Corporate Challenge, Inc., doing business as Adventure Mas, Defendant: Heather Z. Cooper, Rodney Edward McPhee, Kenlan, Schwiebert, Facey & Goss, P.C., Rutland, VT.

For ENE Evaluator, ENE Evaluator: Michael J. Marks, Esq., MarksPowers LLP, Middlebury, VT.

For Timberquest Park at Magic, LLC, Cross Claimant: Robert G. Cain, Paul Frank Collins PC, Burlington, VT.

For Corporate Challenge, Inc., Cross Defendant: Rodney Edward McPhee, Kenlan, Schwiebert, Facey & Goss, P.C., Rutland, VT.

JUDGES: Geoffrey W. Crawford, United States District Judge.

OPINION BY: Geoffrey W. Crawford

OPINION

OPINION AND ORDER RE: DEFENDANT’S AND PLAINTIFF’S MOTIONS FOR SUMMARY JUDGMENT (Docs. 44, 46 & 52)

Plaintiff Joseph Littlejohn was severely injured while participating in an adventure zip-line course at Magic Mountain Ski Area in Londondeffy, Vermont on October 5, 2013. He claims that defendants negligently designed, constructed, and operated the course, leading to the [*2] accident which caused his injuries. Both Littlejohn and defendant TimberQuest Park at Magic, LLC (TimberQuest) have filed motions for summary judgment, seeking a determination regarding the enforceability of a liability waiver and arbitration provision signed by Littlejohn prior to participating in the course.

I. Facts

The following facts are undisputed for the purposes of summary judgment, except where otherwise noted. On October 5, 2013, Littlejohn was injured while traversing a self-guided aerial adventure course at Magic Mountain. At the time of his injury, Littlejohn was seventy-six years old. He had never participated in an adventure course before. Defendant TimberQuest operated the adventure course at the time of the incident. Defendant Corporate Challenge, Inc. d/b/a Adventure Mas designed and constructed the course.

The adventure course consists of a series of rope bridges, ladders, cargo nets and zip lines placed between elevated platforms constructed around trees and poles. Participants gradually gain elevation by climbing and traversing a series of uphill course elements and then return to the bottom of the course by sliding down a series of zip lines. Participants wear a [*3] climbing harness equipped with a “smart belay” system that is meant to keep them attached at all times to both a safety cable and a zip line cable. The “smart belay” system is intended to ensure that the participant is always attached to at least one of the cables.

The trees and poles which support the course platforms are stabilized by guy wires. These guy wires are anchored at one end to the tree or pole where a course platform is located and at the other end to another nearby tree or the ground.

On the day he visited, Littlejohn was equipped with a climbing harness and was instructed how to use the smart belay system’s dual carabiners. According to Littlejohn, he was not warned that there were guy wires on the course in addition to safety cables and zip line cables or that he should avoid clipping onto the guy wires.

Littlejohn climbed through the uphill course elements and began to descend on the zip lines. As he was preparing to descend one of the sections of the course, he mistook a guy wire for the zip line cable. He attached his smart belay to the guy wire and slid down the guy wire. At the bottom he ran into the tree which anchored the other end of the guy wire. He suffered severe [*4] injuries.

Littlejohn’s friend Miki Conn had purchased their tickets for the adventure course through TimberQuest’s website on September 12, 2013.

According to Littlejohn, TimberQuest’s website does not alert customers that they will be required to sign a liability waiver prior to participating in the adventure course. Littlejohn alleges that neither Conn nor he was aware that they would have to sign a liability waiver until they arrived at TimberQuest three weeks later. At oral argument, counsel for both sides cleared up some confusion on this point: there is a notice on the website concerning the liability waiver, but it appears only at the point of purchase by the customer. A company other than TimberQuest provides the ticketing, reservation and credit card services. That company’s website includes a warning to customers that they will be required to sign a liability waiver before they enter the course. Since Littlejohn’s counsel did not actually buy a ticket, he did not encounter this information in preparing his motion for summary judgment.

When they arrived at TimberQuest on October 5, Littlejohn and Conn were each presented with a document entitled “Release of Liability, Waiver [*5] of Claims, Indemnification, and Arbitration Agreement.” The agreement was presented to them in digital format on an electronic device and they were instructed to read and sign it electronically.

The agreement stated that the participant agreed to “waive all claims” and “assume all risks” arising from participating in programs at the adventure course, including claims arising from negligent acts or conduct of TimberQuest, and further agreed to release and indemnify TimberQuest from liability for any injury suffered by the participant while using the course. (Doc. 44-3 at 2.) Under the heading “Arbitration,” the agreement stated that:

The Participant … hereby agrees to submit any dispute arising from participation in the Programs, for which Participant intends to seek damages in excess of $75,000.00, to binding arbitration. . . . In the event that Participant . . . files a lawsuit in any court relating to, and/or arising from, Participant’s participation in the Programs, Participant . . . by signing this document, stipulate[s] to a cap on Participant’s damages of $75,000.00, exclusive of interest and costs. As a threshold matter, the Panel, or the Court (if a lawsuit is filed), shall confirm whether [*6] the Waiver and Release contained in this Agreement are enforceable under applicable law. (Id.)

The agreement contains a severability clause stating that if any provision is invalidated, the remainder of the agreement will continue to be binding. Littlejohn signed the agreement prior to participating in the course.

II. Analysis

On March 27, 2015, TimberQuest filed a motion for partial summary judgment seeking a declaration that the $75,000 damages cap contained in the arbitration clause is enforceable against Littlejohn. (Doc. 44.) Littlejohn opposed the motion on the grounds that the damages cap violates public policy and is procedurally and substantively unconscionable. (Doc. 45.) Littlejohn filed a cross-motion for summary judgment seeking to have the waiver, assumption of risk, release and indemnity provisions of the agreement declared void and unenforceable as well. (Doc. 46.) In response, TimberQuest filed a cross-motion for summary judgment arguing that the agreement is enforceable and all of Littlejohn’s claims should be dismissed because he released TimberQuest from liability for negligence by signing the agreement. (Doc. 52.)

A. Standard of Review

Summary judgment is appropriate [*7] where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In considering a motion for summary judgment, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

B. Enforceability of Provisions Regarding Waiver of Claims, Release, Assumption of Risks from Negligence, and Indemnity

The enforceability of a contract provision providing for the waiver of a customer’s claims for negligence arising out of recreational activities is a matter of Vermont law. It is governed by four Vermont Supreme Court cases which seek to define the circumstances under which a business may contract out of liability for its own negligent conduct.

The leading case remains Dalury v. S-K-I, Ltd., 164 Vt. 329, 670 A.2d 795 (Vt. 1995), in which the Vermont Supreme Court rejected the exculpatory language in ski tickets issued by the Killington ski resort to its customers. The court reviewed the criteria announced by the California Supreme Court in Tunkl v. Regents of University of California, 60 Cal. 2d 92, 32 Cal. Rptr. 33, 383 P.2d 441 (Cal. 1963),1 and identified the longstanding rule that business owners are responsible for the safety of their premises as the basis on which to strike the exculpatory provisions in the ticket. Dalury, 670 A.2d at 799. The decision [*8] recognized that the ski area–and not the skiers–had the expertise and opportunity to foresee and control hazards and to reduce negligent conduct by its employees.

1 The Tunkl decision identified the following list of characteristics which may violate the public interest:

It concerns a business of a type generally thought suitable for public regulation. The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. 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. 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. 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. Finally, [*9] 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.

Tunkl, 383 P.2d at 445-46.

The Dalury decision did not depend upon a determination that skiing was an essential industry or service. “Whether or not [the ski resort] provide[s] an essential public service does not resolve the public policy question in the recreational sports context.” Id. Skiing is not like taking a cab or visiting the hospital–services for which there may be no substitute and which are necessary to everyday life. Rather, the decision rests upon two related principles: the business is open to the general public without regard to special training or ability and the premises owner is in the best position to assure the safety of visitors. These principles have remained unchanged in the cases which have followed Dalury.

The first was Spencer v. Killington, Ltd., 167 Vt. 137, 702 A.2d 35, 37 (Vt. 1997), in which the exculpatory language used as a condition for entering an amateur ski race was not enforced for the same reasons the court had expressed two years before in Dalury. The dissent identified the fault line in the doctrine:

There is a significant difference between the expectations of the general [*10] public, which has a right to assume reasonable care on the part of the ski area operator, and a ski racer who consciously undertakes risks that he or she knows may strain or exceed the tolerance of any safety system.

Id. at 38 (Allen, C.J., dissenting). Over time this distinction between members of the general public and people engaging in high-risk sports would become more marked.

In Thompson v. Hi Tech Motor Sports, Inc., 183 Vt. 218, 945 A.2d 368, 372 (Vt. 2008), the Vermont Supreme Court upheld the enforceability of a liability waiver on public policy grounds.2 The case concerned a customer at a motorcycle dealership who was injured on her test ride. The court distinguished the policy concerns at issue in Dalury, explaining that “whereas public policy places the burden of maintaining safe premises on a landowner, public policy concerning motorcycle safety places the burden of safe driving on the operator of the motorcycle.” Id. The court also determined that motorcycle dealerships do not provide a necessary service. Id. at 373. In this respect, the case followed Dalury. In contrast to skiers, however, the customer operated the motorcycle on the public road. There were no business premises relevant to the case. The decision also compared motorcyclists to customers of skydive [*11] companies, underwater diving schools, and mountain guiding services–high-risk sports for people with special skills. Id. Further, unlike the ski area in Dalury, the motorcycle dealership only allowed licensed motorcycle drivers with sufficient experience and training to take its motorcycles out for a ride. Id.

2 Although the waiver provision was held not to be void on public policy grounds, the court concluded that the provision failed release the defendant from liability for negligence because the language was ambiguous. Id. at 375.

Finally, in Provoncha v. Vermont Motorcross Association, 185 Vt. 473, 974 A.2d 1261, 1267 (Vt. 2009), the exculpatory language for an off-road motorcycle racing club was enforced because the activities were “neither of great importance to the public nor open to the public at large.” The majority distinguished the case from Dalury because the premises where the accident occurred was a private racetrack open only to members of a small club of 300 members. Id. The general public was not permitted to ride. The decision also drew a parallel to the enforcement of similar provisions in cases involving parachute jumping, stock car racing, scuba diving, and mountaineering–all sports which were said not to be matters of legitimate public interest. Id.

All four [*12] cases call for a flexible case-specific analysis of the factors originally identified in the Dalury decision. Of these, the least significant is whether a recreational activity is necessary to society. Few of them are. Not surprisingly, skiing and motorcycle riding–the two activities which generated the four decisions–were both found to be inessential to daily life. The factors which were most consistently applied were whether the defendant was in control of the location where the injury occurred and whether these premises were open to the general public. When these factors are present–as in Dalury and Spencer–the exculpatory clauses are not enforced. When these factors are absent–as in Thompson and Provoncha–the exculpatory clauses are likely to be enforced.

The court is not persuaded by TimberQuest’s argument that the Dalury case is on its last legs and will not survive much longer. Although the result was different in Thompson and Provoncha, neither case suggested that any member of the Vermont Supreme Court sought to discard the rule announced in Dalury. Instead, the debate from both sides concerned the differences between activities open to the general public and the more risky [*13] pursuits of riding motorcycles, skydiving, scuba diving and mountaineering, all of which generally take place in settings that are not under the control of the business operators.

The remaining factors set out in Tunkl had no particular application in Dalury and the subsequent cases and have little in this case either. These include whether the activity is suitable for public regulation, whether the business enjoys unequal bargaining strength as a result of its essential nature, and whether the contract is one of adhesion. Tunkl, 383 P.2d at 445-46. Although ski lifts are regulated, see 31 V.S.A. §§ 701-12, the downhill experience is not. Neither are rope courses or motorcycle races. Although a person who sought to negotiate the terms of his ski ticket or his adventure course ticket might not be admitted, in the absence of any necessity the customer can always walk away, which gives him or her some degree of economic strength. And all of the contracts involved in these cases–whether enforced or not–were preprinted contracts of adhesion which appeared on tickets and entrance forms.

Before leaving the Dalury factors, the court must consider one final factor which is heavily relied upon by the defendants. This factor arises from [*14] the language in Dalury that thousands of skiers visit Killington every day, 670 A.2d at 799, while only a few come to TimberQuest’s zip-line course. In the course of discovery, TimberQuest’s owner estimated that he has 1000 visitors a season–the number he put down on his worker’s compensation insurance application. (Doc. 52-6 at 3.) He does not actually have a real count. Assuming a 100-day season, this amounts to ten visitors each day or one or two visitors per hour. (The estimate may not be very reliable, but it is the only number in the record.) The defense argues that a small business which is open to the public should receive treatment which is different from a large business. Although the court has reviewed the language in the Dalury decision about the thousands of daily visitors, the court is not convinced that the size of the business alone plays a significant role in whether the exculpatory clause in the ticket should be enforced.

As this discussion indicates, the court is satisfied that attending a zip-line program is more like visiting a ski area than like taking part in a specialized high-risk sport which requires skill and experience. Like the ski area, the zip-line sells tickets to all [*15] comers (subject to age and weight restrictions not relevant here.) It requires no prior training. As an excerpt from the website furnished by defendant indicates, this is a recreational activity open to all without restriction:

TimberQuest is an exhilarating treetop adventure course for the entire family. We have over 20 zip lines and 75 challenges of varying difficulty. Challenges include rope bridges, ladders, cargo nets, and even a course for younger children. Customers are always clipped into a safety guide wire and friendly trained staff provide[] assistance from the ground. (Doc. 52-4 at 5.)

The course is designed and controlled by defendants. There is no indication in the record that anyone needs to learn to use the course beyond an initial training class offered at the park. (Doc. 52-4 at 14.) It is even more open to the public than skiing, which typically involves beginner’s lessons and some degree of acquired skill. The zip-line course requires no such training or skill.

This court’s decision to invalidate the exculpatory clause on public policy grounds falls within the principles laid down by the Vermont Supreme Court in Dalury and the later cases. It recognizes the longstanding [*16] rule that business owners are responsible for the safety of their premises. It also recognizes the expectation that a recreational activity which is open to the general public will be reasonably safe for use by all users. In other words, the business cannot contract out of liability for negligence in the design, maintenance and operation of its business premises.

For these reasons, the court will not enforce the exculpatory language on the public policy grounds first identified in Dalury.

C. Assumption of Risk and Indemnity

Littlejohn seeks to invalidate the assumption-of-risk provision in the agreement. The court has already concluded that the first sentence of this provision, which states that by signing the agreement the participant agrees to assume all risks of participating in the adventure course including those caused by TimberQuest’s negligence, is invalid.

However, Littlejohn’s argument does not specifically address the second sentence of this provision, which states that “[t]he Participant … understand[s] that there are inherent risks of participating in the Programs and using the Equipment, which may be both foreseen and unforeseen and include serious physical injury and death.” (Doc. 44-3 [*17] at 2.) Under Vermont law, “a person who takes part in any sport accepts as a matter of law the dangers that inhere therein insofar as they are obvious and necessary.” 12 V.S.A. § 1037. This defense remains viable even if the defendant’s exculpatory agreement is found to be void as contrary to public policy. Spencer, 702 A.2d at 38. This provision of the agreement remains valid and TimberQuest is free to assert assumption of risk as a defense.

There is no third-party claim against TimberQuest for indemnity. The court does not address this issue.

D. Enforceability of Arbitration Clause

After disposing of the exculpatory clause, the court considers the enforceability of the arbitration clause.

As drafted, the clause works in the following way: a claimant seeking damages in excess of $75,000 is required to proceed to binding arbitration. Claims of $75,000 or less are not subject to arbitration. The arbitration panel is composed of three members. Each side chooses one member. The two members then select the third, who must be “an officer or director of any entity that operates an aerial adventure park with zip lines in the United States.” (Doc. 52-4 at 31.) If the first two panel members cannot agree on a third, a judge within the District of Vermont shall appoint [*18] the third member “utilizing the selection criteria for the neutral as set forth above.” (Id.)

Littlejohn challenges this provision on the following grounds. First, he argues that the provision is procedurally unconscionable because it is contained in small print in a contract of adhesion that was presented to him well after he paid for his tickets. Second, he maintains that the arbitration clause is substantively unconscionable because the third arbitrator is required to be an officer or director of another company that operates a zip-line course, thus tilting the arbitration panel in favor of TimberQuest. Finally, he argues that the arbitration clause lacks mutuality because it has no application to a claim by TimberQuest against a customer.

The first issue is what law governs this dispute. Both the Federal Arbitration Act, 9 U.S.C. §§ 1-16, and the Vermont Arbitration Act, 12 V.S.A. §§ 5651-5681, apply to this arbitration agreement which was formed in Vermont and which the defendant seeks to enforce in Vermont. When the two statutes differ, the federal provision preempts state law. See David L. Threlkeld & Co., Inc. v. Metallgesellschaft Ltd. (London), 923 F.2d 245, 249-50 (2d Cir. 1991) (holding that FAA preempts VAA); Little v. Allstate Ins. Co., 167 Vt. 171, 705 A.2d 538, 540 (Vt. 1997) (same). The claims of unconscionability raised by Littlejohn, however, are matters arising under state [*19] substantive law and are enforced in the same way under either the federal or state arbitration acts. See 9 U.S.C. § 2 (stating agreements to arbitrate “shall be valid, in-evocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract”); AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1746, 179 L. Ed. 2d 742 (2011) (explaining that final phrase of § 2 provides that agreements to arbitrate may be invalidated by generally applicable state-law contract defenses such as fraud, duress, or unconscionability). In considering issues of both procedural unconscionability relating to the form of the contract to arbitrate and substantive unconscionability relating to its content, the court is guided by Vermont decisional law where it is available.

Littlejohn’s claim of procedural unconscionability is unconvincing. Unlike the provisions at issue in Glassford v. BrickKicker, 191 Vt. 1, 35 A.3d 1044, 1053 (Vt. 2011), the arbitration provision is on the middle of the page, directly under the waiver provisions and is prefaced with a conspicuous header stating “Arbitration.” The print is normal-sized. The customer’s signature line is on the second page, giving him an opportunity to read the text before signing. Although the agreement was presented to Littlejohn as a preprinted contract with no real opportunity [*20] to negotiate the terms, he could have declined to participate in the course and requested his money back if he objected to the arbitration provision. This was not a contract for a necessary service such as home inspection where the weaker party was “at the mercy” of the drafter. See id. at 1052. As the Vermont Supreme Court has repeatedly pointed out, “unequal bargaining power alone will not nullify a contract.” Maglin v. Tschannerl, 174 Vt. 39, 800 A.2d 486, 490 (Vt. 2002).

Littlejohn also argues that the arbitration agreement was procedurally unconscionable because he was presented with it upon arrival at TimberQuest, more than three weeks after his companion paid for the tickets, and was not warned in advance that he would have to sign it. This argument was based on his attorney’s mistaken belief that the TimberQuest website did not warn customers prior to payment that they would be required to sign the agreement. However, at oral argument the parties agreed that on the payment page, under Terms and Conditions/Liability Waiver, the website displayed the following message: “All participants MUST sign a release and waiver of claims/indemnification agreement at check-in.” Customers were required to check a box stating “I agree” in order to purchase their [*21] tickets. This provided sufficient constructive warning to Littlejohn through his friend who actually bought the tickets that he would have to sign the agreement prior to participating in the course. Further, this was not the first time that Littlejohn had encountered a recreational liability agreement. As he testified at his deposition, “[w]e did sign a release, but that’s standard to me” since he was often required to sign similar forms at ski areas. (Doc. 44-4 at 4.)

Turning to Littlejohn’s argument of substantive unconscionability, it is obvious that the requirement that the “neutral arbitrator” be drawn from the ranks of the zip-line industry is unfair. It is no more than a requirement that the arbitration be conducted among friends–or at least people who share the same concerns about defending against claims by injured customers. Courts have long refused to enforce arbitration clauses which call for the appointment of panel members who are likely to harbor a bias in favor of one side or another. See Halligan v. Piper Jaffray, Inc., 148 F.3d 197, 202 (2d. Cir. 1998) (discussing possibility of institutional bias due to industry influence over selection of arbitration panel); Rosenberg v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 995 F. Supp. 190, 209 (D. Mass. 1998) (listing cases). TimberQuest’s suggestion that a member of the same industry [*22] will be biased against TimberQuest because he or she will be a competitor willing to do harm to a rival company demonstrates only that the arbitration clause requires the choice of someone likely to hold some form of bias or self-interest–maybe for TimberQuest and maybe against.

The contract between the parties includes a severability clause: “To the extent that any portion of this Agreement is deemed to be invalid under the law of the applicable jurisdiction, the remaining portions of the Agreement shall remain binding and available for use by the Host and its counsel in any proceeding.” (Doc. 52-4 at 32.) Setting aside for a moment the one-sided nature of this clause–“available for use by the Host and its counsel”–the severability clause authorizes the court to reform the arbitration provision by striking the requirement that the neutral be drawn from the zip-line industry and providing for the more conventional selection of a genuinely neutral arbitrator by the other two panel members with provision for selection of a third by the court in the event of a deadlock.

The court will enforce the severability clause to strike the provision requiring the choice of a “neutral” arbitrator [*23] who is likely to hold a bias in favor of the zip-line industry. The remaining question is the issue of mutuality.

Some courts have found arbitration clauses in contracts of adhesion that required one party to go to arbitration but imposed no similar obligation on the other party to be unconscionable. See, e.g., Iberia Credit Bureau, Inc. v. Cingular Wireless LLC, 379 F.3d 159, 170-71 (5th Cir. 2004) (holding arbitration clause in cellular telephone customer service agreement was unconscionable under Louisiana law because it required customer but not provider to arbitrate all claims); Abramson v. Juniper Networks, Inc., 115 Cal. App. 4th 638, 9 Cal. Rptr. 3d 422, 437 (Cal. Ct. App. 2004) (“When only the weaker party’s claims are subject to arbitration, and there is no reasonable justification for that lack of symmetry, the agreement lacks the requisite degree of mutuality.”).

However, this appears to be a minority position. The Second Circuit has rejected the argument that an arbitration clause is void for lack of mutuality where it only requires one party to submit all claims to arbitration. In Doctor’s Associates, Inc. v. Distajo, 66 F.3d 438 (2d Cir. 1995), the court held that an arbitration clause in a franchise agreement was not void for lack of mutuality under Connecticut law, even though the clause required the franchisees to submit all controversies to arbitration while reserving to the franchisor the right to seek summary eviction [*24] against the franchisees. The court explained that mutuality was “not an issue.” Id. at 451. Under modern contract law, the doctrine of “mutuality of obligation,” which requires that a contract be based on reciprocal promises, is no longer required so long as the agreement as a whole is supported by consideration. Id. (citing Restatement (Second) of Contracts § 79 (1979)). The court rejected the idea that the arbitration clause must be considered as a separate contract within a contract, supported by its own consideration. Id. at 452. Likewise, the court held that the doctrine of “mutuality of remedy,” which provides that a “plaintiff shall not get specific enforcement unless the defendant could also have obtained it,” is also defunct and did not support the franchisees’ argument. Id. at 453 (citing Restatement (Second) of Contracts § 363 cmt. c. (1979)). Because the agreement to arbitrate was part of a larger contract which was supported by consideration, it did not fail for lack of mutuality.

Other circuits have reached similar conclusions. See Soto v. State Indus. Prods., Inc., 642 F.3d 67, 77 (1st Cir. 2011) (applying Puerto Rico law); Harris v. Green Tree Fin. Corp., 183 F.3d 173, 181 (3d Cir. 1999) (applying Pennsylvania law); Barker v. Golf U.S.A., Inc., 154 F.3d 788, 791 (8th Cir. 1998) (applying Oklahoma law); see also Circuit City Stores, Inc. v. Najd, 294 F.3d 1104, 1108 (9th Cir. 2002) (applying California law and holding that employer’s promise to be bound by arbitration process was sufficient consideration for employee’s agreement [*25] to arbitrate); Michalski v. Circuit City Stores, Inc., 177 F.3d 634, 636 (7th Cir. 1999) (applying Wisconsin law and reaching same conclusion as Najd).

Vermont courts have not specifically addressed whether an arbitration clause may be void for lack of mutuality. Vermont contract law does not otherwise require parties to an agreement to have equivalent obligations for the agreement to be valid. See H.P. Hood & Sons v. Heins, 124 Vt. 331, 205 A.2d 561, 566 (Vt. 1964) (“[T]here is no requirement that the option of one promisor must be coextensive with the privilege of termination extended to the counter-promisor.”). “Even if one party has options not provided to the other party … the contract is not per se unsupported by consideration. Rather, a contract is incomplete only if one party’s obligations are so attenuated as to render consideration merely illusory.” Petition of Dep’t of Pub. Serv., 157 Vt. 120, 596 A.2d 1303, 1309 (Vt. 1991) (Morse, J., dissenting); Restatement (Second) of Contracts§ 79 (1981) (“If the requirement of consideration is met, there is no additional requirement of … ‘mutuality of obligation.'”). The FAA would preempt Vermont from imposing such a requirement only in the case of arbitration provisions. See AT&T Mobility LLC, 131 S. Ct. at 1741. Given that Vermont law strongly favors arbitration, Union Sch. Dist. No. 45 v. Wright & Morrissey, Inc., 183 Vt. 555, 945 A.2d 348, 354 (Vt. 2007), the court concludes that mutuality is not required in order for the arbitration provision to be enforceable.

Littlejohn argues that the agreement was unsupported [*26] by consideration because he was forced to sign it weeks after he had paid for the tickets. This argument is without merit. “[A]ny performance which is bargained for is consideration.” Restatement (Second) of Contracts § 72 (1981). TimberQuest’s performance in this case was allowing Littlejohn to use its adventure zip-line course. In exchange, Littlejohn’s friend paid for their tickets. Upon arrival at the park, he promised that he would submit his claims to arbitration or agree to limit his recovery in court to $75,000. As noted above, the payment page required Littlejohn to agree to sign the agreement prior to participating in the course. “In other words, defendant’s offer of services did not extend to anyone who did not sign the Agreement.” Mero v. City Segway Tours of Washington DC, LLC, 962 F. Supp. 2d 92, 103 (D.D.C. 2013) (holding that liability waiver signed by plaintiff who paid for Segway tour in advance was supported by consideration in form of defendant’s provision of Segway and guided tour where confirmation email warned that he would have to sign liability waiver prior to tour). Thus, Littlejohn’s promise was supported by consideration.

As reformed by the court, the arbitration provision is valid. Under the agreement, there is no cap on damages if the participant chooses to go to arbitration. If [*27] the participant chooses to go to court, he or she agrees to seek $75,000 or less in damages. This court only has jurisdiction over a diversity case if the amount in controversy “exceeds the sum or value of $75,000.” 28 U.S.C. § 1332(a). This provision is strictly construed, and does not extend jurisdiction to a claim for an even $75,000. Salis v. Am. Export Lines, 331 Fed. Appx. 811, 814 (2d Cir. 2009); Matherson v. Long Island State Park Comm’n, 442 F.2d 566, 568 (2d Cir. 1971). Thus, Littlejohn may not bring suit in this court. The court accordingly dismisses plaintiff’s negligence claims for lack of subject matter jurisdiction and without prejudice to plaintiff’s right to demand arbitration.

III. Conclusion

For the reasons stated above, defendant TimberQuest’s motion for partial summary judgment (Doc. 44) is GRANTED. TimberQuest’s cross-motion for summary judgment dismissing all claims (Doc. 52) is DENIED. Plaintiff’s cross-motion for summary judgment (Doc. 46) is GRANTED in part and DENIED in part. The case is dismissed for lack of subject matter jurisdiction without prejudice to plaintiff’s right to demand arbitration.

Dated at Rutland, in the District of Vermont, this 20th day of July, 2015.

/s/ Geoffrey W. Crawford

Geoffrey W. Crawford, Judge

United States District Court


There is no duty on the part of the ski patrol to play cop on the slopes

Skiers and Boarders who do not voluntarily provide their ID to the ski area cannot be “caught” by the patrol and there is no liability on the resort for not doing so.

O’Connell v. Killington, Ltd., 164 Vt. 73; 665 A.2d 39; 1995 Vt. LEXIS 74

Plaintiff: Mary Ryan O’Connell

Defendant: Killington, Ltd.

Plaintiff Claims: (1) failed to warn of the icy conditions on the trail, (2) failed to close the trail because of its dangerous condition and (3) failed to obtain the identity of the skier who had collided with plaintiff. Defendant denied those allegations and alleged that plaintiff’s injuries were the consequence of her assumption of the inherent risks of skiing.

Defendant Defenses: No Duty

Holding: for the defendant

In this case the plaintiff was stopped on the slope of the defendant ski area. While standing she was struck by another skier. The ski patrol arrived on scene along with the plaintiff’s sister. The plaintiff asked the ski patrol to get the name of the skier that hit her. The plaintiff’s sister spoke to the skier that collided with the plaintiff and asked him to go to the patrol station and identify himself.

The skier never did.

The plaintiff sued the ski area alleging the ski area:

(1)             failed to warn of the icy conditions on the trail,

(2)            failed to close the trail because of its dangerous condition and

(3)            failed to obtain the identity of the skier who had collided with plaintiff.

The basis for the failure to obtain the identity of the skier claim was based upon the defendant’s employee manual.

In its instructions to the jury on the failure-to-identify count, the court stated that the jury could find that defendant had assumed the duty to identify skiers involved in accidents based on its employee manual. This manual instructed defendant’s employees to investigate thoroughly all accidents and to obtain the identity of everyone involved. The court instructed the jury that, to decide defendant’s negligence on this count, it need determine only whether defendant had an opportunity to identify the other skier involved in the accident.

At the end of the trial the judge submitted the failure to warn and failure to identify claims to the jury.

The jury found for the plaintiff on both claims and awarded damages of $71,108.69.

The defendant appealed based on the following issues.

(1)             whether defendant had a duty to plaintiff to obtain the identity of the other skier who collided with her;

(2)            whether plaintiff’s failure-to-identify claim is precluded by the jury’s finding that the accident and injury were a result of one or more inherent risks in the sport of skiing; and

(3)            whether certain instructions to the jury were proper.

Summary of the case

After the accident and before the appeal the Vermont Legislature passed a statute stating that a ski area was not legally responsible for obtaining the name of any person involved in an accident.

12 V.S.A. § 1038(b), effective June 21, 1994, provides, in part:

(b) Collision at a ski area.

(1) Any person who is involved in a collision with a skier at a ski area which results in bodily injury to any party to the collision has a duty to provide his or her name and local and permanent address to the other parties to the collision and shall proceed to the ski area first aid facility and provide that information to the ski area first aid personnel.

(2) No ski area, its employees or agents shall be held responsible for ensuring compliance with these duties by any person, nor shall it be liable in any way for a failure to obtain such person’s name or address.

Because the statute was passed after the incident in this case, it did not apply to this case.

The Court looked at whether there was a common law (prior to statute) duty to on the ski area to do more than ask for the information. To do that the court reviewed how a duty is created in Vermont. “The imposition of a duty is “‘an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.”

These factors may include the degree of certainty that plaintiff suffered injury, the closeness of the connection between defendant’s conduct and plaintiff’s injury, the moral blame attached to defendant’s conduct, the policy of preventing future harm, the burden to the defendant, the con-sequences to the community of finding a duty, and the availability and cost of insurance.

The court analysis separated the separated physical harm, an injury, from economic harm, failure to find someone who may owe another money.

Thus, a possessor of land open to the general public has a duty to aid and protect a member of the public coming on the land against unreasonable risk of “physical harm” only. Physical harm does not include economic loss.

The court concluded: “Our review of the decisions from other jurisdictions indicates that, absent a special relationship or undertaking, there is no duty to protect another’s litigation interest.”

The court then looked at the duties of the ski patrol, which do not include the power to detain or apprehend. “Moreover, even if the ski area had a duty to identify, it would have only a limited ability to enforce that duty against an uncooperative skier.”

The main concern of defendant’s ski patrol employees is and should be to give emergency medical assistance, remove the injured skier safely from the mountainside, and obtain necessary medical care. We are reluctant to dilute these critical, emergency duties with a responsibility to pursue and identify another skier.

The plaintiff argued that the statements in the employee manual that establish procedures on how to deal with ski accident create a duty.

These procedures include completing an accident reporting form, obtaining names and addresses of witnesses to the accident, obtaining witness statements and recording observations at the accident scene. Plaintiff argues that these provisions amount to the voluntary assumption of a duty to investigate accidents, particularly skier collisions.

However the court did not agree with this argument.

…we do not believe that the manual provisions show the assumption of this responsibility. The manual makes clear that the investigatory responsibilities placed on employees are for the protection of defendant with respect to suits against it.

So Now What?

Ski Patrollers are the most over worked and underpaid (or volunteer) people on the slope. The last thing you want is to do is to turn the patrol from care givers to cops.

Make sure that no one interprets anything you have or do as an obligation or duty. No employee should be identified, unless they have a badge, to identify people on the slopes causing harm. Your marketing material should explain the law, but make sure you do not imply you can or will do anything else. Make sure your employee manuals and training do nothing more than explain the law. You can ask for identification. You can remove lift tickets and season passes. You cannot do anything more than take back your property. If you feel the need to do more, than call for lawful assistance.

No one on the slopes has the authority to detain, apprehend or arrest another person, unless they have a badge.

Don’t turn the people on the slope who are loved by all, ski patrollers, into people on the slope skiers and boarders should be wary of.

What do you think? Leave a comment.

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#RecreationLaw           By Recreation Law       Rec-law@recreation-law.com              James H. Moss                #Authorrank

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